COLORADO SPRINGS, Colo.—Colorado will begin collecting DNA from those arrested and accused of felonies under a new law that is meant to solve more crimes but is expected to be quickly challenged by the American Civil Liberties Union.
DNA from those arrested on suspicion of committing a felony will be collected through a cheek swab, then sent to the Colorado Bureau of Investigation for testing and to a state database. Those not charged within 90 days can ask that their DNA be removed from the database.
The Colorado ACLU plans to challenge the law, saying it violates the rights of those who should be presumed innocent. Previously, only DNA of those convicted of crimes went into the state database. Federal law enforcement collects DNA from detainees, while and 20 other state have similar laws.
“We believe that this adds the most significant crime fighting capability as we’ve had in decades,” Colorado Bureau of Investigations director Ron Sloan said during a news conference Thursday.
Sloan and other law enforcement officials said collecting DNA from accused felons, then checking those samples against the state’s database of DNA collected from unsolved crimes would help capture repeat offenders who otherwise would slip through the system.
The law is known as Katie’s Law after 22-year-old Katie Sepich, who was raped and murdered in New Mexico in 2003. Bill sponsor, Sen. John Morse, said that the man who pleaded guilty to her slaying had been arrested on a felony just months before her death.
“This law will save lives, prevent crime, and ensure that criminals are brought to justice,” Morse said.
Colorado Springs Police Chief Richard Myers said law sends a message to criminals: “‘We’re going to get you.’ I’d be afraid if I was a criminal.”
Law enforcement officials liken the DNA sample to fingerprints and mug shots taken at the time of arrest, which is where the law’s constitutionality comes into question.
Opponents of the law cite several cases, including a 1989 U.S. Supreme Court ruling that there is a reasonable expectation of privacy when it comes to bodily fluids such as blood, urine and saliva. The high court in the 1960s ruled that fingerprints are “knowingly exposed” to the public and therefore don’t present an intrusion.
“Without a search warrant, without probable cause, and without individualized suspicion, we believe that such a search (collecting DNA from accused felons) violates the constitution,” said Mark Silverstein, legal director for the Colorado ACLU. “When people are arrested, they’re presumed innocent.”
In 2006, a Minnesota appellate court ruled that state’s law was unconstitutional. A case challenging California’s law is pending in the 9th U.S. Circuit Court of Appeals, while other cases challenging the federal collection of DNA from detainees are also pending.
Fourth Judicial District Attorney Dan May said such arguments involving DNA aren’t new. He recalled that the first Colorado DNA case prosecuted in 1989 required several court hearings and experts in order for DNA evidence to be allowed at trial.
Morse, the state senator and former police chief of Fountain, said the presumption of innocence applies to the courts and the jury, not police.
“If police have to presume innocence, they would never arrest anybody,” Morse said.
Safeguards to protect arrestee’s rights include not entering the DNA sample into the state’s database until prosecutors file charges. Those not charged or who are acquitted can ask the state to expunge the record.
Anyone whose DNA record was not expunged upon request would receive $25,000. A $2.50 charge will be added to all felony and misdemeanor convictions and traffic tickets to pay for the testing.
El Paso County had collected four samples under the new law as of noon Thursday, officials said.
