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A law in Colorado is already in effect that allows the collection of DNA samples from those who are arrested for (not convicted of) felony sex offences and misdemeanor sexual misconduct in Denver, Arapahoe and Douglas County. Earlier this year, a new bill that (fortunately) died in legislature, would have infringed on our rights further by allowing for the collection of DNA from those who are convicted of most Class 1 misdemeanors. Supporters of the bill can't understand why anyone would be bothered by such a bill. A victim's advocated states: “I don't see why anyone would have any problem providing their DNA if they have done nothing.” (Quoted from the dailycamera.com)

DNA Collection: Understanding Class 1 Misdemeanors

Before we discuss the unconstitutionality of this bill, it is important to understand what a Class 1 Misdemeanor is in Jefferson and Adams County. The bill does recognize that collecting DNA for some misdemeanors (such as traffic offenses) is ridiculous, and removes them from the list. Still included, however, are these Class 1 misdemeanors:

• Possession of more than one ounce of marijuana but less than eight ounces. – C.R.S. 18-18-406
• Unlawful Recording of a Live Performance 18-4-604.3
• Cruelty to Animals – C.R.S.  18-9-202
• Operating an audiovisual recording device in a motion picture theater for the purpose of recording a motion picture and without the consent of the motion picture's owner or lessor – C.R.S. 18-4-516
• Manufacture, use, possession, or deactivation of a theft detection shielding device – C.R.S. 18-4-417
• Unlawful Sexual Contact – C.R.S. 18-3-404
• Indecent Exposure – C.R.S.  18-7-302

The bills' author, Rep. Dan Pabon, states the reason these offenses are included: “With respect to theft crimes, assault crimes, those involving the objectification of a person…those types of crimes indicate that you're going to commit more serious crimes.” (Quote from the denverpost.com)

Let's take a look at a couple of these offenses. A man takes a video recording of a movie, and is convicted of Criminal Operation of a Device in Motion Picture Theater in Denver – C.R.S. 18-4-516. If this new bill had passed, he would be required to submit a DNA sample to be stored in a national database. In another example, a man urinates in public after a few too many drinks and is convicted of Indecent Exposure  in Aurora – C.R.S. 18-7-302. There is absolutely no reason to believe either of these men is capable of, or will “commit more serious crimes.”

[pullquote align=”center” textalign=”center” width=”100%”]”It's a serious intrusion into privacy to keep a government-run database. This is a slippery slope.”[/pullquote]

A Constitutional Slippery Slope

Here at the O'Malley Law Office, we don't disagree that DNA should be taken from convicted rapists, to prevent further offenses, and to solve past crimes. Taking DNA for Class 1 misdemeanors like the ones listed above, however? It is a violation of our liberty and right to privacy. Logically, this sort of reasoning leads us down a terrifying path. When does this control end? Denise Maes, the public policy director at the ACLU of Colorado, summed it up well: “This encroaches on an individual's privacy…listen carefully to the rationale supporting this bill: ‘Collecting DNA helps solve crime.' There is no end to this mission. One may facetiously say ‘just chip us at birth,' but in reality this is precisely where the rationale of the proponents naturally leads us to.” Another person who disagrees with the bill is Senate Majority Leader Morgan Carroll, who stated: “When you take DNA evidence from somebody that is completely unrelated to a crime, you're basically creating a database that can be searched at will and without warrant into the future…it's a serious intrusion into privacy to keep a government-run database…this is a slippery slope…”

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If you or a loved one has been accused of a crime, understand that our government believes less and less in the “innocent until proven guilty” Constitutional protection which our forefathers died for. So, be smart, exercise your right to remain silent, and contact an experienced criminal defense attorney at the O'Malley Law Office at 303-830-0880, or submit the “Get Help Now” form. Together, we can protect your future.