Back to Report Generator

Lawfully Owed DNA

Last Updated: April 2023
Arrest Statutes Does the law require a DNA sample to be collected from an individual when they are arrested for a crime? What crimes require collection of a DNA sample at arrest? Does the law mandate when the DNA sample must be collected after arrest? What agency collects the arrest DNA sample? What agency manages the analysis and preservation in the DNA database? Can the arrest DNA sample be expunged?
Alabama

Ala. Code 1975 § 36-18-24. DNA database.

 

§ 36-18-25(c).  Collection of DNA samples from Convicted Persons.

  

§ 36–18–26. Expungement of DNA Records.

 

§ 36-18-22. Powers of director.

Yes, from adults and minors.

All felonies, and any sexual offense, including any offense requiring registration as a sex offender.

At booking or at arrest.

Director of the Alabama Department of Forensic Sciences.

Director of the Alabama Department of Forensic Sciences.

Not explicit in the statute with respect to DNA samples collected at arrest.

Upon request, and following reversal of conviction, the director is authorized to expunge DNA records.

Alaska

A.S. § 44.41.035. DNA identification system

Yes, from adults only 

All felonies, and “crime against a person”

At booking.

Department of Public Safety, including: “juvenile or adult correctional, probation, or parole officers or a peace officer”

Department of Public Safety

Yes. Upon written request to Dept. of Public Safety, accompanied with a court order establishing the person arrested was released without being charged; indictment was dismissed; or person was found not guilty.

Arizona

A.R.S. § 13-610. DNA testing

 

 

 

Case law: 

Mario W. v. Kaipio, 230 Ariz. 122, 281 P.3d 476 (2012) (extraction of a DNA profile from buccal cells of a juvenile charged with certain offenses  at advisory hearing violates the Fourth Amendment as it is a serious intrusion on a juvenile’s privacy interests).

Felonies, murder, enumerated sexual offenses, burglary.

At booking. 

Arresting authority or its designee.

Yes, adults and minors.

Department of Public Safety 

Yes – must petition court to remove if no charges filed, case dismissed, or defendant acquitted. 

Arkansas

State Crime Laboratory

Yes – must petition the State Crime Laboratory upon acquittal, dismissal, successful completion of a preprosecution diversion program or a conditional discharge, conviction of a lesser misdemeanor or reversal of conviction.

Record must be expunged upon providing:

(1) a written request for removal and destruction,

(2) a court order for removal and destruction of the DNA record; and

(3) a certified copy of the acquittal, dismissal, reversal or a court order stating that a charge arising out of a person’s arrest has not been filed within 1 year of arrest, unless the person has a prior conviction or pending charge for which DNA collection is authorized.

Ark. Code Ann. § 12-12-1006  Fingerprinting, DNA Sample Collection, and Photographing

 

§ 12-12-1019 Removal and destruction of the DNA record and DNA sample

 

 

§ 12-12-1105 State DNA Data Base

Yes. Adults, and minors only if charged as an adult.

Any felony.

At booking, or at first court appearance for the enumerated offenses; or while incarcerated and new charges arise.

A law enforcement official at the receiving criminal detention facility, or a correctional facility official for persons who are already incarcerated and new charges aris.

California

West's Ann. Cal. Penal Code § 295. Short title; findings and intent; administration and implementation of chapter; responsibility for collection of specimens, samples and imprints; costs and funds

 

§ 296. Offenders subject to collection of specimens, samples and print impressions

 

§ 299. Reversal, dismissal or acquittal; request for expungement of information; procedure; specimens from persons no longer considered suspects

Case Law:

People v. Roberts, 2021 WL 3700319 (Cal. App. 3 Dist. 2021) (arrestee may request expungement of DNA records if no accusatory pleading was filed within applicable period allowed by law, if all qualifying charges are dismissed or arrestee is found not guilty or factually innocent).

Yes, from adults only.

All felonies.

At booking or “as soon as administratively practicable”

Department of Corrections and Rehabilitation

 

If collected at a county jail or other county facility, including a private community correctional facility, the county sheriff or chief administrative officer of the county jail

Department of Justice, DNA Laboratory (aka Jan Bashinski DNA Laboratory)

Yes – if charges are dismissed or no accusatory pleading is filed, person must petition the court and provide a copy of the request to the DNA Laboratory and the prosecuting attorney. DNA laboratory must destroy the sample and expunge the profile upon receipt of a court order.

Colorado

C.R.S.A. § 16–23–103. Collection of Biological Samples from Persons Arrested for or Charged with Felonies

§ 16–23–104. Collection and Testing

§ 16–23–105. Expungement

 Case Law:

People v. Valdez, 405 P.3d 413 (Colo. App. 2017), cert. denied 2017 WL 4872875 (Crime defendant was arrested for was not required to be “serious in nature” to have DNA taken from defendant pursuant to Katie's Law, and thus taking DNA upon defendant's arrest for aggravated driving was not unconstitutional as applied in prosecution for first degree murder; although defendant was in custody for a misdemeanor offense, it was not unconstitutional to take DNA from all arrestees, because the magnitude of the state's interest does not necessarily depend on the seriousness of the crime of arrest.).

“Sample Analysis” collected at booking, but sample not analyzed until after probable cause hearing.

If collection is impractical at booking, sample may be collected at any other time during detention or pendency of charges.

Felonies

Yes, from adults only, unless the person has previously provided a biological substance sample for testing pursuant to a statute of Colorado and the Colorado Bureau of Investigation (CBI) has such sample

The arresting law enforcement agency.  If DNA is not collected through the booking process then the Court is required to order the defendant to submit to DNA collection through the investigating agency responsible for the fingerprints in the case.

Colorado Bureau of Investigation (CBI).

Yes – written request to CBI, after (i) each felony charge has been dismissed, (ii) no felony charges filed within 90 days of arrest, (iii) acquittal, or (iv) conviction or plea to lesser misdemeanor

Connecticut

Division of Scientific Services within the Dept. of Emergency Services and Public Protection

Automatic upon reversal and dismissal of a conviction or of a finding of not guilty by reason of mental disease or defect, or upon acquittal, or upon a court order dismissing the charge, or the charge being nolled

C.G.S.A. § 54-102g. Blood or other biological sample required from certain arrested or convicted persons for DNA analysis

 

§ 54–102h. Procedure for Collection of Blood or Other Biological Sample for DNA Analysis

 

 

§ 54–102L.  Expungement of DNA Data Bank Records and Destruction of Samples

 

Case Law:

 

State v. Banks, 71 A.3d 582, 143 Conn. App. 485 (Conn. App. 2013), aff’d  321 Conn. 821, 146 A.3d 1 (2016) (Statute requiring all felons in custody to submit to collection of DNA sample implicitly included permission to use reasonable force to obtain sample in order to achieve legislature's goal of creating DNA data bank, and legislature later amended statute to permit state to use reasonable force.).

Yes, from adults and minors.

Arrest for serious felony, if no sample on file and prior conviction of a felony (or if found not guilty by reason of mental disease or defect)

“Prior to release from custody,” at a time and place specified by the law enforcement agency

The “law enforcement agency that arrested such person;” or Department of Correction.

Delaware

N/A

No.

N/A

N/A

N/A

N/A

N/A

District of Columbia

N/A

N/A

N/A

No.

N/A

N/A

N/A

Florida

F.S.A. § 943.325. DNA Database

Case Law:

U.S. v. Davis, 65 F. Supp. 3d 1352 (M.D. Fla. 2014) (Florida statute requiring any qualifying offender who is arrested in the state to submit a DNA sample at time of booking did not intrude on arrestee's privacy rights in violation of Fourth Amendment.  DNA identification of arrestees was a reasonable search that could be considered part of a routine booking procedure.).

Yes, from adults and minors. 

Felonies, including attempted.

At booking.

Department of Law Enforcement; or if qualifying offender is incarcerated the “entity responsible for the jail or facility shall ensure that a DNA sample is promptly secured and transmitted to the department.”

Department of Law Enforcement by their internal policies.

Yes – must provide written request and proof of the following: a certified copy of the No Information or Nolle Prosequi filed by the state attorney, or final court order or other official documentation showing charge was dismissed; or acquittal; or no charge filed within the applicable time period.

Georgia

N/A

N/A

N/A

N/A

N/A

N/A

No.

Guam

N/A

No.

N/A

N/A

N/A

N/A

N/A

Hawaii

N/A

No.

N/A

N/A

N/A

N/A

N/A

Idaho

N/A

No.

N/A

N/A

N/A

N/A

N/A

Illinois

730 Ill. Comp. Stat. Ann. 5/5-4-3 Specimens; genetic marker groups

Yes, after an indictment has been returned by a grand jury or a court finding of probable cause following a hearing or an arrestee has waived a preliminary hearing.

Enumerated Felonies: First degree murder, home invasion, predatory criminal sexual assault of a child, aggravated criminal sexual assault, or criminal sexual assault.

Within 14 days after an indictment from a grand jury; or after a probable cause hearing; or if arrestee has waived a preliminary hearing.

Illinois Department of State Police

Department of State Police, Division of Forensic Services

Automatic upon receipt of a certified copy of a final court order for each charge against an individual in which the charge has been dismissed, resulted in acquittal, or that the charge was not filed within the applicable time period (unless the individual has other charges or convictions that require submission of a specimen).

Indiana

IC § 10–13–6–8 Powers and Duties of Superintendent

§ 10–13–6–10 Convicted Felons to Provide DNA Sample

§ 10–13–6–18 Removal of DNA Profile

Superintendent of State Police

Upon request to Superintendent of State Police with certified copy of court order establishing (i) the person was acquitted of all the felony charges, or all of the felonies were converted to misdemeanors, or (ii) all felony charges were dismissed; or (iii) upon notification and request to the prosecuting attorney if 365 days have elapsed since the person’s arrest and no felony charges have been filed against the person.

Yes, from adults and minors (all “persons” arrested for a felony), only by buccal (i.e. cheek) swab

Felonies

At booking; may not ship the DNA sample for identification unless there was a warrant pursuant to a felony arrest or probable cause was found by a court for a felony arrest.

The sheriff

Iowa

N/A

No.

N/A

N/A

N/A

N/A

N/A

Kansas

Kan. Stat. Ann. 21–2511. Collection of Biological Samples, Fingerprints and Other Identifiers from Certain Persons; Kansas Bureau of Investigation, Powers and Duties; Expungement of Sample and Profile Record; Failure to Provide Sample, Penalties; Other Unlawful Acts

 

Case Law:

State v. Biery, 318 P.3d 1020 (Kan. Ct. App. 2014) (“The statute does not violate the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights and is constitutional.”)

State v. Martinez, 78 P.3d 769 (Kan. 2003) (“The addition of burglary to the crimes included in [K.S.A. 21–2511] does not make the statute unconstitutional.”).

Yes, from adults and minors.

Felonies, and enumerated misdemeanors: Criminal sodomy (between two members of the same sex 16 or more years of age [though this criminal statute has been held unconstitutional], or between a person and an animal), Lewd and lascivious behavior in the presence of a person 16 or more years of age, Cruelty to animals, Criminal restraint when the victim is a minor, Adultery when one party is a minor, Buying sexual relations when the offender is a minor, Promoting the sale of sexual relations when one party is a minor, Sexual battery, Aggravated sexual battery, and Attempt, Conspiracy, or Criminal solicitation to commit any of the above.

At the same time as fingerprinting pursuant to the booking procedure, “or as soon as practicable”.

The custodial law enforcement agency, or juvenile justice agency.

Kansas Bureau of Investigation

Upon petition to the court, if charges are dismissed and no appeal, expungement, or acquittal at trial; or if court determines there was not probable cause for the arrest

Kentucky

N/A

N/A

N/A

No. 

N/A

N/A

N/A

Louisiana

LSA-R.S. § 15:603 Definitions

§ 15:604. Powers and duties of state police

§ 15:609. Drawing or taking of DNA samples

§ 15:610. Procedures for withdrawal, collection, and transmission of DNA samples

§ 15:614. Removal of Records

Yes, from adults and minors.

Felonies and other specified offenses (listed below), or felony-grade delinquent act, including attempt, conspiracy, criminal solicitation, or accessory after the fact

Other specified offenses: Battery of a police officer, school teacher, school or recreation athletic contest official, correctional facility employee, or bus operator; Disarming of a peace officer; Aggravated second degree battery; Battery of emergency room personnel, emergency services personnel, or a healthcare professional; Battery of a dating partner; Aggravated assault upon a dating partner; Simple battery; Battery of a child welfare or adult protective service worker; Simple battery of persons with infirmities; Domestic abuse battery; Assault; Aggravated assault; Unlawful use of a laser on a police officer; Simple assault; Assault on a school teacher; Stalking; Misdemeanor Sexual Battery; Identity Theft; Misdemeanor carnal knowledge of a juvenile; Prohibited sexual conduct between educator and student; Prostitution; Soliciting for prostitutes; Inciting prostitution; Prostitution by massage; Massage, sexual conduct prohibited; Letting premises for prostitution; Contributing to the delinquency of juveniles; Illegal carrying of weapons; Illegal possession of a handgun by a juvenile; Hate crimes; Peeping Tom; Inciting to riot.

At the same time as fingerprinting pursuant to the booking procedure.  The DNA sample may be analyzed during or immediately following the booking of the arrestee, or at any time thereafter.

A person “qualified to draw or take DNA samples” at the place of booking, incarceration, or confinement, or at a prison, jail unit, juvenile facility, or other facility to be specified by the court.

Louisiana State Police

Upon written request with a certified court order of expungement and sealing, if the arrest does not result in a conviction or plea agreement.

Maine

N/A

No.

N/A

N/A

N/A

N/A

N/A

Maryland

MD Code Public Safety § 2-504. Collection of DNA samples

 

§ 2-511. Destruction or Expungement of DNA Information

 

MD Code Regs. § 29.05.01.04 Collecting Samples

 

 

Case Law:

Maryland v. King, 133 S. Ct. 1958 (2013) (“When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”)

Walker v. State, 2022 WL 1416675 (Md. Ct. App. May 4, 2022) (holding DNA obtained pursuant to a search warrant was not subject to the DNA Act and thus was properly not expunged).

Department of State Police, Forensic Sciences Division

Automatic if charges are determined to be unsupported by probable cause; or criminal action does not result in conviction. 

A DNA sample or DNA record may not be destroyed or expunged automatically from the State DNA data base if the criminal action is put on the stet docket or the individual receives probation before judgment.

Yes, at the time of charging from adults and minors.

Felonies or misdemeanors if “a crime of violence” (or an attempt) or burglary (or an attempt), but only if the individual is charged.

At the time of charging; but no testing or entry into DNA database before the first arraignment date without consent.

Sheriff’s office, police department, regional jail, or any other entity specified by the Secretary responsible for booking.

Massachusetts

N/A

No.

N/A

N/A

N/A

N/A

N/A

Michigan

Mich. Comp. Laws §§ 28.171-28.176 DNA Identification profiling system Act

 

Mich. Comp. Laws Ann. § 712A.18k  DNA identification profiling; providing samples for chemical testing; assessment; forwarding to department of state police; definitions

 

Mich. Admin. Code r. § 28.5051 –28.5059 DNA Profiling System

 

Case Law:

 

People v. Clay, No. 339659, 2019 WL 137149, at *5 (Mich. Ct. App. Jan. 8, 2019)

(“Applying these statutory provisions to the circumstances here demonstrates that defendant's DNA was not unlawfully retained. Defendant was charged with Larceny from a Person on or about May 11, 2016 and his DNA was lawfully collected per MCL 28.176(1)(a), at the time of his arrest. Defendant's DNA was forwarded to the department after his arrest, but before conviction. On May 24, 2016, the Larceny from a Person charge was dismissed. On July 18, 2016, CODIS operators found an association or “hit” in the database between the DNA profile taken from Chelsea's leotard and defendant's DNA entered from the larceny charge. The total number of days between May 24, 2016 and July 18, 2016 was 55. This period of retention was not in violation of the statute because 55 days was within the 60 days statutorily allotted for the prosecutor to object to the dismissal and retain the DNA.”).

 

 

 

 

 

 

 

 

The county sheriff or the law enforcement agency responsible for the investigation of the offense for which the individual is arrested or convicted.

Samples to be transmitted to the Department of State Police within 30 days of the arrest.

Felonies, including attempted felonies, or an offense that would be a felony if committed by an adult.

At arrest (i.e., a reasonable time after arrest, typically during the booking process).  

Yes, from adults and minors.

In general, DNA sample or profile or both shall be destroyed or expunged if the charge for which the sample was obtained has been dismissed or resulted in acquittal or no charge was filed within the limitations period.

Minnesota

 *The provisions below are still on the books although they were struck down with respect to arrest only (not conviction) in 2006.  See Case Law/Notes.

