There are numerous problems with the projected regulations meant to
implement the recently passed DNA collection legislation. The passage of
this legislation was very controversial since the State was going from
collecting DNA samples from those convicted of crimes to those who had not
yet been convicted of anything. The State wanted to collect from everyone
arrested but we were able to get that changed to those actually charged with
crimes. Other protections were put in place through the legislation to
require that the DNA information be removed from the data base if the
individual were eventually vindicated. The State police have eviscerated
these protections and attempted to legislate through the passage of these
new COMAR regulations. We have shared our concerns with other members of
the State Delegation in both the Senate and the House and I have formally
requested that the AELR committee meet to discuss the over reaching of the
State Police. "
Re: COMAR 29.05.01
.01 (B) (1) The problem is it states the arraignment occurs “Even if waived by the defendant.”
[Can it be deemed by a Judge or otherwise that through inaction or an action no fault of the Defendant that the Defendant waived their right to an arraignment?]
.01 (B) (4) defines “charged” as arrested…
[I do not believe the legislative intent was to have these terms be synonymous. In fact, I specifically asked the Governor at the judiciary hearing if he would object to the DNA sample being taken upon being charged rather than upon arrest and he stated that would be fine. At all times thereafter, it was understood that the DNA sample was to be taken upon arrest, but not uploaded until one had been charged.]
29.05.01.02 (A) [Again speaks of persons arrested] and more importantly [it states that the regulations do not apply if obtained by consent.] The administration tried to slip this in at the eleventh hour during session and those fighting for the protection of civil liberties objected and this was withdrawn from the bill. The administration is now, once again, trying to put it back in through regulation. Such an exception would eviscerate the civil liberties protections. Friday night or 3 A.M. Saturday morning the police arrest an individual and say you can stay in jail until Monday morning or give us a swab of your cheek and you can go home. Even if the defendant is later acquitted or exonerated, there is no automatic expungement of the DNA and there never has to be because of the defendant’s “consent” for the taking of his/her DNA. If this language stays in the regulations 30,000 or more people per year can be arrested, asked to voluntarily give their DNA, never be charged and their DNA would remain in the DNA database for 100 years.
29.05.01.02 (A) (1) [Provides that Court ordered DNA is not subject to the regulations and [thus if a no knock warrant is issued and suspects are arrested but later exonerated, proven innocent or otherwise cleared, their DNA stays in the system.]
02 (A) (2) Requires two (2) samples to be taken if the first sample was Court ordered. [Why?]
02 (A) (4) [How may other methods of collecting DNA are being exempted?]
29.05.01.04 (B) (2) States that the DNA sample shall not be placed in the State wide database system prior to the first scheduled arraignment date.
[Should this not be the first arraignment held?]
04. (B) (6) (B) Should read 04 (B) (6) (A) because there is no A-listed. [Also there should be language in 04 B (6) (B) similar to that in 02 (B) which states “The secretary after consulting with the Director, shall establish policies and procedures for “the use of force to obtain a DNA sample.”] I suggest we merely require that a medical staff member at the jail be present to witness the forced physical extraction so they can monitor that excessive force is not employed.
[These sections dealing with the reporting of data collected should include all those who have DNA taken, whether charged or not as well as those who were exonerated and the information on all samples destroyed and why they were destroyed.]
29.05.01.01 (B) (32), 29.05.01.09 and 29.05.01.10 (b) Changes the “TWIGDAM”- DNA analysis method to the FBI method. The legislation passed uses the “TWIGDAM” method. Proposed legislation to change to the FBI method has twice failed to get approval of the State Legislature in recent years. These changes also are in conflict with Public Safety Article Section 2-507 and C.J.P. Article Section 10-915. It is wrong on numerous levels for this change to be done through regulation.
04 (F) (a) Should also include the number of arrestees from whom DNA samples were taken, the number of persons placed in the system after they were charged and the number of DNA samples destroyed.
29.05.06.06 (B) Begs the question: Why is this necessary? Is there something inherently wrong with the system?
29.05.01.11 [Why was the requirement to submit the letter on the agency’s letterhead deleted?]
29.05.01.14 This prevents automatic expungement if the arrestee receives a Stet or PBJ. Clearly, this is another attempt to eviscerate the Civil liberty protections of the legislation. People will be arrested, offered Stets or PBJs and have to choose between freedom, or giving up their DNA.
29.05.01.15 (A) The “official position” language may be too broad. What if the public defender wants to share the exculpatory evidence with the press or State Legislators?
29.05.01.16 3 (a) Should be followed by a 3 (b) which would include a list of all DNA samples taken per racial demographics.
29.05.01.16 (4) (E) Should specify or differentiate from the exonerations resulting from State Police requests and requests originating from, or done by the defendant.
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