Limiting the ability of the government to intrude in the lives of Americans is one of the main tenets of this country, and certain rights are guaranteed to ensure that government reach is only permitted in certain situations. Criminal suspects and defendants are particularly in need of such protections against unfair prosecution and conviction. Criminal defense attorneys are trained to recognize when rights are potentially being violated, and are a key component of beating a criminal charge.

One of the largest protections enjoyed by all Americans is the freedom from unreasonable search and seizure, which requires police to obtain a search warrant prior to searching a person or property, seizing evidence, or making an arrest. With the development of new crime investigation technology, the type of information and material law enforcement can collect and use to link a defendant to criminal activity is much broader, and one of the most powerful tools in this arsenal is DNA. DNA is unique to every individual, excluding twins, and is regularly used by law enforcement to implicate a person in a criminal act. Given how pivotal DNA evidence is in criminal prosecutions, it is important the information only be collected, stored, and used within acceptable standards of public policy and existing law. Indiana has a new law on DNA collection that became effective on January 1, which expands the right of police to collect DNA samples. A discussion of the provisions of the new law, and grounds for someone to petition to remove a DNA profile from the state database, will follow below.

New DNA Collection Rules

Starting in 2018, Indiana law enforcement is now permitted to collect DNA samples through a cheek swab from all suspects arrested for a felony offense. Previously, only those convicted of a felony could have their DNA sample taken, so the change in the law brings up concerning issues for individuals arrested but never charged or convicted of a felony. The law specifically requires police to collect DNA samples and take fingerprints and photographs during the booking process. The DNA is then entered into the state database, where it is analyzed for a match to an unsolved crime. Samples may only be collected if the arrestee was taken under a valid arrest warrant or a court found probable cause existed for the arrest. Further, police must provide these individuals with an explanation about the DNA collection process before taking a sample, and give them documentation about expunging this information from the database.

Expunging DNA from the Database

Despite legitimate uses of DNA information by the government to solve crimes, there is also the potential for it to be misused and generally violate the privacy rights of the innocent and wrongly accused. The issue of government retention of this sensitive information was a large point of debate and contention during the development of the new law, and to address of some these privacy concerns, mechanisms to expunge DNA profiles were added. Specifically, a person who provides a DNA sample as part of an arrest for felony can request expungement when:

• The charges are dismissed;
• He/she is acquitted;
• The charge is reduced to a misdemeanor; or
• No criminal charges are filed within a year of the arrest.

Note that this process must be initiated by the defendant, not the state, and any matches made with another crime between the time of collection and expungement may be used by the government to seek charges in the new case.

Talk to a Criminal Defense Attorney

Criminal charges can quickly derail a person’s life, and need to be addressed quickly and strongly by an experienced criminal defense attorney. Christopher L. Arrington, P.C. understands what is at stake, and will fight to get you the best possible outcome. Contact the Danville law firm to schedule an appointment.