Minn. Stat. § 299C.105 DNA data required

 

§ 609.117 DNA Analysis of Certain Offenders Required

 

§ 609A.03 Petition to Expunge Criminal Records

 

Case Law:

 

In 2005, Minnesota enacted a DNA-collection statute that required law enforcement agencies to take DNA samples from persons who have been arrested for, but not convicted of, certain enumerated offenses (Minn. Stat. § 299C.105 DNA data required).  This law was struck down by the Minnesota Court of Appeals in 2006 as unconstitutional under the Fourth Amendment and a provision of the  Minnesota State Constitution that is generally interpreted as coterminous with the Fourth Amendment.  In re Welfare of C.T.L., 722 N.W.2d 484, 492 & n.1 (Minn. Ct. App. 2006) (“statutory provisions that direct law enforcement to take biological specimens from juveniles and adults who have had a probable cause determination on a charged offense but who have not been convicted violate state and federal constitutional prohibitions against unreasonable searches and seizures. “).  But a 2013 Supreme Court decision held that a similar Maryland law was permissible under the Fourth Amendment.  See Maryland v. King,  569 U.S. 435, 465 (2013) (“In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.”).

No*

N/A*

N/A*

N/A*

N/A*

N/A*

Mississippi

Miss. Code § 45-33-37 DNA Identification System; Convicted Sex Offender to Submit Biological Sample for Purposes of DNA Identification Analysis.

Miss. Code § 45-47-1  DNA samples to be collected from persons arrested for commission or attempted commission of certain crimes of violence; destruction of sample; penalties for obtaining, receiving or disseminating information in DNA data bank without authority.

§ 47-5-183 Department of Corrections may create a postconviction DNA database.

§ 97-3-2 Crimes of Violence Defined.

Yes, from adults only.

Crimes of violence (as defined by Miss. Code § 97-3-2, including, without limitation, driving under the influence, murder, aggravated assault, manslaughter, killing of an unborn child, kidnapping, human trafficking, poisoning, rape, robbery, sexual battery, rape, drive-by shooting or bombing, carjacking, felonious neglect, abuse or battery of a child, burglary of a dwelling, use of explosives or weapons of mass destruction, shooting into a dwelling).  

Upon booking.

Collected by the jail or corrections personnel and then transferred to Mississippi Forensics Laboratory.

Mississippi Forensics Laboratory

Upon a motion or sua sponte by the court, the court may direct the Forensics Laboratory to destroy a sample under certain circumstances (e.g., charge dismissed, no charge filed, acquittal, no conviction or active prosecution within 3 years of the arrest date).

Missouri

Mo. Ann. Stat. §§ 650.050–650.060 DNA Profiling System

§ 589.407 Registration, Required Information--substantiating Accuracy of Information

Yes, from adults only (defined as individuals seventeen years of age or older).   

For burglary in the 1st or 2nd degree or a felony offense including offenses against the person (e.g., murder and manslaughter, assault, harassment), sexual offenses, prostitution, offenses against the family, or pornography and related offenses.  

Upon booking at a county jail or detention facility.

Missouri State Highway Patrol, Department of Corrections, and the registering agency for sex offenders

Missouri Department of Public Safety

Missouri State Highway Patrol crime laboratory is administrator of the DNA index system.

Automatic if the charges are later withdrawn, the case is dismissed,a court finds that there is no probable cause that the defendant committed the offense, or the defendant is found not guilty and the defendant has no other qualifying offenses or arrests that would require a DNA sample.

Montana

N/A

N/A

N/A

No. 

N/A

N/A

N/A

Nebraska

Case Law: A court “may” order “identification procedures” on probable cause. Neb. Rev. Stat. Ann. § 29-3302. That can include DNA collection. See State v. McKinney, 273 Neb. 346 (2007).

No.

N/A

N/A

N/A

N/A

N/A

Nevada

Nev. Rev. Stat. § 176.0917 - County to designate forensic laboratory to conduct or oversee analysis; criteria

 

§ 176.09121 - State DNA Database: Establishment; duties

 

§ 176.09123 - Collection of biological specimen from persons arrested for felony; submission to forensic laboratory; identifying information submitted to Central Repository; genetic marker analysis; creation of DNA profile; information included in criminal history record

 

§ 176.09125 – Destruction of biological specimen and purging of DNA record: Grounds; written request; duties of Central Repository, forensic laboratory and State DNA Database

 

§ 176.09129 – Storage and maintenance of biological specimen, DNA profile, DNA record and information; release of information; confidentiality; penalty for unauthorized disclosure of information

 

 

2016 Nev. Op. Att'y Gen. No. 11 (Dec. 12, 2016) ("[NV Statutue] requires a biological specimen to be collected from any prisoner convicted of a felony offense who is presently in the custody of the nevada department of corrections, regardless of the date of conviction.").

 

Case Law:

 

Although Nevada law provides for the collection of a DNA sample with a cheek swab for all persons arrested for a felony without a warrant upon booking, the Nevada Supreme Court has not considered whether the statute allows a DNA sample to be taken when a person is arrested without probable cause. Price v. Suites, No. 221CV01438JADDJA, 2021 WL 9218828, at *4 (D. Nev. Dec. 17, 2021).

Yes, from adults only.

Felonies

Upon booking the person into a city or county jail or detention facility, and before the person is released from custody.

The arresting law enforcement agency.

The Forensic Science Division of the Washoe County Sheriff's Office oversees, manages and administers the State DNA Database.

The board of county commissioners of each county is responsible for selecting a forensic laboratory to conduct or oversee for the county any genetic marker analysis that is required pursuant to NRS §§ 176.09123, 176.0913 or 176.0916.

A person whose record of criminal history indicates the collection of a biological specimen and whose DNA profile and DNA record have been included in the State DNA Database and CODIS pursuant to NRS § 176.09123 may make a written request to the Central Repository for Nevada Records of Criminal History, using the Nevada Department of Public Safety DNA Expungement Application, that the biological specimen be destroyed and the DNA profile and DNA record be purged from the forensic laboratory, the State DNA Database and CODIS on the grounds that the arrest which led to the inclusion of the biological specimen or the DNA profile or DNA record: (1) has resulted in a felony charge that has been resolved by a dismissal, the successful completion of a pre-prosecution diversion program pursuant to NRS § 174.033, a conditional discharge, an acquittal or an agreement entered into by a prosecuting attorney and a defendant in which the defendant, in exchange for a plea of guilty, guilty but mentally ill or nolo contendere, receives a charge other than a felony; or (2) has not resulted in any additional criminal charge for a felony within 3 years after the date of the arrest.

If a court or magistrate determines that probable cause did not exist for the person's arrest, biological specimens are destroyed within 5 business days after receiving notice of the determination by the court or magistrate. 

New Hampshire

N/A

N/A

N/A

N/A

N/A

N/A

No. 

New Jersey

Yes, from adults and minors.

Aggravated sexual assault, sexual assault, and attempts to commit such crimes;

Aggravated criminal sexual contact, criminal sexual contact, and attempts to commit such crimes;

Murder;

Manslaughter;

Aggravated assault of the second degree;

Kidnapping;

Luring or enticing a child into a motor vehicle with a purpose to commit a criminal offense with or against the child;

Every juvenile arrested for an act which, if committed by an adult, would constitute an enumerated offense

Prior to release from custody.

Arresting law enforcement agency.

Division of State Police in the Department of Law and Public Safety

Upon application for expungement on the grounds that all charges from the arrest that provided the basis for DNA collection have been dismissed or resolved through acquittal at trial, or, if a juvenile, the adjudication that provided the basis for DNA collection has been reversed and the case dismissed.

N.J. Stat. Ann. § 53:1-20.19 - Definitions

 

§ 53:1-20.20 - Collection of blood sample or other biological sample for DNA testing

 

§ 53:1-20.22 – Procedures for obtaining blood sample or biological sample; persons authorized to draw blood or collect sample; liability

§ 53:1-20.24. Inclusion of results in state database; use of data

 

§ 53:1-20.25 - Expungement of DNA record from state database; conditions

 

P.L.2011, c. 104 -- Arrest

New Mexico

Yes, from adults and minors convicted as youthful offenders or serious youthful offenders.

Felonies

At booking

Department of Corrections

Department of Public Safety, based on rules established by the DNA Oversight Committee

By written request if: (1) the conviction that led to the inclusion of the sample has been reversed; or (2) the arrest that led to the inclusion of the sample has: (a) resulted in a felony charge that has been resolved by a dismissal, nolle prosequi, successful completion of a pre-prosecution diversion program or a conditional discharge, misdemeanor conviction or acquittal; or (b) not resulted in a felony charge within one year of arrest.

Written request should include a certified copy of the dismissal, nolle prosequi, successful completion of a pre-prosecution diversion program or a conditional discharge, misdemeanor conviction or acquittal; or a sworn affidavit that no felony charges arising out of the arrest have been filed within one year.  

N. M. S. A. 1978, § 29-16-3.  Definitions

 

§ 29-16-6.  Collection of Samples

 

§ 29-3-10. DNA Collection from Persons Arrested

 

§ 29-16-10. Expungement of samples and DNA records from the DNA identification system and CODIS

New York

N/A

N/A

No. 

N/A

N/A

N/A

N/A

North Carolina

Yes, from adults and minors.

Commission or attempt, solicitation of another to commit, conspiracy to commit, or aiding and abetting another to commit any of the following offenses in Chapter 14 of the General Statutes:

(1) Assault with a deadly weapon on executive, legislative, or court officer; and Assault inflicting serious bodily injury on executive, legislative, or court officer. (1a) First and Second Degree Murder. (2) Manslaughter. (2a) Any felony offense in Article 6A, Unborn Victims. (3) Any offense in Article 7B, Rape and Other Sex Offenses. (4) Malicious castration; Castration or other maiming without malice aforethought; Malicious maiming; Malicious throwing of corrosive acid or alkali; Maliciously assaulting in a secret manner; Felonious assault with deadly weapon with intent to kill or inflicting serious injury; Aggravated assault or assault and battery on an individual with a disability; Patient abuse and neglect, intentional conduct proximately causes death; Domestic abuse of disabled or elder adults resulting in injury; Assault inflicting serious bodily injury or injury by strangulation; Habitual misdemeanor assault; Discharging certain barreled weapons or a firearm into occupied property; Assault with a firearm or other deadly weapon upon governmental officers or employees, company police officers, or campus police officers; Adulterated or misbranded food, drugs, etc., intent to cause serious injury or death, intent to extort; Assault with a firearm on a law enforcement, probation, or parole officer or on a person employed at a State or local detention facility; Assault or affray on a firefighter, an emergency medical technician, medical responder, emergency department nurse, or emergency department physician; Assault inflicting serious injury on a law enforcement, probation, or parole officer or on a person employed at a State or local detention facility; Discharging a firearm from within an enclosure; and Discharge firearm within enclosure to incite fear. (5) Any offense in Article 10, Kidnapping and Abduction, or Article 10A, Human Trafficking. (5a) Any offense in Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material. (6) First and second degree burglary; Breaking out of dwelling house burglary; Breaking or entering buildings with intent to terrorize or injure; Breaking or entering a place of religious worship; and Burglary with explosives. (7) Any offense in Article 15, Arson. (8) Armed robbery; Common law robbery punishable pursuant; and, Train robbery. (8a) Assaulting a law enforcement agency animal, an assistance animal, or a search and rescue animal willfully killing the animal. (9) Any offense which would require the person to register under the provisions of Article 27A of Chapter 14 of the General Statutes, Sex Offender and Public Protection Registration Programs. (10) Cyberstalking. (10a) Secretly peeping into room occupied by another person. (10b) Possession of dangerous weapon in prison resulting in bodily injury or escape; Taking of hostage, etc., by prisoner; and Malicious conduct by prisoner. (11) Stalking. (12) Assault on emergency personnel with a dangerous weapon or substance. (13) Unlawful manufacture, assembly, possession, storage, transportation, sale, purchase, delivery, or acquisition of a nuclear, biological, or chemical weapon of mass destruction; exceptions; and Unlawful use of a nuclear, biological, or chemical weapon of mass destruction. (14) Child abuse inflicting serious injury and Child abuse inflicting serious bodily injury. (15) Cruelty to animals; maliciously kill by intentional deprivation of necessary sustenance; and Cruelty to animals; maliciously torture, mutilate, maim, cruelly beat, disfigure, poison, or kill. (16) Attempt to conceal evidence of non-natural death by dismembering or destroying remains.

At time of arrest or fingerprinting

If no warrant, after probable cause hearing

Law enforcement

North Carolina State Crime Laboratory of the Department of Justice

The Crime Laboratory shall remove a person's DNA record, and destroy any DNA biological samples that may have been retained, from the State DNA Database and DNA Databank if both of the following are determined pursuant to subsection (i) of this section:

(1) As to the charge, or all charges, resulting from the arrest upon which a DNA sample is required under this section, a court or the district attorney has taken action resulting in any one of the following:

a. The charge has been dismissed

b. The person has been acquitted of the charge.

c. The defendant is convicted of a lesser-included misdemeanor offense that is not an offense included in subsection (f) or (g) of this section.

d.No charge was filed within the statute of limitations, if any.

e. No conviction has occurred, at least three years has passed since the date of arrest, and no active prosecution is occurring.

(2) The person's DNA record is not required to be in the State DNA Database under some other provision of law, or is not required to be in the State DNA Database based upon an offense from a different transaction or occurrence from the one which was the basis for the person's arrest.

Any person entitled to expungement under this section may also apply to the court for an order expunging DNA records when the person's case has been dismissed by the trial court. A copy of the application for expungement of the DNA record or DNA sample shall be served on the district attorney for the judicial district in which the felony charges were brought not less than 20 days prior to the date of the hearing on the application.

NCGS § 15a–266.3a. DNA Sample Required for DNA Analysis upon Arrest for Certain Offenses

 

§ 15A-146,

§ 15A-148.

 Expunction of Records

 

§ 15A-502.1

 DNA Sample Upon Arrest

 

Case Law:

State v. Jacobs, 128 N.C. App. 559 (1998) (“The purpose of the statute is to clear the public record of entries so that a person who is entitled to expunction may omit reference to the charges to potential employers and others, and so that a records check for prior arrests and convictions will not disclose the expunged entries. Neither the statute nor the order of expunction entered at defendant's request requires the destruction of investigative files.”).

North Dakota

Law enforcement officer or correctional personnel.

Attorney General and State crime laboratory

Felonies

At arrest or first court appearance, or upon booking into a correctional facility.

Yes, from adults only.

Yes – must petition court if arrest resulted in dismissal, acquittal, or misdemeanor conviction; or if felony charges not brought within a year; or reversal of conviction.

NDCC § 31-13-01. Definitions

 

§ 31-13-03. Individuals to be tested--Costs

 

§ 31-13-07. Removal of DNA profiles from database

Ohio

Yes, from adults only.

Felonies

If arrested: at intake process at jail, corrections facility, police station;

If court summons: court will order submission of DNA within 24 hours of court appearance

The head of the arresting law enforcement agency is responsible.

Bureau of Criminal Identification and Investigation

Upon application to the court, pursuant to general record sealing statute. DNA records sealed if court determines that person was not guilty in the case, that the complaint, indictment, or information in the case was dismissed with prejudice, or that the complaint, indictment, or information in the case was dismissed without prejudice and that the relevant statute of limitations has expired.  

Ohio R.C. § 2901.07. DNA testing of certain prisoners

 

OHIO REV. CODE § 2953.52 APPLICATION TO HAVE RECORDS SEALED; GROUNDS; ORDER

  

 Case Law: 

Ohio v. Keith, 62 N.E.3d 649 (Ohio Ct. App. 2016) (“The court suppressed the DNA sample and any subsequent test results of that specimen on the ground that [the detective] was not statutorily authorized to collect the DNA sample from [the defendant]. The trial court noted that R.C. 2901.07(B)(1)(a) authorizes collection of a DNA specimen from an adult arrested for a felony during the intake process at the jail; however, although [the defendant] was under arrest, [the detective] obtained the sample prior to [the defendant]'s being booked into the county jail.”).

 Crabbs v. Scott, 786 F.3d 426 (6th Cir. 2015) (“The statute mandates DNA collection ‘during the intake process.’”).

 

 Ohio v. Bolton, 2012 WL 171039 (Ohio Ct. App. 2012) (“[In the context of law enforcement, the taking of a DNA sample is akin to the taking of a fingerprint and does not unduly infringe on an offender's privacy interests.  Accordingly, the DNA sample taken from appellant while he was in prison on an unrelated charge was not unconstitutional pursuant to R .C. 2901.07.”).

Oklahoma

Yes, from adults only.

Felonies

At booking; but shall not be analyzed and shall be destroyed unless: valid felony arrest or warrant issued; affirmative finding of probable cause after hearing; Defendant failed to appear for a scheduled hearing; or DNA sample provided as part of plea agreement.

Department of Corrections, or a peace officer, or county sheriff’s office

Oklahoma State Bureau of Investigation (OSBI)

Automatic – when no charges filed and statute of limitations runs; felony charge dismissed by state or court.

