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Vt. high court to weigh pre-conviction DNA testing

MONTPELIER — The Vermont Supreme Court has been asked to rule on the constitutionality of a 2009 law allowing the state to take DNA samples from people charged with but not yet convicted of crimes.

Lower court rulings effectively have blocked the state from carrying out the law, says a lawyer who has been following the issue. The law was enacted after the 2008 rape and murder of a 12-year-old girl in Randolph.

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‘‘Effectively it’s a statewide stay,’’ Defender General Matt Valerio said of the current state of the law. That means it is blocking investigators from taking DNA samples from those who have been charged with felonies and certain misdemeanors unless and until the court gives the state the green light to do so.

Until passage of the law, the state was permitted to take DNA samples for storage in a database only from those who had been convicted of felonies. The samples are taken with a swab that collects saliva from the inside of the cheek and become part of both the state database and a national one maintained by the FBI.

The Vermont law requires that if the defendant is acquitted or if the charge is dismissed or reduced to one not covered by the DNA sampling requirement, the record must be expunged from the database.

Lawmakers debated vigorously during the 2009 legislative session whether it was permissible under the US and Vermont constitutions to require someone not convicted of a crime to provide a DNA sample.

Senator Richard Sears, a Democrat from Bennington and chairman of the Senate Judiciary Committee, said he was satisfied that the law would pass constitutional muster by the fact that under it, samples are taken not at arrest but after arraignment, when a judge has found probable cause to charge someone with a crime.

Under the law, authorities may take DNA samples from those who have been charged with crimes. Civil liberties groups see it as an unlawful search and seizure.

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Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said that in his organization’s view, that’s not sufficient.

‘‘DNA collection unless consented to is considered a search and seizure,’’ Gilbert said. ‘‘Generally, if you’ve been arraigned, that doesn’t give the police the authority to go into your house and search for something without a warrant.’’

Both John Treadwell, the assistant attorney general defending the state’s law, and Jayann Sepich, cofounder of a national group, DNA Saves, that has pushed for expanded DNA testing, said sampling a broader population of people who come into contact with the criminal justice system has helped and will continue to help solve and prevent crimes.

When someone is charged with a crime, ‘‘society has an interest in them and their identity,’’ Treadwell said. ‘‘We already do a number of things. We take their photos, we take fingerprints. Often there are stringent conditions of release, or the person may be held on bail.’’

Having a record in the database creates the possibility of matches with unsolved crimes, essentially allowing the database to help police cast a wider net.

‘‘It can be used in the future to link a newly occurring offense to people who have been charged or convicted in the past,’’ Treadwell said.

Vermont’s law is more protective of defendants than those in the majority of states that allow pre-conviction DNA testing, said Sepich, a Carlsbad, N.M., resident who took up the cause after her 22-year-old daughter, Katie, was raped and murdered in 2003.

The majority of the 26 states that have such testing do it at arrest and booking, rather than waiting until a finding of probable cause, she said.

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