2021 Georgia Code
Title 35 - Law Enforcement Officers and Agencies
Chapter 3 - Georgia Bureau of Investigation
Article 6A - Dna Sampling, Collection, and Analysis
§ 35-3-160. Dna Analysis Upon Conviction of Certain Sex Offenses

1. As used in this article, the term:
   1. "Department" means the Department of Corrections.
   2. "Detention facility" means a penal institution under the jurisdiction of the department, including penal institutions operated by a private company on behalf of the department, inmate work camps, inmate boot camps, probation detention centers, parole revocation centers, and county correctional facilities.
   3. "Division" means the Division of Forensic Sciences of the Georgia Bureau of Investigation.
2. 1. A sample of deoxyribonucleic acid (DNA) shall be collected by oral swab or other noninvasive procedure from any individual:
      1. Who has been convicted of a felony and is currently incarcerated in a detention facility, serving a probation sentence, or serving under the jurisdiction of the State Board of Pardons and Paroles for such felony; or
      2. Who has been charged with a felony, and sentence for such offense has been imposed pursuant to Article 3 of Chapter 8 of Title 42 or pursuant to subsection (a) or (c) of Code Section 16-13-2.
   2. Unless a DNA sample has already been collected by the department or another agency or entity, each DNA sample required by paragraph (1) of this subsection shall be collected by the detention facility which is detaining or the entity which is supervising such individual, and the sample shall be forwarded to the division.
   3. Paragraph (1) of this subsection shall not apply to any individual for a conviction for a misdemeanor, to any individual who is charged with a misdemeanor and the sentence for such misdemeanor is imposed pursuant to Article 3 of Chapter 8 of Title 42 regarding first offenders, or because he or she has been charged with a misdemeanor.
3. DNA analysis shall be performed by the division. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identifying characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank in accordance with Code Sections 35-3-162 and 35-3-163 and shall be made available only as provided in Code Section 35-3-163.

(Code 1981, §35-3-160, enacted by Ga. L. 2011, p. 264, § 3-1/SB 80; Ga. L. 2019, p. 299, § 1/HB 470.)

The 2019 amendment, effective April 28, 2019, deleted former paragraph (a)(2), which read: " 'Division' means the Division of Forensic Sciences of the Georgia Bureau of Investigation."; redesignated former paragraph (a)(3) as present paragraph (a)(2); substituted the present provisions of paragraph (a)(2) for the former provisions, which read: "Detention facility" means a penal institution under the jurisdiction of the department used for the detention of persons convicted of a felony, including penal institutions operated by a private company on behalf of the department, inmate work camps, inmate boot camps, probation detention centers, and parole revocation centers. Such term shall also mean any facility operated under the jurisdiction of a sheriff used for the detention of persons convicted of a felony including a county jail or county correctional facility."; added paragraph (a)(3); substituted the present provisions of subsection (b) for the former provisions, which read: "Any person convicted of a felony offense who is held in a detention facility or placed on probation shall at the time of entering the detention facility or being placed on probation have a sample of his or her blood, an oral swab, or a sample obtained from a noninvasive procedure taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. The provisions and requirements of this Code section shall also apply to any person who has been convicted of a felony prior to July 1, 2011, and who currently is incarcerated in a detention facility, serving a probation sentence, or serving under the jurisdiction of the Board of Pardons and Paroles for such offense. It shall be the responsibility of the detention facility detaining or entity supervising a convicted felon to collect the samples required by this Code section and forward the sample to the division unless such sample has already been collected by the department or another agency or entity."; and, in subsection (c), substituted "DNA" for "The" at the beginning of the first sentence, in the third sentence, substituted "identifying" for "identification" near the beginning and inserted "in accordance with Code Sections 35-3-162 and 35-3-163" near the end.

- For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For note, "Padgett v. Donald: Why Not So Special," see 57 Mercer L. Rev. 673 (2006).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 20-2-2080 et seq., which was based on Ga. L. 2000, p. 1071, § 1, Ga. L. 2000, p. 1075, § 1, Ga. L. 2005, p. 60, § 24/HB 95, and Ga. L. 2007, p. 408, § 1/HB 314, and which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this Code section.