22 Okl. St. Ann. § 210.  Felony arrest--DNA testing required

 

22 Okl. St. Ann. § 211.1. DNA Information inadmissible post-expungement date

 

74 Okl.  St. Ann. § 150.27.Deoxyribonucleic acid (DNA) laboratory--Coordination of use with law enforcement agencies--Forensic DNA technical manager

 

 

74 Okl.St.Ann. § 150.27a. OSBI Combined DNA Index System (CODIS)

Oregon

No.

N/A

N/A

N/A

N/A

N/A

N/A

Pennsylvania

N/A

No. 

N/A

N/A

N/A

N/A

N/A

Puerto Rico

 34 L.P.R.A. § 4006 Persons subject to sampling

 

34 L.P.R.A. § 4007 Testing procedure

  

34 L.P.R.A. § 4011 Elimination of record and destruction of sample

Yes, from any person.

Cause for arrest for having committed or attempted to commit any of the following crimes: Murder; Manslaughter; Abortion; Abortion committed or consented by the woman; Abortion by force or violence; Human cloning; Aggravated battery; Child abduction; Child corruption; Sexual assault; Lewd acts; Bestiality; Proxenetism, pandering, and human trafficking; Aggravated proxenetism, pandering, and human trafficking; Production of child pornography; Possession and distribution of child pornography; Use of a minor for child pornography; Slavery; Aggravated restriction of freedom; Kidnapping; Aggravated kidnapping; Aggravated burglary; Genocide; Crimes against humanity

At fingerprinting and booking at the police station or headquarters where the person is detained after arrest.

Puerto Rico Police Department, in coordination with the Institute of Forensic Sciences

Puerto Rico Institute of Forensic Sciences

Automatic if charges dismissed, or if court finds the accused not guilty.

Rhode Island

RI Gen.Laws 1956, § 12-1.5-2. Definitions

 

RI Gen.Laws 1956, § 12-1.5-3. Powers and duties of the department of health

 

RI Gen.Laws 1956, § 12–1.5–8. DNA Sample Required upon Arrest or Conviction for Any Crime of Violence

 

RI Gen.Laws 1956, § 12–1.5–13. Expungement

 

R.I. Admin. Code § 60-05-2.3. Definitions

 

R.I. Admin. Code § 60-05-2.6. State of Rhode Island DNA Databank

 

R.I. Admin. Code § 60-05-2.10. Expungement

Yes, from adults only.

Any crime of violence, including: murder, manslaughter, first-degree arson, kidnapping with intent to extort, robbery, larceny from the person, first-degree sexual assault, second-degree sexual assault, first- and second-degree child molestation, assault with intent to murder, assault with intent to rob, assault with intent to commit first-degree sexual assault, burglary, and entering a dwelling house with intent to commit murder, robbery, sexual assault, or larceny.

At booking, but sample shall not be tested or placed in database prior to arraignment unless:

(1) affirmative finding of probable cause after hearing; or

(2) defendant was released and failed to appear, or escaped custody prior to appearing before a judicial officer

No sample will be taken if a sufficient sample from the person has already been collected 

Law enforcement personnel

Department of Health

Automatic if charge not supported by probable cause; arrest does not result in a charge; voluntary dismissal of the charge by state; dismissal by a court; not guilty verdict after trial; upon the vacating or the reversal of a conviction in which the state does not retry the defendant or appeal the decision; or loses such appeal upon hearing; or upon any plea or conviction of a lesser offense that would not give rise to DNA sampling.

Upon written request and completion of a program of diversion or the completion of the term of a sentence of deferment, or of the granting of a pardon.

  

South Carolina

Yes, from adults and minors.

Felony offense or an offense punishable by a sentence of five years or more; Also, if adult: eavesdropping, peeping, stalking. Also, if ordered to do so by a court.

At jail, sheriff’s office, courthouse, or detention facility at time of booking and processing, or other location when the taking of fingerprints is required prior to a conviction.

Law enforcement agency or corrections agency with custody

South Carolina Law Enforcement Division (SLED)

Automatic – Solicitor in county where charged must notify SLED when expungement is available: if charge was nolle prossed, dismissed, reduced below requirement for inclusion in the database; or if found not guilty, or conviction reversed, set aside, or vacated.

SC Code § 23–3–610. State DNA Database Established; Purpose

 

§ 23–3–620. When DNA Samples Required  

 

§ 23–3–660. Expungement of DNA Record; Grounds for Requesting

 

S.C. Code of Regulations R. 73-61. State DNA Database

South Dakota

Any “qualifying offense,” which means (1) any felony; (2) a crime of violence (any of the following crimes or an attempt, solicitation, or conspiracy to commit them: murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first degree, arson, kidnapping, felony sexual contact, felony child abuse, or any other felony in the commission of which the perpetrator used force, was armed with a dangerous weapon, or used any explosive or destructive device); or (3) a violation of chapter 22-22 (sex offenses). 

Upon booking, or as determined by the supervising agency.

Yes, from adults only.

The agency with custody.

State Forensic Laboratory

A person may request expungement on the grounds that the arrest that led to the collection of the DNA has not resulted in a felony charge within one year; has been resolved by a dismissal, acquittal, or misdemeanor conviction; or has not resulted in a felony conviction; or the conviction or delinquency adjudication on which the authority for including that person's DNA record or DNA profile was based has been reversed and the case dismissed.  

The request must be made in writing and be accompanied by a certified copy of any relevant final court order. 

SDCL § 23–5a–2, Establishment of State DNA Database and State DNA Databank—Purpose—Compatibility with FBI Procedures—Capabilities

 

 § 23–5a–5.2, Adult Arrested for Qualifying Offense Required to Provide DNA Sample

 

§ 23–5a–28, Request for Expungement—Grounds

Tennessee

Yes, from adults and minors (by implication).  

Violent felonies, as defined by statute. Includes attempt, solicitation, conspiracy, criminal responsibility, facilitation, or being an accessory after the fact to any of the following crimes: First or second degree murder; Aggravated kidnapping or especially aggravated kidnapping; Aggravated assault; Aggravated child abuse; Robbery, aggravated robbery or especially aggravated robbery; Aggravated burglary or especially aggravated burglary; Carjacking; Sexual battery, sexual battery by an authority figure or aggravated sexual battery; Statutory rape by an authority figure or aggravated statutory rape; Rape, aggravated rape, rape of a child or aggravated rape of a child; Aggravated arson; Aggravated vehicular homicide; Criminally negligent homicide; Reckless homicide; Vehicular homicide; or Voluntary manslaughter.

After a probable cause hearing and before release from custody.

The arresting authority.

Tennessee Bureau of Investigation, Forensic Services Division

Automatic if the charge is dismissed or the person is acquitted at trial. The applicable court clerk must notify the Tennessee Bureau of Investigation of this disposition, and the Bureau shall destroy the sample and all records of it.

T.C.A. § 38–6–103, Forensic Services Division; Breathalizers; DNA Analysis; Backlog of DNA Analysis

 

§ 38-6-113,  DNA Analysis; Procedures; Databank

 

§ 40-35-321, DNA Analysis; Specimens

Texas

Yes, from adults and minors (by implication).  

Felonies for Murder; Capital Murder; Kidnapping; Aggravated Kidnapping; Smuggling of Persons; Continuous Smuggling of Persons; Trafficking of Persons; Continuous Trafficking of Persons; Continuous Sexual Abuse of Young Child or Children or Disabled Individual; Indecency With a Child; Assault; Sexual Assault; Aggravated Assault; Aggravated Sexual Assault; Prohibited Sexual conduct; Robbery; Aggravated robbery; Burglary; Theft; Promotion of Prostitution; Aggravated Promotion of Prostitution; Compelling Prostitution; Sexual Performance by a Child; Possession or Promotion of Child Pornography. 

Registered sex offenders.

After arrest, immediately after fingerprinting the arrestee and at the same location as the fingerprinting.

The arresting law enforcement agency.

The Department of Public Safety

Upon acquittal or dismissal, or after relief granted pursuant to writ of habeas corpus,  the court shall order the law enforcement agency that took the specimen to immediately destroy the specimen and associated records

Tex. Gov’t Code § 411.1471, DNA RECORDS OF PERSONS ARRESTED FOR, CHARGED WITH, OR CONVICTED OF CERTAIN OFFENSES

§ 411.1473 DNA RECORDS OF CERTAIN REGISTERED SEX OFFENDERS

TEX. GOV’T CODE § 411.148. MANDATORY DNA RECORD

§ 411.151, EXPUNCTION OR REMOVAL OF DNA RECORDS

Utah

Department of Public Safety, Bureau of Forensic Services

If all charges are dismissed or the individual is acquitted, s/he may file a motion for a court order requiring destruction of the sample and associated records. The Department of Public Safety will then destroy the sample and records.  

Yes, from adults and minors age 14 and older.

Any felony, and registered sex offenders.

At the time of booking, but the sample may not be processed until after a probable cause hearing or indictment.

The sheriff

U.C.A. 1953 § 53–10–403, DNA Specimen Analysis—Application to Offenders, Including Minors

 

§53–10–404, DNA Specimen Analysis—Requirement to Obtain the Specimen

 

§ 53–10–404.5, Obtaining DNA Specimen at Time of Booking—Payment of Fee upon Conviction

§ 53–10–406, DNA Specimen Analysis—Bureau Responsibilities

Vermont

No.

N/A

N/A

N/A

N/A

N/A

N/A

 

Case Law:

State v. Medina, 197 Vt. 63 (Vt. 2014) (The Supreme Court of Vermont held that the DNA collection statute then in effect—which required collection of DNA samples from persons arrested for a felony, following a probable cause hearing—violated the Vermont state constitution’s search and seizure protections and was, therefore, unconstitutional.)

Virgin Islands

Attorney General, Bureau of Corrections; Territorial Probation Office, or Board of Parole

Any person charged with a designated offense, including juveniles tried as adults. Designated offenses include: Felony or violent crime or any misdemeanor sexual offense or attempt or conspiracy to commit such crimes.

 

 

After individual is charged

Virgin Islands DNA Database and Databank (within the VI Dept of Justice, Office of Attorney General)

Yes, from adults and juveniles tried as adults.

5 V.I.C. § 4201. Definitions

 

§ 4203. DNA sample required

 

§ 4207. Confidentiality and disclosure

 

§ 4209. Expungement

 

 

§ 3732 Expungement of criminal records-when they may be expunged

 

 Case Law:

After a court held arrestees were not required to provide DNA without a warrant, the legislature revised the law in 2016 to cover individuals “charged with” designated offenses.  People v. Turnbull, 61 V.I. 46 (Sup. Ct. V.I., Div. St. Croix 2014).

Written request where no criminal action was commenced within the statute of limitations; or if case nolle prosequi or dismissed with prejudice

Virginia

Law enforcement agency responsible for arrest booking in the jurisdiction.

Department of Forensic Science

Violent Felonies; or a violation or attempt of numerated other offenses, including the criminal code provisions related to capital murder; burglary; entering with intent to commit murder, rape, robbery, arson, larceny, assault and battery, or other felony; breaking and entering with intent to commit other misdemeanor.

After a probable cause determination by a magistrate or grand jury and prior to release from custody.  If a sample of the person is stored in the DNA data bank as indicated by the Department of Forensic Science sample tracking system, no additional sample shall be taken.

Yes, from adults only.

Automatic – clerk of the court notifies Dept. of Forensic Science if case dismissed or defendant is acquitted, provided no other pending qualifying warrant or capias for an arrest or qualifying felony conviction.

VA Code § 19.2–310.2:1. Saliva or Tissue Sample Required for DNA Analysis After Arrest for a Violent Felony

 

CASE LAW:

DNA testing provision applies to “every person” arrested for listed offenses, but VA Code § 16.1-299.1 covers DNA testing of minors and does not mention arrestees

Washington

No.

N/A

N/A

N/A

N/A

N/A

N/A

West Virginia

No.

N/A

N/A

N/A

N/A

N/A

N/A

Wisconsin

Yes, from adults and minors.

A “violent crime” – enumerated felonies; includes solicitation, conspiracy, and attempt

Any juvenile taken into custody for an offense that would be a violent crime  if committed by an adult

At booking, but may not upload to database unless arrested (or juvenile taken into a custody) due to a warrant, or until after probable cause hearing (or after individual failed to appear at the initial appearance or preliminary examination, or delinquency proceeding, or waived the preliminary examination).

Law enforcement agency

Department of Justice (state crime laboratories)

May petition with court order if case dismissed, no charges filed after a year, acquittal, or if person was found guilty and conviction reversed, set aside, or vacated.

W.S.A. § 165.76. Submission of human biological specimen

 

§ 165.77. Deoxyribonucleic acid analysis and data bank

 

WI ADC § Jus. 9.05. Use of human biological specimens for DNA data bank

Wyoming

No. 

N/A

N/A

N/A

N/A

N/A

N/A


Conviction Does the law require a DNA sample to be collected from the defendant when they are convicted of a crime? What convictions require collection of a DNA sample? Does the law require DNA collection when a defendant is found not guilty by reason of insanity/mental defect/illness? Does the law mandate when the DNA sample must be collected after conviction? What agency collects the DNA sample after conviction? What agency manages the analysis and preservation in the DNA database? Can the conviction DNA sample be expunged? Statutes
Alabama

Yes.

Felony conviction, sex crime misdemeanor conviction, felony arrest, sexual offense arrest

Not specifically required

"When ordered by sentencing court" or

"upon request of (Forensic Sciences) director; or

For persons convicted: as specified by the (Forensic Sciences) director as a mandatory condition of any term or probation or suspended sentence; or

For persons serving probation: (1) upon request of the (Forensic Sciences) director or (2) as ordered by the sentencing court as a mandatory condition of parole or probation if initial submission is refused, or

For persons arrested for a felony offense after October 1, 2010: “at the same time he or she is fingerprinted pursuant to the booking procedure or at the time of arrest”

Department of Corrections

Director of the Alabama Department of Forensic Sciences

Yes – upon reversal of conviction, the (Forensic Sciences) director is authorized and empowered to expunge DNA records upon request of the person from whom the sample was taken.

Ala.Code 1975 § 36-18-24. ANA Database

Ala.Code 1975 § 36-18-22. Powers of Director

Ala.Code 1975 § 36-18-25. Collection of DNA samples from convicted persons.

Ala. Code 1975 § 36–18–26. Expungement of DNA Records.

Alaska

Yes - upon written request to Dept. of Public Safety, with a certified copy of a court order which establishes that the conviction was reversed and the person was not reconvicted or convicted for another crime requiring submission of a DNA sample.

AS §44.41.035 DNA Identification System

ALASKA ADMIN. CODE TIT. 22, § 20.200

Felony, or “crime against a person,” or a person required to register as a sex offender or a kidnapper; also applies to juveniles age 16 or older adjudicated to be delinquent  for a “crime against a person” or a felony if committed by an adult.

Not indicated in the statute.

Alaska regulations regarding standard conditions of parole include providing a DNA sample if parolee is being released after conviction of an offense requiring the state to collect a DNA sample.

Department of Public Safety; juvenile or adult correctional, probation, or parole officer or a peace officer

The Department of Public Safety

Yes.

Yes.  "Convicted" includes "guilty but mentally ill."

Arizona

Yes, adults and adjudicated juveniles

Adults: All felonies 

Juveniles, if adjudicated delinquent for: murder, forcible sexual assault, armed robbery, other violent felony offenses, enumerated crimes of burglary, homicide, certain drug offenses, and sex offenses, including sex offender registry offenses, sexual exploitation of children, incest

Not specifically required

Within 30 days of sentencing to the state department of corrections, arrival in Arizona as a parolee or probationer, or conviction and sentencing to parole/probation

State and county corrections officials, as well as juvenile corrections officials, may collect on behalf of Dept. of Public Safety

Department of Public Safety 

Yes – where conviction is overturned and a final mandate issued and upon petition to the superior court in the county where conviction occurred, the court shall order that the sample be expunged unless the person has been convicted of a separate offense that requires a DNA sample.

A.R.S. § 13-610. DNA Testing

 

Case Law:

State v. Emedi, 251 Ariz. 78 (2021) (no basis for court to require defendant to pay for DNA testing as a condition of probation for second degree burglary). 

Arkansas

A law enforcement official or corrections official

State Crime Laboratory

Yes.

(1) must apply to any circuit court upon reversal of conviction and dismissal of case;

(2) serve a copy of application for removal and destruction on prosecutor for county in which adjudication of guilt was obtained at least 20 days prior to date of hearing on application; and

(3) a certified copy of the reversal order must be attached to the order removing and destroying the DNA record

ARK. CODE ANN. §12-12-1006. Fingerprinting, DNA Sample Collection, and Photographing;

ARK. CODE ANN. §12-12-1105. State DNA Data Base;

ARK. CODE ANN. §12-12-1109. DNA Sample Required Upon Adjudication of Guilt;

ARK. CODE ANN. §12-12-1113. Removal and destruction of the DNA record and DNA sample

Yes.

