MONTPELIER, Vt. — The Vermont Supreme Court has been asked to rule on the constitutionality of a 2009 law allowing the state to take DNA samples from people charged but not yet convicted of crimes.
Lower court rulings effectively have blocked the state form carrying out the law, says a lawyer who has been following the issue. The law was enacted after the 2008 rape and murder of a 12-year-old girl in Randolph.
“Effectively it’s a statewide stay,” Defender General Matt Valerio said of the current state of the law. That means it’s blocking investigators from taking DNA samples from those who have been charged with felonies and certain misdemeanors unless and until the court gives the state the green light to do so.
Until passage of the law, the state was permitted to take DNA samples for storage in a database only from those who had been convicted of felonies. The samples are taken with a swab that collects saliva from the inside of the cheek and become part of both the state database and a national one maintained by the FBI.
The Vermont law requires that if the defendant is acquitted or if the charge is dismissed or reduced to one not covered by the DNA sampling requirement, the record must be expunged from the database.
Lawmakers debated vigorously during the 2009 legislative session whether it was permissible under the U.S. and Vermont constitutions to require someone not convicted of a crime to provide a DNA sample.
Sen. Richard Sears, D-Bennington and chairman of the Senate Judiciary Committee, said he was satisfied that the law would pass constitutional muster by the fact that under it, samples are taken not at arrest, but after arraignment, when a judge has found probable cause to charge someone with a crime.
“We did it after arrest and determination by a judicial officer on probable cause,” Sears said. “We feel that makes it constitutional. … There is judicial review.”
Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said that in his organization’s view, that’s not sufficient.
“DNA collection unless consented to is considered a search and seizure,” Gilbert said. “Generally, if you’ve been arraigned, that doesn’t give the police the authority to go into your house and search for something without a warrant.”
Both John Treadwell, the assistant attorney general defending the state’s law, and Jayann Sepich, co-founder of a national group, DNA Saves, that has pushed for expanded DNA testing, said sampling a broader population of people who come into contact with the criminal justice system has helped and will continue to help solve and prevent crimes.
When someone is charged with a crime, “society has an interest in them and their identity,” Treadwell said. “We already do a number of things. We take their photos, we take fingerprints. Often there are stringent conditions of release, or the person may be held on bail.”
Having a record in the database creates the possibility of matches with unsolved crimes, essentially allowing the database to help police cast a wider net. “It can be used in the future to link a newly occurring offense to people who have been charged or convicted in the past,” Treadwell said.
Vermont’s law is more protective of defendants than those in the majority of states that allow pre-conviction DNA testing, said Sepich, a Carlsbad, N.M., resident who took up the cause after her 22-year-old daughter, Katie, was raped and murdered in 2003. The majority of the 26 states that have such testing do it at arrest and booking, rather than waiting until a finding of probable caus e, she said.
New Mexico last year expanded its list of crimes for which an arrest prompts police to take a DNA sample, Sepich said, adding that six of seven matches in homicide cases in that state since the new law passed have come as a result of the expansion.
The highest state court in Maryland recently overturned an expansion of that state’s DNA sampling law. The state has appealed to the U.S. Supreme Court and Chief Justice John Roberts issued a stay on implementing the state court’s ruling while his court prepares to rule on the matter, Sepich said.
The future of Vermont’s law more likely will be settled in Montpelier, Valerio said. The state constitution is widely believed to provide greater search-and-seizure protections than the Fourth Amendment to the U.S. Constitution. And on the Vermont Constitution, the Vermont Supreme Court is the final arbiter.