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The American Civil Liberties Union of New Jersey filed suit Jan. 21 to overturn the state’s mandatory DNA testing of criminals. The Mercer County suit asserts that collection of biological samples violates the rights of privacy and “bodily integrity” and also flouts constitutional due process and ex post facto provisions. The suit was triggered by the expansion last fall of the DNA collection law, N.J.S.A. 53:1-20.17 et seq. Until then, sampling was limited to those convicted of such crimes as murder, sexual assault and luring a child. Now the law applies to any first-, second-, third- or fourth-degree offense. What’s more, the law has a retroactive provision that ropes in offenders convicted prior to its effective date. The named plaintiffs in the ACLU suit fit those criteria. