NORTHERN DISTRICT OF CALIFORNIA DENIES TEMPORARY ORDER PROHIBITING DNA TESTING

U. S. District Judge Charles Breyer refused a request by the ACLU for an order to forbid the state of California from enforcing a proposition which requires that everyone arrested on felony charges be required to give a DNA sample.

The ACLU has sued the state to forbid the enforcement of Proposition 69 which required the taking of a DNA sample from everyone arrested on a felony charge. Prior to the passage of Proposition 69 only those convicted of a sex crime or a serious felony were required to provide DNA samples. The ACLU moved for an order pending the resolution of the suit requiring the state not to enforce the proposition. The ACLU claimed that taking of DNA samples on everyone who is arrested on a felony instead of limiting the samples to those who committed crimes that can be detected by DNA testing. The Fourth Amendment allows only reasonable searches and the ACLU is arguing that the taking of a DNA sample from one’s mouth is a search and that it is unreasonable to take a saliva sample from someone who is not convicted of a crime or from someone charged with a crime where a DNA sample could not help prove guilt or innocence.

But Judge Brewer ruled that DNA is a tool used to identify people such as finger prints and therefore it is not unreasonable to take a sample. As a result he held that the ACLU is unlikely to win its suit. Therefore he denied the request for a temporary order prohibiting enforcement of the proposition while the suit is pending.