Any felony.

Juveniles (less than 18) are exempt unless charged as an adult or plead guilty or nolo contendere to or found guilty of a felony offense.

Yes

If not immediately taken at arrest, or at first appearance in court, then after plea of guilty or nolo contendere the court will order DNA sampling; upon intake to a prison, jail, or detention facility.

California

Yes

Felonies (including juveniles convicted of felonies) and sex crime misdemeanors (including juveniles) where sex offender registration is required

Yes. If found not guilty by reason of insanity.

If not already taken at arrest, then “as soon as administratively practicable” or upon court order at sentencing.

Department of Corrections and Rehabilitation

If collected at a county jail or other county facility, including a private community correctional facility, the county sheriff or chief administrative officer of the county jail.

Department of Justice, DNA Laboratory (aka Jan Bashinski DNA Laboratory)

Yes – A petitioner must demonstrate one of four specific conditions: (1) charges were either not filed or were dismissed, (2) charges resulted in an acquittal, (3) any conviction was reversed and the case dismissed, or (4) the petitioner was found factually innocent.

Must petition the court and provide a copy of the request to the DNA Laboratory and the prosecuting attorney. DNA laboratory must destroy the sample and expunge the profile upon receipt of a court order.

West's Ann. Cal. Penal Code § 295.Short Title; Findings and Intent; Administration and Implementation of Chapter; Responsibility for Collection of Specimens, Samples and Imprints; costs and funds 

West's Ann. Cal. Penal Code § 296. Offenders Subject to Collections of Specimens, Samples, and Print Impressions

West's Ann. Cal. Penal Code § 299. Reversal, Dismissal or Acquittal; Request for expungement of information; procedure; specimens from persons no longer considered suspects

Case Law:

In re C.B., 6 Cal. 5th 118, 425 P.3d 40 (2018) (Minors who had submitted fingerprint and DNA samples under the DNA and Forensic Identification Data Base and Data Bank Act of 1998, as modified by Proposition 69, in connection with felony grand theft person adjudications were not entitled to have DNA samples expunged from databank after felonies were reduced to misdemeanors pursuant to Proposition 47, the Safe Neighborhoods and Schools Act; even though minors no longer were convicted of felonies, they could not show lack of charges, acquittal, appellate reversal, or a finding of factual innocence required for expungement.).

Colorado

Yes, unless the person has previously provided a biological substance sample for testing pursuant to a statute of Colorado and CBI has such sample.

Felonies

Not specifically addressed

If not at arrest, then “an appropriate agency may collect a sample at any other time during the adult's detention or during the pendency of charges”

The arresting law enforcement agency. If DNA is not collected through the booking process then the Court is required to order the defendant to submit to DNA collection through the investigating agency responsible for the fingerprints in the case.

Colorado Bureau of Investigation (CBI)

Yes – written request to CBI, after (i) each felony charge has been dismissed, (ii) acquittal, (iii) no felony charges filed within 90 days of arrest, or (iv) conviction or plea to lesser misdemeanor. 

C.R.S.A. §16–23–103. Collection of Biological Samples from Persons arrested for or charged with Felonies

C.R.S.A. §16–23–104. Collection and Testing

§16–23–105. Expungement

Connecticut

Department of Corrections;  Court Support Services Division of the Judicial Department; or the Commissioner of Mental Health and Addiction Services or the Commissioner of Developmental Services; or, if on probation or parole, the agency in whose custody or under whose supervision such person has been placed.

Division of Scientific Services within the Department of Emergency Services and Public Protection

Automatic upon reversal and dismissal of a conviction or a reversal and dismissal of a finding of not guilty by reason of mental disease or defect or upon acquittal

C.G.S.A. § 54-102g. Blood or other biological sample required from certain arrested or convicted persons for DNA Analysis

C.G.S.A. § 54–102h. Procedure for Collection of Blood or Other Biological Sample for DNA Analysis 

C.G.S.A. § 54–102i. Procedure for Conducting DNA Analysis of Blood or Other Biological Sample

C.G.S.A. § 54–102L Expungement of DNA Data Bank Records and Destruction of Samples

 

Case Law:

Connecticut v. Banks, 71 A.3d 582, 143 Conn. App. 485 (2013) (Statute requiring all felons in custody to submit to collection of DNA sample implicitly included permission to use reasonable force to obtain sample in order to achieve legislature's goal of creating DNA data bank, and legislature later amended statute to permit state to use reasonable force.).

Yes.

Conviction (or if found not guilty by reason of mental disease or defect) for felony, crime against a minor, nonviolent sexual offense or sexually violent offense

Yes. Collection required for a person found not guilty by reason of mental disease or defect for a felony, crime against a minor, nonviolent sexual offense or sexually violent offense.

Prior to release from custody if incarcerated; or if not incarcerated, at a time and place specified by Court Support Services Division of the Judicial Department; or if not guilty by reason of mental disease/defect, prior to a court hearing at a time and place specified by the Commissioner of Mental Health and Addiction Services or the Commissioner of Developmental Services; or if on probation or parole prior to discharge.

Delaware

Yes.

Felonies

Not specifically required.

At time of sentencing

Department of Correction

Division of Forensic Science

Must petition court if conviction reversed or case dismissed. Division of Forensic Science must destroy upon receipt of court order

29 Del.C. § 4713. DNA analysis and data bank

District of Columbia

Yes, unless the Combined DNA Index System already contains a DNA analysis for such person, in which case the Bureau of Prisons may, but is not required, to collect a sample.

Felonies, any offense for which the penalty is greater than one year imprisonment, and sex crime misdemeanors or attempted felonies and sex crime misdemeanors.

Not specifically required.

At conviction

The Bureau of Prisons for persons in custody; Court Services and Offender Supervision Agency for DC coordinates DNA collection by DNA contractors for persons on supervised release, parole, or probation.

Federal Bureau of Investigation; Department of Forensic Sciences

Must petition court. Federal Bureau of Investigation must expunge upon receipt for each conviction a certified copy of a final court order establishing that such conviction has been overturned.

DC ST § 22-4151. Qualifying offenses

DNA Analysis Backlog Elimination Act of 2000 34 U.S.C.A.  § 40703 (formerly, 42 U.S.C.A. § 14135b), 34 U.S.C.A.  § 12592 (Index to facilitate law Enforcement exchange of DNA Identification Information) and 10 U.S.C.A. § 1565

(NOTE:  10 U.S.C.A. § 1565 pertains to the Armed Forces)

 

Case Law:

Johnson v. Quander, 370 F. Supp. 2d 79 (2005) (Probationer convicted on two counts of unarmed robbery challenged the validity of the DNA Analysis Backlog Elimination Act and District of Columbia's implementing statute, after refusing to provide a DNA sample as required. The Court held that requiring a person to submit to a DNA sample for testing is not a punitive requirement, but rather one that serves a proper governmental regulatory function. Moreover, the government has a compelling interest in maintaining this regulatory function through the CODIS database. The government is not violating the plaintiff's privacy interest by retaining his DNA sample after his sentence has been completed.).

Florida

Yes.

Felonies, including attempts, in Florida or similar offenses in another jurisdiction.

Enumerated Misdemeanors: Stalking, Voyeurism, Prohibition of certain acts in connection with obscene, lewd, etc., materials; Exposing minors to harmful motion pictures, exhibitions, shows, presentations, or representations; Computer pornography, prohibited computer usage, traveling to meet minor; Direct observation, videotaping, or visual surveillance of customers in merchant's dressing room, etc., Certain gang activities

Not specifically required.

The earliest of: at booking for those offenders arrested in Florida, not less than 45 days before release from incarceration or custody in Florida, or upon conviction which results in commitment to jail, correctional facility or juvenile facility. If the offender is not incarcerated following conviction, that offender may not be released from custody until the DNA sample is collected.

Department of Law Enforcement; or if qualifying offender is incarcerated the “entity responsible for the jail or facility shall ensure that a DNA sample is promptly secured and transmitted to the department”

Department of Law Enforcement

Yes – must provide written request and proof of the following: a certified copy of  a final court order establishing that such conviction has been overturned on direct appeal or set aside in a post-conviction proceeding

F.S.A. § 943.325. DNA database

 

Case Law:

Morrow v. State, App. 4 Dist., 914 So.2d 1085 (2005) (Retroactive application, against defendant nearing the end of probation, of statute requiring persons convicted of certain crimes and still incarcerated or subject to court supervision to provide biological samples for DNA testing did not violate ex post facto clause; statute did not alter the elements of defendant's criminal conduct or increase the penalty for his crime.).

M.S. v. State, App.4 Dist. 987 So.2d 774 (Fla.Dist. Ct. App. 2008) (Juvenile could not be required to submit to DNA testing following adjudication of delinquency, as juvenile was not adjudicated delinquent of offense enumerated in the DNA statute but, rather, offense of making a false fire alarm.).

Smith v. State, App.3 Dist. 955 So.2d 21 (Fla. Dist. Ct. App. 2006), rehearing and rehearing en banc denied, review denied 967 So.2d 198 (Trial court could not compel individual, who had previously entered guilty plea to charges of aggravated battery, but whose probation had subsequently been terminated by court, to submit to an “oral swab” DNA test under statute requiring persons convicted of certain crimes and still incarcerated or subject to court supervision to provide blood and other biological samples for DNA testing; individual was neither incarcerated nor under any form of court-ordered supervision.).

Georgia

Felonies

Sample is “withdrawn within the first 30 days of incarceration at the receiving unit of the detention facility or at such other place as is designated by the department” or as a condition of probation, or within the 12 months preceding a person’s release at the place designated by the department.

Department of Corrections

Yes.

Not specifically required.

Georgia Bureau of Investigation, Division of Forensic Sciences

Automatic expungement and destruction of DNA samples collected from individuals within 30 days of the receipt of a certified copy of (i) a court order reversing the conviction together with a court order or documentation stating that the charges were dismissed, (ii) a judgment of acquittal, (iii) a sentencing order showing that all felony charges were reduced to misdemeanors, or (iv) a court order showing successful completion of the sentence that was imposed under the conditional discharge program for first-time drug offenders.

GA. ST. § 35-3-160. Samples required; storage in DNA data bank

35-3-161. Time and procedures for withdrawal of samples

35-3-165. Expungement of records

 

Case Law:

Padgett v. Donald, 401 F.3d 1273 (2005) (Georgia statute requiring extraction of saliva from incarcerated felons for DNA profiling did not violate prisoners' rights to privacy under the Georgia Constitution.).

Padgett v. Ferrero, 294 F.Supp.2d 1338 (N.D. Ga. 2003) aff’d 401 F.3d 1273, cert. denied 126 S. Ct. 352, 546 U.S. 820(Georgia statute requiring DNA sampling of all convicted felons was not invalid as an unreasonable search and seizure; bodily intrusion of taking a blood or saliva sample was minimal, and state had compelling interest in obtaining reliable and accurate identifying characteristics of individuals convicted of felonies which outweighed convicted felons' privacy interests.). 

United States v. Hinton, 676 Fed. Appx. 842, 2017 WL 191930 (2017) (Even if Georgia Bureau of Investigation's creation of defendant's DNA profile following prior felony offense, its uploading and retention in database after his incarceration ended, and the running of comparison to other DNA profiles after his release constituted searches, the searches were reasonable under the Fourth Amendment.).

Guam

Yes. 

Criminal sexual conduct, a crime against a minor (kidnapping, felonious restraint, unlawful restraint, child stealing, custodial interference and criminal intimidation) or family related violence, or commission of certain other crimes committed in conjunction with or an attempt to commit a violation of a criminal sexual conduct offense, a crime against a minor or family related violence. 

Not specifically required.

Within 3 days of conviction, or if convicted prior to 2012 upon release from detention or within 90 days if not incarcerated. Sex offenders shall provide a biological sample at the time of that person’s initial registration on Guam or within thirty (30) working days upon conviction.

Guam Police Department

Criminal Records Division of the Guam Police Department. Sex offenders’ DNA is submitted for analysis and entry of the resulting DNA profile into the Combined DNA Index System (CODIS).

Not addressed

8 G.C.A. § 120.202 DNA Testing Requirements 

8 G.C.A. § 120.203 Mandated Central Criminal Records Repository for DNA Sampling

9 G.C.A. § 89.03 Registration; Duty to Register

Hawaii

Yes (not including juveniles)

Any felony offense and any offense that requires registration as a sex offender or as a condition of a plea for any other non-qualifying offense.

Yes

If incarcerated, testing is immediate; if on probation, parole or other release, within 20 working days’ notice of need for testing; if person accepted into Hawaii from other jurisdictions and not confined, within 20 working days of reporting to supervising agent or within 5 calendar days of notice, whichever occurs first; if person accepted into Hawaii from other jurisdictions and is confined, as soon as practicable after the person’s receipt in a facility; if a sex offender or offender against minors, then at the time of registration or updating registration, the person will receive a collection appointment, but if prior to the time of the required registration update, the person is notified that the person is subject to collection, then the person shall undergo collection within 10 calendar days of the notification.

Department of Corrections or Law Enforcement 

The police department of the city and county of Honolulu.

The actual analysis shall be done by: (i) Laboratories that are accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, accredited by any certifying body approved by the Director of the FBI, or accredited by the successor to the Laboratory Accreditation Board;

(ii) Any law enforcement crime laboratory designated by the department that is accredited; and

(iii) Any other entity designated by the department by rule

The department shall destroy the sample and expunge the searchable DNA database profile pertaining to the person who has no present or past qualifying offense of record and there is otherwise no legal basis for retaining the specimen upon receipt of a court order that verifies the applicant has made the necessary showing at a noticed hearing, and that includes all of the following:

(1) The written request for expungement pursuant to section 844D-71;

(2) A certified copy of the court order reversing and dismissing the conviction or case, or a letter from the prosecuting attorney certifying that the underlying conviction has been reversed and the case dismissed;

(3) A finding that written notice has been provided to the prosecuting attorney and the department of the request for expungement; and

(4) A court order verifying that no retrial or appeal of the case is pending, that it has been at least one hundred eighty days since the defendant or minor has notified the prosecuting attorney and the department of the expungement request, and that the court has not received an objection from the department or the prosecuting attorney.

HAW. REV. STAT §844D-2. Administration

§ 844D-21. COLLECTION OF SPECIMENS, SAMPLES, AND PRINT IMPRESSIONS AT CORRECTIONAL FACILITY OR OTHER DETENTION FACILITY

§ 844D-31. OFFENDERS SUBJECT TO COLLECTION

§ 844D-34. COLLECTION FROM PERSONS CONFIRNED OR IN CUSTODY AFTER CONVICTION

§ 844D-35. COLLECTION FROM PERSONS ON PROBATION, PAROLE, OR OTHER RELEASE

§ 844D-37. COLLECTION FROM PERSONS ACCEPTED INTO HAWAII FROM OTHER JURISDICTIONS

§ 844D-40. COLLECTION FROM SPECIMENTS FROM PERSONS REQUIRED TO REGISTER UNDER CHAPTER 846E WHO HAVE NOT YET PROVIDED SAMPLES

§ 844D-53. ANALYSIS OF FORENSIC IDENTIFICATION PROFILES

§ 844D-71. Expungement of DNA information from state DNA database and data bank identification program

§ 844D-72. DESTRUCTION OF SAMPLES AND EXPUNGEMENT OF SEARCHABLE DNA DATABASE PROFILE

§ 844D-73. No authorization to relieve a person of administrative duty to provide specimens, samples, or print impressions.

§ 846E-1-846E-12. REGISTRATION OF SEX OFFENDERS AND OTHER COVERED OFFENDERS AND PUBLIC ACCESS TO REGISTRATION INFORMATION

Idaho

Yes (including juveniles tried as adults)

Felonies, the attempt to commit a felony, and any crime that requires sex offender registration

Not specifically required.

(i) After conviction or guilty plea but before sentencing upon application by the prosecuting attorney, the attorney general, or the Idaho state police upon a showing that early collection of such samples will be in the best interest of justice;

(ii) during the intake process at facility or as soon as practicable (and, in any event, prior to final discharge, parole, or release from imprisonment or confinement);

(iii) if the person bypasses a prison inmate reception center, then prior to physical release from custody; if the person is not incarcerated at the time of sentencing, then the court shall order the person to report within 10 working days to the collection facility; when the state accepts an offender from another state and the offender is not confined, then within 10 working days after reporting to the supervising agent or of notice to the offender, whichever occurs first; when the state accepts an offender from another state and the offender is confined, then as soon as practicable after receipt in a state or county correctional facility (and in any event, before completion of the person’s term of imprisonment).

