An Indiana appeals court recently determined police officers do not need a warrant before forcing the submission of a DNA test, a ruling that calls into question current DUI breath and blood testing policies.
The court ruled on September 30 that the inside of a suspect's cheek can be forcibly scraped in order to sample DNA if the officer has reasonable suspicion the person has committed a crime. The case came as a result of the rape conviction against Arturo Garcia-Torres. The suspect, in this case, was forced to submit a DNA sample without a warrant. The defense argued the practice was a violation of Fourth Amendment protections against illegal search and seizure.
The court's opinion, a 2-1 majority, stated the DNA sample was "minimally invasive" and "limited," meaning it may be conducted without warrant. The court compared the cheek swab to a pat-down or field sobriety test and argued it was less invasive than either.
Courts have historically been split on this issue. Minnesota ruled the activity is in violation of the Fourth Amendment, but Virginia ruled the cheek swab is essentially no different from fingerprinting a suspect.
The question is not expected to go away anytime soon, however, since a Justice Department regulation now requires federal agencies collect DNA samples on all arrests. This regulation mandates the information be deleted, however, if the suspect is acquitted or the charges are dismissed.
The argument of whether a DNA test is more or less invasive than a finger print is filled with gray areas. While a DNA test may be less physically invasive, it carried repercussions for personal and family life that may be far more reaching than a fingerprint or pat down.
The question really hits home with DUI legislation regarding forced blood tests. Many would like to require a warrant before a blood test is taken. In some areas, however, officers themselves are being trained to provide the service while in the field. This means a police officer may take the blood of a suspect during the course of the arrest before even moving the suspect to a holding cell or police facility.
Questions over the validity of breath tests have lead more police agencies to use blood tests as the standard in DUI alcohol testing. Blood tests have a higher level of accuracy because they test the actual blood alcohol level rather than converting the alcohol present on the breath into a suspected blood alcohol level.
When an appellate court determines DNA tests can be forcefully obtained without a warrant, the same issue in terms of blood testing has obvious parallels. Few can argue that blood tests are not invasive on a physical level, meaning the same defense applied to DNA tests will not stand on this issue. However, many still feel warrants should not be required to retrieve blood tests.
