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Lawfully Owed DNA

Last Updated: March 2020
Arrest 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? Statutes
Alabama

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.

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.

Alaska

Yes, from adults only 

All felonies, or “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.

A.S. § 44.41.035. DNA identification system

Arizona

Felonies, murder, enumerated sexual offenses, burglary.

At booking. 

Arresting authority or its designee.

Yes, adults only.

Department of Public Safety 

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

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).

 

Arkansas

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

Felonies, murder, kidnapping, rape, sexual assault.

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.

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

California

Yes, from adults only.

All felonies.

At booking or “as soon as administratively practicable”

Department of Corrections and Rehabilitation

Department of Justice, 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.

 

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

 

Colorado

Felonies

“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.

Yes, from adults only.

The arresting law enforcement agency.

Colorado Bureau of Investigation

Yes – written request to CBI, after case dismissed, no charges filed, or plea to lesser misdemeanor.

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, App. 2017, 405 P.3d 413, cert. denied 2017 WL 4872875 (Crime defendant was arrested for was not required to be serious 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.).

Connecticut

Yes, from adults and minors.

Arrest for serious felony, if no sample on file and prior 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.

“Prior to release from custody,” per law enforcement agency’s policies.

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

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.  

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:

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.).

Delaware

No.

N/A

N/A

N/A

N/A

N/A

N/A

District of Columbia

N/A

N/A

No.

N/A

N/A

N/A

N/A

Florida

Yes, from adults and minors. 

Felonies, including attempt.

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.

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 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.).

Georgia

N/A

N/A

N/A

N/A

N/A

No.

N/A

Guam

No.

N/A

N/A

N/A

N/A

N/A

N/A

Hawaii

No.

N/A

N/A

N/A

N/A

N/A

N/A

Idaho

No.

N/A

N/A

N/A

N/A

N/A

N/A

Illinois

Yes, after an indictment has been returned by a grand jury or finding of probable cause following a hearing. This applies to both adults and minors.

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. 

730 ILCS 5/5-4-3 Specimens; genetic marker groups.

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

Yes, from adults only. 

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 for a felony arrest.

The sheriff

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 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.

Iowa

No.

N/A

N/A

N/A

N/A

N/A

N/A

Kansas

Yes, from adults and minors.

Felonies, and enumerated misdemeanors: Lewd and lascivious behavior, Cruelty to animals, Criminal restraint, Adultery, Buying sexual relations, Sexual battery, Aggravated sexual battery, (Attempt, Conspiracy, or Criminal solicitation to commit) Rape.

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 dismissal of charges, expungement, or acquittal at trial.

 

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.”).

Kentucky

N/A

N/A

No. 

N/A

N/A

N/A

N/A

Louisiana

Yes, from adults and minors.

Felonies, or felony-grade delinquent act, including attempt, conspiracy, criminal solicitation, or accessory after the fact.

At the same time as fingerprinting pursuant to the booking procedure.

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, with the sample then delivered to the State Police. 

Louisiana State Police

Upon written request with a certified court order of expungement and sealing.

 

LSA-R.S. §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

Maine

No.

N/A

N/A

N/A

N/A

N/A

N/A

Maryland

Department of State Police, Forensic Sciences Division

Destruction of the sample is automatic if charges are determined to be unsupported by probable cause; or criminal action does not result in conviction.

Yes, from adults and minors.

Felonies or misdemeanors if “a crime of violence” (or an attempt) or burglary (or an attempt).

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

Department of State Police, at a facility designated by the Secretary.

 

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

 

§ 2-511. Destruction or Expungement of DNA Information

 

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.”)

Massachusetts

No.

N/A

N/A

N/A

N/A

N/A

N/A

Michigan

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

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.

 

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.”).

 

 

 

 

 

 

 

 

Minnesota

Yes, from adults and minors.

Collection authorized only after alleged offender has had a probable cause determination on a charge of committing certain offenses, including: murder, manslaughter, assault, robbery or aggravated robbery, kidnapping, false imprisonment, criminal sexual conduct, incest, burglary, indecent exposure, patterned sex offenders. 

