Like something that might at first glance seem to be straight out of a science fiction novel, Orange County, California, collects DNA samples from people charged with misdemeanors. When the accused consent to have their genetic codes stored for various state and national research purposes, the charges against them are dropped, or they receive more lenient sentences. Now, a California appellate court has ruled that a taxpayer action aimed at stopping the collection process may proceed to trial.

A unanimous ruling by a three-justice panel from Division Three of California’s Fourth District Court of Appeal has reversed the dismissal judgment of Orange County Superior Court Judge William D. Claster and remanded the case with directions on how to proceed. Claster had ruled that since those charged had signed waivers of their rights including the right to counsel and privacy, any challenges to the Orange County Data DNA (OCDNA) program were barred.

The district court opinion was authored by Acting President Justice Eileen C. Moore, who wrote that the plaintiffs had “sufficiently alleged” that the OCDNA program was unconstitutional on April 11. She said that the signed waivers were not made knowingly or voluntarily. However, she reversed Claster’s rulings based on plaintiffs’ claims of the right to privacy, right to counsel, and due process. She also ruled that while the plaintiffs did have standing as Orange County taxpayers, they failed to sufficiently allege that including a DNA provision as part of a plea deal is unconstitutional on its face.

The case of William Thompson et. al. v Todd Spitzer et. al. began when Thompson and his fellow

University of California, Irvine professor Simon Cole filed a taxpayer lawsuit against Spitzer, who is the District Attorney for Orange County. The plaintiffs sought to stop what they claimed is the unconstitutional practice of collecting DNA from people charged with misdemeanors. The professors also argued that the Orange County DNA Program violates the privacy and due process rights of those charged. When they agree to have their DNA stored and studied, the opinion explained, the DA drops their cases or reduces their potential punishments.

The legislative history of collecting DNA samples for law enforcement purposes provides the necessary background for understanding this case. In 2004, California passed Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act. Since 1983, the State had been collecting blood and saliva-based DNA samples from those convicted of various crimes, including sex, homicide, kidnapping and felony assault offenses. In 1998, the State created a database to store its findings, and the crimes that were covered were regularly expanded. The California Supreme Court ruled that these collections are constitutional in 2018.

Meanwhile, in 2007, the Orange County Board of Supervisors approved an ordinance that allowed its District Attorney (DA) to collect DNA from additional misdemeanors through a “voluntary exchange process.” The DA could offer to drop or reduce misdemeanor or low-level felony charges in exchange for DNA samples if waivers are signed. These waivers acknowledge that the signatories understand that the purpose of the collection programs is to facilitate comparisons with “any local, state, national or international law enforcement database(s) for law enforcement purposes.” When they sign, they also waive their right to have their samples removed, to challenge the collection in court, to have counsel present, or have their samples used during trials. Plaintiffs claim that signers are “typically pressured” into accepting these deals “without a full understanding of how their DNA might be used.”

After the DNA samples are collected, they are sent to a State lab that then develops DNA profiles, which Orange County DAs store in the OCDNA database for an unknown period and undisclosed uses. But, the opinion notes that the collection process has not been successful, since only “.67 percent of the profiles within the OCDNA database had been matched with DNA collected from crime scenes.”

Plaintiffs filed their lawsuit alleging the unconstitutionality of the OCDNA in February 2021. They sought injunctive relief for violations of the signatories’ privacy rights under the California Constitution, right to counsel and due process under federal and state law. They also claimed the OCDNA violated the Unconstitutional Conditions Doctrine, which says that the government may not condition the availability of a benefit based on an individual’s agreement to give up such a right and they said the OCDNA was “outside the scope of the DA’s statutory authority.” County defendants quickly demurred, and the trial court sustained their request without leave to amend, largely because of the signed waivers.

The opinion explained the standard for constitutional challenges, under which petitioners had to demonstrate that an act “inevitably pose(s) a present total and fatal conflict with applicable constitutional prohibitions.” Justice Moore said this standard, as well as its unconstitutional implementation, were met.

Moore’s key finding related to the waivers that those charged with misdemeanors or low-level felonies were required to sign. She wrote that even if plaintiffs had the burden of showing that the waivers were invalid, the way they were administered invalidated them. Signers were never told how their DNA would be kept or used. They were not told their DNA would be sent to a third-party laboratory. They were also not told the potential uses of this “trove of personal information.” She warned that technological advances may exacerbate the problem and lead to as yet unidentified exploitations. In short, valid waivers had to provide a baseline understanding of how all DNA would be kept and used.

The opinion also singled out problems with waiving the right to counsel. Since the waivers are routinely signed before arraignment hearings, which are where those charged learn of their right to counsel, the court found that this important waiver was not made knowingly or voluntarily. Moore gave plaintiffs leave to amend arguments relating to deprivation of due process and the Unconditional Conditions Doctrine. The opinion closed by ordering the district court to “consider arguments from plaintiffs about whether they should be given leave to amend” their claim.