Controversial measure would require DNA sampling at arrest

OLYMPIA — Suspects arrested in cases as minor as shoplifting would have to give a DNA sample before they are even charged with a crime if a controversial proposal is approved by the Legislature.

State criminal defense groups and the American Civil Liberties Union say the House bill is unconstitutional. It would mandate that police or jail staff collect DNA from all adults and juveniles arrested on suspicion of a felony or gross misdemeanor.

More than a dozen states already allow law enforcement to collect DNA from suspects before they are convicted. Three more states, including Washington, are considering such proposals this year.

"It is good technology. It solves crimes," said Don Pierce, executive director of the Washington Association of Sheriffs and Police Chiefs, which has long pushed for DNA tests at the time of arrest. "We take fingerprints at the time of arrest, which in many ways is a lot more intrusive."

Currently, police in Washington state collect DNA from people convicted of a felony and many misdemeanor sex-related crimes after they are sentenced. Police must get a search warrant or permission from the suspect to obtain DNA before a conviction.

The sample usually is taken by swabbing the inside of a person's cheek.

A separate bill in the Senate also would allow for DNA collection before conviction — but only after formal charges are filed.

The House bill, HB-1382, is sponsored by Rep. Mark Miloscia, D- Federal Way. He testified in support of his bill Tuesday before the Public Safety and Emergency Preparedness Committee. The committee could vote on the measure as early as today.

"This bill would take the next step in the use of DNA technology to help catch individuals who have gone out and harmed people," Miloscia said.

The DNA would be submitted to the State Patrol and the FBI databases, which are used to match suspects with unsolved crimes. Under the bill, authorities would destroy samples and DNA profiles obtained from people who weren't charged, were found not guilty or whose convictions were overturned.

Miloscia said each DNA test costs $82. A rough estimate shows the program could cost $1 million over two years.

Miloscia suggested that the state could apply for federal money to help cover the cost, and legislative staff said fees charged to certain criminals also could offset the cost. Prosecutors, however, said only a small percentage of those ordered to pay the fees actually do.

Jack King, staff attorney for the National Association of Criminal Defense Lawyers in Washington, D.C., said his organization has been fighting similar DNA-collection proposals since 2004.

"DNA samples reveal the most personal, private information about a person's physical and mental makeup," King said. "It is terribly unfair to an arrestee."

King said he believes that seizing biological evidence before conviction violates constitutional protections against unreasonable search and seizure.

Shankar Narayan, legislative director of the ACLU of Washington, said Miloscia's bill "takes the presumption of innocence and turns it on its head."

"The fact is that a lot of people who are arrested aren't charged with anything. Even people who are charged might never be convicted," Narayan said.

Pierce, the executive director of the sheriffs and police chiefs association, said he believes the bill's passage will hinge on funding and the ability of the Washington State Patrol to process the samples. The patrol's crime lab has long faced a backlog of work.

Sen. Debbie Regala, a Tacoma Democrat who's a sponsor of the Senate DNA bill, said routinely collecting DNA at the time of arrest is worrisome.

Unlike the House bill, which would increase the number of crimes that require DNA collection, SB-5026 would take samples only in cases already outlined under the existing state statute.

Regala expects her bill will pass through committee in the coming days. The Washington Association of Prosecuting Attorneys supports the Senate measure; the ACLU opposes the bill.

Jennifer Sullivan: 360-236-8267 or jensullivan@seattletimes.com