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U.S. Supreme Court allows DNA swabs before arrest - what will Indiana do?

On Monday, June 3, 2013, the United States Supreme Court issued an opinion that will have long-term implications on 4th Amendment law. The Court, in the case of Maryland v. King, in a 5-4 decision determined that "DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.”

There is no doubt that the taking of a DNA sample is a search under the 4th amendment of the United States Constitution. Each of the nine Supreme Court Justices agreed with this premises. But, the majority determined taking a DNA sample was minimally intrusive and likened it to fingerprinting.

Writing for the dissent., Justice Antonin Scalia noted, "[a]s an entirely predictable consequence of today’s decision your DNA can be taken and entered into a national DNA data base if you are ever arrested, rightly or wrongly, and for whatever reason." I concur with Justice Scalia and strongly disagree with this decision. I believe that this type of search is unprecedented and we will soon see a nationwide database of DNA.

The problem, in my opinion, is that the DNA is taken at the time of arrest, not after a conviction. Anyone arrested for a crime is presumed innocent. This case seems to flip the scales and presumes the arrestee guilty.

Considering that DNA can be left anywhere, will it be long before DNA will be taken at the time of a Drunk Driving (DUI/OWI) stop? Will police officers preserve any saliva or DNA from the breath test (BAC Datamaster)? Will DNA be required for the "serious crime" of Reckless Driving or Driving While Suspended (DUS/OWS)?

This issue will certainly be litigated in Indiana should DNA sampling be required at the time of arrest. Article I, Section 11 of the Indiana Constitution (found here) protects citizens from unreasonable searches and seizures. The Indiana Supreme Court has ruled in the past that Article I, Section 11 provides greater protections to citizens than the 4th amendment. I certainly hope that is true.

If you have questions regarding criminal defense, search and seizure, drunk driving (DUI/OWI) or other criminal law matters, please contact Gregory A. Miller, a Fort Wayne Criminal Defense Lawyer, at (260) 833-7249.