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A conviction for DUI in San Diego might soon require a DNA sample

While in law school, I interned at the Orange County District Attorney’s Office.  My boss co-authored Proposition 69, the California DNA database initiative.   Passing overwhelmingly, this proposition in 2005 forever changed criminal law in California.  As I discovered this week, its scope is beyond what I originally understood – appearing now to be limitless.
 
The proposition was modeled after the system in Great Britain, one geared heavily toward DNA database collection. 

The idea is to collect DNA from anyone arrested and/or convicted of a criminal offense, no matter the severity.  That person’s information, “a DNA finger-print,” is thereafter entered into a national database to be shared among all law enforcement agencies. In the United States, this is called the Combined DNA Index System (CODIS), a national FBI database. 

As such, if a future crime is committed by that person or an unsolved crime remains (a cold case) and a “hit” comes back to that person, the DNA collection method as outlined, would point toward that person’s guilt. 

Why? That person’s DNA, now accessible in CODIS, was comparable to the DNA collected at the old or new crime scene.
 
Although identification through DNA is circumstantial evidence, it is the most powerful evidence when properly presented to a jury.   DNA technology has helped to exonerate and inculpate people suspected of crime everywhere.   In fact, the modern criminal justice system and jurors alike expect “high-tech” in the courtroom, a situation usually satisfied by DNA evidence. 

These facts suggest why most people support DNA collection methods – but the question now is, to what extent?
 
To avoid severe criticism of Proposition 69 and to force its acceptance, the drafters understood that it had to be implemented over time.  Thus, to implement a system like Great Britain’s here in California, the proposition was designed to “slowly” allow collection of DNA samples from an expanding pool of suspected criminals over time. 
 
For example, when the proposition first passed, only 22 felonies of record required DNA sampling upon conviction.  Then, beginning January 2009, ALL felony arrestees - not just convictions - but people merely arrested for a felony, required a DNA sample. 

This year, the law expanded again, to allow counties to take DNA samples from people convicted of ALL misdemeanors, including conviction for DUI. 

To date, San Diego County is not requiring DNA samples on most misdemeanor convictions including DUI; however, as I experienced this week in neighboring Orange County, it is a requirement there - with no room for negotiation.
 
In my client’s case, for instance, the prosecutor required she provide a DNA sample as a part of the plea agreement for her first time DUI.   With no room for negotiation - even though her blood was only at a .10 and she had no criminal record - I was forced to inform my client of this requirement, and it quickly became a deal-breaker.
 
The scenario played out like this: the criminal justice system had a person willing to plead guilty to a DUI; however, the required DNA sample created an impasse. 

Now that same over-burdened system is forced to schedule a jury trial, purely to defeat the requirement of providing a DNA sample.   For my client, this was an invasion of her privacy, and she was willing to take her chances in front of a jury to avoid this collection. 
 
Unfortunately, the law as written under Proposition 69 does not advocate such protections as desired by my client, but instead, advocates for a vast, expansive system, designed to collect DNA from everyone caught up in some fashion in the criminal justice system.
 
Had these facts about the proposition’s expansiveness been revealed properly to California voters, I suspect the proposition would not have overwhelmingly passed and possibly even failed.  This circumstance is true even though DNA collection practices help solve crime constantly. 

We have witnessed this fact time and time again, like recently with Chelsea King’s tragic story; however, I believe a re-examination into how far these collection methods should expand is in order.  Otherwise, I fear the scenario depicted in the movie Gattaca is quickly approaching.    

Thomas Hughes, Esq. Was born and raised in San Diego, and got his Law Degree at Whitter Law School in Orange County, Ca. After three years prosecuting as a Riverside County deptuty District Attorney, Hughes returned to San Diego to start his own criminal defense firm. He has law offices in San Diego and Temecula, and also works as a technical advisor to CSI Los Angeles.