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When Can the Police Take a DNA Sample?

Jeff Cole
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Partner at Zimmer, Duncan & Cole

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If you have been arrested for a DUI, you may already know that you can be required to take a breathalyzer test. But you could be understandably confused if the police also want to take a DNA sample. Whether this is legal depends on what you are charged with.

When the Police Can Require a DNA Sample

Under South Dakota law, the police don’t need a warrant to require that you provide a DNA sample if you’ve been charged with certain crimes. These crimes include:

  • A felony
  • Certain crimes of violence
  • Rape

If a person is charged with a DUI, his first and second conviction would be a Class 1 misdemeanor, so the police would probably not require a DNA sample. However, a person twice convicted of a DUI could be charged with a felony, and the police could require a DNA sample.  Registered sex offenders and people convicted of felonies can also be required to provide a DNA sample.

In the 2013 United States Supreme Court case Maryland v. King, the Court upheld the legality of obtaining DNA samples under certain circumstances. In that case, Maryland law allowed police to take a DNA sample when someone was charged with a crime of violence or other serious crimes. The Court decided that a DNA sample from the arrestee’s cheek is a legitimate booking practice like taking fingerprints and the person’s picture. The Court ruled that it is permissible under the Fourth Amendment.

Do you need assistance after being charged with a DUI? At Zimmer, Duncan & Cole, LLP, our experienced criminal defense attorneys can give you an honest evaluation of what you can expect in your criminal case and will fight to have your charges dismissed. Fill out an online form to schedule your free consultation.


Category: Criminal Defense


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