May 3, 2023 By Paul Wallin

OC’s DNA Collection Program May Be Unconstitutional

In a recent ruling, the 4th District Court of Appeal has held that Orange County’s DNA collection program may be unconstitutional. If you have been charged with a misdemeanor offense in Orange County, continue reading to see if you may be affected by this new ruling. 

What Is the DNA Collection Program? 

The DNA collection program, also known as “Spit and Acquit,” allows county prosecutors to obtain DNA samples from those charged with misdemeanors in exchange for reduced charges or an acquittal. This program is run by the Orange County District Attorney in an effort to compile DNA information that may be used to solve past and future crimes. According to a spokesperson for the DA, the DNA collection program has allowed authorities 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. 

Is the Program Constitutional? 

In April 2023, a panel of the 4th District Court of Appeal ruled that the DNA collection program could face a constitutional challenge, reversing the holding of the trial court. The plaintiffs in this case brought claims based on the right to privacy, right to counsel, and due process. The trial court initially sustained the defendant’s demurrer to the plaintiffs’ complaint, dismissing the lawsuit since defendants signed waivers to participate in the program in which they waived their rights to privacy and counsel. The plaintiffs appealed, arguing that the waiver was invalid because defendants were not fully informed as to how their DNA would be maintained and used. 

The appellate court reversed. Justice Moore wrote that the trial court had erred in sustaining the demurrer to these claims, and that the plaintiffs had sufficiently alleged that the DNA program was unconstitutional. Moore further expressed her concerns that a large number of the defendants would be unaware of the information their DNA might reveal and how that information would be exploited. According to Professor Thompson of the University of California, Irvine, the DNA program is an unconstitutional gateway for securing erroneous crime links and even malicious evidence planting. 

The court’s decision did not resolve the question of whether Orange County’s DNA collection program was constitutional. However, it allows the plaintiffs to proceed with their lawsuit so they can acquire more information that would support their constitutional claims. This ruling could be a first step in preventing counties and law enforcement agencies from using under-regulated, non-statutory programs to unconstitutionally collect DNA. 

Should I Provide My DNA Sample? 

If you have been offered a plea deal in exchange for providing your DNA, you may be tempted to take it. However, you should consult with an experienced criminal defense attorney before making any decisions. As DNA technology advances, DNA samples will reveal far more extensive information. As such, you should be aware of all the implications of providing your DNA sample before you agree to do so. 

Contact Wallin & Klarich Today 

If you believe that your rights have been infringed upon, contact Wallin & Klarich as soon as possible to see how we can help. At Wallin & Klarich, we stay up to date with the most recent legal developments so that we can better assist you. With 40+ years of experience, our attorneys have helped thousands of clients successfully reduce or dismiss their charges, and we have the skills and resources to help you avoid hefty fines and jail time. 

With offices in Orange County, Riverside, San Bernardino, Victorville, Torrance, West Covina, Los Angeles, and San Diego, you are sure to find an available and convenient attorney near you. 

Discover how our team can assist you. Contact us today, toll-free at (877) 4-NO-JAIL or (877) 466-5245 for a free consultation with a skilled defense attorney.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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