State v. Surge

¶30 (concurring) — I largely concur. Convicted felons do have a diminished privacy interest in their identifying information. State v. Olivas, 122 Wn.2d 73, 106, 856 P.2d 1076 (1993) (Utter, J., concurring). I write separately to caution that to the extent that RCW 43.43.754 purports to require misdemeanants to submit to DNA (deoxyribonucleic acid) testing, it may violate article I, section 7 of the Washington Constitution. More importantly, even felons may have an enforceable privacy interest in their DNA if it is used for something other than mere identification.

Chambers, J.

f 31 Critically, the statute we are asked to review specifically limits the use of DNA to identification purposes. RCW 43.43.754(2) (“Any biological sample ... shall be used solely . . . for identification analysis and prosecution.”). Like our facial features recorded on a photograph or our fingerprints left on a windowpane, the uniqueness of our individual DNA provides an effective identification tool. However, our individual DNA can provide much more than that, including information about our ancestry, our medical future, and even information about our biological family members. Each of us, including convicted felons, holds a deep and abiding privacy interest in much of this information. I confess concern that the government, and others with access to government information, will be unable to resist the temptation to use the DNA gathered today under this statute for purposes other than identification.

¶32 However, the statute clearly limits the government’s use of DNA to identification purposes. Should the State use or permit others to use DNA gathered pursuant to this statute in any manner other than that permitted by the current statute, the State may well overstep its constitutional authority and be accountable to anyone aggrieved.

¶33 I respectfully concur in result.