Communtity Law Manual | Police powers | When you’re under arrest: Police can take a DNA sample without a court order

DNA samples: When you have to give a sample

When you’re under arrest: Police can take a DNA sample without a court order

When the police can make you give a DNA sample without a court order

Criminal Investigations (Bodily Samples) Act 1995, ss 5, 13, 18, 23, 24, 77, Schedule

If you’ve been arrested for a criminal offence for which you could be jailed, the police can legally require you to give them a DNA sample. They can also require you to give a sample once they’ve decided to charge you with a jailable offence, even if they haven’t arrested you. It’s a criminal offence to refuse to give the sample in these situations: you can be jailed for up to three months or fined up to $2,000.

Young people under 18 can also be required to give a DNA sample in those situations, but there are some special rules the police have to follow.

The DNA information the police get from the sample can’t be used in court against you – the police can only use it to help them in their investigation.

Information the police have to give you when they require a sample from you

Criminal Investigations (Bodily Samples) Act 1995, s 7

The police have to give you the following information about your rights and the processes for taking and analysing the sample. As well as giving a written notice, they must also verbally tell you certain key things, and do it in a way and using language that you’ll understand, including:

  • what the particular criminal offence is
  • when and for how long your DNA information can be stored in a DNA databank, and who will have access to it
  • how and the sample can be taken from you and by whom (you can choose to have it taken by a fingerprick or a mouth swab)
  • that if a suspect refuses to give a DNA sample, the police can use reasonable force to take a fingerprick sample
  • that the sample will be analysed and will not be used as evidence in criminal proceedings.

    Note: If you’re under 18, the police also have to tell you that you have the right to have a parent or caregiver with you when you give the sample, and also a lawyer or other person of your choice.

How long can the police keep my DNA information for?

Criminal Investigations (Bodily Samples) Act 1995, ss 26, 60, 60A, 62

Once you’ve been charged with the particular offence, the police can store your DNA profile on a temporary databank. It can be kept there until your case is finished; depending on the outcome of your case, it then has to be deleted or can be stored in the permanent DNA databank (see below, “How long DNA profiles and samples can be kept for” and “Giving a DNA sample for the DNA databank”).

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