Pre-Conviction DNA Testing

On October 13th, the Minnesota Supreme Court will review State v. Emerson where the Dakota County district court prevented a sheriff from collecting a DNA sample from a person charged with second-degree assault with a dangerous weapon where the trial resulted in a hung jury and he was not convicted of the crime. The sheriff sought to collect Emerson’s DNA stating that it was mandatory under Minnesota Statute § 299C.105 (2016). It states (in relevant part):

Subdivision 1. Required Collection of Biological Specimen for DNA Testing.

(a)(1) persons who have appeared in court and have had a judicial probable cause determination on a charge of committing, or persons having been convicted of or attempting to commit, any of the following

[murder, manslaughter, assault, robbery or aggravated robbery, kidnapping, false imprisonment, criminal sexual conduct, incest, burglary or indecent conduct].

The issue for the Supreme Court is whether the statute is constitutional or in violation of the Fourth Amendment.


Prior to 2006 Minnesota’s county attorneys and law enforcement agencies were permitted under Minn. Stat. § 299C.105 to collect a person’s DNA if they had had been charged with certain serious crimes, but not yet found guilty. In 2006, that changed with the decision of In Re Welfare of C.T.L. In that case the Court of Appeals held that the statute directing law-enforcement personnel to take DNA from juveniles and adults who have been lawfully charged with an offense but who have not been convicted violate state and federal constitutional prohibitions against Fourth Amendment unreasonable searches and seizures. DNA testing under the statute ceased at this point.

In 2013, in Maryland v. King, the U.S. Supreme Court held that under Maryland’s DNA Collection Act pre-conviction DNA testing for serious offenses was reasonable under the Fourth Amendment. The Court did not address or involve Minnesota’s statute that was held unconstitutional since 2006.

Dakota County Acting Alone

In 2015, a bill was introduced in the legislature to allow for pre-conviction DNA testing for certain felonies, but it went nowhere. In August 2015, the Dakota County Sheriff’s Department began routinely collecting DNA from defendants of qualifying offenses after the court determined that there was probable cause to pursue charges. According to the Minnesota Public Defender’s Office and Minnesota County Attorney’s Office, Dakota County is the only county in Minnesota collecting DNA under the above statutory authority.

Dakota County’s Argument

Dakota County argues that Maryland v. King overruled the Minnesota’s decision in C.T.L. making the statute valid once again. Essentially, the argument is that because Maryland’s law was very similar to Minnesota’s and both cases were decided on constitutional Fourth Amendment grounds it was directly applicable to Minnesota and overturned the 2006 decision.

Defendant’s Argument

The defense argues that Maryland v. King only interpreted Maryland’s statute, with all of its specific procedural protections, and therefore does not affect Minnesota’s law. It goes further stating that Minnesota’s constitution provides greater Fourth Amendment protection and while a U.S. Supreme Court decision can revive a federal statute after overruling its own precedent it cannot impliedly revive a state statute that was held unconstitutional under state law.

Experienced Legal Counsel Is Important

The criminal justice system is complex. It involves many procedural nuances, such as this type of DNA testing requirement or other conditions. We provide criminal defense representation in cases involving violent crimes, criminal sexual conduct, drug crimes, domestic abuse, white collar crimes and similar serious offenses. Don’t wait to get the legal help that you need.

Call Sieben & Cotter at 651-455-1555 to arrange your free and comprehensive consultation, or send a request for more information.