DNA collection and database laws at the federal level require a sample from every person convicted of a federal felony, authorize collection from people who are merely arrested on federal charges, and extend to non-citizens held in federal custody. The resulting profiles live in the FBI’s Combined DNA Index System (CODIS), where they can be searched against unsolved crimes across the country. Removal is possible if the charges fall away or a conviction is overturned, but only if you ask for it in writing with the right court documents.
Who Has to Give a DNA Sample
Under 34 U.S.C. § 40702, the Bureau of Prisons must collect a sample from every person in its custody who has been convicted of a qualifying federal offense, and federal probation offices must do the same for anyone on probation, parole, or supervised release with such a conviction.1Office of the Law Revision Counsel. 34 USC 40702 – Collection and Use of DNA Identification Information From Certain Federal Offenders A “qualifying federal offense” was redefined by the Justice for All Act of 2004 to include any felony, any crime of violence, any sexual abuse offense, and any attempt or conspiracy to commit those crimes.2GovInfo. Public Law 108-405 – Justice for All Act of 2004 In practical terms, virtually every federal felony conviction triggers a DNA collection requirement.
You do not have to be convicted. The DNA Fingerprint Act of 2005 expanded the statute to authorize collection from individuals who are arrested or facing federal charges.3Congress.gov. S.1606 – DNA Fingerprint Act of 2005 In 2013, the Supreme Court held in Maryland v. King that taking a cheek swab during booking for a serious offense is a legitimate police procedure, comparable to fingerprinting and photographing, and does not violate the Fourth Amendment.4Justia U.S. Supreme Court Center. Maryland v. King, 569 U.S. 435 (2013) The qualifier the Court used was “serious offense.” It did not authorize blanket collection from every person booked for any reason, and roughly 34 states have passed their own arrestee-collection laws with varying triggering offenses and procedural safeguards.
Timing matters at the state level. Some jurisdictions take the physical sample at booking but do not analyze it until after arraignment or a probable-cause determination. If the charges fall apart early, the sample may be destroyed before a digital profile ever enters the database.
Refusing to cooperate is itself a federal crime. Anyone who fails to provide a sample when lawfully required under 34 U.S.C. § 40702 is guilty of a Class A misdemeanor, which carries up to one year of imprisonment under Title 18.1Office of the Law Revision Counsel. 34 USC 40702 – Collection and Use of DNA Identification Information From Certain Federal Offenders Federal officers may also use “reasonably necessary” means to restrain a person and collect the sample by force. In practice, that rarely happens, because most people comply once they learn refusal is itself a criminal charge.
Non-Citizens in Federal Custody
The same statute reaches non-U.S. persons detained under federal authority. For years, the Department of Homeland Security operated under a blanket exemption that effectively excused immigration agencies from collecting DNA. A 2020 final rule amending 28 C.F.R. § 28.12 removed that exemption and restored the Attorney General’s authority to require collection across all federal agencies that arrest or detain individuals.5Federal Register. DNA-Sample Collection From Immigration Detainees Under current Customs and Border Protection guidance, agents must collect DNA from individuals arrested on federal criminal charges and from non-U.S. persons detained under federal authority, whether the detention is criminal or civil.6U.S. Customs and Border Protection. Guidance on CODIS DNA Collection Requirements An individual who already has a profile in CODIS, or who is being processed under certain narrow public-health expulsion orders, may be exempt. Refusal still carries the Class A misdemeanor penalty.
Rapid DNA Analysis at Booking Stations
Traditional DNA processing sends a swab to a forensic lab, where it may sit in a backlog for weeks or months. The Rapid DNA Act of 2017 authorized the FBI Director to set standards for fully automated instruments that produce a CODIS-compatible profile in under two hours, right at the booking station.7GovInfo. Rapid DNA Act of 2017 The technology allows an arrestee’s profile to be searched against unsolved violent crimes while the person is still in custody.
FBI operational procedures limit Rapid DNA at booking stations to arrestee samples only. Crime scene evidence cannot be run through these instruments, and the resulting profiles cannot be stored in any local side database. Every profile must flow through the standard CODIS architecture.8Federal Bureau of Investigation. National Rapid DNA Booking Operational Procedures Manual Booking agencies must use an NDIS-approved Rapid DNA system, integrate it with an electronic fingerprint process to prevent sample mix-ups, and undergo annual audits by their state CODIS agency. The initial search focuses on a narrow set of case types: sexual assault, homicide, kidnapping, and terrorism.
How CODIS Stores and Shares Profiles
Every sample collected under these laws feeds into the Combined DNA Index System, which is both the FBI’s support program for criminal justice DNA databases and the software that runs them.9Federal Bureau of Investigation. CODIS and NDIS Fact Sheet The architecture has three tiers:
- Local DNA Index Systems (LDIS) at city or county forensic laboratories, where profiles first enter.
- State DNA Index Systems (SDIS), which aggregate profiles from every local lab within a state.
