Is a Defendant Required to Submit a DNA Sample When One is Already on File?

In Illinois, "any person convicted or found guilty of any offense classified as a felony under Illinois law must submit specimens of blood, saliva, or tissue to the Illinois Department of Police for DAN analysis and pay an analysis fee of $200." People v. Rigsby, No. 1-09-1461, slip op. at 1 (1st Dist. December 3, 2010) (citing 730 ILCS 5/5-4-3(a)(j)). In Rigsby, the defendant was found guilty of possession of a controlled substance with intent to deliver, and he was sentenced as a Class X offender. Id. The Court required him to submit a DNA sample and pay the $200 DNA fee pursuant to 5/5-4-3(a)(j). Id. The question raised on appeal was whether the defendant, who had already submitted a DNA sample following a prior felony conviction, had to submit another sample after his most recent conviction. See id. at 2. The Rigsby court held that he did not. Id.

The court noted that the statute is silent on whether a defendant who "has already complied with the statutory requirements and has samples of his DNA on file in the police database" must again submit those samples after another felony conviction. Rigsby, No. 1-09-1461, slip op. at 2. The court therefore looked to 20 Ill. Adm. Code §§1285.30(c)(1)--(c)(6), the section of the Code which implements 5/5-4-3(a)(j), for guidance on whether multiple DNA submissions was required. See id. at 3. These sections of the Code all contained the language "[i]f the qualifying offender has previously had a sample collected," which the court interpreted as evidence that agencies "charged with administering the statute would not interpret it to require submission of multiple and duplicative DNA samples from an offender who has already submitted samples pursuant to a prior conviction." See id. at 4 (internal citations omitted). The court earlier noted that "One of the purposes behind the statute is to create a database of the genetic identities of recidivist criminal offenders." Id. at 1-2. (citing People v. Burdine, 839 N.E.2d 573 (2005)). Drawing on the language from §§1285.30(c)(1)--(c)(6), the Rigsby court held that "A one-time submission into the police DNA database is sufficient to satisfy the purpose of the statute in creating a database of genetic identities of recidivist criminal offenders, because once an offender's DNA data is stored in the database, it remans there unless and until the offender's convictions is reversed…" Id. at 5.

The Rigsby decision is significant because 5/5-4-3(a)(j) requires all felons to submit to the DNA testing, which affects a great percentage of defendants. Moreover, many of these convicted felons are recidivists. Therefore, after Rigsby, a prudent defense lawyer would assess whether his client had submitted a DNA sample prior to the most recent conviction before allowing the court to order the defendant to submit to a duplicative DNA analysis and pay the fee that accompanies it.