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DNA samples and identifying information

 

What is covered in this web page?

The information in this web page is only about DNA samples and identifying information gathered from people involved in criminal investigations.  It is not about DNA testing in family law or child support cases.

For information about DNA testing in child support matters, go to Legal Aid WA's web page Proving parentage or request a copy of Legal Aid WA's pamphlet,  DNA testing: parentage and child support  from any Legal Aid WA office or by contacting Legal Aid WA's InfoLine on 1300 650 579.  For a list of all Legal Aid WA offices, go to Contact Us.

What is DNA?

DNA is a substance that is part of every human body.  It is different for everyone, except identical twins.  Scientists can analyse your DNA to create a DNA profile that is specific to you. Your DNA profile can sometimes be used in court to identify you, like your fingerprint.  Your DNA profile can also sometimes be used to show that you did not commit a particular crime. 

How can a DNA sample be taken from me?

Scientists can get a DNA profile from a sample of your mouth cells, hair, or blood.  The methods that are used to obtain these samples are:

  • mouth cell sample – a sample is taken by buccal swab, which means the inside of your mouth is wiped with a swab similar to a cotton bud, to collect cells and saliva
  • hair sample – hairs may be pulled from your head or pubic area, however only a doctor or nurse may take a sample of pubic hair, or
  • blood sample – this is commonly obtained by pricking your finger and collecting a drop of blood. 

Police must use the least painful method available when taking a DNA sample.

Do I have to give a DNA sample?

The law says that you may be requested to give a DNA sample in certain circumstances.  If a DNA sample is requested from you, you can agree (consent) to the request.  If you do not agree, you can be required to provide a sample if you are:

  • suspected of, but have not been charged with, committing a serious offence and a senior officer orders you to give a mouth cell sample or a sample of hair from your head, or a warrant is obtained for a blood sample or a sample of pubic hair to be taken, or
  • charged with a serious offence.

If you are charged with an offence that is not a serious offence then you are not required to give a sample of your DNA. However, you can be required to provide other identifying information like fingerprints and photographs.

If police have asked you for a DNA sample and you are not sure if you have to give a sample, you should get legal advice immediately.

What is a serious offence?

A serious offence is any offence that has a maximum penalty of 12 months imprisonment or more. This includes offences such as assaults, sexual offences, robbery, burglary, most drug offences, fraud, dangerous driving causing death or injury and many others.

I am under 18 years old, do I have to give a DNA sample?

If you are under 18 you can be requested to provide a DNA sample.  A responsible adult may consent on your behalf to a sample being taken from you.  If a responsible adult does not consent, you can be required to provide a sample if you are:

  • suspected of, but have not been charged with, committing a “serious offence” and a warrant is obtained for the sample to be taken, or 
  • charged with a serious offence.

If you are charged with an offence that is not a serious offence then you are not required to give a sample of your DNA. However, you can be required to provide other identifying information like fingerprints and photographs.

Do I have to provide a DNA sample if I am a victim or a witness?

If you are a victim or witness to an offence, you may be asked to provide a DNA sample in the form of a mouth swab or hair from your head. 

You can consent to providing a sample but if you are an adult and you do not wish to provide a sample, you cannot be required to give one.  If you are child and a responsible person refuses on your behalf to give consent, a warrant may be obtained to authorise a sample to be taken.

What happens if I refuse to give a sample?

If you refuse to give a sample when you are required to by law, the police are allowed to use any force that is reasonably necessary to overcome any resistance that they encounter from you or that they reasonably suspect might occur. 

If you have been charged with a serious offence but you are not in custody, you may be arrested without a warrant and detained for a reasonable time for the sample to be taken.

You should get legal advice if you are concerned about the amount of force used.  See also Complaints about the police.

Do I have to give more than one DNA sample?

You may have to give more than one sample if the first sample was not taken successfully.  If you have given a sample while a suspect for an offence, you may have to give another sample if you are then charged with a serious offence.

What happens to my sample after it has been taken?

The sample will be analysed in a private laboratory to get your DNA profile.  This profile will be stored in a computer database.  The computer database may later be available to police around Australia. 

The profiles in the computer database will be compared to DNA profiles found at crime scenes.  You could be charged with an offence if your DNA matches the DNA found at a crime scene.  Your profile can also be compared with profiles of missing persons or people suspected of committing other crimes.

Other uses of a DNA profile are very limited.  It is an offence for anyone who has access to the database to use it for any purpose that is not allowed by law.

How long will my DNA profile be kept?

In certain circumstances you can ask to have your DNA profile destroyed, but otherwise it will be kept forever.

If you are found not guilty, or have your conviction quashed, you can ask for your identifying sample, which includes your DNA profile, to be destroyed. If you were a suspect but you were never charged or you were a victim or witness, you can ask for your identifying sample to be destroyed after any proceedings are finished or if there were no proceedings, then after two years.

You can ask for your DNA profile to be destroyed by writing a letter to the Commissioner of Police.  If approved, all details that link you to that information must also then be removed from the computer database. 

Can the police ask me to give other identifying information?

Yes, in addition to or instead of a DNA sample, police can ask you to give one or more of the following:

  • a print of your hands, feet or ears, and
  • a photograph.

In addition, if you are:

  • a volunteer or a suspect who has not been charged, police can also ask you to give an impression of any identifying feature, including a dental impression
  • a witness or a victim, police can also ask you to give an impression of any identifying feature, other than a dental impression, and
  • a suspect charged with any offence, police can also ask you to give a measurement of any identifying feature.

As for a DNA sample, if the police ask you to provide any of this information you can agree (consent) to do so.  If you do not agree,  you can be required to provide the information if:

  • you are charged with a serious offence, or
  • you are suspected of, but have not been charged with, committing a serious offence and a senior officer orders you to give the information.

Where can I get more information?

Contact Legal Aid WA’s InfoLine on 1300 650 579 for information and referral.

 

See the following Legal Aid WA web pages for more information about police powers:

Last reviewed: 16/04/2013

Last Modified: 17/06/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.