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Door open to expanded DNA testing

SANTA FE, N.M. — In dissenting from the Supreme Court’s decision that police can take DNA cheek swabs from people arrested for serious crimes, Justice Antonin Scalia warned of a slippery slope.

Scalia wrote:

“Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Well, in New Mexico, we may already be heading down that slippery slope where your constitutional right against unreasonable search and seizure is further trumped by law enforcement’s need to solve crimes.


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Just hours after the Supreme Court announced its decision, Gov. Susana Martinez told The Associated Press that she may ask the Legislature to expand state law to require DNA samples from people arrested for misdemeanor crimes.

Currently, under Katie’s Law, DNA samples are taken only from those arrested for felonies. DNA is then matched against DNA gathered in investigations of crimes.

Martinez, a former state prosecutor, didn’t say whether she was talking about all misdemeanors or some.

Her spokesman, Enrique Knell, said it is premature to discuss expansion of the state law on DNA samples, and he declined to say whether Martinez had all misdemeanors in mind or would provide a narrower list of misdemeanors for which arrest might trigger the taking of DNA samples.

Knell did say this in an email:

“The U.S. Supreme Court indicated its approval of taking DNA from those who are arrested for serious crimes, which is a term that can be interpreted many ways, to potentially include crimes like domestic violence, certain sex offenses, and cruelty to animals (each of those can be charged as misdemeanors).”

State Attorney General Gary King also has proposed DNA samples for some misdemeanors but only upon conviction, according to a King spokesman.

For certain, some misdemeanors under state law are serious, but some are less so, including fishing without a license, shoplifting a candy bar, possessing a bong for marijuana use and scalping tickets for Popejoy Hall events.


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There also are petty misdemeanors like littering, letting your cows get on a public highway, having a small amount of pot and hosting a Friday night poker game.

Then there are so-called penalty assessment misdemeanors under the Motor Vehicle Code. Think speeding, jaywalking, failing to wear seat belts or having an open container.

Finally, some offenses are described in city codes as misdemeanors. Walking your dog off leash or playing your car stereo too loud are a couple of examples.

You can be booked into jail for a misdemeanor, depending upon the offense and/or the circumstances surrounding it and the arrest.

In its 5-4 decision June 3, the Supreme Court said that taking and analyzing a cheek swab of DNA from someone arrested for a serious crime is a legitimate booking procedure like fingerprinting and photographing.

The court said states have a significant interest in identifying the people they have arrested so proper names can be attached to charges.

Scalia’s point in dissenting was that DNA isn’t taken for identification purposes; it is taken to solve crimes, but he said solving crimes isn’t as important as protecting our Fourth Amendment rights against searches by law enforcement when there is no suspicion a person has committed a crime.

And couldn’t states now argue that they can take DNA samples from people arrested for less serious crimes since they also have an interest in making sure they have charged the right person for things like poaching, littering and speeding?

Research shows that nearly one-third of Americans will be arrested for some offense by age 23, Scalia noted. He wrote:

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school.

“Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths to royal inspection.”

UpFront is a daily front-page news and opinion column. Comment directly to Thom Cole at or 505-992-6280 in Santa Fe. Go to to submit a letter to the editor.