Any person subject to DNA collection who has not otherwise provided a sample shall provide a sample within 10 working days of notification of the requirement to produce a sample

Idaho State Police, or the chief administrative officer of any state or local detention facility, jail or other facility; director of the department of correction

Idaho State Police, Bureau of Forensic Science

The Idaho State Police shall expunge the DNA sample and all identifiable information in the database and databank relating to the subject of the conviction upon receipt of a court order which verifies that the applicant has made the necessary showing at a noticed hearing (that the relevant conviction was reversed and the case dismissed), and which includes the following documents:

(a) Written request for expungement pursuant to this section;

(b) A certified copy of the court order reversing and dismissing the conviction;

(c) Proof of written notice to the prosecuting attorney and the bureau of forensic services that such expungement is being sought; and

(d) A court order finging that no retrial or appeal of the case is pending and verifying that at least sixty (60) days have passed since the defendant has notified the prosecuting attorney and the bureau of forensic services of the expungement request and that the court finds no reason, based on the interests of justice, to deny expungement.

IDAHO STAT § 19-5503. RESPONSIBILITY FOR MANAGING DNA PROGRAM - BUREAU OF FORENSIC SERVICES 

§ 19-5506. SCOPE OF LAW--OFFENDERS SUBJECT TO SAMPLE COLLECTION--EARLY COLLECTION OF SAMPLES--RESTITUTION

§ 19-5507. RESPONSIBILITY FOR SAMPLE COLLECTION--TIMING OF SAMPLE COLLECTION--SITE FOR SAMPLE COLLECTION

§ 19-5510. APPLICABILITY OF CHAPTER

§ 19-5513 EXPUNGEMENT OF INFORMATION

Illinois

(i) Any felony under Illinois law;

(ii) any offense requiring registration under the Sex Offender Registration Act or institutionalized as a sexually dangerous person under the Sexually Dangerous Persons Act;

(iii) anything for which a person is sentenced to life imprisonment or death;

(iv) “qualifying offenses” and

(v) attempts to commit qualifying offenses.

Specifically Enumerated Felonies: Criminal Sexual Abuse, Aggravated Criminal Sexual Abuse; Indecent Solicitation of a Child; Sexual Exploitation of a Child; Sexual Relations Within Families; Patronizing a Minor Engaged in Prostitution; Soliciting a Juvenile Prostitute; First Degree Murder; Second Degree Murder; Kidnapping; Aggravated Kidnapping; Robbery; Aggravated robbery; Armed robbery; Vehicular hijacking; Aggravated vehicular hijacking; Vehicular invasion; Burglary; Possession of burglary tools; Home invasion; Concealment of homicidal death; Presence  within school zone by child sex offenders; Approaching, contacting, residing with, or communicating with a child within certain places by child sex offenders; Stalking; Aggravated stalking; any former statute of Illinois which defined a felony sexual offense; terrorism.

Any person seeking to transfer to or residency in Illinois under 730 ILCS 5/3-3-11.05 through 3-3-11.5.

Any person who was otherwise convicted of or received a disposition of court supervision for any other offense under the Criminal Code of 1961 or the Criminal Code of 2012 or who was found guilty or given supervision for such a violation under the Juvenile Court Act of 1987 may be required by an order of the court.

If incarcerated, within 45 days of sentencing/disposition, or prior to discharge, release on parole, aftercare release, or mandatory supervised release, whichever is sooner; if seeking transfer to or residency in Illinois under 730 ILCS 5/3-3-11.05 through 3-3-11.5, before acceptance for conditional residency where feasible but no later than within 45 days after transfer to or residency in Illinois; if required by court order, then within 45 days of the order; if a sex offender, at the time of initial registration or next required registration

Illinois Department of State Police

Illinois Department of State Police, Division of Forensic Services

Yes (including juveniles), or received a disposition of court supervision, or institutionalized as a sexually dangerous person, or committed as a sexually violent person

Yes. .  Collection is required of any person presently institutionalized as a person found guilty but mentally ill of a sexual offense or attempt to commit a sexual offense.

Automatic expungement upon receipt of notification of a reversal of a conviction based on actual innocence or the granting of a pardon specifically stating the actual innocence of an individual.

For specimens required to be collected prior to conviction, unless the individual has other charges or convictions that require submission of a specimen, the records shall be expunged upon receipt of a certified copy of a final court order in which the charge has been dismissed, resulted in acquittal, or that the charge was not filed within the applicable time period.

730 ILL. COMP. STAT. 5/5-4-3. Specimens; genetic marker groups

Indiana

Department of Correction; county sheriff if the offender is held in a county jail or other county penal facility, placed in a community corrections program, placed on probation or released on bond; the supervising agency if the person is on conditional release; or the sheriff if the person is arrested for a felony

Superintendent of State Police

Upon request to Superintendent of State Police with certified copy of court order establishing conviction was reversed and case was dismissed or 365 days have elapsed since the person’s arrest and no felony charges have been filed against the person. 

IND. Code § 10–13–6–8 Powers and Duties of Superintendent 

§ 10–13–6–10 Convicted Felons to provide DNA sample

§ 10–13–6–18 Removal of DNA profile

§ 35-38-1-27 Requirement to provide DNA sample

Case Law:

Hurtado v. State, No. 20A-CR-653, 2020 WL 4516805, at *3 (Ind. Ct. App. Aug. 6, 2020) (emphasizing that “Indiana Code Section 35-38-1-27 provides that a person's failure to provide a DNA sample is grounds for revocation of the person's probation.”). 

Yes.

Conviction for a felony

Not specifically required

Immediately after sentencing or if the person is not confined at the time of sentencing, no more than 7 days after sentencing.

Iowa

Yes.

Felonies, and “aggravated misdemeanors” (with certain specified aggravated misdemeanors excepted); a person determined to be a sexually violent predator; a person found not guilty by reason of insanity of an offense requiring a DNA sample; a juvenile adjudicated delinquent of an offense to which an adult offender would be required to submit a DNA sample; a person required to register as a sex offender.

Yes. A person found not guilty by reason of insanity of an offense that requires DNA profiling shall be required to submit a DNA sample for DNA profiling as part of the person's treatment management program.

As soon as practicable if the person required to submit a DNA sample is confined, or, if the person required to submit a DNA sample is not confined, “the supervising agency shall determine the date and time to collect the DNA sample.”

A supervising agency having control, custody, or jurisdiction over the person, according to rules adopted by the Division of Criminal Investigation

Department of Public Safety, Division of Criminal Investigation

Upon written request to the Division of Criminal Investigation, with certified copy of final court order reversing the conviction, adjudication, or civil commitment and certified copy of the dismissal.

The division of criminal investigation is not required to expunge or destroy a DNA record, if expungement or destruction of the DNA record would destroy evidence related to another person.

Iowa Code Title III § 81.1 Definitions (“Aggravated Misdemeanor”)

81.2 Persons Required to Submit a DNA Sample

81.4 Collecting, Submitting, Analyzing, Identifying, and Storing DNA Samples and DNA Records

81.9 Expungement of DNA Records

Case Law:

Schrieber v. State, 666 N.W.2d 127 (2003) (holding statute is not unconstitutional on ex post facto grounds because the underlying purpose of requiring inmates to submit DNA is to promote public safety rather than punish inmates).

Kansas

Yes.

Felonies, and enumerated misdemeanors: Criminal sodomy (between two members of the same sex 16 or more years of age [though this criminal statute has been held unconstitutional], or between a person and an animal), Lewd and lascivious behavior in the presence of a person 16 or more years of age, Cruelty to animals, Criminal restraint when the victim is a minor, Adultery when one party is a minor, Buying sexual relations when the offender is a minor, Promoting the sale of sexual relations when one party is a minor, Sexual battery, Aggravated sexual battery, and Attempt or Conspiracy to commit or Criminal solicitation to commit of any of the above; any person required to register as an offender pursuant to the Kansas Offender Registration Act 

Not specifically required.

Prior to final discharge or conditional release

The custodial law enforcement agency, or juvenile justice agency

Kansas Bureau of Investigation

Upon petition to the court, if case is overturned, expunged, a verdict of acquittal on retrial, or the person is pardoned by the governor

KAN STAT. ANN. § 21-2511. Collection of biological samples, fingerprints and other identifiers from certain persons; Kansas bureau of investigation, powers and duties; expungement of sample and profile record; failure to provide sample, penalties; other unlawful acts

 KAN. ADMIN. REGS. § 10-21-4 Expungement

Case Law:

Kansas v. Biery, 318 P.3d 1020 (Kan. Ct. App. 2014) (“The statute does not violate the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights and is constitutional.”)

State v. Martinez, 78 P.3d 769 (Kan. 2003) (“The addition of burglary to the crimes included in [K.S.A. 21–2511] does not make the statute unconstitutional.”).

Kentucky

Yes.

Felonies; juveniles (at least 14 years old) adjudicated delinquent of any felony, incest, criminal attempt or criminal conspiracy to commit a felony or incest, or being a juvenile sexual offender; any person who is required to register as a sex offender

Not specifically required.

“In an approved manner by authorized personnel,” or if released from custody upon sentencing or adjudication, must immediately report to local probation and parole office for collection

Department of Corrections; Department of Juvenile Justice

Department of Kentucky State Police Forensic Laboratory

Written request to Department of Kentucky State Police with certified copy of court order reversing and dismissing conviction or adjudication, or deeming charges dismissed-diverted due to successful completion of pre-trial diversion program

KRS § 17.170. MAINTENANCE OF DNA SAMPLES COLLECTED BEFORE MARCH 27, 2009; PERSONS REQUIRED TO PROVIDE DNA SAMPLE; PERSONS AND PROCEDURES AUTHORIZED FOR DNA SAMPLE COLLECTION; ADMINISTRATIVE REGULATION; PENALTIES FOR REFUSING TO PROVIDE DNA SAMPLE OR TAMPERING WITH SAMPLES OR CONTAINERS

KRS § 17.175. CENTRALIZED DATABASE FOR DNA IDENTIFICATION RECORDS; ANALYSIS AND CLASSIFICATION OF EVIDENCE; EXEMPTION FROM KRS 61.870 TO 61.884; EXPUNGEMENT OF INFORMATION AND DESTRUCTION OF DNA SAMPLE; PENALTY FOR UNLAWFUL USE OF DNA DATABASE IDENTIFICATION SYSTEM

Louisiana

Yes (adults and minors)

Felonies or other specified offenses (listed below), or felony-grade delinquent act, including attempt, conspiracy, criminal solicitation, or accessory after the fact

Other specified offenses: Battery of a police officer, school teacher, school or recreation athletic contest official, correctional facility employee, or bus operator; Disarming of a peace officer; Aggravated second degree battery; Battery of emergency room personnel, emergency services personnel, or a healthcare professional; Battery of a dating partner; Aggravated assault upon a dating partner; Simple battery; Battery of a child welfare or adult protective service worker; Simple battery of persons with infirmities; Domestic abuse battery; Assault; Aggravated assault; Unlawful use of a laser on a police officer; Simple assault; Assault on a school teacher; Stalking; Misdemeanor Sexual Battery; Identity Theft; Misdemeanor carnal knowledge of a juvenile; Prohibited sexual conduct between educator and student; Prostitution; Soliciting for prostitutes; Inciting prostitution; Prostitution by massage; Massage, sexual conduct prohibited; Letting premises for prostitution; Contributing to the delinquency of juveniles; Illegal carrying of weapons; Illegal possession of a handgun by a juvenile; Hate crimes; Peeping Tom; Inciting to riot

Not specifically required.

If sentenced to confinement: upon intake at the place of booking, incarceration, or confinement; or immediately after sentencing at a prison, jail unit, juvenile facility, or other facility to be specified by the court. In all cases the sample must be taken before release.

A person “qualified to draw or take DNA samples” at the place of incarceration, or confinement, or at a prison, jail unit, juvenile facility, or other facility to be specified by the court

Louisiana State Police

Upon written request with a certified court order of expungement and sealing, if the conviction has been reversed and the case dismissed

LSA-R.S. § 15:603. Definitions;

LSA-R.S. § 15:604. Powers and Duties of State Police;

LSA-R.S. § 15:609. Drawing or taking of DNA samples;

LSA-R.S. § 15:610. Procedures for withdrawal, collection, and transmission of DNA Samples;

LSA-R.S. § 15:614. Removal of Records

Maine

Yes.

Enumerated Offenses For Adults: Murder, a Class A B or C crime; Sexual abuse of a minor; Unlawful sexual contact; Visual sexual aggression against a child; Sexual contact with a child under 14 years of age; Solicitation of a child by a computer to committ a prohibited act; Solicitation of a child to commit a prohibited act on or after October 1,2012; or Any lesser included offense of one of the above if the greater offense is initially charged.


Enumerated Offenses For Minors:
Murder; Felony murder; Manslaughter; Aggravated assault; Elevated aggravated assault; Gross sexual assault; Unlawful sexual contact; Kidnapping; Criminal restraint; Burglary; Robbery; Arson; Aggravated criminal mischief; or Causing a catastrophe

Not specifically required.

May be taken at any time during the period of incarceration; or if no incarceration,  may be taken at any time during period of probation. Court may include submitting to having a DNA sample taken as a condition of probation.

If incarcerated prior to January 1, 1996, before release from the corrections system.

Department of Corrections

Chief of the State Police

Petition the Superior Court for expungement due to reversal or dismissal of conviction or adjudication; Chief of the State Police will purge the record upon receipt of an expungement order and certified copy of the order reversing or dismissing conviction or adjudication

25 M.R. S. § 1573. Responsibility for DNA Identification Record System; Procedural Compatibility with the FBI 

25 M.R. S. § 1574. Biological Sample Required for DNA Analysis upon Conviction or Adjudication

25 M.R.S. § 1575. Procedure for collection of a biological sample for DNA analysis 

25 M.R.S. § 1577. DNA records

Case Law:

State v. Hutchinson, 969 A.2d 923 (Me. 2009) (holding statute requiring persons convicted of serious crimes to provide DNA samples for DNA database does not constitute unreasonable search and seizure).

Maryland

Yes.

Felonies; or Burglary in the Fourth Degree, or Breaking and Entering Motor Vehicle

Not specifically required.

At sentencing or on intake to a correctional facility; or as a condition of sentence or probation if not sentenced to a term of imprisonment

Sheriff’s office, police department, regional jail, or any other entity specified by the Secretary responsible for booking

Department of State Police, Forensic Sciences Division

Automatic – if conviction is finally reversed or vacated and no new trial is permitted, or if person is granted unconditional pardon.

A DNA sample or DNA record may not be destroyed or expunged automatically from the State DNA data base if the criminal action is put on the stet docket or the individual receives probation before judgment.

MD. Code Public Safety § 2-504. Collection of DNA samples;

MD. Code Public Safety, § 2-511. Destruction or expungement of DNA information

MD. Code Regs. §29.05.01.04 Collecting Samples

 

Case Law:

Maryland v. King, 133 S. Ct. 1958 (2013) (“When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”)

Walker v. State, 2022 WL 1416675 (Md. Ct. App. May 4, 2022) (holding DNA obtained pursuant to a search warrant was not subject to the DNA Act and thus was properly not expunged).

Massachusetts

Yes.

An offense punishable by imprisonment in state prison or any person adjudicated a youthful offender by reason of an offense that would be punishable by imprisonment in the state prison if committed by an adult

Not specifically required.

If sentenced to probation, submit a DNA sample as a condition of probation forthwith upon conviction; if sentenced to a term of imprisonment, submit a DNA sample within 10 days of intake or return to the correctional facility to which the inmate has been sentenced; no release from any facility without collection

Duly authorized law enforcement and correction personnel and any physician, nurse, healthcare worker, or person approved and trained by the Director of the Crime Laboratory

Department of State Police (Director of the Crime Laboratory)

Petition superior court if case was reversed and dismissed (after one year waiting period or confirmation from district attorney that no further offense contemplated)

MASS. GEN. L. CH. 22E State DNA Database

515 MASS. CODE REGS. §§ 1.01–1.06. Collection, Submission, Receipt, Identification, Storage, and Disposal of DNA samples

 

Case Law:

Landry v. Attorney General, 709 N.E.2d 1085 (Mass. 1999), cert. denied 120 S. Ct. 785, 528 U.S. 1073 (involuntary collection of DNA is a search under the Fourth Amendment; collection for convicted offenders upheld under federal and state constitutional challenge).

Commonwealth v. Smith, 829 N.E.2d 1090 (Mass. Sup. J. Ct. 2005) (holding “that the statute extends to persons convicted of any felony, without regard to whether that conviction stems from an indictment in the Superior Court or a complaint in the District Court”).

Com. v. Abrahams (2014) 6 N.E.3d 1095, 85 (finding that the collection of DNA sample from defendant was authorized, under statute requiring any person convicted of an offense punishable by imprisonment to submit a DNA sample before release from custody, where sample was collected while defendant was in custody in pretrial detainee status on rape and burglary charges after completing sentences for larceny and drug possession; even if defendant was not “incarcerated” at time sample was collected, statute required only that sample be collected before defendant's release from “custody,” not before his release from “incarceration.”) 

Michigan

Yes.