- The National DNA Index System (NDIS), managed by the FBI, where all state-submitted profiles can be compared against each other for cross-jurisdictional hits.
Each profile consists of genetic data at 20 core loci, expanded from the original 13 in January 2017 to improve the system’s power and reduce coincidental matches.10Federal Bureau of Investigation. CODIS Archive These are short tandem repeat markers in non-coding regions of the genome. They are highly variable between individuals, which makes them excellent identifiers, but they do not reveal diseases, physical traits, or other sensitive health information. That distinction is central to the legal justification for the database: the government stores enough data to identify you, but not enough to learn anything else about your biology. Physical samples typically stay with the collecting agency; only the digital profile travels up through the tiers.
Familial Searching and Investigative Genetic Genealogy
A standard CODIS search looks for an exact match between a crime scene profile and a profile in the database. Familial searching looks for partial matches that suggest a close biological relative of the unknown suspect is already in the system. No federal statute explicitly authorizes or prohibits the practice, so it varies by state. A handful of states have formally authorized it, typically restricting it to serious violent or sexual crimes where other investigative leads have been exhausted. Others have banned it outright. Most have no formal policy at all. Where it is authorized, it generally requires high-level administrative approval and technical review before results are shared with investigators.
Investigative genetic genealogy (IGG) goes further by uploading crime scene DNA to consumer genealogy platforms, where millions of ordinary people have voluntarily shared their genetic information. The Department of Justice issued an interim policy in 2019 setting the rules for any agency that uses DOJ funding or authority to conduct IGG. The policy limits the technique to unsolved homicides, sex offenses, and cases involving unidentified remains of suspected homicide victims; a prosecutor can authorize an exception for other violent crimes that present a substantial and ongoing threat to public safety or national security.11U.S. Department of Justice. Interim Policy – Forensic Genetic Genealogical DNA Analysis and Searching Before IGG can begin, the crime scene profile must have been uploaded to CODIS without producing a match, and the agency must have pursued other reasonable leads.
The policy also sets procedural limits. Law enforcement must identify itself to the genealogy platform and may use only services that explicitly notify users that law enforcement may search their data. A suspect cannot be arrested based solely on a genetic association from a consumer database; investigators must collect a direct reference sample and confirm the match through standard CODIS analysis. Agencies must seek informed consent before collecting DNA from any third party identified during the research, and covert collection requires prosecutorial approval and a search warrant. Samples may not be analyzed for genetic predisposition to disease or any psychological trait. If the investigation does not result in an arrest and charges, the agency must promptly destroy all third-party reference samples, genealogical profiles, and account data.11U.S. Department of Justice. Interim Policy – Forensic Genetic Genealogical DNA Analysis and Searching
One boundary worth knowing: agencies operating purely on state funds and authority are not bound by the DOJ policy, though some states have their own legislation requiring judicial authorization and informed consent protections that go further.
Penalties for Misusing CODIS Data
Under 34 U.S.C. § 12593, a government employee or official with access to individually identifiable DNA information in a federal law enforcement database who knowingly discloses it to an unauthorized person or agency faces a fine of up to $100,000.12Office of the Law Revision Counsel. 34 USC 12593 – Violent Crime Control and Law Enforcement Act The penalty is steeper for outsiders: anyone who obtains DNA samples or individually identifiable information from a federal database without authorization can be fined up to $250,000, imprisoned for up to one year, or both. State-level protections vary. Many states have their own genetic privacy statutes that create civil liability for unauthorized disclosure, with remedies ranging from actual damages to statutory minimums that can be collected without proving economic harm.
How to Get Your DNA Profile Expunged
A profile does not have to stay in CODIS forever if the legal basis for collecting it falls away. The FBI recognizes several grounds for removal. For arrestees, the charges must have been dismissed, resulted in acquittal, or no charges filed within the applicable time period. For convicted offenders, the conviction must have been overturned by a final court order.9Federal Bureau of Investigation. CODIS and NDIS Fact Sheet
The process is not automatic. You have to initiate the request and provide certified copies of the court orders showing the dismissal, acquittal, or reversal. You also have to show that no other qualifying conviction or pending charge independently requires your profile to stay in the database. Without that documentation, the government has no obligation to act.
Where you send the request depends on which authority collected the sample. For state-level profiles, you typically submit a written request and supporting court documents to the state forensic laboratory or bureau of investigation; if the profile has been uploaded to the national index, the state agency then notifies the FBI to remove it from NDIS. Federal arrestees and those processed through immigration detention may need to work through the Department of Justice. Some states charge an administrative fee; others handle it at no cost.
Once the agency verifies the court orders and confirms your identity, the digital profile is deleted and the physical sample is generally destroyed. The agency should issue written confirmation that the purge is complete. The process can take several weeks to several months, and the burden falls entirely on the individual to gather the paperwork and follow up. This is where most expungement-eligible profiles stay in the system: people who qualify never file the request, and no one reminds them.