When people say “expungement” in the legal system, they are usually talking about getting a criminal conviction removed from a person’s record. But there is another type of “expungement,” and that is forcing law enforcement agencies to remove from their database any DNA they have collected from you. It usually works like this: 1) The police arrest you and you consent to giving them a DNA sample, or 2) The police get a search warrant from a judge to take a DNA sample from you. Under a new law in Washington, if you are found “not guilty” the police can be forced to remove your DNA from their system. The new law provides:
A person may submit an application to the Washington state patrol to have his or her DNA reference sample data expunged from the WSP’s DNA identification system in cases where: (i) The person’s DNA reference sample was collected and entered into the system and (ii) the charges against the person were dismissed with prejudice or the person was found not guilty.
The law also refers to the authority of a court to order “the destruction of DNA reference samples contributed by a defendant who was charged and acquitted.” So last month, when I represented a man who was found not guilty by a jury of his peers, I filed a motion with the court asking for the court to order the WSP and the EWU police department to destroy his DNA samples. A copy of the motion (with the names redacted) can be found here. Yesterday, I found out the motion was granted and I will next serve the police agencies with a copy of the court’s order.
The right of DNA expungement is important as an increasing number of police agencies across the country move to collect more and more DNA samples from suspects, witnesses and even victims. A new law was proposed by this legislative session in Washington state that would actually require the police to warn suspects that they have a right to have their DNA expunged if they are ultimately found to be “not guilty.” The proposed law provided:
An entity collecting a biological sample from an adult charged with a criminal offense or lawfully arrested for a criminal offense when there has been a judicial determination of probable cause, as required in this section, must provide the person with a notice of the rights to expungement…
However, as I mentioned, this law (HB 1138) was not enacted into law because it did not receive enough support. Maybe this will be the subject of future legislation.