4.11​DNA (Deoxyribonucleic Acid) Identification Profiling System Act (DNA Profiling Act)³³

A.​Summary of Content of the Act

The DNA Profiling Act requires the department of state police to promulgate rules pursuant to the Administrative Procedures Act to implement the DNA Profiling Act. MCL 28.173.

Under MCL 28.173, the department must promulgate rules to govern the following issues:

“(a) The method of collecting samples in a medically approved manner by qualified persons and the types and number of samples to be collected by the following:

(i) The department of corrections from certain prisoners under . . . MCL 791.233d.

(ii) Law enforcement agencies as provided under . . . MCL 750.520m, or certain juveniles under . . . MCL 712A.18k.

(iii) The department of [health and] human services or a county juvenile agency, as applicable, from certain juveniles under . . . MCL 803.307a, or . . . MCL 803.225a. As used in this paragraph, ‘county juvenile agency’ means that term as defined in . . . MCL 45.622.

(b) Distributing DNA database collection kits and instructions for collecting samples.

(c) Storing and transmitting to the department the samples described in subdivision (a).

(d) The DNA identification or genetic marker profiling of samples described in subdivision (a).

(e) The development, in cooperation with the federal bureau of investigation and other appropriate persons, of a system of filing, cataloging, retrieving, and comparing DNA identification profiles and computerizing this system.

(f) Protecting the privacy interests of individuals whose samples are analyzed under this act.”

The department of state police may promulgate rules to implement the DNA Identification Profiling System Act in addition to rules addressing the issues outlined in MCL 28.173.

B.​Who Must Provide a Sample

The Michigan Penal Code requires a person to provide samples for chemical testing for DNA identification profiling or genetic markers if any of the following apply:

•​The person is arrested for committing or attempting to commit a felony offense or an offense that would be a felony if committed by an adult. MCL 750.520m(1)(a).

•​The person is convicted of, or found responsible for, a felony or attempted felony, or any of the following misdemeanors or local ordinances substantially corresponding to the misdemeanors:

•​MCL 750.167(1)(c) (disorderly person—window peeping);

•​MCL 750.167(1)(f) (disorderly person—indecent/obscene conduct in public);

•​MCL 750.167(1)(i) (disorderly person—loitering in house of ill fame or prostitution);

•​MCL 750.335a(1) (indecent exposure);

•​MCL 750.451(1) or MCL 750.450(2) (first and second prostitution violations);

•​MCL 750.454 (leasing a house for purposes of prostitution). MCL 750.520m(1)(b)(i)-(iv).

C.​Collecting a Sample of an Individual’s DNA

1.​Collection and Forwarding of Samples

“The county sheriff or the investigating law enforcement agency as ordered by the court shall provide for collecting the samples required to be provided under [MCL 28.176(1)] in a medically approved manner by qualified persons using supplies provided by the department and shall forward those samples and any samples described in [MCL 28.176(1)] that were already in the agency’s possession to the department after the individual from whom the sample was taken has been arraigned in the district court. However, the individual’s DNA sample must not be forwarded to the department if the individual is not charged with committing or attempting to commit a felony offense or an offense that would be a felony if committed by an adult. If the individual’s DNA sample is forwarded to the department despite the individual not having been charged as described in this subsection, the law enforcement agency shall notify the department to destroy that sample. The collecting and forwarding of samples must be done in the manner required under [the DNA Profiling Act]. A sample must be collected by the county sheriff or the investigating law enforcement agency after arrest but before sentencing or disposition as ordered by the court and promptly transmitted to the department of state police after the individual is charged with committing or attempting to commit a felony offense or an offense that would be a felony if committed by an adult. [MCL 28.176(4)] does not preclude a law enforcement agency or state agency from obtaining a sample at or after sentencing or disposition.” MCL 28.176(4). See also MCL 750.520m(3) and MCL 750.520m(4).

2.​Required Notice

“At the time a DNA sample is taken form an individual under [MCL 28.176], the individual must be notified in writing of all of the following:

(a) That, except as otherwise provided by law, the individual’s DNA sample or DNA identification profile, or both, must 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.

