Warrantless Collecting of DNA With A DUI Blood Test

Currently twenty-one states obtain a DNA sample when a person is arrested for DUI or other crime. As a Maryland DUI lawyer, that procedure is worrisome for my clients and as a citizen of this country, I am concerned that a blood test that not only obtains blood alcohol level, but also catalogs DNA in a criminal database is an invasion of privacy by the government.

Maryland DUI lawyers are not the only ones who are concerned. Maryland v. King will be heard this spring by the Supreme Court of the United States, a case that turns on this very issue. Alonzo King was arrested in April, 2009 for assault. During booking, a DNA sample was taken. King provided a cheek swab, not a blood test. The Maryland DNA Collection Act applies to both methods of collection. Four months later, the DNA was matched to a serious unsolved crime in 2003. King was charged and sentenced to life in prison without the opportunity for parole for the previous crime.

A lawyer knows that it is very different to collect DNA from a person who is arrested and a person who is a convicted felon. People who are arrested are only suspected of committing a crime, but have not been found guilty of one. If the government obtains DNA from every DUI blood test it takes, it may increase the number of cold cases that are solved. But at what cost?

The Maryland DNA Collection Act is supposed to help the police identify individuals, not collect evidence. The Minnesota Court of Appeals, when considering a similar issue found that probable cause for arresting someone is not sufficient cause to require that person to give a biological sample.

This Maryland DUI lawyer agrees with the Minnesota court. To compel all persons arrested for a DUI to submit to a blood test that would also be used to catalog that person's DNA is an invasion of privacy. It is one thing to hold a person accountable for choosing to drink and drive. It is an entirely other thing to use that arrest as the impetus for collecting personal data on the driver, solely because they are suspected of drinking and driving. Keep in mind that this law applies when the police have probable cause to arrest.

Consider this: Smith is out driving one night, weaving on the road. He is pulled over and given a field sobriety test, which he fails. The police officer arrests Smith and takes him into custody. At the police station he is charged, booked and a DNA sample is taken through a blood test. Smith calls his lawyer. Hours later, the police discover that Smith is diabetic and not DUI. The police have their medic test Smith, who confirms that Smith is having an adverse sugar reaction. Smith is relieved that the DUI charges are dropped but his DNA is now in the system for past or future crimes, all because he was stopped for an alleged traffic offense and given a warrantless test which is the pinnacle of personal privacy invasion.

In another example: Jones is driving while intoxicated. He is pulled over, arrested, and a blood test is taken. He calls his lawyer for help. While dealing with the implications of the DUI charge, the police inform that Jones is now linked to two other crimes based on the DNA test. Suddenly, Jones is facing years of prison time for a crime that he is currently only linked to by a DNA test. His Maryland DUI lawyer challenges the charges in both cases. The court holds, given that the Supreme Court has not issued a final ruling on King yet, that the charges are valid. Jones is out of luck.

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