Months after state high court ruling, California sued over DNA collection and retention

Two Bay Area-based organizations are challenging the state's collection and retention of genetic profiles from people arrested but never convicted of a crime.

The Center for Genetics and Society and the Equal Justice Society claimed in their lawsuit, filed last week, the state is improperly keeping and using DNA evidence because the current system requires arrested individuals to apply to have their profiles expunged, which very few know about and complete.

"The government has no legitimate interest in retaining DNA samples and profiles from people who have no felony convictions, and it's unconstitutional for the state to hold onto such sensitive material without any finding of guilt," Marcy Darnovsky, executive director for the Center for Genetics and Society, said in a statement.

The lawsuit contends the analysis and retention of DNA from those who are never convicted violates the state Constitution's protection of privacy and prohibition against unreasonable searches and seizures.

But former Los Angeles County District Attorney Steve Cooley of Steve Cooley & Associates said similar DNA statutes in California and other states have been challenged various times and have been consistently upheld by the courts.

Cooley called the technology "phenomenally successful in securing justice," especially with respect to decades-old cold cases that have little to no chance of being solved without it.

"The public gets the value of using these technologies for the benefit of public safety," he said. "Maybe [the plaintiffs] should be more concerned about the victims who are dead and have no privacy."

While there is a process for people to have their DNA expunged, it is "lengthy and uncertain" and most do not know it exists because of inadequate notice requirements, according to the complaint. Of the 750,000 people who were eligible to be removed from the database over the last decade, only 1,510 applied to do so, the complaint contends.

Plaintiffs are seeking an injunction preventing the state from analyzing and keeping any DNA evidence in addition to the destruction of DNA samples of those who were never convicted of a crime. Shanks v. Becerra, 18-CPF-516440 (S.F. Super. Ct., filed Dec. 10, 2018).

The practice was implemented in 2004 after voters passed Proposition 69, which requires the collection of DNA samples from felony arrestees as part of standard booking procedures, along with mug shots and fingerprinting.

A state Supreme Court decision in April left the law intact after an appellant challenged the requirement to submit a sample if arrested on a felony. People v. Buza, 2018 DJDAR 3029 (April 2, 2018).

The case "raises concerns that changes in technology might open up new prospects for using his DNA samples and profiles in ways that are uniquely invasive of personal privacy. We recognize that the DNA Act may raise additional constitutional questions that will require resolution in other cases," wrote Justice Leondra Kruger, who authored the opinion.

Bradley O'Connell of the First District Appellate Project, who argued before the state Supreme Court in that case, said the decision left the door open to other constitutional privacy objections. "I think the majority did recognize that California's regimen poses some unsettling questions," he said. "It leaves open the possibility for a state constitutional challenge asserting the interest of the many people whose DNA is taken and not convicted, whether it's because charges aren't even filed or charges are dismissed, or the person is acquitted."

While DNA identification is perceived as a fool-proof technology, the application of the practice encourages the suspicion of innocent people because of sample contamination, "subjective misreading of complex mixtures containing genetic material from multiple donors" and selective presentation of the evidence, according to the complaint.