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Criminal & traffic law

DNA samples: When you have to give a sample

Overview

Criminal Investigations (Bodily Samples) Act 1995, Part 3, s 39, Schedule

This section of the chapter explains when the police can require you to give them a sample of your DNA, which is done by getting a small blood sample from your finger or by swabbing the inside of your mouth. This section also explains the rules the police have to follow when they get a sample.

The police can require you to give a DNA sample if they’ve arrested you for a criminal offence that carries a possible jail term, or if they intend to charge you with one of those offences. If you’re a suspect but they don’t have enough evidence to arrest you or charge you, they can ask you to give a sample voluntarily, and if you refuse they can only get a sample from you if they go to a judge and get a court order – called a “compulsion order”.

In general, the police can’t get DNA samples when they’re investigating less serious offences like common assault or wilful damage. In those cases, the police can’t take a DNA sample from you without your consent, and the courts have no power to order you to provide a sample.

What is DNA and how are samples taken?

Your DNA is found in every cell of your body and it contains your individual genetic code. Because everyone’s DNA is slightly different, it can be used to identify you and so it’s useful as evidence in criminal cases.

A DNA sample is taken either by swabbing the inside of your mouth (called a “buccal test”), or by a blood test, usually done by pricking your finger. You can usually choose which way the sample is taken from you, unless a judge orders that it has to be done a particular way.

When can the police make me give them a DNA sample?

Criminal Investigations (Bodily Samples) Act 1995, ss 5, 52, Schedule

There are two situations when the police can legally make you give them a DNA sample:

There are rules the police have to follow that deal with when they’re allowed to ask you for a sample and the process they have to follow, see “Giving a DNA sample voluntarily”.

Note: You should always talk to a lawyer before agreeing to give the police a DNA sample.

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Police powers

Where to go for more support

Community Law

www.communitylaw.org.nz

The Community Law website contains legal information, education, and law reform resources about the police. Your local Community Law Centre can provide free initial legal advice about any issue relating to the police.

YouthLaw Aotearoa

www.youthlaw.co.nz

Phone: 0800 UTHLAW (0800 884 529)
Email: nzyouthlaw@gmail.com

YouthLaw provides free legal advice for young people throughout New Zealand. The YouthLaw website provides great information for young people about the law.

“You and the police” (Law Society pamphlet)

This pamphlet has information about what to do when being questioned or arrested by the police. You can access the pamphlet online at:
www.lawsociety.org.nz/about-us/about-our-publications/law-awareness-brochures

You can also order hardcopies from:

Phone: (04) 472 7837
Email: pamphlets@lawsociety.org.nz

Independent Police Conduct Authority (IPCA)

www.ipca.govt.nz

Phone: 0800 503 728
Email: info@ipca.govt.nz

The IPCA receives and investigates complaints against the police. A complaint form is available online.

Legal Aid

www.justice.govt.nz/courts/going-to-court/legal-aid

The Ministry of Justice website has a range of information about Legal Aid.

It also has information about the Police Detention Legal Assistance Scheme (free legal help when someone is being held, arrested or questioned by the police) – go to:
www.justice.govt.nz/courts/going-to-court/legal-aid/legal-help/in-police-custody

You can also order hard copies of Ministry of Justice pamphlets from:

Phone: 0800 587 847
Email: publications@justice.govt.nz

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