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Can Police Take Your DNA Without Consent in Texas?

September 20, 2017 By Jeff King

Texas is notoriously tough on criminals, but the police must still follow strict procedures or risk a challenge to the resulting arrest or conviction. One of those procedures involves the grounds and process for collecting an individual’s DNA. Dallas criminal defense lawyer Jeff King is dedicated to ensuring the cops and prosecutors follow these procedures to the letter of the law and for taking a stand on his client’s behalf when they do not.

 

DNA sampling in Texas criminal cases

 

Deoxyribonucleic acid (DNA) is more sophisticated than computer code and aside from identical twins, each person’s DNA profile is unique. Since a person’s DNA profile is present in the same form in nearly every cell in his body, it is possible to place a person at a scene based on bodily fluids, a strand of hair, or even a flake of skin. However, DNA evidence is not always used properly and the state does not have unfettered right to take a DNA sample from a criminal suspect.

 

Texas is one of many states that mandates the collection of DNA samples from certain individuals. The timing and method of collection depend on the charges and the individual’s criminal record.

 

DNA samples after arrest

 

Individuals accused of certain offenses must have a DNA sample taken by blood or buccal (cheek) swab, at arrest or arraignment. In either case, the collector must certify that the sample was taken in accordance with approved procedural guidelines.

 

A buccal swab sample must be taken when the accused is arrested or indicted for one of an enumerated list of violent or sex-related crimes, including sexual assault or burglary of a habitation with intent to commit a non-theft felony.

 

The DNA sample collection is done at the arraignment if there are no prior convictions. If the accused has prior convictions, the sample is taken at booking.

 

DNA sampling after conviction

 

If a defendant is convicted of any felony occurring on or after September 1, 2009, convicted of certain other crimes including public lewdness, terroristic threat, or promotion of prostitution, he or she is required to submit to a buccal sample. Other situations can also lead to a mandatory DNA swab, including the requirement to register as a sex offender or when release on bail or bond is conditioned on submitting to the sample.

 

A blood sample must be taken when the accused is:

  • Confined in a penal institution under the authority of the Texas Department of Criminal Justice;
  • A juvenile and confined to a facility under the authority of the Texas Juvenile Justice Department; or
  • Ordered by a court to provide a blood sample.

What happens to a DNA sample?

 

When the state takes the DNA sample, it is retained in a database that can be used to match the accused to other incidents.

 

If the accused is not charged, if the charges no longer qualify for compulsory collection, or if he or she is found not guilty, Texas provides for automatic expungement of the DNA information. This means the DNA profile is removed from the database and the sample is destroyed.

 

DNA can be powerful in exonerating the innocent but it can also be misused. It is important to hold the police and prosecutors accountable for how DNA is obtained and used. Jeff King puts his clients first, fighting to ensure their rights are protected. If you are facing criminal charges in Texas, call Dallas criminal defense attorney Jeff King.

Additional “DNA Testing in Texas” Resources:

  1. Texas Legislature, Code of Criminal Procedure Chapter 42A. Community Supervision Subchapter A. General Provisions, http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.42A.htm
  2. Texas Department of Public Safety, DNA Sample Collection, http://www.dps.texas.gov/CrimeLaboratory/CODIS/DNAsample.htm
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