Update on Legal Challenge to California’s DNA Retention Policy

By CGS | 05.02.2019

On May 1, the Electronic Frontier Foundation (EFF) and the Law Office of Michael T. Risher argued against the government’s motion to dismiss a lawsuit challenging law enforcement’s retention of DNA profiles of hundreds of thousands of innocent Californians.

Risher argued that by retaining genetic profiles form people arrested but never convicted of any crime, the state is violating the California Constitution’s privacy protections, which are meant to block overbroad collection and unlawful searches of personal data. The California right to privacy requires the government to expunge DNA samples and profiles taken from arrestees who were never charged or whose charges have been dismissed.

The ruling on whether or not the case will proceed is not expected for several weeks.

California has long collected DNA from people convicted of serious felony offenses, but ten years ago the state mandated DNA collection for every single felony arrestee. Once these samples are collected, the DNA is analyzed and uploaded to the nationwide Combined DNA Index System, or “CODIS,” which is shared with law enforcement across the U.S. The DNA profiles remain in the state and national database indefinitely — even those from people who were later determined to be innocent.

More than a third of all people arrested in California in 2017 on suspicion of felony offenses were released and never charged, had their charges dismissed, or were acquitted. Innocent people whose DNA profiles remain in the databases have been mistakenly arrested, charged, or even imprisoned based on crime-lab and other errors that found a supposed CODIS match between their profile and DNA found at a crime scene.