(b) That the individual’s DNA sample or DNA identification profile, or both, will not be destroyed or expunged, as appropriate, if the department determines that the individual from whom the sample is taken is otherwise obligated to submit a sample or if it is evidence relating to another individual that would otherwise be retained under this section.

(c) That the burden is on the arresting law enforcement agency and the prosecution to request the destruction or expunction of a DNA sample or DNA identification profile as required under [MCL 28.176], not on the individual.” MCL 28.176(4)(a)-(c).

D.​Constitutional Issues

The United States Supreme Court has upheld the constitutionality of a state statute authorizing the collection and analysis of an arrestee’s DNA according to national Combined DNA Index System (CODIS) procedures³⁴ “[a]s part of a routine booking procedure for serious offenses[.]” Maryland v King, 569 US 435, 440-441 (2013). “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” Id. at 465-466. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 11, for discussion of Fourth Amendment search and seizure issues.

E.​Individual’s Refusal to Provide Sample

If an individual who is required by law to provide a sample for DNA identification profiling refuses or resists providing a sample, he or she must be advised that the refusal or resistance is a misdemeanor offense punishable by not more than one year of imprisonment, or a maximum fine of $1,000, or both. MCL 28.173a(1).

“If at the time an individual who is required by law to provide samples for DNA identification profiling is arrested for committing or attempting to commit a felony offense or is convicted or found responsible the investigating law enforcement agency or the department already has a sample from the individual that meets the requirements of the rules promulgated under this act, the individual is not required to provide another sample. However, if an individual’s DNA sample is inadequate for purposes of analysis, the individual shall provide another DNA sample that is adequate for analysis.” MCL 28.173a(2). See also MCL 28.176(3).³⁵

F.​Cooperative Agencies and Individuals

“The department of state police shall work with the federal bureau of investigation and other appropriate persons to develop the capability of conducting DNA identification and genetic marker profiling at department of state police crime laboratories. For this purpose, the department shall acquire, adapt, or construct the appropriate facilities, acquire the necessary equipment and supplies, evaluate and select analytic techniques and validate the chosen techniques, and obtain training for department of state police personnel.” MCL 28.174.

G.​Permissible Use of DNA Information

According to MCL 28.175a(1)(a)-(c), the department’s use of the DNA profile information is limited to any or all of the following purposes:

•​Identification for law enforcement purposes.

•​Assistance with the recovery or identification of missing persons or human remains.

•​If personal identifiers are removed, for academic, research, statistical analysis, or protocol development purposes.

H.​Impermissible Use of DNA Information

DNA samples provided under the DNA Profiling Act must not be analyzed to identify any medical or genetic disorder. MCL 28.175a(2).

The DNA Profiling Act specifically prohibits several actions:

“(1) An individual shall not disseminate, receive, or otherwise use or attempt to use information in the DNA identification profile record knowing that the dissemination, receipt, or use of that information is for a purpose not authorized by law.

(2) An individual shall not willfully remove, destroy, tamper with, or attempt to tamper with a DNA sample, record, or other DNA information obtained or retained under [the DNA Profiling Act] without lawful authority.

(3) An individual shall not, without proper authority, obtain a DNA identification profile from the DNA identification profiling system.

(4) An individual shall not, without proper authority, test a DNA sample obtained under [the DNA Profiling Act].

(5) An individual shall not willfully fail to destroy a DNA sample or profile that has been required or ordered to be destroyed under [the DNA Profiling Act].” MCL 28.175(1)-(5).

Violation of MCL 28.175 is a misdemeanor punishable by imprisonment for not more than one year or a fine of not more than $1,000, or both. MCL 28.175(7).

“Nothing in [MCL 28.175] shall be considered to prohibit the collection of a DNA sample in the course of a criminal investigation by a law enforcement agency.” MCL 28.175(6).

