Colorado § 16-23-103 - Collection of biological samples from persons arrested for or charged with felonies.

§ 16-23-103. Collection of biological samples from persons arrested for or charged with felonies.

(1) The following persons shall submit to collection of a biological substance sample for testing to determine the genetic markers thereof, unless the person has previously provided a biological substance sample for such testing pursuant to a statute of this state and the Colorado bureau of investigation has that sample:

(a) Every adult arrested on or after September 30, 2010, for a felony offense or for the investigation of a felony offense. The arresting law enforcement agency shall collect the biological substance sample from the arrested person as part of the booking process.

(b) (I) Every adult who is charged with a felony by an indictment, information, or felony complaint filed on or after September 30, 2010, and who is not arrested in connection with the felony charge on or after September 30, 2010, whether because the person's arrest occurred before that date, because the person's appearance is procured by summons rather than arrest, or for other reasons.

(II) In cases where a booking process occurs on or after September 30, 2010, the law enforcement agency conducting the booking process shall collect the biological substance sample from the charged adult as part of the booking process.

(III) In all other cases, upon the adult's first appearance in court following the filing of charges, the court shall require the adult to submit to collection of a biological substance sample by the investigating agency responsible for fingerprinting pursuant to section 16-21-104, and that agency shall collect the sample.

(2) (a) At the person's first appearance in court following the filing of charges, the court shall advise the person that the biological substance sample collected pursuant to this section shall be destroyed and the results of the testing of the sample shall be expunged from the federal combined DNA index system and any state index system pursuant to the circumstances described in section 16-23-105.

(b) When an action occurs that qualifies an adult for expungement pursuant to section 16-23-105 (1), the court or district attorney shall advise the adult that the adult may make a request to the Colorado bureau of investigation to have the biological substance sample collected pursuant to this section destroyed and results of the testing of the sample expunged from the federal combined DNA index system and any state index system pursuant to the process described in section 16-23-105.

(3) If collection of a biological substance sample is impractical at the time specified in subsection (1) of this section, an appropriate agency may collect a sample at any other time during the adult's detention or during the pendency of charges.

(4) An agency collecting a biological substance sample pursuant to this section shall make reasonable efforts to determine if the Colorado bureau of investigation already holds a biological substance sample from the adult. If, but only if, the agency determines that the Colorado bureau of investigation already holds a sample from the adult, then the agency need not collect a sample.

(5) A law enforcement agency may use reasonable force to collect biological substance samples in accordance with this article using medically recognized procedures.

(6) Each law enforcement agency that collects a biological substance sample shall submit the sample to the Colorado bureau of investigation for testing.

Source: L. 2009: Entire article added, (SB 09-241), ch. 295, p. 1574, § 1, effective September 30, 2010.

Editor's note: In Maryland v. King, 569 U.S. 435 (2013), the United States Supreme Court held that DNA identification of arrestees is a reasonable search under the Fourth Amendment of the United States Constitution that can be considered part of the routine booking procedure.

ANNOTATION

Although the collection of defendant's DNA sample was not authorized by this section, the seizure did not violate the constitutional prohibition on unreasonable searches and seizures. The seizure was not willful and recurrent; the government interest in the DNA sample outweighed defendant's privacy interest since the sample was taken while defendant was in custody and on probation; and the intrusion was minimal. The seizure meets the special needs exception because DNA databases serve a number of special needs beyond securing evidence of wrongdoing. People v. Lancaster, 2015 COA 93, 373 P.3d 655.

Applied in People v. Valdez, 2017 COA 41, 405 P.3d 413.