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Lawsuit over Orange County DNA collection program revived

The plaintiffs claim — and the appellate panel agreed — a program that collects DNA samples from people accused of misdemeanors doesn't adequately inform them of the ramifications.

SANTA ANA, Calif. (CN) — A California appeals court revived a lawsuit Tuesday filed by two UC Irvine professors challenging the Orange County district attorney's controversial program which takes DNA samples from people charged with misdemeanors as part of plea agreements.

"Due to its complexity, a significant number of alleged misdemeanants will likely be unaware of the information their DNA may reveal and how that information may be exploited," Fourth Appellate District Associate Justice Eileen Moore wrote in the unanimous opinion. "And, as technology advances, DNA samples and profiles will reveal far more extensive information than we currently know."

Since 2007, the Orange County DA's office has collected and stored DNA samples from people accused of misdemeanors in exchange for dropping or reducing those charges. According to the civil complaint, filed as a taxpayer lawsuit in February 2021, the DA had DNA samples of more than 182,000 people — "larger than the DNA databases maintained by 25 states." The suit called the system "coercive and invasive" as well as unconstitutional.

"Although state law does not authorize it, our district attorney’s office has, since 2007, been collecting DNA samples from people charged with, but not convicted of, minor crimes, such as possession of small amounts of marijuana, public intoxication, driving without a license or on a suspended license, shoplifting, and, yes, apparently walking a dog without a leash," plaintiffs William Thompson, a criminology professor, wrote in an OC Register opinion piece. "According to the district attorney, these people 'volunteered' to provide their DNA, but they did so under threat of criminal charges, often without consulting a lawyer."

Orange County Superior Court judge William Plaster dismissed the lawsuit on demurrer, finding that waivers signed by people accused of misdemeanors barred any challenge to the program based on rights of privacy or counsel. Plaster found the plaintiffs had offered "no concrete allegation of any alleged misdemeanant who had failed to understand the ramifications of giving a sample.”

He also found the professors lacked standing to bring the lawsuit.

But the three-judge appellate panel overturned the dismissal, writing that as taxpayers, professors Thompson and Simon Cole have the right to challenge a law that uses taxpayer funds. The panel also found the plaintiffs had adequately shown the waivers are "invalid" because "alleged misdemeanants are not fully informed as to how their DNA will be maintained and used."

"These far-ranging privacy implications associated with DNA differentiate a DNA waiver from other constitutional rights criminal defendants typically waive when entering plea deals, such as the right to a jury trial, the right to counsel, or the right to confront witnesses," Justice Moore wrote. "When criminal defendants agree to waive any of these trial or trial-related rights, it is reasonably clear what they are surrendering. DNA waivers are not so straightforward. A vaguely worded DNA waiver can potentially conceal from alleged misdemeanants the persons having access to their DNA and/or the different purposes for which their DNA might be used."

In order for a DNA waiver to be knowing and voluntary, Moore wrote, the accused "must be reasonably informed as to how their DNA sample, as well as the resulting DNA profile, will be stored and used."

The panel remanded the case for further proceedings. Professor Thompson praised the ruling.

"The court of appeal found that Orange County's DNA database is unconstitutional, if the facts asserted by the plaintiffs are true," Thompson said in an email. "DA Spitzer clearly knows that those facts are true, so it is time for him to wake up to the reality that his database is illegal and to start thinking about how to shut it down."

His attorney, Abby Formella, added: "We look forward to the opportunity to conduct discovery to uncover how this opaque program actually works in practice."

In an email, Kimberly Edds, spokesperson for the Orange County District Attorney, said the ruling "did not address the merits of the program; rather it allows plaintiffs to have another opportunity to convince a judge that they have actual facts to prove their baseless claims."

She called the lawsuit "frivolous," said the plaintiffs "could not produce a single defendant outraged over providing their DNA in exchange for a plea deal," and added that he DNA collection program "makes our community safer."

"It is irrefutable," Edds said, "that DNA collection has enabled us to solve unsolved crimes from the past and has been proven to be the greatest deterrent in preventing someone who has submitted their DNA profile from committing new crimes."

Justices Thomas Goethals and Joanne Motoike joined Moore's opinion.

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Categories / Appeals, Civil Rights, Criminal, Technology

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