After probable cause hearing.

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

The Bureau of Criminal Apprehension

Automatic if the person was not found guilty of a felony or upon request of a person where the charge against the person was later dismissed.

 

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 re Welfare of C.T.L., 722 N.W.2d 484, 492 & n.1 (Minn. Ct. App. 2006) (holding that Minn. Stat. § 299C.105(subd. 1)(a)(1) and (3)—which directs the automatic collection of DNA after a probable cause determination but without a search warrant—violates the Fourth Amendment and provision of Minnesota State Constitution that is generally interpreted as coterminous with Fourth Amendment); but 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.”).

Mississippi

Yes, from adults only.

Crimes of violence (as defined by Miss. Code § 97-3-2, including, without limitation, 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

Only on motion (by the parties or sua sponte by the court) and only if (i) charge is dismissed; (ii) defendant is acquitted or convicted of lesser-included offense that is not a crime of violence; (iii) no charge filed within the limitations period; or (iv) no conviction has occurred and at least three years since date of arrest has elapsed and there is no active prosecution.  

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

Missouri

Yes, from adults only (defined as individuals 17 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

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 index system.

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

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

Montana

N/A

No. 

N/A

N/A

N/A

N/A

N/A

Nebraska

No.

N/A

N/A

N/A

N/A

N/A

N/A

Nevada

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. 

 

Nev. Rev. Stat. Ann. § 176.0912 - Biological evidence secured in connection with investigation or prosecution; required preservation

 

§ 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)

New Hampshire

N/A

N/A

N/A

No. 

N/A

N/A

N/A

New Jersey

Yes, from adults and minors.

  • Murder;
  • Manslaughter;
  • Aggravated assault of the second degree;
  • Kidnapping;
  • Luring or enticing a child in violation;
  • Engaging in sexual conduct which would impair or debauch the morals of a 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

 

 

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

New Mexico

Yes, from adults, or a minor previously convicted as a youthful offender or serious youthful offender.

Felony

At booking

Department of Corrections

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

By written request if cases ended in: (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.  

 

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 only.

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) G.S. 14-18, 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.

If warrant, at booking;

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.

If any person is charged with a crime, either a misdemeanor or a felony, or was charged with an infraction under G.S. 18B-302(i) prior to December 1, 1999, and the charge is dismissed, that person may petition the court of the county where the charge was brought for an order to expunge from all official records any entries relating to his apprehension or trial. 

 

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.

State crime laboratory

Felonies

At booking, or first court appearance.

Yes, from adults only.

Yes – must petition court if case was acquitted, dismissed, plead to lesser included misdemeanor charge; or if felony charges never brought.

 

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 and minors.

Felonies

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

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

The head of the arresting law enforcement agency - sheriff or deputy sheriff - is responsible.

Bureau of Criminal Identification and Investigation

Upon request

 

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

 

§ 2152.74. DNA specimen collected from juvenile adjudged delinquent

 

 

Case Law:

Ohio v. Keith, 62 N.E.3d 649 (Oh. 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.’”).

Emerson v. Kelly, 2015 WL 3968250 (N.D. Ohio 2015) (“R.C. 2901.07 does not support the inclusion of [the defendant’s] profile in CODIS.”).

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.”).

Ohio v. Taylor, 1st Dist. Hamilton No. C-150488, 2016-Ohio-4548, ¶ 6. (“R.C. 2901.07(B) confers no substantive rights on a defendant because its requirements ‘were not intended to benefit the defendant, but rather to facilitate the DNA testing of felony offenders for the maintenance of a DNA database.’”).

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) Database

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 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.

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 to misdemeanor; or if found not guilty.  

 

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.

The South Dakota 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.  

 

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 enumerated crimes.

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

 

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

 

 

 

§ 411.1471, DNA Records of Persons Arrested for, Charged with, or Convicted of Certain Offenses

 

 

§ 411.151, Expunction or Removal of DNA Records

Yes, from adults and minors (by implication).  

