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Appeals court revives lawsuit challenging OC district attorney’s DNA collection program

April 14, 2023

An appellate court has revived a lawsuit challenging the Orange County district attorney’s unregulated DNA program, which offers leniency to low-level defendants who “volunteer” to give their genetic material.

The suit by two professors at UC Irvine, was rejected earlier on a technicality by a lower court, but revived Tuesday, April 11, by a three-member panel of the Fourth District Court of Appeal.

At issue is whether the district attorney’s practice of taking DNA from misdemeanor defendants in exchange for dropping charges or reducing punishments denies them their legal rights.

State and federal law allow DNA to be collected and stored in state and national databases for felony and some misdemeanor offenses, such as arson and some sexual crimes. Orange County, however, collects DNA locally for misdemeanors, such as driving under the influence.

‘Spit and acquit’

The program, dubbed by defense attorneys “spit and acquit,” has helped local prosecutors amass a private database of more than 182,000 DNA profiles — larger than the individual databases of 25 states.

The lawsuit by UCI criminology professor emeritus William Thompson and criminal justice professor Simon Cole alleges the program is a secretive form of genetic surveillance. Thompson is a longtime watchdog over DNA analyses and aided in the shutdown of Houston’s crime lab in 2002.

The suit contends defendants could feel pressured into accepting DNA deals without fully understanding how the genetic material could be used and without knowing their rights to an attorney. The appellate ruling acknowledges that many of the deals are struck in courthouse hallways before the defendant has even seen a judge.

Information ‘may be exploited’

Justice Eileen Moore, joined by Justices Thomas Goethals and Joanne Motoike, wrote that defendants may not be fully aware of the consequences of giving up their DNA.

“Due to its complexity, a significant number of alleged misdemeanants will likely be unaware of the information the DNA may reveal and how this information may be exploited,” Moore said. “As technology advances, DNA samples and profiles will reveal far more extensive information than we currently know.”

The ruling noted that waivers signed by defendants may be vaguely worded, not informing them who will have access to the DNA sample, how long that sample will be kept and how it may be used.

Samples collected by the district attorney’s office are sent to the private Bode Cellmark Forensics Lab in Lorton, Virginia, for analysis, with the profiles sent back to prosecutors.

Program ‘makes community safer’

Kimberly Edds, spokesperson for the district attorney’s office, said the appellate ruling did not address the merits of the lawsuit, only whether it can proceed.

“It is irrefutable that DNA collection has enabled us to solve unsolved crimes from the past and has been proven to be the greatest deterrent in preventing someone who has submitted their DNA profile from committing new crimes,” Edds said. “The OCDA DNA program makes our community safer.”

She continued: “UCI could not produce a single defendant outraged over providing their DNA in exchange for a plea deal; yet they filed a frivolous lawsuit using taxpayer dollars in an attempt to further recalibrate our criminal justice system to favor criminals over victims.”

The ruling notes that, as of 2018, less than 1% of the profiles in the district attorney’s database matched the DNA collected from crime scenes — and the vast majority were nonviolent or property crimes.

The local DNA database was founded in 2007 by former District Attorney Tony Rackauckas and was heavily criticized by Todd Spitzer while he was campaigning for that office in 2018. Spitzer, however, decided after his election to keep the tax-funded program after learning of its potential as a crime-solving tool.

Orange County Register

News Details

Appeals court revives lawsuit challenging OC district attorney’s DNA collection program

‘Spit and acquit’

Information ‘may be exploited’

Program ‘makes community safer’

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