needs” exception and need not be sup- ported by any suspicion at all. This is not the use for which the special needs exception was intended. Past uses of the exception—be it to alleviate the threat of drunk drivers, ensure the health or safety of workers, maintain border in- tegrity, or supervise probationers—all in- volve interests entirely unrelated to solv- ing past crimes. Of course, the law at issue here may serve the other ends outlined in Martin, but these are not its “relevant pri- mary purpose,” the standard to which the United States Supreme Court holds such challenges.92


law, the “special needs” test asks wheth- er “the immediate objective of the search- es was to generate evidence for law en- forcement purposes.”93


According to the


Supreme Court, “[i]n none of our previ- ous special needs cases have we upheld the collection of evidence for criminal law enforcement purposes.”94


Notably, no dis-


tinction is made between specific and gen- eral criminal investigations; the Court in- stead draws the line between “the active use of law enforcement, including arrest and prosecutions” and “legitimate, civil objectives.”95


Under this line of cases, only


the latter are properly considered “special needs.” Using this analysis, even the four


special needs enumerated in the state’s brief cannot withstand scrutiny. For exam- ple, the prevention of crime by deterring criminal activity “is a quintessential gener- al law enforcement purpose and therefore is the exact opposite of a special need.”96 A proper reading of special needs doctrine makes clear that the DNA sampling statute primarily serves only ordinary law enforce- ment purposes.


As analyzed under federal


In addition, the Court should address not just whether DNA sampling serves special needs to any degree in the abstract, but how specifically the change to the DNA sys- tem serves these purposes. In other words, the value of the amendment, as opposed to the overall system of DNA sampling, is the critical question the Court must ad- dress. Indeed, the individuals bringing the challenges are those merely charged with a felony, who could not have been searched under the prior version of the statute; the Court must direct its opinion to this class of defendants. For example, the Court should ask: For those ultimately convicted, what is the marginal deterrence value of the state’s possession of DNA samples from the time of arraignment until conviction? For those acquitted, is there any deterrence value whatsoever, as identified in Martin, where those DNA samples are ultimately eliminat-


ed from the databases? Any argument that there is value in holding the DNA sample from arraignment to acquittal or dismissal betrays the “special needs” portion of the state’s argument. Such use of DNA imme- diately to determine whether an arraignee is the perpetrator of an old, unsolved crime is merely “ordinary detection of crime for which [there is] no special-needs justifica- tion.”97


In our view, little, if any, purpose is served by allowing those charged with a felony to be subject to DNA searches— those later convicted would have been sampled anyway, while those ultimately ac- quitted (whose records are then expunged) will have been needlessly searched. The state has proffered no evidence that taking DNA samples from felony ar- restees is any more effective than taking DNA samples from people who are subse- quently convicted of a felony.98


In Vermont,


the time frame between an individual’s ar- raignment on a felony charge and final dis- position is relatively short.99


Recent statis-


tics from the independent Vermont Center for Justice Research at Norwich University suggest that the average time frame from charge to final disposition is approximately five to six months.100


In addition, the per-


centage of defendants charged with felo- nies and later convicted is rather high.101


www.vtbar.org


THE VERMONT BAR JOURNAL • WINTER 2013


23


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


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36