NH alters law on collecting DNA samples

CONCORD – For several years, the state of New Hampshire has required people convicted of sexual assaults and other violent crimes to submit samples for a state and federal DNA database.

The state stopped taking DNA samples from some juvenile offenders last week, however, after the New Hampshire Civil Liberties Union challenged the legality of the practice.

“It’s my impression that they have a policy that misapplies the law,” New Hampshire Civil Liberties attorney Barbara Keshen said.

In response to a letter Keshen sent late last month, Department of Health and Human Services officials have asked the Attorney General’s office to review the law again, and advise them as to how it applies to juveniles.

The law, which took effect in 2002, requires DNA samples from adults convicted of any felony sexual assault, or any of the following crimes: murder or attempted murder, manslaughter, felony assault, felony arson, kidnapping, robbery, burglary, or negligent homicide when it is alcohol- or drug-related.

Earlier this year, the state legislature voted down a proposal by the attorney general’s office to expand the requirement to other crimes, including people convicted of child pornography or soliciting sex with minors online.

The DNA samples typically are taken by a mouth swab, and collected at local police stations.

The state stores both DNA samples and identification information on the person from whom it was taken. The Federal Bureau of Investigation’s database contains only numeral information describing the DNA, to allow for comparison with unknown samples, and identification numbers for each sample, which can then be linked to the information kept by the states.

NH Law at a Glance

Up until Wednesday, the state held juvenile offenders to the same standards as adults, requiring DNA samples for any of the crimes listed in the law, Division of Juvenile Justice Executive Director William Fenniman said Thursday. The state was acting on a 2003 opinion from the Attorney General’s office, he said.

As of last week, however, the state will require DNA samples only from juveniles convicted of felony sexual assaults, at least for now, Fenniman said. Adult offenders will still be required to give DNA samples as always.

The Department of Health and Human Services asked the Attorney General’s office to revisit its previous advice in light of complaints from the New Hampshire Civil Liberties Union and at least one court ruling, in which a judge found the state’s interpretation of the law was wrong.

“Given the issues that have been brought to the Department’s attention, we have asked the attorney general’s office for a formal opinion,” Fenniman said.

The plain language of the law suggests different interpretations. The first paragraph of RSA 651-C:2 states that DNA samples shall be taken before the release of any offender convicted of any offense defined in another section of the law, “or prior to the release of any juvenile offender after a finding of delinquency.”

The state has never interpreted the law as applying to all juvenile offenders, however, Fenniman said.

The definition section of the law, 651-C:1, defines “sexual offender” as anyone convicted of a felony sexual assault, and specifies that juveniles are included.

The section listing “violent crimes” makes no reference to juveniles, however.

Senior Assistant Attorney General Michael Brown has been tasked with figuring out where the state should stand, he said Thursday.

“This is an issue that this office has looked at in the past, and believed at that time that DNA testing was appropriate for both adult and juvenile offenders,” Brown said. “Just this morning we got a request from the Commissioner of Health and Humans Services to take a look at this issue again.”

Brown declined to predict how long it might take to draft a fresh opinion.

He said he expects to review the law itself, court rulings on the subject and perhaps the legislative record.

The New Hampshire Civil Liberties Union contacted Health and Human Services on Aug. 20, after hearing of a youth who was ordered to provide a DNA sample after being convicted of burglary in Colebrook District Court.

“The letter misstates the law,” attorney Keshen wrote, referring to the standard letter the state sent out to juvenile offenders required to give DNA samples.

“Except for juveniles convicted of certain sexual offenses, juveniles are not subject to DNA testing,” Keshen wrote.

Keshen urged the state to change its practices and its standard form letter to match her interpretation of the law. She noted that Brentwood Family Division Judge David LeFrancois also had ruled that the law doesn’t apply to juveniles, except for those convicted of felony level sex assaults.