I am most pleased to inform you that the California Supreme Court has granted review in the case of People v. Buza, regarding the constitutionality of California’s DNA Act.  The California Court of Appeal held, last year, that the taking of DNA samples from those arrested for felonies, pursuant to Proposition 69, violated the arrestee’s right of privacy under the California Constitution.

The California Attorney General petitioned for review and the Supreme Court just announced that it granted the petition.  At the request of the Attorney General, JONES & MAYER, as counsel to the California Police Chiefs’ Association (CPCA), the California State Sheriffs’ Association (CSSA), and the California Peace Officers’ Association (CPOA), submitted an amicus letter urging the Court to accept the case.

The issue of taking DNA from those arrested for serious crimes has been before the U.S. Supreme Court and the Ninth Circuit U.S. Court of Appeals.  The Buza decision was in conflict with a recent decision by the Ninth Circuit U.S. Court of Appeal in the case of Haskell v. Harris, where the Ninth Circuit, in an unanimous en banc opinion (11 justices), rejected a challenge to California’s Proposition 69.

The en banc court stated that the question presented was “(w)hether California’s DNA collection scheme was constitutional as applied to anyone ‘arrested for, or charged with, a felony offense by California state or local officials?’” The court held that, as a result of the U.S. Supreme Court decision in Maryland v. King, 133 S. Ct. 1958 (2013), “the answer is clearly yes.”

CPCA, CSSA, and CPOA also submitted an amicus brief in Haskell v. Harris, supporting the position presented by the Attorney General that Proposition 69 was constitutional and the taking of DNA from those arrestees was lawful. [See Client Alert Memo, Vol. 29, No.8, March 25, 2014]

Unfortunately, the California Court of Appeal, in Buza, disagreed with the Ninth Circuit decision.  It distinguished the process under California law from the King case and held that California’s law, which allows taking the DNA immediately and include it in a data bank before one is convicted, violated the arrestee’s right of privacy under the California Constitution. [See Client Alert Memo, Vol. 29, No. 27]


As a result of the Supreme Court accepting the case for review, and not otherwise ordering, the decision by the Court of Appeal in Buza is no longer binding law in California.  The California Rules of Court 8.1105(e)(1) state that “unless otherwise ordered . . . an opinion is no longer considered published if the Supreme Court grants review . . . .”

As such, the law pursuant to Proposition 69 is still in effect and taking DNA from those arrested for felonies is still constitutional in California.  In addition, if the Department of Justice, which runs the DNA Act program, so chooses, it can accept those samples and enter them into the data bank.  At this time, we are unaware of what DOJ will do in light of the Court accepting the case for review.

As with all legal issues, it is imperative that you secure advice and guidance from your agency’s legal counsel.  If you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 -1400 or via email at mjm@jones-mayer.com.