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Ninth Circuit: Certain Arrested Suspects Can be Swabbed for a DNA Sample

The Ninth Circuit Court of Appeals has upheld California’s DNA and Forensic Identification Data Base and Data Bank Act (DNA Act) which allows law enforcement officers to collect DNA samples from adults arrested for felonies. Under the DNA Act, before a DNA sample can be taken, law enforcement officers must determine that there is probable cause an individual has committed a felony. Once that is established, a DNA sample can be taken by swabbing the individual’s mouth. If an individual is subsequently not charged with a felony, he or she can apply to have their samples expunged from the DNA database.

In determining its opinion, the Ninth Circuit majority asserted taking a DNA sample is substantially similar to fingerprinting, which law enforcement officials have used for decades — without serious constitutional objection — to identify arrestees. Haskell v. Harris, — F.3d — (9th Cir. (Cal) 2012).

The Las Vegas law office of Lagomarsino Law did not represent anyone involved in the above-referenced case. The commentary is for educational and commentary purposes only. If you would like to be represented by a Nevada attorney, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.