Giancola-Durkin, P.A.

Police using DNA dragnet to identify care patient's assailant

In the tragic situation at Hacienda HealthCare in Phoenix, it's understandable that the police would want to do everything in their power to solve the case. On Dec. 29, a patient in a persistent vegetative state gave birth after becoming pregnant at the nursing facility. The president of the facility resigned in response to the incident, and state health officials have required the facility to increase patient safety.

The Phoenix police, armed with a search warrant, are working to obtain the DNA of every male staffer who worked at Hacienda HealthCare during the period when the patient was impregnated.

According to the Arizona Republic, the facility itself considered ordering male employees to undergo DNA testing. The company was advised by its attorneys that demanding, or even asking for genetic testing of employees would be a violation of federal law.

Yet demanding DNA from dozens of innocent people in an effort to identify one guilty person could be legal, especially when it's backed by a warrant from a judge.

There are important legal issues to consider when the police collect DNA evidence from a group of people, many of whom will be innocent. The U.S. Supreme Court has ruled, for one, that the collection of blood requires a warrant, even when someone is reasonably suspected of a crime. In another case, the high court ruled that DNA cheek swab tests are less intrusive and can be gathered without a warrant -- but the ruling applies only to arrestees.

The real intrusion here is not necessarily the DNA test itself but the meaning of the test. Having to submit DNA under these circumstances means that the male staffers at the facility are all under suspicion.

Being under suspicion for a sex crime can not only be personally devastating, but it can also have serious consequences to your reputation and, depending on the situation, other aspects of your life such as your job, professional license, living situation and even child custody rights.

This is indeed a tragic case. Unfortunately, tragic cases are the ones where law enforcement may be most incentivized to cut legal corners and risk violating people's rights in their quest for answers.

When someone is subject to blanket suspicion like this, an experienced criminal defense attorney is often needed in order to ensure that their rights are protected.

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