Felonies for aggravated kidnapping with intent to inflict bodily injury or sexually violate or abuse victim; sexual indecency with a minor; sexual assault; aggravated sexual assault; incest; first-degree felony burglary; compelling prostitution; violation of V.T.C.A., Penal Code § 43.25, Sexual Performance of a Child; possession or promotion of child pornography; continuous sexual abuse of young child(ren); or continuous trafficking of persons. Registered sex offenders are also required to provide a sample.

Note that a DNA sample will be required on arrest only if the arrestee has “been previously convicted of or placed on deferred adjudication” for one of the above-listed crimes or for second-degree felony burglary. However, if a person is indicted or waives indictment for any of the above crimes, prior conviction is not a prerequisite for DNA collection.

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, the court shall order the law enforcement agency that took the specimen to immediately destroy the specimen and associated records.

Utah

Department of Public Safety, Bureau of Forensic Services

If the charge is 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

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)

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

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.

Yes, from adults only.

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.

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

Washington

No.

N/A

N/A

N/A

N/A

May apply to WA state patrol to have DNA reference sample expunged when charges dismissed with prejudice or found not guilty.

West’s RCWA 5.70.020. Destruction of DNA reference samples—Expungement of DNA reference sample data

West Virginia

No.

N/A

N/A

N/A

N/A

N/A

N/A

Wisconsin

 

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

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.

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

N/A

"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.

DNA sample is expunged upon order of the circuit court.

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

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

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; Applies to adjudicated juveniles age 16 or older

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.

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

Yes, for sex offender registry eligible offenses

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

Arkansas

Yes.

Felonies, and all sex offenses

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

Unclear

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

A law enforcement official or corrections official

State Crime Laboratory

Yes.

(1) must petition the State Crime Laboratory upon reversal of conviction;

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

(3) provide a certified copy of the reversal.

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

ARK. CODE ANN. §12-12-1019. Removal and destruction of the DNA record and DNA sample

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

California

Yes – and when found not guilty by reason of insanity

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

Yes

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

Department of Corrections and Rehabilitation

Department of Justice, 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

Felonies

N/A

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

Colorado Bureau of Investigation

Yes – written request to Colorado Bureau of Investigation, after case dismissed, no charges filed 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

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

Prior to release from custody if incarcerated; or at a time and date specified by Court Support Services Division of the Judicial Department

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

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.).

Delaware

Yes.

Felonies

N/A

At time and place 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.

Felonies and sex crime misdemeanors or attempted felonies and sex crime misdemeanors

N/A

At conviction

Court Services and Offender Supervision Agency coordinates DNA collection by DNA contractors

Department of Forensic Sciences

An individual must petition the court.

DC ST § 22-4151. Qualifying offenses

DNA Analysis Backlog Elimination Act of 2000 42 U.S.C.A. §§ 14135 ET SEQ. and 10 U.S.C.A. § 1565

 

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

N/A

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 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

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 (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.).

Georgia

Felonies

Upon “entering the detention facility or being placed on probation”

Department of Corrections

Yes.

N/A

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 a court order reversing the conviction together with a court order or documentation stating that the charges were dismissed, a judgment of acquittal, a sentencing order showing that all felony charges were reduced to misdemeanors or a court order showing successful completion of the sentence.

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

GA ST § 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.).

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 offenses or a crime against a minor

N/A

Within 3 days of conviction, or if released on parole or probation, at the time of initial registration on Guam or within 30 working days of initial registration, or if required to register as a sex offender, at the time of initial registration on Guam or within 30 working days upon conviction.

Guam Police Department

Criminal Records Division of the Guam Police Department

Not addressed

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

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

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

Hawaii

Yes (not including juveniles)

Felonies

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 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

Upon written request with proof of service to: the trial court of the circuit that rendered the disposition, to the police department of the city and county of Honolulu, and to the prosecuting attorney of the county in which the person was convicted or adjudicated; if collection occurred while a suspect, if no longer a suspect after 2 years then the department shall remove the suspect sample from its data bank files.