Felonies, including attempted felonies, for both adult and juveniles 

Enumerated Misdemeanors: Disorderly person by window peeping, Engaging in indecent or obscene conduct in public, or Loitering in a house of ill fame or prostitution; Indecent exposure; First and second prostitution violations; Leasing a house for purposes of prostitution

Each prisoner serving a sentence in a state correctional facility and each probationer placed in a special incarceration program

Yes. For qualifying offenses, a finding of “guilty, but mentally ill” requires DNA collection.

In general, if not collected on arrest, then a law enforcement agency or state agency shall obtain a sample at or after sentencing or disposition (within 15 days); or not later than 90 days after the date on which the prisoner or probationer is committed to prison or probation

The county sheriff or the law enforcement agency responsible for the investigation of the offense for which the individual is arrested or convicted

Department of State Police 

In general, automatic if conviction that formed sole basis for collected sample reversed by appellate court, the sentencing court shall order disposal

MICH. COMP. LAWS §§ 28.171-28.176 DNA IDENTIFICATION PROFILING SYSTEM ACT

MICH. COMP. LAWS ANN. § 712A.18K DNA IDENTIFICATION PROFILING; PROVIDING SAMPLES FOR CHEMICAL TESTING; ASSESSMENT; FORWARDING TO DEPARTMENT OF STATE POLICE; DEFINITIONS

MICH. ADMIN. CODE R. 28.5051 –28.5059 DNA PROFILING SYSTEM

Minnesota

M.S.A. § 299C.105. DNA data required

M.S.A. § 609.117.DNA analysis of certain offenders required

M.S.A. § 609A.03. Petition to expunge criminal records 

 

Case Law:

In re Welfare of M.L.M., 813 N.W.2d 26, 28 (Minn. 2012) (upholding DNA collection when convicted of a misdemeanor arising out of the same set of circumstances as a felony).

State v. Bartylla, 755 N.W.2d 8 (Minn. 2008) (upholding as constitutional required DNA sample for convicted felons).

Yes.

Collection required if convicted of a felony or a crime that would qualify as a felony if a juvenile were an adult

Collection if convicted of a lesser-included offense arising out of the same circumstances when original charge was a felony

Not specifically required.

If not taken at arrest, upon sentencing or adjudication or before release from a prison term served for a qualifying underlying conviction

“Prosecutors, courts, and probation officers shall attempt to ensure that the biological specimen is taken”

 Bureau of Criminal Apprehension

Upon written request and where the case was reversed and dismissed

Law explicitly provides that an expungement of a conviction does not result in deletion of DNA samples where charge supported by probable cause

Mississippi

Yes.

Enumerated crimes of violence, convictions for any sex offense or a sex offense requiring sex offender registration and any felony offenses with a maximum sentence of no less than 5 years, where the defendant used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act.

Not specifically required.

Before release from or transfer to a state correctional facility or county jail or other detention facility

Department of Corrections

Mississippi Forensics Laboratory

Upon a motion or sua sponte by the court, the court may direct the Forensics Laboratory to destroy sample under certain circumstances (e.g., charge dismissed, no charge filed, acquittal, no conviction or active prosecution within 3 years of the arrest date).

Miss. Code Ann. § 45-33-37. DNA identification system; convicted sex offender to provide a biological sample for purposes of DNA identification analysis

Miss. Code Ann. § 45-47-1 DNA samples to be collected from persons arrested for commission of attempted commission of certain crimes of violence, destruction of sample; penalties for obtaining receiving or disseminating information in DNA data bank without authority 

Miss. Code Ann. § 47-5-183 Department of Corrections may create a postconviction DNA database 

Miss. Code Ann. § 97-3-2 Crimes of Violence defined

Missouri

Certain felonies including offenses against the person, (e.g., murder and manslaughter, assault, harassment), sexual offenses, prostitution, offenses against the family, or pornography and related offenses; any sex offense; any individual required to register as a sex offender

If not at booking, then upon entering or before release from the custody of the department of corrections and diagnistic centers or a county jail or other detention facility/institution or upon registering as a sex offender

Missouri State Highway Patrol, Department of Corrections, and the registering agency for sex offenders

Department of Public Safety

Missouri State Highway Patrol crime laboratory is administrator of the DNA index system

Yes.

Not specifically required.

Available upon request on grounds the conviction has been reversed or dismissed, the guilty plea has been set aside, or expungement of all official records has been granted by the court and where it has been determined that the individual has no other qualifying offense as a result of any separate plea or conviction and no other qualifying arrest prior to expungement

MO. ANN. STAT. §§ 650.050–650.060 DNA profiling system 

§ 589.407 Registration, required information -- substantiating accuracy of information

 

Case Law:

Cooper v. Gammon, 943 S.W.2d 699, 704 (Mo. Ct. App. 1997) (upholding required collection of DNA from a convicted second degree murderer and rejecting constitutional challenge (Fourth and Fifth Amendment, Due Process Clause, and Ex Post Facto Laws Clause)).

Clevenger v. Gartner, 392 F.3d 977, 981 (8th Cir. 2004) (rejecting challenge when sample taken from convicted felon under prior version of statute that required collection only from “violent felons” when prisoner had not been convicted of a violent felony because statute subsequently amended to provide for collection from all felons).

Montana

Department of Corrections if incarcerated, or if not incarcerated, the sample must be provided to a person or entity designated by the county sheriff

Montana Department of Justice, Forensic Science Division

If a conviction of a felony offense or the adjudication of a youth for a sexual or violent offense is reversed, the record relating to the offense must be expunged from the DNA identification index. The county attorney of the county in which the conviction occurred shall notify the department of a reversal of a conviction for the offense or adjudication.

MONT. CODE ANN. § 41-5-1502 - Adjudicatory hearing 

44-6-101 – Definitions

44-6-102 – Establishment of DNA Identification Index

44-6-103 – Collection of samples and maintenance of data

44-6-107 – Expungement of DNA records

46-18-202 – Additional restrictions on sentence 

44-6-109 – Restrictions for collection of DNA from minor by a peace officer

Case Law: 

Courts have upheld the mandatory-collection provision for persons convicted of a felony. See State v. Ramming, 330 Mont. 397 (2005). 

Yes.

Felonies;

Youth found to have committed a sexual or violent offense in an adjudicatory hearing;

Person required to register as a sexual or violent offender;

Person ordered to provide a biological sample for DNA testing by a judge as an additional restriction on a sentence;

Adult offender convicted in another state and sentenced to death or imprisonment for more than 1 year who is subject to supervision by the Department of Corrections pursuant to the Interstate Compact for Adult Offender Supervision

Not specifically required.

Following entry of judgment. 

Nebraska

Yes.

A person who is convicted of a felony offense or other “specified offense” (misdemeanor stalking; false imprisonment in the second degree; an attempt, conspiracy, or solicitation to commit stalking; false imprisonment in the first degree; knowing and intentional sexual abuse of a vulnerable adult or senior adult; or a violation of the Sex Offender Registration Act) who does not have a DNA sample available for use in the State DNA Sample Bank.

Not specifically required.

Upon intake to a prison, jail, or other detention facility or institution to which such person is sentenced; or as a condition for any sentence which will not involve an intake into a prison, jail, or other detention facility or institution, by a probation officer at a probation office. A person not placed on probation shall have such DNA sample collected by the county sheriff. All such persons shall not be released unless and until a DNA sample has been collected.

Department of Correctional Services and the Nebraska State Patrol

Nebraska State Patrol Crime Laboratory

A person may request expungement on the grounds that the conviction on which the authority for including such person’s DNA record was based has been reversed and the case dismissed. The Nebraska State Patrol shall purge all DNA records and identifiable information in the database pertaining to the person and destroy all DNA samples from the person upon receipt of a written request for expungement and a certified copy of the final court order reversing and dismissing the conviction.

Neb.Rev.Stat. Ann. § 29-4103 - Terms, defined

Neb.Rev.Stat. Ann § 29-4106. Person subject to DNA sample; payment of costs

Neb.Rev.Stat. Ann § 29-4107. DNA Samples; Persons Authorized to Obtain Samples; Immunity

Neb.Rev.Stat. Ann § 29-4109. DNA Record; Expungement; Procedure 

 

Case Law:

Shepard v. Houston, 855 N.W.2d 559 (2014) 

(Neb. Rev. Stat. Ann. § 29-4106(2), which prevented an inmate from being released prior to the expiration of his maximum term of confinement or revocation or discharge from his probation unless and until a DNA sample was collected, was ruled an unconstitutional ex post facto law in the context of requiring inmates to submit a DNA sample before being discharged from confinement because the statute was retroactive in its application, as it changed the period of incarceration for a crime committed before its enactment, inmate did not have fair notice of changes to good time scheme and, at the time of his crimes, expected that his mandatory discharge date would be calculated based on a mandatory scheme of good time accumulation and that the only possible forfeiture of this good time would be in finite amounts upon the discretion of the prison officials upon gross or serious misconduct, and statute, in mandating forfeiture of good time and thereby increasing the period of incarceration, was punitive.).

Nevada

Yes.

Felonies;

Crime against a child (kidnapping, false imprisonment, involuntary servitude, sex trafficking, or an attempt to commit any of these offenses);

Sex offenses as defined in NRS § 179D.097;

Abuse or neglect of an older person or a vulnerable person;

A second or subsequent offense for stalking;

An attempt or conspiracy to do the above;

Failing to register with local law enforcement as a convicted person as required if previously convicted of the above crimes, or equivalent crimes in another jurisdiction, or after having been convicted of crimes against a child or a sexual offense.

Not specifically required.

Upon booking the person into a city or county jail or detention facility, and before the person is released from custody. Note that this applies “if a person is arrested for a felony pursuant to a warrant,” as well as for persons “arrested for a felony without a warrant.”

The arresting law enforcement agency. If a biological specimen was not previously obtained at the time of arrest, the Department of Corrections shall arrange for the biological specimen to be obtained if the defendant is in their custody. This requirement applies regardless of the date of conviction.  If the defendant is not committed to the custody of the Department of Corrections, the  Forensic Science Division of the Washoe County Sheriff's Office shall arrange for the biological specimen to be obtained from the defendant.

By written request to the Central Repository for Nevada Records of Criminal History, using the Nevada Department of Public Safety DNA Expungement Application, that the biological specimen be destroyed and the DNA profile and DNA record be purged from the forensic laboratory, the State DNA Database and CODIS on the grounds that the conviction on which the authority for keeping the biological specimen or the DNA profile or DNA record has been reversed and the case dismissed or the DNA profile or DNA record:

(1) has resulted in a felony charge that has been resolved by a dismissal, the successful completion of a preprosecution diversion program pursuant to NRS § 174.033, a conditional discharge, an acquittal or an agreement entered into by a prosecuting attorney and a defendant in which the defendant, in exchange for a plea of guilty, guilty but mentally ill or nolo contendere, receives a charge other than a felony; or

(2) has not resulted in any additional criminal charge for a felony within 3 years after the date of the arrest.

If a court or magistrate determines that probable cause did not exist for the person’s arrest, biological specimens are destroyed within 5 business days after receiving notice of the determination by the court or magistrate.

The forensic laboratory shall not destroy a biological specimen or purge the DNA profile of a person if the forensic laboratory is notified by a law enforcement agency that the person has a prior felony, a new felony arrest or a pending felony charge for which collection of a biological specimen is authorized pursuant to NRS 176.09123.

NEV. REV. STAT. ANN. § 176.0912 – Biological Evidence secured in connection with investigation; or prosecuion; required preservation

176.0913 – Biological specimen to be obtained from certain defendants; identifying information submitted to central repository; genetic marker analysis; release of information; costs

176.0916 - Biological specimen to be obtained from certain probationers and parolees, release of information; penalty; fee for obtaining and analyzing specimen; identifying information submitted to Central Repository; creation of Fund for Genetic Marker Analysis; use of money in Fund

176.0917 - county to designate forensic laboratory to conduct or oversee analysis; criteria

176.09121 – state DNA database; establishment; duties

176.09123 - collection of biological specimen from persons arrested for felony; submission to forensic laboratory; identifying information submitted to Central Repository; genetic marker analysis; creation of DNA profile; information included in criminal history record 

176.09125 – destruction of biological specimen and purging of DNA record; grounds; written request; duties of central repository; forensic leboratory and state DNA database 

176.09129 – storage and maintenance of biological specimen, DNA profile, DNA record and information; confidentiality;penalty for unauthorized disclosure of information 

2016 Nev. OP. Att'y Gen. No. 11 (Dec. 12, 2016) ("[NV Statute] requires a biological specimen to be collected from any prisoner convicted of a felony offense who is presently in the custody of the Nevada Department of Corrections regardless of the date of conviction.")

Case Law: 

The Nevada Supreme Court has upheld the constitutionality of the statute. See Gaines v. State, 116 Nev. 359 (2000).

The Forensic Science Division of the Washoe County Sheriff's Office oversees, manages and administers the State DNA Database. 

The board of county commissioners of each county is responsible for selecting a forensic laboratory to conduct or oversee for the county any genetic marker analysis that is required pursuant to NRS §§  176.09123, 176.0913 or 176.0916.

The forensic laboratory designated by the board of county commissioners: (a) Must be operated by this State or one of its political subdivisions; and (b) Must satisfy or exceed the standards for quality assurance that are established by the Federal Bureau of Investigation for participation in CODIS

New Hampshire

Department of Corrections

Division of State Police, Department of Safety or contracted third party

A person whose DNA record has been included in the database pursuant to this chapter may request expungement on the grounds that the criminal conviction on which the authority for including such person's DNA record was based has been reversed or the case dismissed, provided that such person requesting expungement has no other criminal convictions which would require inclusion of his or her record in the database. The department shall purge all records and identifiable information in the database pertaining to the person and destroy all samples from the person upon receipt of a written request for expungement pursuant to this section and a certified copy of the court order reversing and dismissing the conviction.

The DNA record of any juvenile sexual offender shall be maintained in the database and shall not be automatically expunged from the database upon that individual's reaching the age of adulthood.

NH Rev. St. § 651-C:2 - DNA Analysis Required

651-C:1 – Definitions

651-C:5 - Expungement of DNA Database Records Upon Reversal or Dismissal of Conviction

135:17-a Competency Hearing; Commitment for Treatment

651:8-b Hospitalization; Persons Acquitted by Reason of Insanity

Yes 

Felonies under any state or federal law;

Misdemeanor sex offenses under  NH Rev. St. § 651-B:1;

Misdemeanor offenses against a child under  NH Rev. St. § 651-B:1.

Yes.  Collection applies to any person found not guilty by reason of insanity or any person committed to the secure psychiatric unit by order of the court after being found not competent to stand trial for any of the offenses that would trigger collection under this provision.

Upon intake or prior to release

New Jersey

Yes

Any “crime or a specified disorderly persons offense.”

Aggravated sexual assault, sexual assault, and attempts to commit such crimes;

Aggravated criminal sexual contact, criminal sexual contact, and attempts to commit such crimes;

Murder;

Manslaughter;

Aggravated assault of the second degree;

Kidnapping;

Luring or enticing a child into a motor vehicle with a purpose to commit a criminal offense with or against the child.

Endangering the welfare of children.

Attempt to commit any of the foregoing.

Yes. Collection applies to any person found not guilty by reason of insanity of any of the offenses that triggers the statute, as well as being found “not guilty by reason of insanity of a crime or specified disorderly persons offense.”

Each blood sample to be drawn from persons who are incarcerated shall be drawn or collected at the place of incarceration. DNA samples from persons who are not sentenced to a term of confinement shall be drawn or collected at a prison or jail unit to be specified by the sentencing court. DNA samples from persons who are adjudicated delinquent shall be drawn or collected at a prison or jail identification and classification bureau specified by the family court.

Arresting law enforcement agency.

However, only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory or medical technician, phlebotomist or other health care worker with phlebotomy training shall draw any blood sample to be submitted for analysis, and only a correctional health nurse technician, physician, registered professional nurse, licensed practical nurse, laboratory or medical technician or person, including but not limited to a law enforcement officer, who has received biological sample collection training in accordance with protocols adopted by the Attorney General, in consultation with the Department of Corrections, shall collect or supervise the collection of any other biological sample to be submitted for analysis.

Division of State Police in the Department of Law and Public Safety

May apply for expungement on the grounds that all charges from the arrest that provided the basis for DNA collection have been dismissed or resolved through acquittal at trial, or, if a juvenile, the adjudication that provided the basis for DNA collection has been reversed and the case dismissed or there is an acquittal at trial. 

If the entry in the database reflects more than one conviction or adjudication, that entry shall not be expunged unless and until the person or the juvenile adjudicated delinquent has obtained anorder of expungement for each conviction or adjudication.

N.J. STAT.ANN. § 53:1-20.19 – Definitions

53:1-20.20 – Collection of Blood Sample or other Biological sample for DNA Testing 

53:1-20.22 – Procedures for obtaining blood sample or biological sample; persons authorized to draw blood or collect sample; liability 

53:1-20.24 – Inclusion of Results in State Database; use of data

53:1 20.25 -  Expungement of DNA record from state database; conditions 

 

Case Law:

A.A. ex rel. B.A. v. Attorney Gen. of New Jersey, 894 A.2d 31 (App. Div. 2006), aff'd, 914 A.2d 260 (2007) (The state’s requirements for provision of DNA are constitutional.).

