A bill making its way through the Oklahoma Legislature would allow jails to use a “Rapid DNA” analysis system for people booked in, allowing law enforcement to enter an arrestee’s DNA profile into databases maintained by the FBI and OSBI to check for involvement in other crimes.
The bill, House Bill 3439, authored by Rep. Carol Bush, R-Tulsa, and Sen. Wayne Shaw, R-Grove was introduced at the request of the Tulsa County Sheriff’s Office. It would allow jailers to collect DNA samples from arrestees and use a Rapid DNA analysis device to enter the arrestee’s DNA profile into a national database to check against other DNA profiles in unsolved or outstanding criminal investigations.
The bill contained language that would have greatly expanded law enforcement’s ability to take DNA samples from people arrested, but not yet convicted of a crime by allowing jailers to collect DNA samples from people arrested even for misdemeanor violations without a warrant.
However, a version of the bill passed out of the Senate Public Safety Committee on Thursday removed that proposed change, meaning only those arrested on felony complaints would be subject to having a DNA sample taken. Individuals who have been convicted of a felony, one of 18 misdemeanors or arrested for federal immigration violations are also currently required to have a DNA sample taken and entered into the database.
Also, the bill contains provisions allowing local law enforcement to collect a $150 Rapid DNA analysis fee from arrestees who had a DNA sample taken.
The bill, if passed, would still require law enforcement agencies to use an accredited crime lab for crime scene DNA analysis and limit use of Rapid DNA technology to jails and booking stations to analyze samples taken from individuals who are booked in.
OSBI spokeswoman Jessica Brown said the bureau is supporting the bill and has been working with lawmakers on it. Allowing the use of Rapid DNA technology would help law enforcement catch individuals who may be linked to other crimes, she said.
“This is technology we’re going to be seeing in the next few years and this bill really sets us up for success early on,” Brown said. “It’s a tool in the toolbox of law enforcement. It hopefully gets you going in the right direction.”
Rapid DNA analysis technology has been available for several years now. The devices used to perform rapid DNA scans are about the size of a computer printer, and allow for a DNA sample taken from a cheek swab to be processed within about two hours, said Terry Simonson, director of governmental and community affairs at the Tulsa County Sheriff’s Office. Simonson has advocated for the bill on behalf of the Sheriff’s Office, and has answered questions from lawmakers about the bill.
However, until last year only DNA profiles generated by accredited crime labs could be uploaded to the FBI’s Combined DNA Index System (CODIS). In August, Congress passed a measure, later signed into law by President Donald Trump, that would allow profiles obtained through the use of a Rapid DNA system at jails to also be uploaded to the FBI’s DNA database.
Currently, the FBI is working on standards and procedures for Rapid DNA devices to be used in booking environments, although it is expected a final list of those requirements will be issued in 2019, Simonson said.
Prior to a jail being able to use a Rapid DNA system with CODIS system, the state must pass a law allowing agencies to use the device at booking and, in addition to training requirements, an agency must have a memorandum of understanding with the OSBI regarding rules, regulations and procedures of using the system, Simonson said. The OSBI collects DNA samples from agencies around the state and enters the resulting profile into the statewide DNA database, which is linked to the FBI’s greater CODIS database.
“It positions Oklahoma for 2019, when the FBI will begin testing these in agencies that have met those requirements,” Bush told House Judiciary Committee members during a Feb. 29 hearing on the bill.
“This is for identification purposes and not investigative purposes,” Bush said. “For instance, we’ve got somebody at booking, we do the mouth swab and under two hours we can maybe learn if this person is the rapist in another case so that we can call that law enforcement agency and say, ‘we think we may have your guy here.’”
Bush did not return a phone message left last week by The Frontier seeking comment on the bill.
At the same committee meeting, Simonson told lawmakers that passage of the bill would put Oklahoma as one of the first states in the nation to have much of the major requirements in place once the FBI does release its rules on the issue.
“By this time next year, if you pass this law, we’re probably one of the first states ready to do that for an agency that wants to in booking, not crime scenes,” Simonson said.
During that meeting, some members of the committee expressed concern that the bill would allow jailers to take DNA samples from people arrested on complaints of — but not yet found guilty of — misdemeanor crimes.
“It’s your intent to expand this DNA testing to any person booked for any purpose whatsoever … long before a determination of guilt, is that correct?” Rep. David Perryman, D-Chickasha, asked Bush.
“Correct. It’s at booking to identify,” Bush replied.
Simonson said having an arrestee’s DNA sampled and analyzed is akin to taking fingerprints of those booked into jail.
“It’s not a whole lot different than taking your fingerprints now,” Simonson told lawmakers. “If you’re the bad guy, the really bad guy, and they’re looking for you and the sheriff has got him in the jail and you don’t know it, that would be important to know. If there’s no match and they’re not looking for you, as I said, it’s a sample testing. They don’t keep it, they don’t store it. It’s a lead that led nowhere.”
After the bill was later changed by the Senate Public Safety Committee on Thursday, Simonson told The Frontier that only taking DNA samples from felony arrestees might be a good way to start off, as Tulsa County jail alone sees around 13,000 felony bookings each year.
“From a financial standpoint, from a privacy standpoint, let’s just start with the serious guys first,” Simonson said. “Let’s see what the future is after that.”
The bill could be changed again during the current legislative session to allow for samples to be taken from all arrestees, or it may come up again in the future, Simonson said.
“I think that’s probably going to take a lot of discussion with law enforcement and the district attorneys’ offices,” Simonson said. “It’s a little way down the road maybe.”
Allie Shinn, spokeswoman for ACLU Oklahoma, said the group opposes allowing DNA samples to be taken prior to conviction and without a warrant for misdemeanor or felony arrests.
“That flies in the face of every notion we have about innocent until proven guilty in this country,” Shinn said. “Every person in this country is entitled to due process and seizing their DNA before they’ve gone through what we believe constitutes an illegal search. It’s an overly troubling aspect of our criminal justice system. Expanding it to people who are arrested for misdemeanors, is casting an outrageously large net.”
The Oklahoma Legislature passed a law in 2016 allowing law enforcement to take DNA samples from people arrested on felony complaints, but the samples are required to go to the OSBI for processing and analysis and the agency has not had the money to implement the program.
Shinn said the $150 fee for Rapid DNA testing also funds the criminal justice system on the backs of those who can least afford it.
“The fines and fees already placed upon people who interact with the criminal justice system is frankly shocking,” Shinn said. “Adding this fee again just to adds to the problem we already have with asking the people least able to afford it to pay for a criminal justice system that is doing little to make our streets safer.”
Other states have been using Rapid DNA technology in pilot programs, and although the machines are expensive, the FBI’s and the U.S. Department of Justice’s interest in the technology at the local level likely means that federal grants will be made available in the future for local law enforcement agencies wanting to purchase one of the devices, said Shaw, the Senate author.
“We want to be prepared so when it’s available, we can have it,” Shaw said. “We figure there will probably be some money or grants available early on, so that’s why we’re pushing it.”
Simonson pointed to the DOJ’s grants to law enforcement agencies to purchase body cameras.
“I think the Department of Justice will go down the same path they went down with body cameras — when they find that they’re good and effective and people want them, they start giving grants,” Simonson said.
The bill is next scheduled to be heard by the Senate Appropriations Committee. If it passes there, it will go to the full Senate for a vote.