Vol 26. No. 19- DNA Samples: To Take or Not To Take, That Is The Question?

As most of you know, on August 4, 2011, the California Court of Appeal, First District, unanimously ruled in People v. Buza that  “the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even judicial or grand jury determination of probable cause, . . . is invalid under the Fourth Amendment of the United States Constitution.”

This decision, obviously, has created great concern amongst law enforcement officials for a variety of reasons, not the least of which includes whether or not it applies to them, and whether or not to continue to take such samples?

Court of Appeal Decision Binding on Lower Courts

At this time, the Buza decision is citable legal authority and binding on all of California’s lower courts. The California Supreme Court has ruled that:

“Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.”

“Of course, the rule under discussion has no application where there is more than one appellate court decision, and such appellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450 (1962).

As such, until and unless another district court of appeal issues a conflicting decision, or the California Supreme Court overturns this decision, it is binding throughout the state regardless of where one is located.

Attorney General’s Bulletin to Law Enforcement

On August 17, 2011, Chief Assistant Attorney General Dane Gillette issued a Bulletin for consideration by all law enforcement agencies regarding the impact of the Buza decision and what steps the Attorney General will be taking. The Bulletin emphasizes that it is not providing legal advice and that agencies should seek “independent legal advice . . . if questions arise related to implementation of Buza . . .”

The Bulletin notes that the Court of Appeal decision will become “final” on September 3, 2011. Furthermore, “the Attorney General will file a petition for review in the California Supreme Court as soon as possible after the decision becomes final . . ” All of us in law enforcement who support the collection of DNA pursuant to Proposition 69 are grateful that the Attorney General will be acting expeditiously in an effort to overturn this decision.

The Bulletin explains that the decision has no effect on collecting samples from convicted offenders, and that “DNA collection may be permissible if it follows the initial judicial determination of probable cause . . . .” In other words, it appears that law enforcement can require the submission of samples after arraignment.

Liability Concerns

Jones & Mayer, as counsel to many law enforcement agencies, concurs with virtually all of the comments contained in the Bulletin. However, there is one area of concern with the information presented, which involves potential liability considerations if agencies continue to take DNA samples from felony arrestees.

The Bulletin states that attorneys in the Department of Justice “have opined that, even after Buza, the taking of DNA samples from felony arrestees as authorized by Proposition 69 would not violate clearly established law, and thus would likely be the basis for a valid assertion of qualified immunity in response to a state or federal civil rights action brought under 42 U.S.C. section 1983.” (Emphasis added.)

It further states that “law enforcement officials sued under California’s Bane Act (Civ. Code section 52.1) for violations based on Buza would likely be entitled to personal immunity under Government Code section 820.6.” (Emphasis added.)

It is important to note that the Attorney General is not stating that an agency cannot be sued if it continues to take DNA samples at this time. The AG is also not stating that an officer will be granted qualified immunity from civil liability. The AG is only stating that it is “likely” that such immunity will be granted.

The question is “do you want to gamble?” That question should be answered only after consulting with the agency’s attorney and securing his or her legal advice and guidance. It is also important to recognize that the issue to be considered is not just one of potential liability but also the cost of litigation. One may not have liability but still be confronted with litigation in order to prove that fact and that, as we all know, can be very costly.


Hopefully, the petition for review will be filed with the Supreme Court shortly after September 3, 2011, which is only two weeks from now. If the Court accepts the case for review, the lower court decision immediately loses its precedential value and, until the Supreme Court rules, the law remains as it was prior to the Court of Appeal decision.

What to do until then is, obviously, up to individual agencies to decide. It may be a significant risk to continue taking samples, especially since it appears that the DNA sample can be taken after arraignment. Again, that must be decided by each agency.

Still another way to proceed is to seek consent from the arrestee. If he or she does consent, reduce that to writing and have the arrestee sign it, so it can be proven that the consent was voluntary. If, on the other hand, the arrestee does not consent, don’t “push it.”

As always, if you wish to discuss this matter in greater detail, please don’t hesitate to contact me at (714) 446-1448 or via e-mail at mjm@jones-mayer.com

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.