 

Note that the law now applies “to person convicted of any crime.” State v. O’Hagen, 380 N.J. Super. 133 (2005).

 

Prior to its amendment in 2003, N.J.S.A. 53:1–20.20 required only those persons convicted of committing certain sexual offenses, or those persons convicted of murder, manslaughter or second-degree aggravated assault or the attempt to commit these offenses, to have a blood sample drawn for purposes of DNA testing. Following the 2003 amendment, the class of offenders for whom DNA testing is mandated was expanded. State v. Vodrazka, No. A-4379-10T1, 2012 WL 6163187, at *2 (N.J. Super. Ct. App. Div. Dec. 12, 2012).

New Mexico

Yes.

Felonies when convicted  as an adult, including pursuant to youthful offender or serious youthful offender proceedings, and sex offenses requiring registration as a sex offender

Not specifically required.

If not at arrest, then prior to release

Department of Corrections

Department of Public Safety, based on rules established by the DNA Oversight Committee

By written request if conviction that led to the inclusion of the sample has been reversed. Written request should include a certified copy of court order that reverses the conviction.

N. M. S. A. 1978, § 29-16-3. Definitions

N. M. S. A. 1978, § 29-16-6. Collection of Samples

N. M. S. A. 1978, § 29-16-10. Expungement of samples and DNA records from the DNA identification system and CODIS

New York

Yes.

Felonies, and misdemeanors – except unlawful possession of marijuana in the first degree

Convicted offenders pursuant to a plea agreement, as a condition of the DOCS Temporary Release Program, the DOCS CASAT Program, the DOCS Shock Incarceration Program, release on parole, post release supervision, presumptive release, conditional release, or as a condition of probation or interim probation supervision

Not specifically required.

At sentencing 

Department of Corrections

Division of Criminal Justice Services

Upon written notice that conviction was reversed, vacated, or pardoned

NY Exec. Law § 995. Definitions

§ 995–C. State DNA Identification Index

9 NY ADC 5.143 Directing the Commissioner of the Division of Criminal Justice Services to Expand the State DNA Identification Index to Include DNA Identification Profiles Obtained From Additional Convicted Offenders

 Case Law:

Samy F. v. Fabrizio, 176 A.D.3d 44 (N.Y. Sup. Ct., App. Div. 1D 2019). (Trial court had authority to consider whether expungement of minor defendant's DNA records from state DNA index system (SDIS) was warranted when DNA was collected during investigatory phase of crime that resulted in a youthful offender determination for defendant; Executive Law provided discretionary authority to court with respect to DNA material collected during investigatory, preconviction phase of criminal proceeding, and defendant would otherwise have had no means to seek discretionary expungement.  State Executive Law applies to testing, analyzing and retaining DNA data by city medical examiner’s office, despite statutory language referencing “state” DNA identification index.).

Matter of John R., No. D-07679/19, 2020 WL 5087822, at *5 (N.Y. Fam. Ct. Aug. 26, 2020) (extending holding of Samy F. to youth who is adjudicated a juvenile delinquent and giving the family court the discretion to expunge his or her DNA profiles from the OCME database). 

People v. Halle, 55 N.Y.S.3d 634 (Sup. Ct., Bronx Cnty. 2018) (“[O]nly upon a criminal conviction and sentence is an individual required to provide DNA which, when uploaded to SDIS and CODIS, is then available for general comparison to crime scene evidence in unrelated cases.”).

People v. Blank, 82 N.Y.S.3d 872 (Sup. Ct. Bronx Cnty. 2018); People v. K.M., 41 N.Y.S.3d 825 (Sup. Ct. Bronx Cnty. 2016) (Defendant, who was awaiting trial on charges for criminal possession of a weapon in the second degree and related counts, was entitled to protective order against local uploading of his DNA, and thus saliva sample from defendant would only be used for comparison purposes with respect to DNA profile previously generated from swab of pistol recovered pursuant to search warrant and would not be added to state or local databases pending conviction and sentencing).  

People v. White, 76 N.Y.S.3d 800 (Sup. Ct., Bronx Cnty. 2018) (“Read together, the original statute and the amended version indicate an intention by the Legislature to authorize the inclusion of DNA records in the state DNA database only after conviction of a designated offense, see § 995–c[1], [2], [3], [6] and 995–d, but placed no such restriction on what DNA records could be included in local databases.”).

Gallo v. Pataki, 831 N.Y.S.2d 896 (Sup. Ct. Kings Cnty. 2007) (“Executive Law section 995–c(3) sets forth one class of people subject to testing, but does not forbid other groups from being tested. Accordingly, requiring DNA testing as a condition of parole does not violate the DNA Database law.”).

People v. Washington, 37 N.T.S. 3d 867 (Supr. Ct. Queens Cnty. 2016) (Defendant’s statutory obligation to provide a DNA sample after conviction of specified crimes is a collateral consequence of a guilty plea and, therefore, a court need not advise a defendant before he pleads guilty to said crime.)

North Carolina

Yes - or guilty plea or plea of nolo contendere.

Felonies, assaults on individuals with a disability, stalking, as well as all offenses for which arrest triggers collection of DNA sample

Yes. “Conviction” includes “a finding of not guilty by reason of insanity or mental disease or defect.”

If not at arrest, then upon intake at jail, prison or mental health facility

Department of Corrections

North Carolina State Crime Laboratory of the Department of Justice

The Crime Laboratory shall remove a person's DNA record, and destroy any DNA biological samples that may have been retained, from the State DNA Database and DNA Databank if both of the following are determined:


(1) As to the charge, or all charges, resulting from the arrest upon which a DNA sample is required under this section, a court or the district attorney has taken action resulting in any one of the following:


a. The charge has been dismissed;
b. The person has been acquitted of the charge;
c. The defendant is convicted of a lesser-included misdemeanor offense that is not an offense included;
d. No charge was filed within the statute of limitations, if any; or
e. No conviction has occurred, at least three years has passed since the date of arrest, and no active prosecution is occurring.

(2) The person's DNA record is not required to be in the State DNA Database under some other provision of law, or is not required to be in the State DNA Database based upon an offense from a different transaction or occurrence from the one which was the basis for the person’s arrest

Upon a motion by the defendant following the issuance of a final order by an appellate court reversing and dismissing a conviction of an offense for which a DNA analysis was done in accordance with Article 13 of Chapter 15A of the General Statutes, or upon receipt of a pardon of innocence with respect to any such offense, the court shall issue an order of expungement of the DNA record and samples.

NCGS § 15A-266.2. Definitions

NCGS § 15a–266.3a. Sample Required for DNA Analysis upon Arrest for Certain Offenses

§ 15A-146,
§ 15A-148.
Expunction of records

 

Case Law:

State v. Womble, 858 S.E.2d 304 (2021)

(Statute that did not authorize automatic expunction of DNA records upon pardon of innocence and instead required defendant to petition for expungement was not unconstitutional as applied to defendant, who was charged with murder based, in part, on DNA profile developed from blood sample obtained during incarceration for murder for which he was later found innocent, under state constitution prohibiting deprivation of life, liberty or property but by “law of the land”).

State v. Jacobs, 128 N.C. App. 559 (1998). (“The purpose of the statute is to clear the public record of entries so that a person who is entitled to expunction may omit reference to the charges to potential employers and others, and so that a records check for prior arrests and convictions will not disclose the expunged entries. Neither the statute nor the order of expunction entered at defendant's request requires the destruction of investigative files.”).

North Dakota

Yes.

Felonies

Not specifically required.

At the time of the individual’s arrest or appearance or upon booking into a correctional facility

Law enforcement officer, or correctional personnel

Attorney General and State crime laboratory

Must petition court if conviction reversed or case dismissed.

NDCC § 31-13-01. Definitions

NDCC § 31-13-03. Individuals to be tested--Costs

NDCC § 31-13-07. Removal of DNA profiles from database

 

Case Law:

State v. Norman, 2003 ND 66 (N.D. 2003) (“The Legislature intended the expanded DNA testing to include individuals in the custody of the department after July 31, 2001, as a result of a conviction for one of the specified offenses.”).

Ohio

Yes.

Adults convicted of, or minors adjudicated delinquent for, all felonies, and the following misdemeanors:

Unlawful sexual conduct with a minor;

Misdemeanor arising out of same facts and circumstances and same act as did a charge of aggravated murder, murder, kidnapping, rape, sexual battery, unlawful sexual conduct with a minor, gross sexual imposition, or aggravated burglary;

Interference with custody; or

A sexually oriented offense or a child-victim oriented offense, if the offender is a tier III sex offender/child-victim offender,

Not specifically required.

If serving term in a state correctional institution, during the intake process at the reception facility designated by the director

If serving term in in a jail, a community-based correctional facility, or another county, multicounty, municipal, municipal-county, or multicounty-municipal detention facility, during the intake process at the jail, community-based correctional facility, or detention facility

The director of rehabilitation and correction or the chief administrative officer of the jail or other detention facility in which the person is incarcerated

Bureau of Criminal Identification and Investigations

Not currently provided for under the Ohio Revised Code

OH ST. § 2901.07 DNA Testing of certain prisoners

 OH ST. § 2152.74. DNA specimen collected from juvenile adjudged delinquent

Case Law:

Crabbs v. Scott, 786 F.3d 426 (6th Cir. 2015) (“The statute mandates DNA collection ‘during the intake process.’”). 

Ohio v. Bolton, 2012 WL 171039 (Ohio Ct. App. 2012) (“[I]n the context of law enforcement, the taking of a DNA sample is akin to the taking of a fingerprint and does not unduly infringe on an offender's privacy interests.  Accordingly, the DNA sample taken from appellant while he was in prison on an unrelated charge was not unconstitutional pursuant to R .C. 2901.07.”).

Office of Attorney General Opinion No. 2005-037 (“[A] juvenile court must order the collection of a DNA specimen from a juvenile placed on some form of probation supervision pursuant to [applicable law].”)

Oklahoma

Yes

Felonies, or any crime requiring sex offender registration.

Enumerated misdemeanors: Assault and battery; Domestic abuse Stalking; Possession of a Schedule IV controlled substance; Outraging public decency Resisting arrest, Escaping or attempting to escape; Eluding a police officer, Peeping Tom; Pointing a firearm; Threatening an act of violence; Breaking and entering a dwelling place; Destruction of property; Negligent homicide; or Causing a personal injury accident while driving under the influence of any intoxicating substance; or, upon arrest, any alien unlawfully present under federal immigration law

Not specifically required.

If incarcerated, prior to release, or if not incarcerated as condition of sentence

Department of Corrections, county sheriff's office or a law enforcement agency

Oklahoma State Bureau of Investigation (OSBI)

By obtaining an order of expungement.

A person may file a motion for expungement and/or sealing of records following acquittal, reversal of conviction with dismissal; factual innocence established by post-conviction DNA evidence; full pardon; or

For misdemeanors: if sentence of less than $501 and no incarceration, no other felony convictions, and no pending charges; or no other felony convictions, no pending charges, and 5 years have passed since end of sentence.

For nonviolent felonies: no other felony convictions, no other misdemeanor convictions in past 7 years, no pending charges, and 5 years have passed since end of sentence; or the nonviolent felony is reclassified as a misdemeanor and the person is not currently serving a sentence for a crime.

For violent felonies: no more than two felony convictions, neither subject to mandatory minimum sentences or sex offender registration, no pending charges, and 10 years have passed since end of sentence.

74 Okl. St. Ann. § 150.27. Deoxyribonucleic acid (DNA) laboratory--Coordination of use with law enforcement agencies--Forensic DNA technical manager

74 Okl. St. Ann. § 150.27A. OSBI Combined DNA inex System  (CODIS) Database

Okla. Admin. Code § 375:30-9-2. Removal of DNA records from the OSBI DNA offender database 

Oregon

Felonies; sexual abuse in the 3rd degree or public indecency; conspiracy or attempt to commit rape in the third degree, sodomy in the third degree, sexual abuse in the second degree, burglary in the second degree or promoting prostitution; murder or aggravated murder;

For minors having committed an act that if done by an adult would constitute one of enumerated felonies: rape, sodomy, unlawful sexual penetration, sexual abuse in the first or second degree, public indecency, incest or using a child in a display of sexually explicit conduct; burglary in the second degree, when committed with intent to commit any offense listed above; promoting or compelling prostitution; burglary in the first degree; conspiracy or attempt to commit any Class A or Class B felony enumerated above; or muder or aggravated murder

At the request of the appropriate agency as soon as practicable after conviction; if incarcerated, prior to release; or as a condition of probation

No sample will be taken if a sample was taken already or if it would create substantial or unreasonable risk to health of defendant

Department of Corrections, or law enforcement agency

Department of State Police

Yes

Not specifically required.

Upon written request, with a certified copy of relevant court order reversing the conviction, judgment or order that created an obligation to provide DNA sample

O.R.S. § 137.076. Blood or buccal sample and thumbprint of certain convicted defendants; application

O.R.S. § 181A.155. Authority over blood, buccal and other samples

O.R.S. § 419C.473. Blood or buccal samples; felonies subject to requirement 

Pennsylvania

Department of Corrections, or law enforcement agency

State Police

Upon written request to State Police on the grounds that the sample was included in State DNA Data Base by mistake, or by court order if conviction or delinquency adjudication has been reversed and no appeal is pending, the person was granted an unconditional pardon, or if request for removal due to mistake was erroneously refused

44 PA.C.S.A. § 2303. Definitions

44 PA.C.S.A. § 2311. Powers and duties of state police 

44 PA.C.S.A. § 2316. DNA Sample Required upon Conviction, Delinquency Adjudication and Certain ARD Cases;

44 PA.C.S.A. § 2317. Procedures for collection and transmission of DNA samples 

44 PA.C.S.A. § 2321. Expungement

Yes

Convicted (adult) or adjudicated delinquent (minor) of a felony sex offense, or an attempt, conspiracy, or solicitation to commit a felony offense;

Convicted (adult) or adjudicated delinquent (minor) of other specified offenses: (1) A felony offense; (2) An offense under 18 Pa.C.S. (relating to crimes and offenses) or 75 Pa.C.S. (relating to vehicles) that is graded as a misdemeanor of the first degree; (3) A misdemeanor offense requiring registration as a sexual offender); (4) An offense graded as a misdemeanor of the second degree including simple assault; false imprisonment; indecent exposure; theft and related offenses; bad checks; access device fraud; intimidation of witnesses or victims; retaliation against witness, victim or party; intimidation, retaliation or obstruction in child abuse cases; escape; flight to avoid apprehension, trial or punishment; recruiting criminal gang members; abuse of corpse; cruelty to animals; prostitution and related offenses.


May also be required as a condition of acceptance into Accelerated Rehabilitative Disposition (ARD) as a result of a criminal charge for a felony sex offense or other specified offense filed after June 18, 2002

Not specifically required.

Upon intake to a prison, jail or juvenile detention facility or any other detention facility or institution; after sentencing at the place of incarceration or confinement if already incarcerated; or as a condition of sentencing if not incarcerated; prior to release for a person who is incarcerated on or after June 18, 2002 for a qualifying offense

No sample will be taken if a sample from the person has already been validly collected and the record exists in the database

Puerto Rico

Department of Corrections and Rehabilitation, the Corrections Administration, the Puerto Rico Institute of Forensic Science, and law enforcement agencies

Puerto Rico Institute of Forensic Sciences

Upon request of the court and showing that the conviction has been revoked and the case has been dismissed, with certified copy of the judicial brief by which the conviction is revoked or dismissed

34 L.P.R.A. § 4006 Persons subject to sampling 

34 L.P.R.A. § 4007 Testing procedure

34 L.P.R.A. § 4011 Elimination of record and destruction of sample 

Yes

Murder; Homicide; Rape; Sodomy; Lewd and lascivious acts; Incest; Bestiality; Felony Domestic abuse; Kidnapping; Robbery; Aggravated assault and battery; Perversion of minors; Manufacture and distribution of controlled substances; Distribution of controlled substances to minors eighteen (18) years of age and younger; Continuous trafficking of controlled substances; Child abuse; Mayhem; Mutilation

Convicted of commission or attempt or conspiracy to commit any of the following offenses:

Murder; Negligent homicide; Sexual aggression; Lascivious acts; Bestiality; Kidnapping ; Theft; Serious aggression and negligent injury; Perversion of minors; Child pornography; Illegal identity theft; Aggravated false imprisonment when the victim is a minor who has not attained the age of eighteen (18) years (unless committed by a parent or guardian); Pandering, ruffianism, and human trafficking; Spousal sexual assault; Aggravated abuse when its commission simultaneously incurs child abuse; Genocide; Crimes against humanity

Not specifically required.

