Michigan State Police urged to return DNA evidence
State law says biological evidence collected from crime suspects is to be returned or destroyed after acquittal. But samples stored by the Michigan State Police can be kept for months after a case is resolved, unless a court intervenes.
That has privacy experts in Michigan and nationwide worried about who’s accessing a trove of samples that contain DNA and one local attorney arguing a recent law intended to protect civil rights doesn’t go far enough.
The dispute is fueled by growing concerns about government’s reach into individuals’ lives, and concern that collections of personal information may be mined by federal officials or businesses for purposes other than what was intended.
Southfield lawyer Neil Rockind believes police don’t have the right to keep biological property and say they should give it to the people from whom samples were taken, free, as soon as possible.
“We’re starting to see a scaling back of individual rights because the police have such great power and are overreaching,” said Rockind, a former assistant Oakland County prosecutor who runs a Southfield-based firm. “The state of science today is nothing compared to what it will be in two or five years.”
Rockind recently was involved in a legal battle to have authorities return the blood sample of a client who was ticketed, but acquitted, of drunken driving. He said the Michigan State Police told him his client’s blood samples belonged to the police agency that drew the blood.
An Oakland County judge disagreed: Rockind successfully petitioned 48th District Judge Marc Barron in Bloomfield Township to order the State Police to release the blood sample. It did.
“The worry is that they have someone’s DNA and health profile,” Rockind said. “What if the lab mixes up the blood sample? I don’t like the state having that much of a person’s biological property. There is no reason to keep it if the person is acquitted. It should be returned (to the individual).”
Michigan State Police spokeswoman Tiffany Brown said biological samples are destroyed two years after they were collected, but can be kept longer if, for example, prosecutors’ offices request it. Brown said state police will destroy a blood sample promptly before the two-year period, if there is a court order to do so.
“We retain blood samples for two years because of the potential for retesting and/or additional testing, if ordered by the courts,” Brown said. “The two-year time period provides sufficient time for a case to make it through adjudication.”
The costs of storing the samples are minimal, according to State Police officials.
Samples are not returned to individuals without a court order because they would present a “bio-hazard,” Michigan State University forensics specialist David Foran said. Such a practice could jeopardize public safety if people were to walk around with vials of blood, urine or other body fluids, he pointed out.
“DNA testing is done pretty much on anyone who is arrested,” Foran said. “It would be completely against the law” to test body fluids for any other reasons than what was given originally by police, he added.
Foran said samples can be destroyed using bleach or subjecting them to superheated steam under pressure.
The Oakland County prosecutor’s office says the use and collection of DNA has benefits for the victim and for a person accused of crime.
“DNA collection is not just for conviction,” said Paul Walton, the spokesman for Oakland County Prosecutor Jessica Cooper. “We use it to exonerate (individuals) all of the time.”
Shelli Weisberg, the legislative director for the Michigan American Civil Liberties Union, says her organization has been working on the issue of “biological property.”
“DNA tells a person’s life story,” Weisberg said. The ACLU was behind efforts to get a provision in the law to make sure a person’s DNA is destroyed automatically, once the individual is cleared of a crime.
Senate Bill 105 expanded the list of violent crimes under which police agencies can collect DNA. The law allows samples to be taken from a person at the time of arrest for committing or attempting to commit a felony. But Weisberg said those samples, under Public Act 457 of 2014, which went into effect in July, have to be destroyed after a person is cleared of the crime. The DNA samples are sent out for testing once the person is arraigned.
Under the new law “the individual’s DNA sample or DNA profile, or both, shall be destroyed or expunged, as appropriate, if the charge for which the sample was obtained has been dismissed or resulted in acquittal, or no charge was filed within the limitations period.”
The law also states that once it has been determined the information from the DNA is no longer needed for a criminal investigation or prosecution, the Michigan State forensic laboratory “shall dispose of a sample and a DNA identification profile record in the following manner … not more than 60 days after the department receives notice … ” of a request for disposal of the DNA sample from the investigating police agency.
There is no penalty if MSP keeps the samples for the two-year period that their policy allows, so long as no one has requested their destruction. MSP or other police agencies could be found in contempt of court if they keep the samples after being ordered by a judge to destroy them.
Weisberg said it was important to make sure the new law included some protection for individual privacy.
“There is no doubt law enforcement and the FBI have been wanting to build a (national) database of DNA samples,” she said. “With these databases, they can get abused.”
The information from DNA can be misused by law enforcement and insurance companies, Weisberg said. She added another concern is whether insurance companies would be able to deny policies or base premiums based on information gleaned from a DNA analysis.
“A database with everyone’s data becomes lucrative,” Weisberg said, and “they don’t have protection around them.”
Law enforcement organizations such as the Michigan Association of Chiefs of Police say DNA collection is an excellent crime-solving tool, but the organization supports the state law and the provision mandating destruction of DNA when a person is cleared of a crime.
Robert Stevenson, the executive director of the organization, said the problem with the new law is how to carry it out.
“It could be a logistical problem for larger (police) agencies,” he said. “It might be a problem if some of our larger agencies don’t get updated right away on the status of a case.”
Attorney Mike Nichols, a member of several legal organizations including the DUI Defense Lawyers of America and the Michigan Association of OWI Attorneys, said Rockind is on the right track.
“If it (the sample) has lost its evidentiary value, I want my client’s biological property back,” said Nichols, whose practice is based in East Lansing. “I don’t think you need to worry if it’s seized pursuant to a search warrant. It’s always a person’s property. It’s their blood.”
Rockind said the better thing to do is to give it back and let the individual decide what to do with it.
“You took it from me. It’s mine. It came from my body,” he said. “I’ll do with it what I want to do with it.”