C.A. Reinstates Taxpayers’ Suit Challenging Program for Collection of DNA Samples
Says Complaint Adequately Alleges Consent From
Accused Misdemeanants Not Validly Obtained
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal yesterday ordered reinstatement of a taxpayers’ action aimed at barring Orange County from collecting DNA samples from alleged misdemeanants who render consent in exchange for a dropping of charges, a reduction of them, or for leniency.
The opinion by Acting Presiding Justice Eileen C. Moore reverses a judgment of dismissal which followed Orange Superior Court Judge William D. Claster’s sustaining of demurrers without leave to amend. There can be no constitutional challenge, Claster concluded, in light of the signed waivers of the rights to privacy and to counsel.
Moore declared that Claster erred in sustaining demurrers to the causes of action based on alleged violations of the accused misdemeanants’ rights to privacy, counsel, and due process. She said plaintiffs William Thompson and Simon Cole—University of California, Irvine, professors and Orange County residents and taxpayers—have sufficiently alleged” that the Orange County DNA collection program as implemented by the Office of Orange Court District Attorney “is unconstitutional,” noting:
“In particular, they have pled the waivers obtained from alleged misdemeanants to participate in the…program are not made knowingly or voluntarily.”
However, Moore continued, Claster correctly sustained a demurrer to a cause of action alleging “unconstitutional conditions,” explaining:
“Plaintiffs have not sufficiently alleged that including a DNA provision as part of a plea deal or negotiated dismissal is facially unconstitutional.”
Under Proposition 69, enacted by voters in 2004, samples are to be taken from persons arrested for felonies but only from suspected misdemeanants arrested for sex offenses or arson. The samples are maintained by the state Department of Justice.
The California Supreme Court in 2018 upheld the measure in People v. Buza.
Right of Privacy
Addressing the state constitutional right of privacy, Moore said there is an adequate pleading as to violation of the right of privacy because it is alleged that those accused of misdemeanors are not adequately advised as to ramifications of signing the waivers.
“Due to its complexity, a significant number of alleged misdemeanants will likely be unaware of the information their DNA may reveal and how that information may be exploited,” she wrote. “And, as technology advances, DNA samples and profiles will reveal far more extensive information than we currently know.”
As to the right to counsel, she noted that the first amended complaint sets forth that “prosecutors are approaching alleged misdemeanants prior to being advised by the court of their right to counsel, prior to waiving their right to counsel, and before they fully understand their right to counsel.” Moore said:
“Given these allegations, we cannot find alleged misdemeanants’ waivers of counsel are being made voluntarily or with sufficient knowledge.”
She went on to say:
“Since we have reversed the trial court as to the privacy and right to counsel claims, we find plaintiffs’ due process claim sufficiently alleges a deprivation of a protected interest.”
“Our ruling does not directly address the facial challenges plaintiffs have made based on violations of the rights to privacy, counsel, and due process. We only find plaintiffs have sufficiently alleged as-applied violations as to these rights; thus, these claims survive demurrer.”
The case is Thompson v. Spitzer, G060988.
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