Plaintiffs challenging the way DNA from criminal suspects is collected and stored will get another chance to pursue their claims, after an Orange County Superior Court judge agreed with District Attorney Todd Spitzer who argued the facts initially presented were insufficient to proceed.
The plaintiffs, professor emeritus William Thompson and Simon Cole from the School of Social Ecology at UC Irvine, filed an amended petition last week.
“The court agreed with the defendants, the county, on every single claim and said even if all the allegations in the complaint were true, there are still not enough alleged sufficient facts to state a cause of action,” said Peter Scott, an attorney, and partner with Early Sullivan Wright Gizer & McRae law firm. “Giving the plaintiffs one more chance to plead sufficient facts is typical.”
In their complaint, Thompson and Cole allege that Orange County’s DNA collection protocol exceeds what voters permitted when they approved Proposition 69 which allows for the collection of DNA from misdemeanor defendants not charged with sex crimes or arson.
“With DNA, it's not just the defendant from whom it's collected that it applies to,” Scott told the Southern California Record. “It could potentially implicate family members because it traces parental lineage. So, it really is a comprehensive tool for identifying criminal suspects and some of them may not have had any choice in whether or not the DNA was collected in the first place.”
According to the California Attorney General’s website, Proposition 69, also known as the DNA Fingerprint, Unsolved Crime, and Innocence Protection Act, expands state law to allow the collection and use of criminal offender DNA samples and palm print impressions as a way to minimize wrongful convictions.
“Expanding the statewide DNA Database and Data Bank Program is the most reasonable and certain means to ensure that persons wrongly suspected or accused of a crime are quickly exonerated so that they may re-establish their standing in the community,” the website states. “Moreover, a person whose sample has been collected for Database and Data Bank purposes must be able to seek expungement of his or her profile from the Database and Data Bank.”
The complaint further alleges that samples are collected through a process in which county prosecutors offer to drop or reduce charges in exchange for a misdemeanor defendant submitting to DNA collection.
"It raises privacy issues with respect to the defendants because there's not a whole lot of transparency as to what's being done with the DNA samples, how they're stored, what the contact is with the private company that's storing them, what's going to be done with those DNA samples, if they're stored in perpetuity, who has access to them, what kind of security protocols are in place for those DNA samples,” Scott said.
After they are collected, DNA samples are sent to a laboratory operated by Bode Cellmark Forensics, Inc. for processing, according to defendants Spitzer and the county's demurrer.
“I think DNA samples need to be regulated at the state level,” Scott added. “There are some pretty serious implications if there's a huge database of DNA and it was breached somehow, or if the information was to get into the wrong hands, there’s no putting that genie back in the bottle.”