Supreme Court upholds genetic testing

The Nevada Supreme Court has upheld a state law permitting genetic marker testing of people convicted of certain crimes.

The primary focus of the DNA testing law was sex offenders, who experts say are prone to be repeat offenders. But the law, as amended by the 1999 Legislature, also includes burglars - another group of felons who often commit the same crime over and over again.

Among those was Melvin Taylor Gaines, who was convicted of one gambling cheating charge, then arrested for burglary while on probation. He was then arrested for another, separate burglary charge while awaiting revocation of his first suspended sentence due to the second burglary arrest.

The Clark County judge sorted out his sentences on the various crimes and ordered that Gaines' DNA be tested and recorded in case he decides to commit more such crimes when he is eventually released.

He appealed, saying the DNA test was a violation of his rights.

According to the opinion, Gaines argued that even a convicted person has rights which "may not be diminished for the purpose set forth in the genetic marker testing statute - assisting the state in solving future crimes."

His lawyers argue a warrant and probable cause should always be required to draw blood unless there are circumstances such as medical emergencies requiring immediate testing.

While the Nevada court agreed that involuntary collection of blood samples from someone accused of a crime constitutes a warrantless search and seizure, it cited U.S. Supreme Court rulings that also say someone already convicted of a crime "has a diminished expectation of privacy."

The court ruled testing of Gaines for DNA markers was permitted because "a convicted person has no fundamental right to be free from DNA genetic marker testing."

The court, in an opinion by justices Bill Maupin, Miriam Shearing and Nancy Becker, ruled the Nevada DNA testing law for certain felons is constitutional.