by David Rangaviz, Esq. & Eric Morgan


A Bridge Too Far: The Upcoming Mandatory DNA Sampling of Arrestees


This term, the Vermont Supreme Court will consider the constitutionality of Ver- mont’s new state law allowing the taking of DNA samples from people charged, but not yet convicted, of felonies.1


The case


represents the state’s consolidated appeal from Rutland, Addison, Orleans, Windsor, and Chittenden County superior court de- cisions, all striking down the statute as un- constitutional.2


This article examines the genesis and evolution of mandatory DNA sampling at both the federal level and in the state of Vermont, analyzing, in particular, the most recent amendment to 20 V.S.A. § 1933(a) (2). The amended statute, unlike the pre- vious version, requires all individuals who are merely charged with a felony to pro- vide a DNA sample to the government. Af- ter a thorough review of the history of DNA sampling in Vermont, this article argues that the sampling regime created by the amended statute sanctions illegal searches as a matter of state constitutional law.


DNA Sampling at the National Level


In 1994, Congress authorized the Fed- eral Bureau of Investigation to create and preserve a comprehensive index of DNA samples from convicted criminals, crime scenes, and unidentified human remains.3 This authorization followed from new de- velopments in forensic technology and the pervasive use of DNA as evidence in crim- inal proceedings throughout the country.4 Congress later codified the DNA Analy- sis Backlog Elimination Act of 2000, which broadly required that all defendants con- victed of particular enumerated crimes submit their DNA profile into computer da- tabases.5


required DNA sampling of those convicted of crimes of a violent or sexual nature.6


As originally enacted, the statute In


The list of offenses was further re- vised in 2004; since that time, “[a]ny felo- ny” conviction at the federal level has re- quired the taking of a DNA sample.8


the USA PATRIOT Act, Congress expand- ed the list to include crimes involving ter- rorism.7


Today,


federal agencies, like those in Vermont, are authorized to collect DNA from arrestees,9 and the failure of an arrestee to cooperate in the taking of a DNA sample is a distinct federal crime.10


Once extracted, the DNA


is rendered into a profile and included in a DNA database. These databases—the Combined DNA Index System (CODIS) and the National DNA Index System (NDIS)—


18


store DNA profiles submitted by national, state, and local crime laboratories.11 All fifty states have enacted legislation that allows law enforcement to obtain DNA samples from offenders.12


The de-


tails of each state statute, however, vary widely; many, like Vermont, require those charged with a felony, as opposed to con- victs, to submit data into the system.13


At


the time of the publication of this article, the NDIS contains over 9,930,700 offend- er profiles and has aided law enforcement in more than 182,800 investigations.14


Ver-


mont alone has contributed over 14,514 of- fender profiles to NDIS and the database has aided law enforcement in 146 cases.15 But critics dispute their effectiveness.16 In many states, large backlogs of samples wait to be uploaded due to high process- ing costs.17


These backlogs derive from the


breadth of many state statutes, as twenty- eight states, including Vermont, allow DNA collection from arrestees.18


In some states


approximately two-thirds of all individuals charged with a felony ultimately get con- victed, calling into question the need for collecting and cataloguing DNA from the remaining one-third of arrestees who are never convicted.19 These critics also argue that any aid to law enforcement comes at too high a cost.20


The ever-expanding breadth of the databases raises significant privacy and civil liberties concerns.21


As a warrantless


search, the mandatory collection of DNA defies constitutional protection. The sug- gestion of taking profiles from newborn children and inserting them into a univer- sal database conjures up images of a Brave New World society.22


Vermont’s DNA Sampling Statute


Vermont first enacted a DNA sampling statute in 1998.23


In its original form, the


statute allowed DNA sampling only for: (1) individuals convicted of certain designated “violent crimes”24


of attempts to commit a designated “vio- lent crime”25


to give DNA as part of their plea agree- ment.26


; (2) individuals convicted


; and (3) individuals required The implementation of this statute


was challenged at the trial court level, but never appealed.27 In 2005, the Legislature amended the statute to include mandatory sampling of all convicted felons and individuals convict- ed of attempted felonies, regardless of the “violent” nature of their crime.28


Ten de- THE VERMONT BAR JOURNAL • FALL 2011


fendants challenged the implementation of this statute on grounds that it contravened both the Fourth Amendment of the Unit- ed States Constitution and its state coun- terpart, Chapter I, Article 11 of the Ver- mont Constitution.29


The change in the law


specifically required these defendants, as felons convicted of non-violent crimes, to submit their DNA into the database—the previous version of the statute would not have permitted taking of their DNA sam- ples.30


Ultimately, the Vermont Supreme Court found this amendment constitutional by a vote of three justices still on that Court today—Chief Justice Reiber, and Justices Dooley and Burgess.31


The Initial Challenge: State v. Martin


The Vermont Supreme Court heard a consolidated appeal regarding the consti- tutionality of the 2005 amendment in State v. Martin.32


The Court began its analysis by noting that, despite obvious similarities between the state and federal constitu- tional provisions concerning unreasonable searches and seizures, Article 11 “provides free standing protection that in many cir- cumstances exceed[s] the protection avail- able from its federal counterpart.”33 In recognition of the warrantless and sus- picionless nature of the searches in ques- tion, the Court went on to apply a special needs analysis to the state’s DNA sampling system. Of course, in general, both Article 11 and the Fourth Amendment require the government to obtain a warrant and have individualized suspicion prior to conduct- ing a search or seizure.34


The Court will not


deviate from these constitutional mandates unless there exists some “exceptional cir- cumstance[ ] in which special needs, be- yond the normal need for law enforcement, make the warrant and probable-cause re- quirement impracticable.”35


Once a special


need exists, the court employs a balancing test, weighing the public need against indi- vidual privacy interests.36 The state argued that its amended stat-


ute served four distinct special needs: “(1) deterrence of all criminal conduct, (2) ac- curate identification of perpetrators, (3) ex- clusion of innocent suspects, and (4) assis- tance in the identification of missing per- sons.”37


Defendants countered by refer- ence to the first sentence of the new law— “[i]t is the policy of this state to assist fed- eral, state and local criminal justice and law enforcement agencies in the identification,


www.vtbar.org


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