ACLU SUIT THREATENS DNA SAMPLES GROUP SAYS ITS UNFAIR TO TAKE SWABS BEFORE COURT CONVICTS.

Byline: Ruby Gonzales Staff Writer

A lawsuit by the American Civil Liberties Union threatens to halt collection of DNA samples from felony suspects, just as the state begins to undertake the massive effort.

Under Proposition 69, approved in November by California voters, convicted felons and those arrested for certain felonies are now required to give DNA by having the inside of their cheeks swabbed.

Several police agencies in Los Angeles, Alameda, Orange and San Francisco counties have already turned in to the state DNA samples they collected. The California Department of Corrections started taking samples from parolees and inmates about to leave state prison.

The ACLU filed a class-action lawsuit on Dec. 7, claiming the new law is unconstitutional because it violates a person's Fourth Amendment rights as well as rights to due process and privacy.

The group asked the court to block the collection of DNA from people arrested on felony charges and those who already completed probation or parole. ACLU officials said they're waiting for the state's response to the lawsuit.

But the action hasn't stopped the state from distributing DNA collection kits or the police from taking samples.

``If they got a court order we would. But right now, it's just a lawsuit,'' said Nathan Barankin, spokesman for the state Attorney General's Office.

They've distributed 55,000 buccal swab collection kits and plans to order 200,000 more, Barankin said. He didn't know how many samples have been turned in from the four counties.

Locally, only the Los Angeles County Sheriff's Department is taking DNA samples.

It has collected more than 200 samples from felony suspects, said Cmdr. Marc Klugman of the sheriff's Correctional Services Division.

``We received 8,000 kits. We are using them but doing it on a limited basis,'' Klugman said.

The county is starting with the Sheriff's Department, which runs the county jails, and branching out from there.

``You have to keep in mind this is an enormous undertaking for Los Angeles County,'' said Lisa Kahn, deputy district attorney who also worked on Proposition 69.

Kahn said the vast majority of samples will be collected at conviction, which affects those in custody and felons out of custody. She said they are working on a countywide protocol to dictate where felons out of custody can go to give DNA samples.

``Should they go back to the arresting agency? I think when it's all said and done, you'd see DNA collection sites all over the county,'' she said.

Voters passed Proposition 69 on Nov. 2. It broadened the list of those who must give DNA.

Before Proposition 69, California already collected DNA from certain convicted felons like murderers, rapists and child molesters. What the new law does is require all convicted felons and anyone arrested on a felony charge to give a DNA sample.

Proposition 69 took effect immediately for felons and for suspects in murder, rape, sodomy, forcible oral copulation and forcible child molestation cases. But most felony suspects won't be required to give a sample until 2009.

One of the ACLU's arguments is that the law calls for taking DNA from people arrested but not yet convicted of a crime.

``People can be arrested for a number of reasons,'' said Ricardo Garcia, criminal justice director for the ACLU of Southern California.

``We live in a society still (where) you are presumed innocent until proven guilty,'' Garcia said.

The courts have found that collecting DNA from convicted felons is OK. That isn't a battle the ACLU is taking on, he said.

Harriet Salarno, president of the Sacramento-based Crime Victims United of California, said the people of California sent a clear message by passing Proposition 69.

She doesn't buy the ACLU's argument that DNA shouldn't be taken from felony suspects.

``If you're innocent, who cares? If you haven't committed anything ... If you're innocent, it doesn't matter,'' Salarno said.

Suspects acquitted or who don't get charged with a crime must ask the court to remove their DNA from the state database. The law doesn't automatically expunge their sample.

Garcia said the judges won't approve such a request unless the prosecutor signs off on it. And there is no way to appeal the court's decision.

``It puts an onerous burden on the citizen to prove their innocence,'' he said.

Barankin said the state is working with the legislators to make it easier for people to remove their sample from the database, and Kahn said she is drafting a one-page form for people who want to have their DNA removed.

Ruby Gonzales, [phone]

ruby.gonzales(at)sgvn.com