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

HI ST § 844D-31. OFFENDERS SUBJECT TO COLLECTION

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

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

HI ST § 844D-53. ANALYSIS OF FORENSIC IDENTIFICATION PROFILES

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

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

Idaho

Yes (including juveniles tried as adults)

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

N/A

After conviction or guilty plea but before sentencing, or during the intake process at facility or as soon as practicable; 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; if for any reason a person subject to collection has not provided a DNA sample, then within 10 working days of being notified of the requirement

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

Upon written request with proof of service to: the trial court which rendered the disposition, bureau of forensic services, and prosecuting attorney of the county in which the person was convicted. Request should contain certified copy of court order reversing and dismissing case

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

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

ID ST § 19-5510. APPLICABILITY OF CHAPTER

ID ST § 19-5513 EXPUNGEMENT OF INFORMATION

Illinois

Any felony under Illinois law; anything for which a person is sentenced to life imprisonment or death; “qualifying offenses” and 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; 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 person seeking to transfer to or residency in Illinois under Sections 3-3-11.05 through 3-3-11.5

Any person required to register as a sex offender under the Sex Offender Registration Act

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 Sections 3-3-11.05 through 3-3-11.5, within 45 days after transfer to or residency in Illinois or before final discharge; 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, or if “institutionalized as a sexually dangerous person"

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

730 ILCS 5/5-4-3. Specimens; genetic marker groups

730 Ill. Comp. Stat. Ann. 5/5-4-3

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

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

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

IC § 10–13–6–18 Removal of DNA profile

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

Yes.

Conviction for a felony, conspiracy to commit a felony, or attempt to commit a felony

N/A

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”; 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

As soon as practicable if incarcerated, or “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

Iowa Code 81.2. Persons Required to Submit a DNA Sample

Iowa Code 81.4 Collecting, Submitting, Analyzing, Identifying and Storing DNA Samples and DNA records

Iowa Code 81.9. Expungement of DNA Record

Kansas

Yes.

Felonies, and enumerated misdemeanors: Lewd and lascivious behavior, Cruelty to animals, Criminal restraint, Adultery, Buying sexual relations, Sexual battery, Aggravated sexual battery, (Attempt or Conspiracy to commit) Criminal solicitation, Rape

N/A

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, or a verdict of acquittal

K.S.A. 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:

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

N/A

“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

KRS § 422.285. PERSON CONVICTED OF CERTAIN OFFENSES MAY REQUEST DNA TESTING; RIGHT TO COUNSEL; DEPOSIT; COURT ORDERS; COST; ACCESS TO REPORTS; PRESERVATION OF EVIDENCE; DISMISSAL; HEARING WHEN RESULTS FAVORABLE TO PETITIONER

Louisiana

Yes (adults and minors)

Felonies, or felony-grade delinquent act, including attempt, conspiracy, criminal solicitation, or accessory after the fact

N/A

If sentenced: 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

Deparment of Corrections

Louisiana State Police

Upon written request with a certified court order of expungement and sealing

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 Felonies 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 commit a prohibited act; Solicitation of a child to commit a prohibited act on or after October 1, 2012; or Any lesser included offense

Enumerated Felonies 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

N/A

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

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 and 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

Maryland

Yes.

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

N/A

At sentencing or on intake to a correctional facility

Department of Corrections or Department of State Police

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

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

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

 

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.”)

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

N/A

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), certiorari 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”).

Michigan

Yes.

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

N/A

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 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

N/A

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.

Felonies, crimes of violence and convictions for any sex offense or a sex offense requiring sex offender registration

N/A

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

Department of Corrections

Mississippi Forensics Laboratory

May file motion to destroy sample under certain circumstances (e.g., charge dismissed, no charge filed, acquittal)

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 or a county jail or other detention facility 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 index system

Yes.

