Should I Consent to a DNA Swab in a Sex Crime Investigation?

Jerod Gunsberg, Los Angeles Criminal Defense Lawyer

In the vast majority of sexual assault cases, the allegations turn on the issue of consent. The issue is usually not whether or not the sexual contact occurred or whether the person targeted in a sexual assault investigation was present at the time. The issue is generally whether or not these were consenting adults who engaged in a consensual act.

It should go without saying that if you or a loved one is contacted by a police detective who wants to talk to you about a sexual assault case, you should politely terminate the conversation and contact a qualified, experienced criminal defense attorney immediately.

Once retained, your attorney will gather information from you about the incident and then contact the detective in an effort to get some information about the case. At that point, a decision will be made as to whether or not you should agree to an interview with the police. In over 95% of the cases, the decision will be made not to talk to the police. Except in rare circumstances, there is almost nothing to be gained from talking to the police. You can read more about the reasons why here.

It is a near certainty that at some point during the course of the investigation, the police will request a DNA sample from the target of the investigation (if you’re reading this, that’s probably you). The DNA sample is taken with a small device that looks like a cotton swab. The police will ask you to open your mouth and then take some saliva from the inside of your cheek. The entire process takes about two seconds and is physically painless, but there are legal consequences that need to be considered before agreeing to this procedure.

If You Do Not Consent, the Police Will Need a Search Warrant

If you do not consent to have your mouth swabbed for a DNA sample, the police will need to obtain a search warrant to get your DNA sample. In order to get the search warrant, they must lay out their probable cause for the warrant in writing. This is presented to a magistrate or judge who will then decide to grant the warrant. In the overwhelming majority of cases, the judge will then decide whether or not to grant the warrant. In the overwhelming majority of cases, the search warrant is granted.

If the search warrant is granted, the police officer can then show up at your home or place of work at any time and take the swab. It is my experience that if you do not consent to the swab and make the police get a warrant, the police will likely choose a time and place of maximum embarrassment and inconvenience for you. You can also expect that if a case is filed against you, that the police will arrest you in the middle of the night in your home rather than allow you to surrender in court with your lawyer. I’m not saying it’s right or fair, but this is how it works.

However, if you force the police to get a warrant, then you are forcing them to lay out their probable cause in writing. This may come in handy down the road if a case is filed against you. You can use the warrant to challenge their version of events and the nature of their investigation.

Consenting to the Swab Means No Warrant

If you DO consent to the swab, the police (especially LAPD) are generally more amenable to you coming into the police station at a time that’s convenient for you. If you do get arrested, they may allow for a peaceful and orderly surrender in court with your lawyer.

Of course, without a warrant you have one less thing to challenge if a case is filed against you.

So Should I Consent to the DNA Swab or Not?

There is no right or wrong answer. Every case is different. Every lawyer has a different opinion. You should not make this decision without consulting a lawyer. It really depends on the facts, the police agency conducting the investigation, and the overall strength of the case.

If you or a loved one is the target of a sex crime investigation in Los Angeles or anywhere in California, you can contact the Law Offices of Jerod Gunsberg at (323) 633-3423.

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