- Associated Press - Friday, July 11, 2014

MONTPELIER, Vt. (AP) - The Vermont Supreme Court ruled Friday that the state can’t collect DNA from suspects in criminal cases unless they have been convicted of a felony.

The split decision court rolls back an expansion of DNA collection that has been both contested and praised for years.

The ruling preserves the presumption of innocence in Vermont, according to defense attorney David Sleigh.

“Your entire genome doesn’t become the property of the state merely because you’ve been charged with a crime,” Sleigh said.

In a 3-2 decision written by Justice John Dooley, the court ruled unconstitutional a state law allowing collection of DNA from people charged with felonies.

The dissent by Chief Justice Paul Reiber said the ruling overstated the privacy rights of people charged with felonies.

“The majority unduly restricts the state’s ability to make good on its fundamental duty to do justice through enforcement of laws,” Reiber wrote.

Those who have been convicted of felonies can still have their DNA collected.

Supporters of the state law said DNA collection is the best way to prevent crimes.

“I know without a doubt that somewhere in Vermont there is a mother whose daughter will die in the future because of this decision today,” said Jayann Sepich, co-founder of a national group, DNA Saves, which has pushed for expanded DNA testing in the criminal justice system.

Three years ago, Vermont’s DNA database law was expanded to include people charged with felonies. The change was part of reforms enacted in the wake of the 2008 murder and sexual assault of Brooke Bennett, 12, by her uncle Michael Jacques. He is now serving a federal sentence of life without parole.

Five Vermont trial courts ruled that the law was unconstitutional.

The high court decision says DNA collection at arraignment violates a defendant’s right to privacy, while the dissent says the decision restricts the state’s ability to enforce the law.

Assistant Attorney General John Treadwell, who defended the law, said Friday the attorney general’s office was still reviewing the decision. It has the option of requesting a re-argument, a request that must be made within 14 days.

“It’s basically an opportunity to argue that perhaps the court is mistaken in its view of a specific issue,” Treadwell said.

Appealing to the U.S. Supreme Court will most likely not be possible since the decision was based on the Vermont Constitution, not the U.S. Constitution, according to Treadwell.

Sepich, who started her organization after the 2003 sexual assault and murder of her 22-year-old daughter, said she hopes the state pursues a re-argument because she believes there was a misunderstanding of the system that stores DNA. According to Sepich, fingerprints are more invasive because they are attached to a permanent record and searchable by employers.

Dan Barrett, staff attorney for the American Civil Liberties Union of Vermont, said DNA should be safeguarded because of the vast amount of information it contains.

There will always be cases cited where it would have benefited law enforcement to gather evidence without a warrant, he said.

“But we have made a decision as a state to enshrine in our constitution, in our basic founding document, even though it may be easy and convenient, we need to have a check on the executive branch through a warrant,” Barrett said.

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