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California police are allowed to take DNA samples from anyone arrested on a felony, even if they're never charged.
A federal appeals court in San Francisco will hear a case Wednesday that challenges a California law allowing police to take DNA samples from anyone arrested on a felony, even if they are never charged.
Currently, 300,000 people are arrested in felony charges every year in California but one third of them are never charged, reports the New York Times.
DNA samples collected by police are entered into state and national databases that law enforcement use to solve other crimes.
Civil rights lawyers from the ACLU are mounting a challenge to the law on the grounds that taking DNA from an innocent person violates the 4th amendment against unreasonable search and seizure.
The case was prompted by the arrest of Elizabeth "Lily" Haskell who was taken into custody during a rally against the Iraq War in 2009.
Haskell was booked on a felony and was ordered to submit to a DNA sample or face an additional misdemeanor charge and spend two days in jail, reports the San Jose Mercury News.
Haskell took the DNA test, was never charged, and is now the center of a case challenging the constitutionality of the law.
Police argue that the extra information obtained from the DNA samples helps them solve other crimes.
The state's attorney general told AP that California's database of close to 2 million samples produces more than 425 hits a month.
Former federal prosecutor Laurie Levenson told California NPR station KPCC that people who are never charged with a crime can "hypothetically" get their DNA information destroyed.
"They can move to expunge the arrest and make a motion to have the DNA sample destroyed," she said.
"But frankly that's a lengthy and expensive process and no one pays the person back who tires to do this. The fear is that the information is already out there."
Levenson also said the case is likely to end up at the Supreme Court. According to the New York Times, Chief Justice John Roberts Jr. wrote in July that there was “a reasonable probability” that the Supreme Court would address the issue this term in another case coming from Maryland.
More than half of states have laws allowing police to take DNA samples before a conviction.