South Florida Criminal Attorney
Free Case Evaluation

Can The State Compel A DNA Sample?

If you have been arrested and charged with a crime, and the state believes that there may be DNA evidence against you, the state can order you to provide a DNA sample.

Now you may be thinking that the government cannot force you to do anything. Wrong. The government cannot force you to give a statement because that would be in violation of your constitutional right against self-incrimination. However, the taking of a DNA sample is considered to be "non-testimonial," meaning that the accused is not required to say a word. They merely have to open their mouth and allow a police officer to take a swab of their cheek.

Since the taking of DNA can be compelled, a prosecutor will file a motion with the court asking the judge to order the taking of the accused's DNA. These motions are routinely granted. Once ordered, the defendant must submit to a DNA swab. If he or she resists, officers can use force to obtain in.

Fingerprint standards, as well, can be compelled.

It is important to understand the difference between testimonial evidence and non-testimonial evidence. Your statement is testimonial evidence, and the police and prosecution cannot ever make you speak. They can, however, obtain samples that do not require an accused person to verbally incriminate themselves.

Eric Matheny is a former Miami-Dade prosecutor and current defense attorney serving Miami-Dade and Broward.