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Can a Refusal to Voluntarily Provide DNA to Police be Used Against You in Court?

In 2009, Florida joined a growing number of states in requiring police to take a DNA sample from everyone charged with a felony in the state. This DNA information is to be kept in a statewide database accessible to federal, state, and local law enforcement authorities to aid in criminal investigations and help identify missing persons.  Before the DNA collection law was passed, police could take a DNA sample without a warrant only after a felony conviction or certain specified misdemeanor convictions.  Now, DNA is to be gathered (typically by mouth swab) when an individual charged with a felony is booked into a correctional or juvenile facility.

But what if the police ask you to provide a DNA sample before you are arrested, during an investigation?   If you refuse, can your refusal be used as evidence against you at trial if you are eventually charged with a crime?

The law is clear that if you refuse to answer questions after being advised of your right to remain silent your silence cannot be used against you.  And the Florida Supreme Court recently ruled that, under the state constitution, declining to speak to police before having been read your rights also cannot be used against you at trial as evidence of consciousness of guilt.  But in another Florida case, prosecutors attempted to use a defendant’s refusal to give DNA evidence before being charged with a crime to prove his guilt at trial.

The victim in the case had lived with the defendant until shortly before her murder.  Police questioned the defendant and asked whether he would voluntarily give a DNA swab so that they could compare it to DNA found in the victim’s new apartment. Defendant asked police what would happen if he said no, and an officer responded, “It is your right.”  Defendant thereafter refused to provide a swab. After he was ultimately arrested for second-degree murder, he was forced to give a DNA sample, but his DNA was not found to be present in the victim’s apartment.

At trial, prosecutors presented evidence of the defendant’s refusal to submit to DNA testing pre-arrest, arguing that it proved his consciousness of guilt.  The defendant was convicted at trial.

On appeal, the District Court of Appeal for Florida’s Fourth District ruled that the trial court had improperly allowed defendant’s refusal to submit to DNA testing to be used in evidence.  The court based its decision primarily on the fact that defendant had been told that he had a “right” to refuse the test, and had therefore been given the impression that he would suffer no negative consequences if he did so. Other courts have reached similar conclusions.  Consequently, it would appear that refusing to take a DNA test pre-arrest and in the absence of a warrant cannot be used against an individual at trial, at least where he has not been warned of any adverse consequences.

Contact an Orlando Criminal Defense Lawyer

If you have been charged with a crime, you need a knowledgeable criminal defense lawyer on your side.  The skilled defense lawyers of The Baez Law Firm can help protect your rights and provide an innovative, aggressive defense to the charges against you.  We have successfully represented clients in Orlando, Miami, Tampa, and throughout Florida.  Contact us for a consultation about your case today.

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