Supreme Court Oks DNA Database for all People Merely Arrested for Drunk Driving

A new ruling by the United States Supreme Court is likely to be read by many States, including Michigan, as giving green light to begin collecting DNA from people merely arrested for drunk driving.  This DNA can then be added to the national DNA database.

The case is Maryland v. King, and in it the USSC said that a cheek swab was no different from fingerprints.  While initially limited to “serious crimes,” the practice is likely to be adopted for all arrests, and be no different from fingerprinting.

Specifically, the court found that:

When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment

Not all justices agreed, and the court was sharply divided.  In a particularly unusual but telling move, Justice Scalia read his dissent from the bench.  He called the practice akin to the despised practice of “general warrants”:

At the time of the Founding, Americans despised the British use of so-called “general warrants”—warrants not  grounded upon a sworn oath of a specific infraction by a  particular individual, and thus not limited in scope and  application. The first Virginia Constitution declared that “general warrants, whereby any officer or messenger may  be commanded to search suspected places without evidence of a fact committed,” or to search a person “whose  offence is not particularly described and supported by evidence,” “are grievous and oppressive, and ought not be  granted.”

During oral argument, Scalia said: “The proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.”

According to, “Scalia’s real concern is police will begin swabbing cheeks in every arrest, including traffic violations, thus creating a vast government database that will allow for the easier identification of criminals in unrelated cases. “The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver,” he says. “The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for `serious offense[s].’”

At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will someday be repudiated.

Is it too far a stretch, based on Scalia’s dissent, to believe that a person “arrested for whatever reason” will soon include drunk driving in Michigan?

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Patrick T. Barone

Founding Partner and CEO at Barone Defense Firm
The Founding Partner and CEO of the Barone Defense Firm, Mr. Barone has written two books and 100s of articles on the subject of DUI defense and trial practice. He is an adjunct professor at Thomas M. Cooley Law School, where he teaches a cutting-edge class on the practice of DUI defense. He is a highly sought after speaker for bar association meetings and legal education seminars throughout the country. He is also on the Faculty of the National College for DUI Defense. And, because his colleagues consistently give him top reviews, Mr. Barone has an “AV” (highest) rating from Martindale-Hubbell, and since 2009 has been included in the highly selective US News & World Report’s America’s Best Lawyers while The Barone Defense Firm appears in their companion America’s Best Law Firms. He has been rated “Seriously Outstanding” by SuperLawyers, rated “Outstanding/10.0” by AVVO and has recently been appointed to the advisory board for the Michigan edition of Leading Lawyers Magazine.
3 comments… add one
  • Roger June 8, 2013, 5:29 am

    Tyranny is upon us!

  • Roger June 8, 2013, 5:30 am

    If you don’t know your rights, you don’t have any!

  • Roger June 8, 2013, 5:33 am

    Jury Nullification. In all criminal cases, the jury has the right to determine the law and the facts.


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