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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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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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