I.​Permanent Retention of DNA Profile

“Except as otherwise provided in [MCL 28.176], the department shall permanently retain a DNA identification profile of an individual obtained from a sample in the manner prescribed by the department under [the DNA Profiling Act] if any of the following apply:

(a) The individual is arrested for committing or attempting to commit a felony offense or an offense that would be a felony offense if committed by an adult.

(b) The individual is convicted of or found responsible for a felony or attempted felony, or any of the following misdemeanors, or local ordinances that are substantially corresponding to the following misdemeanors:

(i) A violation of [MCL 750.167(1)(c), MCL   750.167(1)(f), or MCL 750.167(1)(i)] . . . , disorderly person by window peeping, engaging in indecent or obscene conduct in public, or loitering in a house of ill fame or prostitution.

(ii) A violation of [MCL 750.335a(1)] . . . , indecent exposure.

(iii) A violation punishable under [MCL 750.451(1) or MCL 750.451(2)] . . . ,first and second prostitution violations.

(iv) A violation of . . . MCL 750.454, leasing a house for purposes of prostitution.” MCL 28.176(1).

J.​Disclosure Permitted

“The DNA identification profiles of DNA samples received under [the DNA Profiling Act] must only be disclosed as follows:

(a) To a criminal justice agency for law enforcement identification purposes.

(b) In a judicial proceeding as authorized or required by a court.

(c) To a defendant in a criminal case if the DNA identification profile is used in conjunction with a charge against the defendant.

(d) For an academic, research, statistical analysis, or protocol developmental purpose only if personal identifications are removed.” MCL 28.176(2).

K.​DNA Sample Already Taken

“Notwithstanding [MCL 28.176(1)], if at the time the individual is arrested, convicted of, or found responsible for the violation the investigating law enforcement agency or the department already has a sample from the individual that meets the requirements of [the DNA Profiling Act], the individual is not required to provide another sample or pay the assessment required under [MCL 28.176(5)].”³⁶ MCL 28.176(3). See also MCL 28.173a(2) (containing substantially similar language but also requiring an individual to provide a subsequent sample if his or her previous sample was inadequate for analysis purposes); MCL 750.520m(2) (containing substantially similar language).

L.​Disposal of DNA Sample or Profile

1.​Individual’s Charge(s) Dismissed Before Trial

MCL 764.26a states:

“(1) If an individual is arrested for any crime and the charge or charges are dismissed before trial, both of the following apply:

(a) The arrest record shall be removed from the internet criminal history access tool (ICHAT).

(b) If the prosecutor of the case agrees at any time after the case is dismissed, or if the prosecutor of the case or the judge of the court in which the case was filed does not object within 60 days from the date an order of dismissal was entered for cases in which the order of dismissal is entered after [June 12, 2018], all of the following apply:

(i) The arrest record, all biometric data, and fingerprints shall be expunged or destroyed, or both, as appropriate.

(ii) Any entry concerning the charge shall be removed from LEIN.

(iii) Unless a DNA sample or profile, or both, is allowed or required to be retained by the department of state police under . . . MCL 28.176, the DNA sample or profile, or both, obtained from the individual shall be expunged or destroyed.

(2) The department of state police shall comply with the requirements listed in [MCL 764.26a(1)] upon receipt of an appropriate order of the district court or the circuit court.”

“MCL 28.176(1) provides that law enforcement shall permanently retain a DNA identification profile of an individual obtained from a sample if the individual is arrested for committing or attempting to commit a felony offense.” People v Cole, ___ Mich App ___, ___ (2024) (cleaned up). “However, MCL 28.176(4)(a) provides that the individual’s DNA sample or DNA identification profile, or both, must 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.” Cole, ___ Mich App at ___ (quotation marks omitted). “Likewise, MCL 28.176(10)(b) provides that the state police forensic laboratory shall dispose of a DNA sample or profile or both when the charge for which the sample was obtained has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable limitations period.” Cole, ___ Mich App at ___ (quotation marks omitted).

