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Objection DNA sampling

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When can DNA be taken from a convicted person?

The collection of DNA cellular material following a criminal conviction is regulated by the DNA Examination of Convicted Persons Act. This law provides that DNA material can be taken from persons who have been sentenced to a penalty or measure for certain crimes. When you are in a criminal case are acquitted or dismissed from all prosecution without imposition of a measure, DNA samples cannot be taken. Nor can DNA sampling take place in the event that you have only been imposed a fine. However, if you have been sentenced to perform community service, DNA sampling is possible. Even if you have completed the community service punishment order from the prosecutor's office imposed. This again is not the case if you have to perform community service following a settlement with the prosecution. Finally, DNA sampling can also take place on minors.

What offenses does the DNA Testing of Convicted Persons Act apply to?

The next question is for which crimes the collection of DNA material after conviction is possible. In principle, these must be crimes for which the law prescribes a maximum prison sentence of four years or more. This is not the sentence you actually received, but the maximum sentence you could have received under the law. In addition, the law lists a number of crimes that have a maximum sentence of less than four years in prison, but for which the collection of DNA samples is still possible. These include, for example, vandalism, threatening, money laundering and growing hemp. Thus, DNA cellular material can also be collected in certain less serious crimes.

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Do you always have to give DNA in the cases mentioned above?

If the aforementioned conditions are met, the Prosecutor's Office is in principle obliged to issue the order to collect DNA from you. This principle has only two exceptions. First, you do not have to provide DNA material if your DNA profile is already known in the DNA database. Second, DNA sampling is not required if it is not likely that your DNA profile could be significant in the detection of other crimes. This is based on the crime you committed and the circumstances under which you committed it. For example, it is not obvious to take DNA samples if you have committed economic offenses, since these offenses cannot be detected using DNA samples.

Do you also have to give DNA if you appeal?

The question of whether you appeal has filed against your conviction is irrelevant to DNA collection. DNA samples may be collected from you even if the appeal in your case is pending.

Are you required to cooperate in the collection of DNA material?

When the District Attorney believes that the conditions for DNA collection have been met, he will issue the order to give DNA material. Unfortunately, you cannot choose not to cooperate with this. Thus, you are required to surrender your DNA cellular material. If you do not comply with this order, you may be arrested. The DNA collection may also take place under duress. A more invasive method of DNA collection may then be chosen than in the case where you voluntarily provide cellular material.

How does DNA sampling work?

If you must give DNA after your conviction, you will be notified by letter from the District Attorney. Prisoners can give DNA in prison. If you are not incarcerated, you will receive an invitation to appear at the police station.

The collection of DNA is preferably performed by the collection of cheek mucosa with a cotton swab. When the collection of cheek mucosa cannot provide suitable cell material due to medical reasons, blood is taken or hair is collected. These methods are often used even if you refuse to cooperate with the collection. This is because the collection of cheek mucosa is not well possible under duress.

In most cases, DNA is collected by a police officer. However, you have the right to have the cell material collected by a doctor or nurse. If you request this, it cannot be refused.

What happens to your DNA material after collection?

A DNA profile is determined from the DNA material collected from you. This profile is processed in the DNA database. This DNA database is consulted when criminal offenses are being investigated. When DNA material is found at a crime scene, it is examined whether there is a match with a DNA profile that has been processed in the DNA database.

The DNA profile entered into the database is destroyed after the expiration of a certain period of time. The exact extent of this period depends on the crime you were convicted of, the sentence you received and your criminal record. If you have committed an offense that carries a maximum sentence of six years or more, the DNA profile will be destroyed after 30 years. In all other cases, the DNA profile will be kept for up to twenty years. If you are still acquitted on appeal, the DNA profile must be destroyed immediately.

What can you do about DNA collection?

Although you cannot avoid having to give DNA, you can object to the inclusion of the DNA profile in the DNA database within fourteen days of the DNA collection. The objection must be filed with the court through which you were convicted in the first instance. If this objection succeeds, the DNA material taken must still be destroyed.

Why is it wise to hire a lawyer in an appeal process?

It is wise to hire a specialized criminal lawyer if you wish to file an objection to the inclusion of your DNA profile in the DNA database. This is because a lawyer can assess for you whether the conditions for DNA collection have been met. If the judge does not agree with your objection, there is no possibility of an appeal. It is therefore important that you make good use of the opportunity you have.

An investigation by the Attorney General at the Supreme Court reveals that in practice, the Prosecutor's Office issues orders for DNA sampling in more cases than the legislature intended. Between 22,000 and 25,000 DNA sampling orders are issued annually. These often involve offenses that cannot be detected by DNA testing. This is not in accordance with the requirements of the law. In these cases, an unwarranted invasion of privacy is committed. It is wise to have an attorney assess for you whether this is the case with you as well.

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