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Accused Refused on the taking of DNA Samples Because it Would be Tantamount to Giving Evidence Against Himself.


Seven men were grouped together outside a house. They were talking loudly together and drinking. One of the neighbors called the police and so two uniformed police officers were dispatched to the scene. The police officers had their police badges and did not have their guns drawn.

As they were speaking with the group of seven men, one of the men stood up and pulled up his pants by his waistband and walked away in the direction of the house. A New York Criminal Lawyer said when the man adjusted his pants, a small plastic bag fell from his pant leg. The police officer saw the plastic bag and it was a resealable bag contained dried herbs. The police officers seized the plastic bag from the ground and smelled it and they thought it was marijuana. Subsequent testing revealed it to be marijuana as suspected by the police officers (marijuana possession).

They followed the man who had gone into the house. The police officers knocked on the door and the residents of the house opened the door to the police officers and let the police officers in to the house. When the police officers went into the house, they noticed that a group of men were also drinking. Their bottled alcoholic beverages were contained in a cooler which lay open on the floor.

The police officers found the man who had left the group of seven men outside and patted him down. As they patted him down, they found a jackknife on him. The police officers then looked around the room and they saw two guns inside the open cooler among the bottled alcoholic beverages.

The police officers then seized the two guns from the open cooler. They put the guns in evidence bags, tagged them and sealed them. The police officers then gave the residents of the house a receipt for the two guns. In the crime lab, the firearms were swabbed and DNA samples were found on the guns. A Suffolk County Criminal Lawyer said the crime lab could not determine to whom the DNA samples belonged to as they had no samples to compare it with.

The man was then charged with criminal possession of a weapon in the fourth degree for having on his person a jackknife. He was also charged with criminal marijuana possession. The District Attorney filed a motion in the trial court to compel the man to give a DNA sample by allowing a crime lab technician to take a swab from the inside of his cheek.

The accused refused on the ground that the taking of DNA samples from his body would be tantamount to giving evidence against himself. He also refused to give a DNA sample because it would include bodily intrusion. Lastly, the man opposed the motion of the district attorney because the district attorney was just fishing for evidence to link him to the two guns which the police officers found in the house so that he can be charged with a gun crime.

The Prosecutor presented the findings of the crime lab when it swabbed the guns. The crime lab guns and ballistic expert testified that he found enough human DNA samples for comparison and the prosecutor’s theory of the case was that the DNA samples found on the gun by the crime lab will in most likelihood turn out to belong to the accused.

In deciding whether or not the accused can be compelled to give a DNA sample, there must be proof of probable cause that the accused committed the crime of criminal possession of a weapon in the second degree. There must also be a clear indication that relevant and material evidence will be found and that the means which will be used to retrieve the DNA samples will be safe and reliable.

The Court here found that there was no probable cause to believe that the accused was committed or had just committed the crime of criminal possession of a weapon. Standing up, hitching up your pants and going inside a house cannot be indications that he had a gun on his person or that he went inside the house to hide the gun he had on him. There are other possible explanations: that the guns were already there and they belonged to another.

There is also no clear indication that if the accused were compelled to give his DNA samples, relevant and material evidence will be produced: that his DNA will match the DNA samples found on the guns that were swabbed. Thus, the Court resolved to deny the motion of the prosecution to compel the accused to give a DNA sample.

Were you charged with criminal possession of a gun? Are you being compelled to give DNA samples to prove that you handled the gun? You need the advice and representation of a Nassau Gun Crime Attorney. A Nassau Gun Crime lawyer can explain to you what your options are and a Nassau Gun Crime lawyer can help you defeat the motion to compel you to give a DNA sample. At Stephen Bilkis and Associates, they have qualified lawyer who can assist you whether you have been charged with a gun crime, drug possession or sex crimes. Call them today for a free consultation.

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