DNA
DNA (deoxyribonucleic acid) evidence is used to acquit or convict those charged with sex crimes. This evidence is specific to each individual, so no two people (other than identical twins) share the same DNA. DNA remains constant throughout one’s life, is found in virtually every cell in the body, and is easily retrievable from one’s blood, saliva, semen, hair or skin tissue. Once collected, it will be entered into a California DNA database. Because DNA evidence carries so much weight, it is critical that an individual accused of a sex offense in California hires an experienced criminal defense attorney who specializes in California sex crime defense and who has mastered this scientific and complex area of the law.
Anyone arrested for or charged with a California misdemeanor or felony (or an attempted crime) that would be required to register as a sex offender, pursuant to Penal Code 290 if convicted, or who has been ordered by the court to reside in a mental health facility or sex offender treatment program, is required to provide a DNA sample, consisting of swab samples, right thumbprints, a full palm print impression of each hand, and any blood specimens or other requested biological samples. These offenses include most instances of rape, spousal rape when accomplished or attempted using force, violence or threats, rape or sexual penetration when acting in concert with another, enticing a female unmarried minor into prostitution, committing a sex act where consent was procured by fear and false representations, pimping and pandering with a minor, procuring a child under 16 years of age for lewd or lascivious acts, abducting a minor for prostitution, aggravated sexual assault of a child, incest, sodomy, lewd or lascivious acts with a child under the age of 14, oral copulation, continuous sexual abuse of a child, penetration with a foreign object, certain crimes dealing with obscene materials, indecent exposure, conduct involving lewd or lascivious acts that fall under “contributing to the delinquency of a minor” and using harmful matter to seduce a minor. An individual may submit a sample for any other offense if agreed to in a plea bargain.
Samples are supposed to be collected as soon as administratively possible after an arrest, but if an officer or the prosecuting attorney fails to verify that the samples have been collected, the court will do so prior to the final disposition or sentencing in the case, and will require the defendant to provide a sample at that time. DNA samples may also be collected from those who have prior convictions from this state or from any other court that would have been qualifying crimes if committed in this state, even if already incarcerated or previously released. Samples that are destroyed or unusable for any reason will be discarded and the person who provided the original sample will be required to submit a new one.
An individual who refuses to provide a sample faces a separate misdemeanor charge, punishable by up to $500 and a maximum one-year jail sentence. An individual already serving time in prison will be separately sanctioned as well. When an individual refuses to provide a sample, an officer may use reasonable force to collect one if the request is pre-approved by a supervising officer. If the forced sample consists of a cell extraction, the extraction must be videotaped.
Finally, an individual who either substitutes his or her own DNA for another’s or who tampers with the collected sample faces a separate felony, punishable by two, three or four years in state prison.
DNA samples may be removed or expunged from the database if, after the arrest, a formal complaint was never filed, if the accused was acquitted, or if the case was dismissed and the accused has no prior offenses that required DNA samples.
The skilled California sex crime attorneys at The Kavinoky Law Firm understand this technical and complex area of the law, and know the proper arguments to make in order to either exclude improperly collected samples or to have the samples expunged when appropriate. Contact them today for a free consultation and for outstanding legal representation.
