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Communtity Law Manual | Police powers | DNA samples: When you have to give a sample

DNA samples: When you have to give a sample

Overview

Criminal Investigations (Bodily Samples) Act 1995, Part 3, s 39, Schedule

This section of the chapter explains when the police can require you to give them a sample of your DNA, which is done by getting a small blood sample from your finger or by swabbing the inside of your mouth. This section also explains the rules the police have to follow when they get a sample.

The police can require you to give a DNA sample if they’ve arrested you for a criminal offence that carries a possible jail term, or if they intend to charge you with one of those offences. If you’re a suspect but they don’t have enough evidence to arrest you or charge you, they can ask you to give a sample voluntarily, and if you refuse they can only get a sample from you if they go to a judge and get a court order – called a “compulsion order”.

In general, the police can’t get DNA samples when they’re investigating less serious offences like common assault or wilful damage. In those cases, the police can’t take a DNA sample from you without your consent, and the courts have no power to order you to provide a sample.

What is DNA and how are samples taken?

Your DNA is found in every cell of your body and it contains your individual genetic code. Because everyone’s DNA is slightly different, it can be used to identify you and so it’s useful as evidence in criminal cases.

A DNA sample is taken either by swabbing the inside of your mouth (called a “buccal test”), or by a blood test, usually done by pricking your finger. You can usually choose which way the sample is taken from you, unless a judge orders that it has to be done a particular way.

When can the police make me give them a DNA sample?

Criminal Investigations (Bodily Samples) Act 1995, ss 5, 52, Schedule

There are two situations when the police can legally make you give them a DNA sample:

  • You’re under arrest or about to be charged – If the police have arrested you for a jailable offence or they intend to charge you, they can legally require you to give a DNA sample (see below, “When you’re under arrest: Police can take a DNA sample without a court order”).
  • The police have a court order – If the police suspect you of a jailable offence and you’ve refused to give them a DNA sample after they asked you for one, the police can go to the District Court to ask a judge to order you to give a sample (see below, “When you’re a suspect: Police need a court order”).

There are rules the police have to follow that deal with when they’re allowed to ask you for a sample and the process they have to follow (see below, “Giving a DNA sample voluntarily”).

Note: You should always talk to a lawyer before agreeing to give the police a DNA sample.

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