In Cole, “[d]efendant’s DNA sample was obtained because he was arrested and charged with the felony of second-degree home invasion[.]” Id. at ___. “Defendant pleaded no contest to lesser offenses that do not trigger DNA collection under MCL 28.176, and the home invasion charge was dismissed.” Cole, ___ Mich App at ___. “The trial court determined . . . that even though the felony charge against defendant that gave rise to the police collecting defendant’s DNA profile and sample had been dismissed, the dismissal did not warrant destruction of his DNA profile and sample because defendant pleaded guilty to lesser offenses in lieu of the felony.” Id. at ___. However, the Cole Court held that MCL 28.176 “plainly states that DNA must be destroyed when the charge for which the sample was obtained has been dismissed.” Cole, ___ Mich App at ___ (quotation marks and citation omitted). “MCL 28.176(4)(a) and MCL 28.176(10)(b) specify that the dismissal refers to the charge for which the sample was obtained, not the action or claim.” Cole, ___ Mich App at ___. MCL 28.176 “does not in any way qualify the term ‘the charge for which the sample was obtained’ or the term ‘dismissed.’” Cole, ___ Mich App at ___. Instead, MCL 28.176 “requires the DNA profile and sample to be destroyed when the charge for which the sample was obtained has been dismissed.” Cole, ___ Mich App at ___ (holding that “the destruction of defendant’s DNA profile and sample [was] mandated” because the dismissal fell “squarely within the plain and ordinary meaning of the statutory language”).

2.​Individual’s Conviction Is Reversed (Court Order Required)

MCL 28.176(9) states:

“If a sample was collected under [MCL 28.176(1)] from an individual who does not have more than 1 conviction, and that conviction was reversed by an appellate court, the sentencing court shall order the disposal of the sample collected and DNA identification profile record for that conviction in the manner provided in [MCL 28.176(12) and MCL 28.176(13)].”

3.​Samples or Profiles No Longer Necessary or Individual Was Acquitted

Except for the DNA identification profiles required to be retained permanently, any other DNA identification profile must not be permanently retained but “must be retained only as long as it is needed for a criminal investigation or criminal prosecution.” MCL 28.176(10). Except as provided by MCL 28.176(11), a DNA sample or DNA identification profile must be disposed of by the state police forensic laboratory under either of the following circumstances:

“(a) The department receives a written request for disposal from the investigating police agency or prosecutor indicating that the sample or profile is no longer necessary for a criminal investigation or criminal prosecution.

(b) The department receives a written request for disposal and a certified copy of a final court order establishing that the charge for which the sample was obtained has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable limitations period.” MCL 28.176(10).

The disposal requirements in MCL 28.176(10) do not apply if:

•​“[T]he individual from whom the sample [wa]s taken has otherwise become obligated to submit a sample.” MCL 28.176(11)(a).

•​Evidence that would otherwise be retained would be destroyed because the sample from the individual contains information or data relating to another individual. MCL 28.176(15). See MCL 28.176(11)(b).

M.​Method and Timing of Disposal

According to MCL 28.176(12):

“The state police forensic laboratory shall dispose of a sample and a DNA identification profile record in the following manner:

(a) Not more than 60 days after the department receives notice under [MCL 28.176(10)³⁷], the laboratory shall dispose of the sample in compliance with . . . MCL 333.13811.^[38]

(b) The laboratory shall dispose of the sample and the DNA identification profile record in the presence of a witness.”

After disposing of the sample and/or profile, the laboratory must “make and keep a written record of the disposal, signed by the individual who witnessed the disposal.” MCL 28.176(13).

N.​Errors in Disposal, Retention, or Collection

According to MCL 28.176(14):

“An identification, warrant, detention, probable cause to arrest, arrest, or conviction based upon a DNA match or DNA information is not invalidated if it is later determined that 1 or more of the following errors occurred in good faith:

(a) A DNA sample was erroneously obtained.

(b) A DNA identification profile was erroneously retained.

(c) A DNA sample was not disposed of or there was a delay in disposing of the sample.

(d) A DNA identification profile was not disposed of or there was a delay in disposing of the profile.”