This session, like last session, saw the introduction of a proposal to allow the collection of DNA from those arrested. SB 881, at the behest of Sen. Jackie Winters (R-Salem), would have required local law enforcement to collect a DNA sample of individuals arrested for any felony crimes committed against another person, all sex crimes and burglary in the first degree. SB 881 would have authorized the collection of biological evidence from individuals prior to any determination of guilt and without the requisite court order after a showing of probable cause.

One of the central tenets of our criminal justice system is the presumption of innocence. Taking DNA samples of people who are arrested but not convicted turns that concept on its head. Thousands of people are arrested or detained every year and are never charged with a crime. Allowing DNA samples from these persons to be uploaded to the state criminal DNA database fundamentally alters the meaning and purpose of the database from one of crime deterrence to population surveillance. It constitutes a search and seizure without a warrant or individualized suspicion of wrongdoing.

Certainly, if DNA evidence is available from the crime scene, the government can obtain the necessary court order to take a DNA sample from the arrestee. But SB 881 bypasses the judicial process and constitutional protections altogether.

Oregon law currently requires the collection of a DNA sample from a defendant upon conviction of a felony or certain misdemeanors. The Oregon Supreme Court upheld that law but made it clear that the decision was based on the fact that the collection occurred only after the person had been convicted. SB 881 requires blanket DNA collection of individuals arrested but not convicted. In light of the Oregon Supreme Court’s decision, we believe SB 881 raises significant constitutional questions under the Oregon search and seizure provision, Article I, section 9 and we so testified when SB 881 was heard in the Senate Judiciary Committee. Fortunately, the bill died in Committee.