N/A

Available upon request on grounds the conviction has been reversed, the guilty plea has been set aside, or expungement of all official records has been granted by the court

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 challenge to 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

Automatic – The county attorney of the county in which the conviction occurred shall notify the MT Department of Justice of a reversal of a conviction for the offense or adjudication of a youth for a sexual or violent offense

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

44-6-101 – Definitions

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

44-6-107 – Expungement of DNA records

46-18-202 – Additional restrictions on sentence 

Yes.

• Felonies;
• Youth found to have committed a sexual or violent offense in an adjudicatory hearings;
• 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

N/A

Upon sentencing

Nebraska

Yes.

A person who is convicted of a felony offense or other “specified offense” (misdemeanor stalking or false imprisonment in the second degree or an attempt, conspiracy, or solicitation to commit stalking, false imprisonment in the first degree, false imprisonment in the second 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

N/A

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 § 29-4109. DNA record; expungement; procedure

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

 

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 in another jurisdiction or having been convicted of crimes against a child or a sexual offense.

N/A

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. 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 Division shall arrange for the biological specimen to be obtained from the defendant.

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.

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 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 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.

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

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

176.09121 – stste DNA database; establishment; duties

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)

New Hampshire

Department of Corrections

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

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 (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) 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 ST § 651-C:2 DNA Analysis Required

NH ST § 651-B:1 – Definitions 


NH ST § 651-C:1 – Definitions

NH ST § 651-C:5 - Expungement of DNA database records upon reversal or dismissal of conviction 

NH ST § 135:17-A competency hearing; commitment for treatment 

NH ST § 651:8-B Hospitalization; persons acquitted by reason of insanity

Yes – and for 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

• Felonies;
• Misdemeanor sex offenses under RSA 651-B:1;
• Misdemeanor offenses against a child under RSA 651-B:1

Yes

Upon intake or prior to the release

New Jersey

Yes – and for any person found not guilty by reason of insanity of aggravated sexual assault or sexual assault or aggravated criminal sexual contact or criminal sexual contact, or any attempt to commit any of these crimes, or adjudicated not delinquent by reason of insanity for an act which, if committed by an adult, would constitute one of these crimes

• Murder;
• Manslaughter;
• Aggravated assault of the second degree;
• Kidnapping;
• Luring or enticing a child in violation;
• Engaging in sexual conduct which would impair or debauch the morals of a child



Yes

If not at arrest; then “upon commencement of the period of confinement.” If not at the commencement of the period of confinement, then before parole or release from incarceration. In all scenarios, every person arrested for an offense enumerated shall provide a DNA sample prior to release from custody.

Arresting law enforcement agency

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.

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 an order of expungement for each conviction or adjudication.

N.J.S.A. § 53:1-20.19 – Definitions

N.J.S.A. § 53:1-20.20 – Failure of offivers to perform duties; misdemeanor; removal

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

N.J.S.A. § 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) (One who obtains a reversal of a verdict of not guilty by reason of insanity is entitled to expungement of his or her profile and sample, maintained upon dismissal of the charges.).

New Mexico

Yes.

Felonies, and misdemeanor sex offenses

N/A

If not at arrest, then prior to release

Collected at law enforcement “administrative center"

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

By written request if conviction was reversed

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 Marijuana Possession in 5th 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

N/A

At sentencing 

Department of Corrections

Division of Criminal Justice Services

An individual may submit a written notice to Division of Criminal Justice Services that the conviction was reversed 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) (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.).

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.).

People v. Halle, 55 N.Y.S.3d 634 (N.Y. Sup. Ct., Bronx County 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; denying protective order would permit the operation of a shadow DNA index operating for half or more of the state's DNA comparisons, which would contravene Executive Law establishing one closely monitored DNA database and permitting inclusion for comparison only after conviction.).

People v. Hall, 160 A.D.3d 896 (N.Y. Sup. Ct. App. Div. 2D) (“Executive Law § 995, et seq., only applies to the New York State DNA databank and does not apply to the [Office of Chief Medical Examiner] local databank.”).

People v. White, 76 N.Y.S.3d 800 (N.Y. 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.”).