- Former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) did not authorize unreasonable searches in violation of the Fourth Amendment because the bodily intrusion of taking a blood or saliva sample was minimal, the state had a compelling interest in obtaining reliable and accurate identifying characteristics of individuals convicted of felonies, and those valid law enforcement interests outweighed a convicted felon's privacy interests; to the extent that probable cause or individualized suspicion was required to justify a search, the prisoners' felony convictions provided that justification. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003) (decided under Ga. L. 2000, p. 1071, § 1).

When prisoners were challenging the constitutionality of former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160), the defendants were entitled to summary judgment on the prisoners' privacy claims because the prisoners' right to privacy in the prisoners' identification, assuming one existed, was substantially outweighed by the interests of the state in having available a DNA database that could be used in solving crimes and exonerating the innocent. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003) (decided under Ga. L. 2000, p. 1071, § 1).

Former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) did not violate the Fourth Amendment or Ga. Const. 1983, Art. I, Sec. I, Para. XIII as Georgia's legitimate interest in creating a permanent identification record of convicted felons for law enforcement purposes outweighed the minor intrusion involved in taking prisoners' saliva samples and storing DNA profiles, given prisoners' a reduced expectation of privacy in the prisoners' identities. Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005), cert. denied, 546 U.S. 820, 126 S. Ct. 352, 163 L. Ed. 2d 61 (2005) (decided under Ga. L. 2005, p. 60, § 24/HB 95).

Prisoners' challenge to the requirement in former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) that incarcerated felons submit saliva samples for DNA profiling was without merit; the bodily intrusion required by the statute to obtain saliva samples for DNA profiling did not impinge their Fourteenth Amendment right to privacy. Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005), cert. denied, 546 U.S. 820, 126 S. Ct. 352, 163 L. Ed. 2d 61 (2005) (decided under Ga. L. 2005, p. 60, § 24/HB 95).

Although prisoners retain a right to bodily privacy under Ga. Const. 1983, Art. I, Sec. I, Para. I, the extraction of saliva required by former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) did not violate that right because the statute promoted law enforcement, and was narrowly tailored to promote that purpose by requiring DNA profiling on a limited population of incarcerated felons and forbidding release of the DNA profiles except for law enforcement purposes. Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005), cert. denied, 546 U.S. 820, 126 S. Ct. 352, 163 L. Ed. 2d 61 (2005) (decided under Ga. L. 2005, p. 60, § 24/HB 95).

Classification of subjecting convicted felons but not convicted misdemeanants to the DNA identification process was rationally related to the Georgia legislature's legitimate law enforcement purpose of creating a permanent identification record of convicted felons because the statute encompassed all convicted felons whose crimes and/or past histories were serious enough to warrant a sentence to confinement, as opposed to lesser punishment, and the legislature acted reasonably and not arbitrarily when the legislature focused on those convicted felons who were housed in a correctional facility where DNA samples can be efficiently and economically obtained. As a result, former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) rationally related to the legitimate state interest the statute was intended to promote and did not violate equal protection. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007) (decided under Ga. L. 2007, p. 408, § 1/HB 314).

Former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) did not violate the Fourth Amendment, the search and seizure provisions of the Georgia Constitution, or a convicted felons' rights to privacy under the United States or Georgia Constitutions. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007) (decided under Ga. L. 2007, p. 408, § 1/HB 314).

Former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) did not violate a defendant's right under the Georgia Constitution to not incriminate oneself as the privilege against self-incrimination in the United States Constitution did not protect an individual from government compulsion to provide blood or other biological samples and, although the right against self-incrimination in the Georgia Constitution had been construed liberally to limit the state from forcing an individual to affirmatively produce any evidence, oral or real, regardless of whether or not the evidence was testimonial, former § 24-4-60 (now O.C.G.A. § 35-3-160) did not force a convicted felon to remove incriminating evidence but only to submit an incarcerated person's body for the purpose of having the evidence removed. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007) (decided under Ga. L. 2007, p. 408, § 1/HB 314).

Former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) did not violate the Eighth Amendment because the statute, requiring all convicted felons incarcerated in a state correctional facility to provide a sample for DNA analysis to determine the identification characteristics specific to the person, did not impose any form of punishment. Further, the purpose of establishing a DNA databank has been identified, and the methods for obtaining data provided by the statute were not excessive measures in response to the purpose, therefore, without any showing of the use of excessive force that might arguably state a claim of cruel and unusual punishment in obtaining DNA samples through involuntary means, the statute was deemed not penal and the means used to enforce the statute had not been shown to be malicious or grossly disproportionate to the refusal to comply with the statutory mandate. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007) (decided under Ga. L. 2007, p. 408, § 1/HB 314).

