A divided Senate voted on June 8 to require anyone arrested for any crime to provide a DNA sample to police whether or not they are charged or not, let alone convicted.
Republican Senator Gilbert Warren Petersen – who is running for the same seat in the new Queen Creek-focused Legislative District 14 – defended the measure in the face of fierce attacks from some members of his own party.
The 20-8 vote on HB 2102 came over objections from some lawmakers who questioned whether such an intrusion is justified. Sen. Kelly Townsend, R-Apache Junction, said she believed it violated 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 allow Arizona to solve “cold cases” by having a larger base of DNA data. And they noted that there are procedures for those not charged or convicted to have the profile removed from state records.
It didn’t sway Senator Michelle Ugenti-Rita, R-Scottsdale.
“If you want to get things done because the end justifies 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 the collection of DNA following a conviction for crimes. It also clarifies 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 this to any criminal offence.
Petersen said it was no big deal.
He said people leave their DNA everywhere, telling colleagues that anyone who wants theirs could just take it from their paperwork on their desk in the Senate or even “follow us to the yogurt store and grab the hundred spoons that we have just thrown in the trash”. ‘
All this measure does, Petersen said, is expand the use of an existing tool for law enforcement. He also doesn’t believe DNA is anything special.
“It’s like an ID,” he said. “It’s like knowing your name or your address.”
And Sen. Sonny Borrelli of the City of R-Lake Havasu said it was no different than when police take someone’s “punch” and fingerprints after arresting them.
The legislation has been a crusade by Jayann Sepich who testified in several states in 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 dear to them.
“Think about how you would feel if you were informed that she had been brutalized, that she had been badly beaten, sodomized, raped, strangled to death, set on fire and thrown into the desert,” Sepich said.
The only evidence, Sepich said, was 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 previous crimes.
Sen. Victoria Steele, D-Tucson, said she understands how DNA can be “abused.” But she told her colleagues that this proposal made sense.
“The fact is that every day innocent people are needlessly raped, raped, murdered, shot, stabbed by repeat offenders,” Steele said.
“We now have the technology to help prevent some of that,” she said. “We now have the technology that will help us catch repeat offenders earlier, that will help us prevent violent crime.”
And Steele said DNA can be used to exculpate innocent people.
Townsend, however, said it all had to be measured against the US Constitution.
“The right of persons to the security of their persons, homes, papers and effects against unreasonable search and seizure will not be violated,” she quoted the document. And the amendment says the only way to get a warrant is “on probable cause.”
But Petersen said the constitutionality of DNA collection is clear, citing a 5-4 U.S. Supreme Court decision in 2013 that found that taking samples from a buccal swab in the part of the arrest process is legal because it serves a legitimate state interest and is “a bit intrusive.”
Townsend, however, said lawmakers need to recognize that people are sometimes wrongfully arrested, perhaps due to “political motives, political stunt.”
“Are any of us at risk of being politically targeted and arrested for a crime that we will later be able to prove we are innocent of?” she asked. “But, in the meantime, they took our DNA by force against our will just because we were arrested.”
Townsend was also unimpressed with Petersen’s argument that people leave DNA behind all the time.
“Just because you can remove it from my office doesn’t mean you have the right to take it during an arrest,” she said.
Current law requires courts to order the deletion 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 oral and written notice explaining the process, including instructions on how to seek it in court.
HB 2102 now goes to the House which did not consider the measure.