Brianna's Law Passed

Posted By Joey Gilbert Law || 24-May-2013

On Monday May, 20, 2013, the famous Brianna's law for DNA testing passed 29-9 in state Assembly. For those who don't know what Brianna's law is, it is a bill that proposes that whenever a person is booked for a felony arrest they must get a cheek-swab. The bill was named after a girl who lived in Reno who was abducted and murdered, Brianna Denison, back in 2008. Many believe that if the bill had been proposed and passed prior to this murder, Denison might have still been alive. If the arrest goes though then the DNA taken from that person would be cross-referenced with DNA from other crime scenes to make sure that any others open cases isn't involved with the person arrested. If probable cause is not established after the arrest then the DNA taken would be destroyed before any cross-referencing is made. The bill is now going to move onto Gov. Brian Sandoval for approval. Although the intention of this bill is to protect the safety of the public and exonerate people all the while, many people call it unconstitutional. The reason is that it seems to be an unreasonable search and seizure.

If we look at previous court case decisions, for example, Missouri v. Mcneely we might ask if Brianna's Law is in fact violating the Fourth Amendment to the United States Constitution. In Missouri v. McNeely around 2 a.m. on October 3, 2012, Mr. McNeely was pulled over for speeding in Missouri. After failing many tests of sobriety he was asked to take an alcohol breath test which McNeely refused to give. From there he was transported to a clinic where the staff administered a blood test without Mr. McNeelys consent. The test proved that Mr. McNeelys BAC was well above the alcohol level and he was charged with a DUI. At trial the judge ruled in McNeely's favor saying that administering a blood test without the consent of the person was in fact a violation against the Fourth Amendment. Prosecutors appealed and argued that doing the test without a warrant was justified because delaying the test to get a warrant would destruct the evidence. The stated appeals court agreed and reversed the trial court decision, but the Missouri Supreme Court reversed that decision again saying that the test was not justified. The US Supreme Court granted a petition for writ of certiorari on September 25, 2012. They agreed with the Missouri Supreme Court that the drawing of blood involuntarily is a "search" that is used in the Fourth Amendment and a warrant is generally required.

If you or a loved one are facing criminal charges in Reno or Lake Tahoe areas, contact Joey Gilbert Lawto discuss your rights. Call (775) 574-4774 ​

Categories: Criminal Defense
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