Anyone arrested for a felony in California can now expect both an unpleasant trip to jail and a demand for a sample of their precious DNA.

To the dismay of civil liberties advocates, a federal appeals court on Thursday unanimously upheld California's law allowing collection of DNA samples from anyone arrested for a felony, citing a U.S. Supreme Court ruling last year backing a similar Maryland law. A special 11-judge 9th U.S. Circuit Court of Appeals panel rejected the American Civil Liberties Union's argument that California's law is broader than Maryland's and poses a greater threat to privacy rights.

California's controversial four-year-old law permits collection of DNA from people at the point of felony arrest without review by a judge and even if criminal charges are never pressed, raising concerns that it intrudes on privacy rights for those arrestees who may never appear in a courtroom. Maryland's law permits collection only from those charged with a serious felony, and after a judge finds probable cause they've committed a crime.

But the 9th Circuit disagreed that  California's law can be distinguished from Maryland's, effectively concluding that the Supreme Court ruling undercuts the ACLU's legal arguments. The 9th Circuit suggested that civil liberties advocates could return to the lower courts and raise narrower claims, but for now left California's DNA collection law intact.


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ACLU lawyers indicated they plan to take up the 9th Circuit's invitation, and will ask a federal judge to hear arguments on whether particular groups of people arrested for felonies should be insulated against the DNA collection law.

The appeals court backed California Attorney General Kamala Harris' position, which argued that the California and Maryland laws are not “constitutionally significant.” The Obama administration sided with California in the appeal, citing the national importance of DNA collection laws that 28 states have enacted.

Legal experts had predicted civil liberties lawyers would have an uphill fight in the 9th Circuit because of the divided Supreme Court ruling, which likened collection of DNA samples to fingerprinting suspects booked into police custody.