Zaire v. Barringer, 2003 WL 57918 (N.D.N.Y. 2003); Lunney v. Goord, 736 N.Y.S.2d 718 (Sup. Ct. App. Div. 2002). (The person having the sample taken does not have the option to dictate the type of sample to be taken.).

North Carolina

Yes - or not guilty by reason of insanity

Felonies, Assaults on handicapped persons, Stalking

Yes

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

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. 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

N/A

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

Must petition court if conviction reversed

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

OH ST. § 2901.07 DNA Testing of certain prisoners

 

Case Law:

Emerson v. Kelly, 2015 WL 3968250 (N.D. Ohio 2015) (“R.C. 2901.07 does not support the inclusion of [the defendant’s] profile in CODIS.”).

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.”).

State v. Consilio, 871 N.E.2d 1167 (Ohio 2007) (“Because the HB 525 version of R.C. 2901.07(B)(3)(a) lacked express language making it retroactive, that version may be applied only prospectively to individuals who were convicted of or pleaded guilty to a qualifying offense and were placed on supervised release after its effective date [May 18, 2005].”).

Yes.

Felonies

N/A

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 Investigation

Not currently provided for under the Ohio Revised Code

Oklahoma

Yes

Felonies, or any crime requiring sex offender registration.

Enumerated misdemeanors: Assault and battery; Domestic abuse Stalking; Possession of a 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

N/A

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; or full pardon

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;
assault in the first degree;
conspiracy or attempt to commit any Class A or Class B felony enumerated above; or
murder 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

Yes

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 and withdrawal, 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

N/A

Upon intake to a prison, jail or juvenile detention facility or any other detention facility or institution; 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

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; 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

Convicted of 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

N/A

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

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

§ 12–1.5–13. 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 (including pleas of guilty or nolo contendere)

N/A

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

N/A

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 adjudicated juveniles

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 sample

N/A

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-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 adjudicated juveniles

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

N/A

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

40 TN ST Ch. 30, Pt. 3, Post–Conviction DNA Analysis Act of 2001

 

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

Law enforcement agency

Department of Public Safety

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

 

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).

Yes

Offenses (1) under Title 5 to the Penal Code (Criminal homicide; Kidnapping/unlawful restraint/smuggling; Human trafficking; Sexual offenses; Assault) (other than those describe in the “indicted or waives indictment” section) that are punishable as Class A misdemeanors or higher—except Class A misdemeanors for (a) Unlawful restraint; (b) Assault; or (c) Deadly conduct (Penal Code 22.05); (2) Indecent exposure; Enticing a child under 25.04; Knowingly offering or agreeing to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another; Promotion of prostitution; or Sale, distribution, or display of harmful material to minor; 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.

N/A

After conviction 

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

N/A

“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.

§ 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

Yes – adults and minors (by implication)

Persons convicted of the following “designated crimes”: (a) A felony; (b) Domestic assault; (c) Registered sex offenders; (d) Stalking; (e) Reckless endangerment; (f) Violation of an abuse prevention order; (g) Misdemeanor violation 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

N/A

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, a place and time designated by 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 § 1933. DNA sample required

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

Virgin Islands

Yes – and if found not guilty by reason of insanity or mental disease or defect

Felony or violent crime or any misdemeanor sexual offense or attempt or conspiracy to commit such crimes

N/A

Not specified 

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. § 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

N/A

Taken prior to release from custody. If not sentenced to a term of confinement, must provide DNA as a condition of the sentence

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 analyses upon conviction or adjudication of felony 

Washington

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

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

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.

N/A

Not specified

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

Washington State Patrol (Forensic Laboratory Services Bureau)

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

West Virginia

Yes – and if found not guilty by reason of insanity or mental disease or defect

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 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

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

W. Va. Code, § 15-2B-11. Expungement

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

Wisconsin

Yes – and if found not guilty by reason of mental disease or defect

Yes

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

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

W.S.A. 165.77. Deoxyribonucleic acid analysis and data bank

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

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

Wyoming

Yes

Felonies

N/A

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




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