Appellate Court Says DNA Can Be Taken By Force

State prison officials can use reasonable force to take DNA samples from convicted felons who refuse to provide them, Connecticut's second-highest court ruled this week.

State law requires all convicted felons to provide DNA samples, but it does not specifically say officials can use force. The state Appellate Court upheld rulings by Superior Court Judge Edward J. Mullarkey, who said barring the use of force would undermine the law.

In two separate opinions penned by Judge Douglas S. Lavine, the Appellate Court agreed with Mullarkey that "prohibiting the state from using reasonable force would permit a felon to avoid his or her obligation to provide a DNA sample and thus frustrate the legislature's goal of creating a DNA data bank to assist in future criminal investigations."

The ruling came in the appeals of two inmates, Mark Banks and Roosevelt Drakes, who challenged the state's authority to take their DNA samples by force. Banks, 49, formerly of Bristol, is serving up to 34 years in prison on kidnapping, robbery and other convictions. Drakes, 34, formerly of Hartford, is serving a 30-year sentence for killing a 17-year-old boy near a middle school in Hartford.

Under the state statute, convicted felons can be charged with an additional Class D felony if they decline to provide a DNA sample. Both Banks and Drake said they preferred to face the extra charge rather than give the sample. The defendants noted that the legislature did not make mention in the statute about taking the sample by force so they argued that the legislators must not have meant for corrections officials to be permitted to do so.

Because Judge Mullarkey stayed his rulings pending the appeal process, officials haven't yet taken DNA from Banks and Drakes.

The ruling comes less than a month after another major ruling concerning DNA evidence, this one by the U.S. Supreme Court. In what was viewed as a major victory for law enforcement personnel, the court, in 5-4 decision, ruled that taking a DNA sample from prisoners accused of serious crimes, but not yet convicted, does not violate the Constitution.

All 50 states allow DNA samples to be taken from those already convicted of a felony. The Maryland v. King ruling addressed those for which probable cause had been found, but who had not yet been convicted. According to the majority decision, "When officers make an arrest supported by probable cause to hold for a serious offense and 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."

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