At place of imprisonment or detention after a guilty verdict has been rendered

Rhode Island

Department of Corrections

Department of Health

Written request on grounds that conviction was reversed with copy of certified court order; or

Written request and completion of a program of diversion or the completion of the term of a sentence of deferment, or of the granting of a pardon

Upon official proof that the person has been deceased for at least 3 years, such as a certified copy of a death certificate

RI Gen. Laws 1956, § 12-1.5-2. Definitions

§ 12–1.5–3. Powers and Duties of the Department of Health

§ 12–1.5–4. State DNA Database

§ 12–1.5–8. DNA Sample Required upon arrest or conviction for any crime of violence

§ 12–1.5–13. Expungement 

R.I. Admin. Code §
60-05-2.3. Definitions

R.I. Admin. Code §
60-05-2.6. State of Rhode Island DNA databank 

R.I. Admin. Code §
60-05-2.10. Expungement

Yes

Felonies and crimes of violence, including: murder, manslaughter, first-degree arson, kidnapping with intent to extort, robbery, larceny from the person, first-degree sexual assault, second-degree sexual assault, first- and second-degree child molestation, assault with intent to murder, assault with intent to rob, assault with intent to commit first-degree sexual assault, burglary, and entering a dwelling house with intent to commit murder, robbery, sexual assault, or larceny

Not specifically required.

Prior to release if incarcerated, or as condition of sentence

No sample will be taken if a sufficient sample from the person has already been collected

South Carolina

Yes

Felony offense or an offense punishable by a sentence of five years or more

Enumerated misdemeanors: Eavesdropping; Peeping; or Stalking

Not specifically required.

Unless already taken at arrest, before release from confinement, or as a condition of parole or probation

Law enforcement agency or corrections agency with custody

South Carolina Law Enforcement Division (SLED)

Must request in writing with certified copy of court order reversing, setting aside, or vacating conviction

SC Code § 23–3–610. State DNA Database Established; Purpose;

§ 23–3–620. When DNA Samples Required;

§ 23–3–660. Expungement of DNA Record; Grounds for Requesting

SC Code of Regulations R. 73-61 State DNA database 

South Dakota

Yes – adults and juveniles adjudicated delinquent

Any “qualifying offense,” which is (1) any felony; (2) a crime of violence (any of the following crimes or an attempt, solicitation, or conspiracy to commit them: Murder; Manslaughter; Rape; Aggravated assault; Riot; Robbery; Burglary in the first degree; Arson; Kidnapping; Felony sexual contact; Felony child abuse; or any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon, or used any explosive or destructive device); or (3) a violation of chapter 22-22 (sex offenses).

Registered sex offenders are required to provide a DNA sample

Yes. “Conviction” includes a “finding of not guilty by reason of insanity or mental disease or defect.”

If sentenced to incarceration: sample to be provided upon intake to a prison, jail, juvenile detention facility, mental health facility, or any other detention facility or institution

If already confined at time of sentencing or adjudication: sample to be provided immediately after sentencing or adjudication

If sentence does not include incarceration: providing a DNA sample shall be a condition for any sentence or adjudication; the supervising agency shall determine the time for collection

Under no circumstances may any person who is convicted or adjudicated delinquent for a qualifying offense be released in any manner until that person has provided a DNA sample

Department of Corrections, or “supervising agency” for parole or probation

State Forensic Laboratory

A person may request expungement on the grounds that the conviction or delinquency adjudication on which the authority for including that person's DNA record or DNA profile was based has been reversed and the case dismissed.  The request must be made in writing and be accompanied by a certified copy of the final court order reversing the conviction or delinquency adjudication and dismissing the case

SDCL § 23-5A-1. Definition of Terms

SDCL § 23-5A-4. Persons required to provide DNA sample - retroactivity of requirement 


SDCL § 23–5A–5. Persons convicted or adjudicated delinquent for qualifying offense required to provide DNA sample 


SDCL § 23-5A-5.1. Registered sex offenders required to provide DNA sample 


SDCL § 23-5A-28. Request for expundement - grounds 


SDCL § 23-5A-29. Expungement of record - receipt of court order - exception

Tennessee

Yes - adults and juveniles adjudicated delinquent

Actual or attempted: Aggravated rape; Rape; Aggravated sexual battery; Sexual battery; Rape of a child; Aggravated rape of a child; or Incest

Registered sex offenders also must submit a sample

Persons already convicted of any felony or “applicable misdemeanor” and currently in custody may also be required to provide a DNA sample prior to release

Not specifically required.

While incarcerated or under order of probation or parole officer

Department of Corrections or parole or probation division, as applicable

Tennessee Bureau of Investigation, Forensic Services Division

Unclear; expungement is automatic for arrestees whose charges are dismissed or who are acquitted at trial, but there is no reference to convicted offenders

T.C.A. § 38–6–103. Forensic Services Division; Breathalizers; DNA Analysis; Backlog of DNA Analysis

T.C.A. § 38-6-113. DNA analysis; procedures; databank

T.C.A. § 40-35-321DNA analysis; specimens

 

Case Law:

State v. Scarborough, 201 S.W.3d 607 (Tenn. 2006) (collection and maintenance of DNA samples taken from convicted and incarcerated felon pursuant to Tennessee's DNA statute did not violate Fourth Amendment or Tennessee constitution).

Texas

Yes

Any of the following offenses:

(1) offenses under Title 5 to the Penal Code (Criminal homicide; Murder; Capital Murder; Kidnapping; Aggravated Kidnapping; Smuggling of Persons; Continuous Smuggling of Persons; Trafficking of Persons; Continuous Trafficking of Persons; Sexual offenses; Assaultive Offenses) that are punishable by a Class A misdemeanor or higher (except for offenses punishable by a Class A misdemeanor under 22.05, Deadly Conduct);or

(2) Indecent Exposure under 21.08; Enticing a child under 25.04;  Solicitation of Prostitution under 43.02; or Sale, distribution, or display of harmful material to minor under 43.24; or

(3) Registered sex offenders.

Note that adults and adjudicated juveniles currently confined to a Texas penal institution for a felony must also provide a sample.

Yes. “Conviction” includes “a finding of not guilty by reason of insanity.”

After conviction 

Law enforcement agency

Department of Public Safety

Upona finding of actual innocence in accordance with a writ of habeas corpus, the law enforcement agency that took the specimen is to immediately destroy the specimen and associated records.

Upon written request with a copy of a certified court order for expunction due to a pardon, etc.

Tex. Gov’t Code § 411.144. Regulation of DNA Laboratories; Penalties

Tex. Gov’t Code § 411.148. Mandatory DNA Record

Tex. Gov’t Code § 411.151. Expunction or Removal of DNA Records

Tex. Gov’t Code § 411.1471. DNA Records of Persons Arrested for Charged with, or Convicted of Certain Offenses

Tex. Gov’t Code § 411.1473. DNA Records of Certain Registered Sex Offenders

Case Law:

Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003) (collection of blood samples from felons for registration in a DNA databank pursuant to § 411.148 does not violate those felons' Fourth Amendment right to privacy).

Utah

Yes – adults and minors age 14 and older

Felonies or Class A misdemeanors, including situations where the court enters a judgment for conviction to a lower degree of offense or allows the defendant to enter a plea in abeyance

Registered sex offenders must also provide samples

A person who commits a qualifying offense in another state or against the federal government will be required to submit a sample in Utah as well

Yes. “Conviction” includes “a plea of guilty or guilty and mentally ill.”

“As soon as possible” after a conviction or a finding of jurisdiction by the juvenile court

Department of Corrections, juvenile court, or sheriff’s office, as applicable

Department of Public Safety, Bureau of Forensic Services

An individual may file a motion to the court seeking an order for destruction of the sample/record if a final judgment reverses the conviction, judgment, or order that created an obligation to provide the DNA sample. The Department of Public Safety will then destroy the sample/record.

U.C.A. 1953 § 53–10–403. DNA Specimen Analysis—Application to Offenders, Including Minors;

U.C.A. 1953 § 53–10–404. DNA Specimen Analysis—Requirement to Obtain the Specimen;

U.C.A. 1953 § 53–10–404.5. Obtaining DNA Specimen at Time of Booking—Payment of Fee upon Conviction

U.C.A. 1953 § 53–10–406. DNA Specimen Analysis—Bureau Responsibilities

Case Law

State v. Evans, 2019 UT App. 145, -- P.3d -- (Aug. 22, 2019) (force used by investigators to obtain DNA from suspect by swabbing his cheek while carrying out validly issued search warrant during investigation of suspect for murder did not violate suspect's Fourth Amendment right; mere possibility that defendant’s DNA may have already been collected and maintained by Bureau of Forensics insufficient to counter state’s stated need to collect DNA).

Vermont

Yes – adults and minors (by implication)

Persons convicted of the following “designated crimes”:

(a) Felonies;

(b) Domestic assault;

(c) Crimes requiring registration as sex offender;

(d) Stalking;

(e) Reckless endangerment;

(f) Violation of an abuse prevention order;

(g) Misdemeanor violation of laws relating to abuse, neglect, and exploitation of vulnerable adults;

(h) An attempt to commit any offense listed here; or

(i) Any other offense if, as part of a plea agreement in an action in which the original charge was a crime listed in this subdivision and probable cause was found by the court, there is a requirement that the defendant submit a DNA sample to the DNA data bank

Retroactivity requirement: a person previously convicted of a designated crime who is still in custody, on parole, serving a supervised community sentence, or on probation must also submit a DNA sample

Not specifically required.

If incarcerated, at a time designated by the Commissioner of Corrections or by a court; if not incarcerated, at a place and time designated by the Commissioner of Corrections, the Commissioner of Public Safety, or a court

The receiving correctional facility, the Commissioner of Corrections, the Commissioner of Public Safety, or a court

Department of Public Safety Forensic Laboratory

If a person’s conviction is reversed, or if a person is granted a full pardon, the court or governor (as applicable) must notify the Department of Public Safety, which will remove and destroy the person’s DNA record and sample

20 VSA § 1932. Definitions

20 VSA § 1933. DNA sample required

20 VSA § 1940. Expungement of records and destruction of samples

Virgin Islands

Yes 

Felony or violent crime or any misdemeanor sexual offense or attempt or conspiracy to commit such crimes, or any person on parole, probation or supervised release upon a conviction of a designated offense.

Yes. Collection required from an individual charged with or convicted of any specified offense, including a finding of not guilty by reason of insanity or mental disease or defect.

Timing of collection not specified

For sex offenders, if they are not already included in the Combined DNA Index System (CODIS), they shall provide a DNA sample to be forwarded to an appropriate lab for analysis and the resulting DNA profile entered into CODIS.

Attorney General, Bureau of Corrections, Territorial Probation Office, or Board of Parole

Virgin Islands DNA Database and Databank within the Dep’t of Justice

Written request where defendant acquitted (or pardoned) or conviction reversed or vacated and all appeals concluded and individual will not be retried

5 V.I.C. § 4201 Definitions

5 V.I.C. § 4203 DNA sample required

5 V.I.C. § 4209 Expungement

14 V.I.C. § 1726 Registration forms; contents; transmission of form

Virginia

Yes

For persons convicted on or after July 1, 1990: Felonies or enumerated misdemeanors: Violating certain protective orders; Simple assault and battery; Stalking; Sexual battery; Infected sexual battery without intent to transmit; Sexual abuse of a child under 15 years of age; Attempted sexual battery; Unauthorized use of animal, aircraft, vehicle or boat; Trespass after having been forbidden to do so; Entering property of another for purpose of damaging it; Penetration of mouth of child with lascivious intent; Peeping or spying; Indecent exposure; Obscene sexual display; Resisting arrest (or similar local ordinance)

For persons who were incarcerated on July 1, 1989: Felony sexual assault

For juveniles at least 14 years old at time of offense: felony convictions or adjudication as delinquent based on an act that would be a felony if committed by an adult

Not specifically required.

Taken prior to release from custody.  If not sentenced to a term of confinement, must provide DNA as a condition of the sentence. If a sample of the person is stored in the DNA data bank as indicated by the Department of Forensic Science sample tracking system, no additional sample shall be taken.

State Police or Department of Corrections, Parole or Probation; Department of Juvenile Justice

Department of Forensic Science

Written request with court order showing that conviction was reversed and case dismissed

VA code § 19.2–310.2. Blood, Saliva, or Tissue Sample Required for DNA Analysis upon Conviction of Certain Crimes; Fee

§ 19.2–310.7. Expungement when DNA Taken for a Conviction

§ 16.1-299.1. Sample required for DNA analysis upon conviction or adjudication of felony 

Washington

Yes

Felonies and enumerated misdemeanors (or equivalent juvenile offenses):  Assault in the fourth degree where domestic violence; Assault in the fourth degree with sexual motivation;  Communication with a minor for immoral purposes; Custodial sexual misconduct in the second degree; Failure to register as a sex offender or kidnapping offender; Harassment; Patronizing a Prostitute; Sexual misconduct with a minor in the second degree;  Stalking; Indecent exposure; Violation of a sexual assault protection order.

Anyone required to register as a sex or kidnapping offender.

Not specifically required.

If serving a term of confinement in a department of corrections facility or a department of children, youth, and families facility, samples are taken as part of the intake process.

If serving a term of confinement in a city or county jail facility, the city or county jail facility is responsible for obtaining the samples.

If convicted and not serving a term of confinement, if the local police department or sheriff’s office has a collection protocol, then the person shall immediately provide a sample; if no such protocol, then the court shall order the person to report to the local police department or sheriff’s office within a reasonable period of time established by the court.

If incarcerated, Department of Corrections, or Department of Social and Health Services; or the city or county jail facility.

If not incarcerated, the city or county police are responsible for collecting; if the local police department or sheriff’s office has a protocol for collecting sample in the courtroom, order the person to immediately provide the sample before leaving the presence of the court.

Washington State Patrol (Forensic Laboratory Services Bureau)

Written request with court order vacating the conviction based on a reversal of the conviction.

Also may be expunged by trial court order for a defendant who was charged and acquitted or whose conviction was overturned in connection with a violent or sex offense.

West's RCWA 43.43.754. DNA identification system--Biological samples--Collection, use, testing--Scope and application of section

West's RCWA 5.70.020. Destruction of DNA Reference Samples—Expungement of DNA Reference Sample Data

W.A.C. § 446-75-070. Expungement of DNA Data.

West Virginia

Yes

Enumerated felonies and misdemeanors; Sexual offenses; Child abuse offenses; Attempts to commit certain offenses; Any felony where the person is under the supervision of the criminal justice system (including parole, probation, home confinement, community corrections program, and work release)

Yes. If found not guilty by reason of insanity or mental disease or defect.

If incarcerated, collection in jail or prison.

If not incarcerated, the sheriff in the county where the person is convicted will collect

Division of Corrections, regional jails and felon facilities, sheriff’s department

State Police (Biochemistry section)

May request expungement with court order showing conviction reversed and case dismissed

W. Va. Code, § 15-2B-6 DNA sample required for DNA analysis upon conviction; DNA sample required for certain prisoners

§ 15-2B-9. Procedures for withdrawal of blood sample for DNA analysis and for conducting analysis

§ 15-2B-11. Expungement

W. VA. Code of State Rules § 81-9-4 Procedures for the collection of samples for DNA analysis 

Wisconsin

Felonies and Misdemeanors (narrower scope for individuals convicted before 2015)

Juveniles adjudicated delinquent for (1) an act that would be a felony if committed by an adult or (2) enumerated misdemeanors (Fourth degree sexual assault; Endangering safety by use of dangerous weapon; Lewd and lascivious behavior; Prostitution; Patronizing prostitutes; Pandering; Failure to submit biological specimen; Exposing genitals, pubic area or intimate parts)

If present in court for conviction, county sheriff to collect at time of court finding of guilt; otherwise, not specified

Department of Corrections, Department of Health Services, or law enforcement agency

Department of Justice

Yes 

Yes. If found not guilty by reason of mental disease or defect.

May request expungement if case was reversed, set aside, or vacated

W.S.A. 165.76. Submission of human biological specimen

165.77. Deoxyribonucleic acid analysis and data bank

W.S.A. § 971.17. Commitment of persons found not guilty by reason of mental disease or mental defect

WI ADC § JUS. 9.04. Submission of human biological specimen for DNA data bank

Wyoming

Yes

Felonies

Not specifically required.

For persons in custody on or after July 1, 1997, before release from custody.

For persons not sentenced to imprisonment, immediately after sentencing.

Wyoming Department of Corrections; criminal justice agencies having custody

Division of criminal investigation within the office of the Wyoming attorney general

Written request with court order showing conviction was reversed and dismissed

WY Stat. § 7-19–403. DNA Samples Required; Collection; Testing; Reimbursement of Costs

§ 7–19–405. Expungement of Information




DNA evidence can increase likelihood of holding a perpetrator accountable.

Read More

Sexual violence has fallen by half in the last 20 years.

More Stats

The National Sexual Assault Hotline will always be free — with your help.

Donate Now