In the past, most people arrested and charged with crimes in Michigan did
not have to give a sample of their DNA to the police. DNA was typically
only required when someone was actually
convicted of a felony (a crime punishable by more than one year of imprisonment).
The most notable exception to this general rule was
Michigan Sex Crimes (First Degree Criminal Sexual Conduct,
Second Degree Criminal Sexual Conduct,
Third Degree Criminal Sexual Conduct,
Fourth Degree Criminal Sexual Conduct, etc.).
Now, all of that has changed. Effective July, 2015, Michigan's law
controlling DNA collection in criminal cases, the
DNA Identification Profiling System Act, MCL 28.176, was amended so that more Michigan residents will be forced to provide
DNA samples upon
arrest, when they've only been
accused, are supposed to be presumed innocent (and may in-fact actually
be innocent), and have been convicted of nothing.
Under the new law, anyone who is merely
arrested for a felony offense -
any felony offense, is required to give a DNA sample to the police. Read that
again carefully, because it does not say they have to actually be
charged with a felony offense. For example, a person may be arrested by the police
for suspicion of
Felonious Assault (a 4 year felony) or
Assault by Strangulation (a 10 year felony), but when the Prosecutor reviews the evidence 24 hours
later, she decides only to charge them with
Domestic Violence or
Assault and Battery (both 93 day misdemeanors). Nevertheless, his DNA will have been taken
by a "buccal swab," a Q-tip like device swiped inside of your
cheek to collect skin cells.
In-fact, under the newly amended DNA Identification Profiling System Act,
even people arrested for certain misdemeanors will now have to give a
DNA sample. Before, even people who were actually convicted of misdemeanors
did not have to give a DNA sample. Now, the police will be taking a buccal
swab for DNA while you're being booked into the lockup if you are
arrested for any of the following misdemeanor offenses:
Whether or not those charged with these offenses but never formally arrested
(i.e. if they simply receive a Notice to Appear in Court and be arraigned)
will have to give DNA is a matter yet to be determined by the Courts.
One thing is for certain: if you refuse to provide a DNA sample, you'll
be charged with an additional crime. Under
MCL 28.173a, "[a]n individual required by law to provide samples for DNA identification
profiling who refuses to provide or resists providing those samples is
guilty of a misdemeanor punishable by imprisonment for not more than 1
year or a fine of not more than $1,000.00, or both. The individual shall
be advised that his or her resistance or refusal to provide samples described
in this subsection is a misdemeanor." Even if you refuse, there is nothing stopping police from going
to Court and obtaining a Warrant for your DNA anyway; police can take
it by force even if you refuse.
Why should you care about this?
You should care because it's prejudicial to your rights. If you are
charged with a crime, you are presumed innocent and the government has
an obligation to prove you guilty of each and every element of the crime
beyond and to the exclusion of every reasonable doubt. If they are unable
to do that, whether you committed the crime or not, you are legally not
guilty. This new law allows the police and prosecutors a better chance
of convicting you. Your Criminal Defense Attorney has the obligation to
do everything he or she can't to stop them from doing that. This law
makes your Criminal Defense Attorneys job more difficult. If the prosecution
is going to present DNA evidence against you, then that means you may
have to hire your own expert witness to review it and testify in court
to contradict it. This is very expensive.
On top of that, when your DNA is taken, it is put into a DNA bank run by
the FBI called the
Combined DNA Index System, or CODIS. Your DNA will be among the DNA samples of over 12 million other individuals.
Every time and alleged crime is committed anywhere in the United States
where DNA is taken at the scene or from the alleged victims body or clothing,
it will be compared to yours to see if there is a possible match. If there
is a mistake or intentional wrongdoing, you could be wrongfully identified
and even wrongfully convicted for something that you did not even do.
Even DNA results that come back "inconclusive" are incriminating
to you, because the prosecution can get an expert to testify that "inconclusive"
means that it is still totally possible that you are the perpetrator.
Finally, having your DNA in the possession of law enforcement creates the
possibility for manipulation, purposeful falsification of evidence, and
"planting." Those of us who have watched the documentary
Making a Murderer will understand that these things really
do happen. As legendary trial lawyer Gerry Spence once said it "I've
never defended a case where the government itself has violated the law
in some way."
THE BOTTOM LINE: the law has changed so that if you are arrested for a
crime in Michigan, there's a higher chance that your DNA will be collected.
From the perspective of a Criminal Defense Attorney, this is not a good
thing, but it is definitely something you need to know about.
Criminal defense attorney Brian J. Prain of Prain Law, PLLC is a
top Michigan Criminal Defense Attorney who concentrates his practice on defending those accused of Assaultive
crimes, like Assault and Battery, Domestic Violence,
Felony Assault crimes,
Stalking,
Child Abuse, and
Criminal Sexual Conduct (CSC). Over the years, Brian has received multitudes of awards and commendations
for his work as a trial lawyer. You can reach Prain Law, PLLC at
((248) 731-4543.
