Arizonans with felony arrest must give DNA sample under state Senate bill

By Howard Fischer
Capitol Media Services
PHOENIX -- A divided Arizona Senate voted Wednesday to require that anyone arrested for any felony provide a DNA sample to police, whether or not they ever are charged or not, much less convicted.
The 20-8 vote on HB 2102 came over objections of some lawmakers who questioned whether such an intrusion is justified. Sen. Kelly Townsend, R-Apache Junction, said she believes it violates constitutional provisions against warrantless searches.
But the majority of senators were swayed by arguments that 18 other states have similar laws, the intrusion was minimal and it could lead to Arizona being able to solve "cold cases'' by having a larger DNA database. And they noted there are procedures for those who are not charged or convicted to have the profile removed from state records.
That didn't sway Sen. Michelle Ugenti-Rita, R-Scottsdale.
"If you want to pass things because the ends justify the means, then that's exactly what you're going to do in this case,'' she said.
"You want their DNA?'' Ugenti-Rita continued. "Get a warrant and use the process.''
Current law requires DNA collection following conviction of crimes. It also spells out that police can collect evidence after arresting people for certain specified crimes, including homicide, sex offenses, prostitution and burglary of a residential structure.
HB 2102 would extend that to any felony offense.
Sen. Warren Petersen, R-Gilbert, said it's no big deal.
He said people leave their DNA everywhere, telling colleagues that someone who wants theirs could simply take it from their papers on their Senate desks or even "follow us to the yogurt shop and grab the hundred spoons that we just dropped into the garbage can.''
All this measure does, Petersen said, is expand the use of an existing tool for law enforcement. Nor does he believe there is anything special about DNA.
"It's like an ID,'' he said. "It's like knowing your name or your address.''
And Sen. Sonny Borrelli, R-Lake Havasu City, said it's no different than when police take someone's "mug shot'' and fingerprints after arresting them.
The legislation has been a crusade by Jayann Sepich who has testified in multiple states about the 2003 rape and murder of her 22-year-old daughter, Katie, who was a graduate student at New Mexico State University.
Speaking to Arizona lawmakers earlier this year, she urged them to visualize someone who is dear to them.
"Think of how you would feel if you were notified she had been brutalized, that she had been violently beaten, sodomized, raped, strangled to death, set on fire and dumped in the desert,'' Sepich said.
The only evidence, Sepich said, was the DNA under her daughter's fingernails as she fought for her life. And it was that evidence, she said, that led years later to the arrest and conviction of a man whose DNA was on file for prior felonies.
During Tuesday's debate, Sen. Victoria Steele, D-Tucson, said she understands how DNA can be "misued.'' But she told colleagues this proposal makes sense.
"The fact is, every day innocent people are needlessly violated, raped, murdered, shot, knifed by repeat offenders,'' Steele said.
"We have the technology now to help prevent some of that,'' she said. "We have the technology now that will help us catch repeat offenders sooner, that will help us prevent violent crimes.''
And Steele said that DNA can be used to exonerate the innocent.
Townsend, however, said all that has to be measured against the U.S. Constitution.
"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated,'' she quoted the document. And the amendment says that the only way to get a warrant must be "upon probable cause.''
But Petersen said the constitutionality of DNA collection is clear, citing a 5-4 ruling by the U.S. Supreme Court in 2013 which concluded that taking samples from a cheek swab as part of the arrest procedure is legal because it serves a legitimate state interest and is "minimally invasive.''
Townsend, however, said lawmakers need to recognize that people are sometimes wrongfully arrested, possibly because of "political motivation, a political hit.''
"Is any one of us at risk of being targeted politically and arrested for a felony that we are later able to prove that we are innocent of?'' she asked. "But, meanwhile, they have forcefully taken our DNA against our will simply because we've been arrested.''
Nor was Townsend impressed by Petersen's argument that people leave DNA around all the time.
"Just because you can take it off my desk doesn't mean you have a right to take it during an arrest,'' she said.
Existing law does require courts to order the removal of DNA records in cases of people who are not charged, not convicted or whose convictions are overturned. HB 2102 would add language to specifically require any agency that collects DNA to provide both oral and written notice explaining the process, including instruction on how to request it of the court.
Sen. Lupe Contreras, D-Avondale, in voting for the measure, said he has to err on the side of providing a tool for law enforcement.
"I'm hopeful that my family never has to go through anything to where this is the way they find the perpetrator or anything like that,'' he said. "But if this is going to help any one of my family members, or just anyone at all in our great state ... I want to do the right thing.''
HB 2102 now goes to the House which has not considered the measure.
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