Chairperson Butler and distinguished Members of the Committee,
Thank you for allowing me the opportunity to provide testimony on this important issue in support of
House Bill 283. My name is Deana Rybak Overking and I am an Assistant City Attorney for Columbus City
Attorney Richard C. Pfeiffer, Jr.’s Office. I am a former prosecutor and am currently one of the Police
Legal Advisors for the Columbus Division of Police.
When Commander Cameron first posed his questions to us as to whether law enforcement could obtain
DNA samples from misdemeanor arrestees I researched the issue to see what our current laws allowed
us to do, what other states were doing in similar situations, and what the presiding case law was in our
jurisdiction in order to determine if this was feasible.
Here in Ohio, Attorney General Mike DeWine’s Office has been conducting a Sexual Assault Kit Testing
Initiative since 2011, after learning about the multitude of rape kits which were in the possession of law
enforcement across the state and had never been submitted to a DNA lab for testing. Attorney General
DeWine then made an open call to law enforcement to send their kits to BCI for DNA testing at no cost
to them and additional legislation was passed outlining the parameters.
Senate Bill 316, which went into effect on March 23, 2015, now requires Ohio law enforcement agencies
to submit any remaining previously untested sexual assault kits associated with a past crime to a crime
laboratory within one year. The law also requires that all newly collected rape kits be submitted to a
crime lab within 30 days after law enforcement determines a crime has been committed. As of October
1, 2015, 207 law enforcement agencies have submitted 11,067 kits to be tested as part of the
initiative. Of those, 1,733 kits were submitted after Senate Bill 316 took effect. Forensic scientists with
the Ohio Bureau of Criminal Investigation (BCI) have completed testing on a total of 8,718 of those kits,
resulting in 3,204 hits in the Combined DNA Index System (CODIS).
Additionally, House Bill 6 was passed and went into effect July 16, 2015, increasing the Statute of
Limitations on Rape and Sexual Battery cases from 20 to 25 years. Furthermore, if a DNA match falls
outside 25 year SOL, prosecution may still be commenced within 5 years after DNA hit. ORC
2901.13(A)(4) and (D)(1),(2).
Obviously Ohio Revised Code §2901.07 already requires adults who are arrested for felonies and certain
other misdemeanors to submit a sample of their DNA; the specimen is then subject to
biological/forensic testing and submitted to CODIS. The proposed bill seeks to amend Ohio Revised Code
§2901.07 by expanding the list of misdemeanors for which lawful arrestees would be required to
provide a sample of their DNA, including Voyeurism, Public Indecency, Procuring, Soliciting, Loitering to
Engage in Prostitution, and Prostitution. Since we already have the system in place to effectuate this
requirement, including additional offenses should not pose a significant burden.
The presiding cases that are applicable to this issue are Maryland v. King, 133 S. Ct. 1958, and State v.
Emerson, 2012 Ohio 5047.
Maryland v. King is a United States Supreme Court case which addressed the issue of whether the State
could take and analyze a cheek swab with the DNA of someone who was arrested, as part of a routine
booking procedure for serious offenses and pursuant to the Maryland DNA Collection Act, also known as
“Katie’s Law”, and then use that DNA profile for other purposes (e.g. comparing to profiles of other
unsolved crimes). The Court found that “the legitimate government interest served by the Maryland
DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and
accurate way to process and identify the persons and possessions they must take into custody…It is
beyond dispute that probable cause provides legal justification for arresting a person suspected of
crime, and for a brief period of detention to take the administrative steps incident to arrest. The fact of
a lawful arrest, standing alone, authorizes a search.” The Court went on to describe how important it is
to properly identify arrestees and determine their criminal history and that taking DNA samples from
the subjects was analogous to any other type of routine administrative booking processes, i.e.
fingerprinting, photographing, gathering Social Security numbers, birthdates, et al.
“The only difference between DNA analysis and the accepted use of fingerprint databases is the
unparalleled accuracy DNA provides…The use of DNA for identification is no different than matching an
arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known
gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered
from a crime scene. These data…are checked as a routine matter to produce a more comprehensive
record of the suspect’s complete identity. Finding occurrences of the arrestee’s CODIS profile in
outstanding cases is consistent with this common practice. It uses a different form of identification than
a name or fingerprint, but its function is the same.”
State v. Emerson is an Ohio Supreme Court case which addressed two issues: First, when a sample of a
person's DNA is lawfully obtained by the state during the course of a criminal investigation but the
person is acquitted of that crime, does that person have standing to object under the 4th Amendment to
the retention by the state of the DNA profile obtained from that sample or its use in a subsequent
criminal investigation? Second, is the state authorized to retain and subsequently use a DNA profile
when the DNA sample was lawfully taken from a person during a criminal investigation, but the person
was acquitted?
The Court ruled that a person does not have standing to object to the retention of his or her DNA profile
or the profile's use in a subsequent criminal investigation, and the state is authorized to retain the DNA
profile and to use it in a subsequent investigation even though the profile was obtained from a sample
taken during the investigation of a crime of which the person was acquitted.
“…[A] person has no reasonable expectation of privacy in his or her DNA profile extracted from a
lawfully obtained DNA sample. A defendant lacks standing to object to its use by the state in a
subsequent criminal investigation.” “Once DNA is used to create a profile, the profile becomes the
property of the Crime Lab. Thus, the defendant has no possessory or ownership interest in it” (see
Washington v. State, 653 So.2d 362). And, citing Maryland v. King, “Once a person's blood sample has
been obtained lawfully, he can no longer assert either privacy claims or unreasonable search and seizure
arguments with respect to the use of that sample”.
In conclusion, the legal precedent and the process already exists for the proposed inclusion of the
additional misdemeanor offenses. Thank you for your time and attention.
Deana R. Overking
Police Legal Advisor
Richard C. Pfeiffer, Jr.
Columbus City Attorney
(614) 645 – 2606 (office)
(614) 332 – 5757 (cell)
(614) 645 – 4551 (fax)
120 Marconi Blvd.
Columbus, Ohio 43215
DOverking@columbuspolice.org
www.columbuscityattorney.org