California’s DNA collection law requires a cheek swab from every adult arrested on felony charges, every person convicted of any felony, and certain misdemeanor sex and arson offenders, and the resulting profile stays in the state database indefinitely unless you petition to have it removed. The rules live in Penal Code sections 295 through 300.4, and they reach further than most people expect: juveniles adjudicated for qualifying offenses, people already on probation or parole, and anyone still serving time for an old qualifying conviction all fall within the collection requirement.
Who Has To Give a Sample
The collection statute sweeps in five overlapping groups.
Anyone arrested on felony charges must provide a buccal swab, thumb and palm prints, and any other required specimens immediately after arrest, during booking, or before release on bail. If the sample is not taken then, a court can order the person to report to a designated facility within five calendar days.1California Legislative Information. California Penal Code Section 296.1
Every person convicted of a felony must submit a sample, regardless of whether the offense involved violence. Fraud, perjury, drug offenses, and property crimes all trigger the requirement.
Adults and juveniles convicted of any sex offense or arson offense, including attempts, must give a sample even when the charge is a misdemeanor.2Legislative Analyst’s Office. Proposition 69 – DNA Samples, Collection, Database, Funding
Minors adjudicated for qualifying offenses face the same collection requirements as adults.1California Legislative Information. California Penal Code Section 296.1
Anyone on probation, parole, or post-release community supervision with a qualifying offense on their record must provide a sample if one is not already on file.1California Legislative Information. California Penal Code Section 296.1
The qualifying-offense list is long. It covers murder, manslaughter, sexual assault, kidnapping, robbery, residential burglary, carjacking, arson, certain felony assaults, and terrorism-related crimes, among others.3California Attorney General. Qualifying Offenses Requiring DNA Submission Because the requirement is retroactive, people convicted years ago who remain incarcerated or under supervision must still provide a sample if they have not already.
How the Sample Is Taken
The standard method is a buccal swab: a cheek swab that takes seconds and uses a Department of Justice-approved collection kit. Blood draws can be required but are far less common, and any blood withdrawal must follow medically approved procedures. For people arrested on felony charges, collection happens at booking or intake. For those already in custody, it happens at the prison reception center or the facility where they are confined.1California Legislative Information. California Penal Code Section 296.1
What Happens if You Refuse
Refusing to provide a sample after receiving written notice is a misdemeanor punishable by a $500 fine and up to one year in county jail. Someone already in state prison faces disciplinary sanctions under a schedule set by the Department of Corrections and Rehabilitation.4California Legislative Information. California Penal Code Section 298.1
Refusal also does not prevent collection. The statute authorizes authorized law enforcement, custodial, or corrections personnel to use reasonable force after a request has been refused. “Reasonable force” is defined as what a trained, objective correctional employee would consider necessary under the circumstances. Several safeguards apply: a supervising officer must give prior written authorization, staff must first attempt to get voluntary compliance, and if a cell extraction is involved, it must be video recorded.4California Legislative Information. California Penal Code Section 298.1
For people on probation or parole, refusing can also trigger revocation proceedings, since complying with legal obligations is a standard condition of supervised release. In practical terms, refusal produces the same swab result along with an added charge.
Getting Your DNA Profile Removed
DNA profiles stay in the system indefinitely unless you take specific steps to request removal. There is no automatic purge, even if your case is dismissed or you are acquitted. The burden falls entirely on you.
Who Qualifies
Under Penal Code 299, you can request that your specimen be destroyed and your searchable profile expunged if you have no qualifying offense on your record, past or present, and no other legal basis exists to keep the profile. You qualify if any of the following applies:
- No charges were filed within the time allowed by law after your arrest, or the charges that triggered the DNA collection were dismissed before trial.
- Your conviction was reversed and the case was dismissed.
- You were found factually innocent under Penal Code 851.8.
- You were acquitted of the underlying offense.5California Legislative Information. California Penal Code Section 299
If you have any other qualifying offense on your record, even an old one, you are not eligible for expungement regardless of how the current case resolved. This catches more people than expected.
How To File
You must submit a written request and send copies to three places: the trial court in the county where you were arrested or convicted, the DOJ DNA Laboratory, and the prosecuting attorney’s office in that county. Proof of service showing all parties received the request is required.5California Legislative Information. California Penal Code Section 299
The court then holds a noticed hearing and has discretion to grant or deny. And here is the part that makes preparation critical: if the court denies your request, the decision is final. The statute explicitly makes the denial a nonappealable order that cannot be reviewed by writ petition.5California Legislative Information. California Penal Code Section 299 You likely will not get a second chance. Processing from filing to completion commonly takes several months.
The Federal Layer
California uploads qualifying profiles to the National DNA Index System, the federal side of CODIS. Federal law requires the state to expunge a profile once it receives a certified copy of a final court order showing the underlying conviction was overturned, or that charges were dismissed, resulted in acquittal, or were never filed within the applicable time period.6Office of the Law Revision Counsel. 34 U.S. Code 12592 – Index to Facilitate Law Enforcement Exchange of DNA Identification Information An order is not “final” for this purpose while time to appeal remains, so removal from the federal index waits on that finality.
What the State Can and Cannot Do With Your DNA
Penal Code 299.5 limits the use of collected specimens and profiles to criminal identification, criminal exclusion, and identifying missing persons. Employment screening, insurance underwriting, and research unrelated to law enforcement are prohibited.
Anyone who knowingly uses or discloses DNA information for an unauthorized purpose faces up to one year in county jail or a state prison sentence. If the misuse was motivated by financial gain, the court must impose a fine equal to three times the gain received, or $10,000, whichever is greater.7Justia Law. California Penal Code Section 299.5 – Limitations on Disclosure
When a Department of Justice employee discloses information in violation of the statute, the department is liable for $5,000 per violation in civil damages, plus attorney’s fees and costs, capped at $50,000 for multiple disclosures. The individual employee is absolutely immune from personal civil liability; the department bears the financial consequence.7Justia Law. California Penal Code Section 299.5 – Limitations on Disclosure
The federal Genetic Information Nondiscrimination Act bars employers with 15 or more employees from discriminating based on genetic information, but it carves out employers conducting DNA analysis for law enforcement purposes as a forensic laboratory or for human remains identification.8Office of the Law Revision Counsel. 42 U.S. Code 2000ff-1 – Employer Practices GINA protects you from your employer using genetic information against you; it does not restrict what law enforcement does with DNA lawfully collected under California’s program.
Is Collecting DNA From Arrestees Constitutional
The most-contested piece of the law is collection from people arrested but never convicted. In People v. Buza, decided April 2, 2018, the California Supreme Court held that requiring a felony arrestee to provide a cheek swab during routine jail booking does not violate the Fourth Amendment or Article I, Section 13 of the California Constitution.9Justia Law. People v. Buza The court limited its ruling to someone validly arrested on probable cause for a serious offense, and expressly declined to decide whether the statute is constitutional as applied to other categories of arrestees.
Buza followed the U.S. Supreme Court’s reasoning in Maryland v. King (2013), which upheld Maryland’s DNA collection law for felony arrestees and treated the swab as a reasonable identification procedure comparable to fingerprinting and photographing during booking.10Justia U.S. Supreme Court Center. Maryland v. King, 569 U.S. 435 (2013)
Article I, Section 1 of the California Constitution lists privacy among the inalienable rights of all people,11Justia Law. California Constitution Article I Section 1 – Declaration of Rights and courts have not fully resolved whether indefinite retention of an unconvicted person’s profile crosses that line, in part because the expungement process exists as a safety valve. That safety valve, though, is a right you have to invoke, prove, and win on a nonappealable ruling.