NO. Unless you're arrested for a felony offense, you do NOT have to voluntarily give a DNA sample for testing.
DNA analysis has come a long way since I was prosecutor in the late 1980s and early 1990s. In 1992 I successfully convicted a serial rapist in the first case in the Parish of Caddo using DNA evidence. At that time only, only one or two other parishes had used DNA evidence because the science was still fairly new.
So new that very few state crime labs were qualified to evaluate and testify about DNA evidence. We had the analysis and testimony p by an expert from the United States Federal Bureau of Investigation. In order to ensure the admissibility of the evidence and the qualifications of the expert, I spent several hours laying a foundation.
As I recall, the probability that the DNA evidence would match anyone else was less than 1 in 1 billion. At that time, the FBI wouldn't analyze any more if probability went beyond 1:1 billion. That makes sense, there aren't even a billion people living in America. According to the United State Census there approximately 316,000,000 in the United States as 2013.
There are only about 300,000 in the Parish of Caddo, but we didn't rely on the DNA evidence only. We also had eyewitness testimony and fingerprint evidence. So likelihood that anyone else could have committed the crime with a positive identification, fingerprint match and DNA match in Caddo Parish was astronomically improbable.
Of course, NOW DNA evidence is consider the gold-standard. Fortunately, many people who were wrongfully identified have now been released. Unfortunately, DNA evidence can also be rock-solid evidence of guilt.
Legislation is sweeping across the nation with nearly half of the states currently requiring the pretrial collection of DNA samples from individuals who are arrested for various crimes but not yet convicted.
Maryland and Tennessee require a probable cause hearing prior to the DNA being loaded into a DNA database. Alabama, California, and Florida require DNA samples to be submitted if an individual is arrested for committing any felony offense. Louisiana allows for the involuntary collection of DNA upon arrest. See Louisiana R.S. 15:609 (full citation below).
Arizona, Maryland, and New Mexico require DNA samples to be submitted only in cases where an individual is arrested for a violent felony such as murder or sexual assault.
Lastly, state laws vary whether juveniles must submit DNA samples upon arrest. Florida, Kansas, Louisiana, and South Carolina specifically include juveniles while other states do not.
So why would anyone voluntarily submit to giving evidence the evidence even if would exonerate you?
Because the source of the DNA can be extremely small and can be left behind in several places. For example, a family member obviously could leave trace evidence in the house. Law enforcement may want to collect the evidence to make a connection that they would not otherwise be able to make.
Of course, if there is probable cause for an arrest, then law enforcement can involuntarily collect DNA. Also, if there is evidence necessary in civil case, one can file a motion to compel another to the submission of a DNA test.
But NEVER voluntarily submit.
As always, i hope this information provides guidance to you as you maneuver the winding roads of the Louisiana legal highways. Call if we can be of assistance.
Mark Perkins
Perkins & Associates, LLC
318-222-2426
15: §609. Drawing or taking of DNA samples
A.(1) A person who is arrested for a felony or
other specified offense, including an attempt, conspiracy, criminal
solicitation, or accessory after the fact of such offenses on or after September
1, 1999, shall have a DNA sample drawn or taken at the same time he is
fingerprinted pursuant to the booking procedure.
(2) For purposes of this Chapter, a juvenile who
is arrested for an offense covered by this Chapter or adjudicated delinquent for
the commission of a felony-grade delinquent act, including an attempt,
conspiracy, criminal solicitation, or accessory after the fact of a felony-grade
delinquent act shall be considered a person who is arrested for a felony or
other specified offense.
B.(1) Any person who is convicted or enters into a
plea agreement resulting in a conviction on or after September 1, 1999, for a
felony or other specified offense, including an attempt, conspiracy, criminal
solicitation, or accessory after the fact for such offenses committed prior to
that date shall have a DNA sample drawn or taken as follows:
(a) A person who is sentenced to a term of
confinement for an offense covered by this Chapter shall have a DNA sample drawn
or taken upon intake to a prison, jail, or any other detention facility or
institution. If the person is already confined at the time of sentencing, the
person shall have a DNA sample drawn or taken immediately after the
sentencing.
(b) A person who is convicted or enters into a
plea agreement resulting in a conviction for an offense covered by this Chapter
shall have a DNA sample drawn or taken as a condition of any sentence that will
not involve an intake into a prison, jail, or any other detention facility or
institution.
(c) Under no circumstances shall a person who is
convicted or enters into a plea agreement resulting in a conviction for an
offense covered by this Chapter be released in any manner after such disposition
unless and until a DNA sample has been withdrawn or taken.
(2) For purposes of this Chapter, a juvenile who
is arrested for an offense covered by this Chapter or adjudicated delinquent for
the commission of a felony-grade delinquent act, including an attempt,
conspiracy, criminal solicitation, or accessory after fact for such offenses
shall be considered a person who is convicted for a felony or other specified
offense.
C. A person who has been convicted or enters into
a plea agreement resulting in a conviction for a felony or other specified
offense before September 1, 1999, including an attempt, conspiracy, criminal
solicitation, or accessory after the fact for such offenses and who is still
serving a term of confinement in connection therewith on that date shall not be
released in any manner prior to the expiration of his maximum term of
confinement unless and until a DNA sample has been withdrawn or taken.
D. All DNA samples taken pursuant to this Chapter
shall be taken in accordance with regulations promulgated by the state
police.
E. As used in this Section, the term "released"
means any release, parole, furlough, work release, prerelease, or release in any
other manner from a prison, jail, juvenile detention facility, or any other
place of confinement.
F.(1) Any person who is serving a term of
confinement for the conviction of a felony or other specified crime, including
an attempt, conspiracy, criminal solicitation, or accessory after the fact for
such offenses and is accepted by the state from another state under any
interstate compact, or under any other reciprocal agreement with any county,
state, or federal agency, or any other provision of law to continue his
confinement shall have a DNA sample drawn or taken upon intake to a prison,
jail, or any other detention facility or institution of the state.
(2) Any person who has been convicted of a felony
or other specified crime, including an attempt, conspiracy, criminal
solicitation, or accessory after the fact for such offenses and has been
accepted to the state from another state under a condition of active
supervision, shall have a DNA sample drawn or taken within three days after he
has reported to the office of probation and parole which will be providing
active supervision.
G. A DNA sample shall be withdrawn from the body
of any person who dies as a result of being a victim of a crime of violence, as
defined in R.S. 14:2(B).
H. The detention, arrest, or conviction of a
person based upon a database match or database information is not invalidated if
it is determined that the sample was obtained or placed in the database by
mistake.
I. Duly authorized law enforcement and corrections
personnel may employ reasonable force in cases where an individual refuses to
provide a DNA sample required under this Section and no such employee shall be
civilly or criminally liable for the use of such reasonable force.
J. When a DNA sample is not drawn or taken
pursuant to this Section, or when a DNA sample is taken or drawn pursuant to
this Section and is destroyed, tainted, or fails to generate a full DNA profile
during analysis, the court may order the person to produce a DNA sample on an ex
parte motion of any of the following:
(1) A law enforcement agency who investigated the
person which resulted in the arrest for a felony or other specified offense, as
defined in R.S. 15:603(10), including an attempt, conspiracy, criminal
solicitation, or accessory after the fact of such offenses.
(2) The warden or the administrator of the booking
facility or correctional facility where the person was booked or
incarcerated.
(3) The district attorney or attorney general
assigned to prosecute the case for which a DNA sample was authorized under this
Section.
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