- Under the plain language of the First Offender Act, O.C.G.A. § 42-8-60 et seq., the defendant was deemed to have been convicted while incarcerated and, therefore, the defendant's DNA had to be collected and analyzed under the DNA statute, O.C.G.A. § 35-3-160. Bennett v. State, 346 Ga. App. 189, 816 S.E.2d 323 (2018).

- As a person who was convicted of a felony prior to July 1, 2000, and who on that date was incarcerated on such offense, the defendant was properly subject to compulsory blood sampling to establish a DNA profile for storage in the state's DNA data bank. Dingler v. State, 281 Ga. App. 721, 637 S.E.2d 120 (2006) (decided under Ga. L. 2005, p. 60, § 24/HB 95).

In convictions of aggravated sodomy, kidnapping, burglary, and aggravated assault, use of evidence comparing DNA on lip balm found at the crime scene with defendant's blood sample and with evidence retained from a prior rape prosecution that resulted in the defendant's acquittal did not violate former O.C.G.A. § 24-4-60 et seq (see now O.C.G.A. § 35-3-160). Fortune v. State, 300 Ga. App. 550, 685 S.E.2d 466 (2009) (decided under Ga. L. 2007, p. 408, § 1/HB 314).

- Trial court properly denied the defendant's motion to suppress the match of the defendant's DNA collected pursuant to former O.C.G.A. § 24-4-60 (see now O.C.G.A. § 35-3-160) on the day the defendant was released from prison for separate crimes because the DNA extraction was not a result of an illegal detention and the DNA seizure would have occurred regardless of the any illegal search or seizure; the correct calculation of the defendant's remaining sentence after the entry of an order vacating some of those convictions was a matter for the Department of Corrections, not the trial court, and the order directing the defendant's release was not necessarily evidence that the defendant's detention after a certain date was illegal. The defendant's argument that the defendant was a probationer at the time of the search was meritless. Leftwich v. State, 299 Ga. App. 392, 682 S.E.2d 614 (2009), cert. denied, No. S09C2013, 2009 Ga. LEXIS 710 (Ga. 2009), cert. denied, 559 U.S. 1019, 130 S. Ct. 1913, 176 L. Ed. 2d 386 (2010) (decided under Ga. L. 2007, p. 408, § 1/HB 314).

- Evidence produced after a comparison of DNA from a robbery scene to a Georgia Bureau of Investigation database did not violate the defendant's Fourth Amendment rights because the sample was taken pursuant to O.C.G.A. §§ 35-3-160(b) and35-3-165(b), while the defendant was serving a sentence under Georgia's First Offender Act, O.C.G.A. § 42-8-60, and the match was made when the defendant was on probation with a reduced expectation of privacy. United States v. Hinton, 676 Fed. Appx. 842 (11th Cir. 2017)(Unpublished).

Purpose of Georgia's DNA collection statute was not to punish, but to obtain a reliable, immutable form of identification for placement in a DNA database, and all the relevant evidence in the case indicated that the statute would not increase the punishment of anyone to whom the statute was applied. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003) (decided under Ga. L. 2000, p. 1075, § 1).

- Petitioner was not entitled to habeas relief because it was clear from the record that the petitioner was afforded an opportunity to develop the petitioner's Fourth Amendment claim in the trial court as well as on appeal; the fact that the petitioner disagreed with the state court's conclusions of state law with respect to the defendant's status at the time of the DNA extraction did not demonstrate that the defendant did not receive a full and fair opportunity to litigate the defendant's Fourth Amendment claim, and there was nothing clearly erroneous about the state court's factual findings that the petitioner was not a probationer at the time of the DNA extraction and that the saliva sample was taken upon petitioner being physically discharged from lawful custody. Leftwich v. Barrow, F. Supp. 2d (N.D. Ga. Sept. 26, 2011) (decided under Ga. L. 2007, p. 408, § 1/HB 314).

Cited in Stephens v. State, 305 Ga. App. 339, 699 S.E.2d 558 (2010).

RESEARCH REFERENCES

ALR.

- Validity, construction, and operation of state DNA database statutes, 76 A.L.R.5th 239.

Validity, construction, and application of state statutes and rules governing requests for postconviction DNA testing, 72 A.L.R.6th 227.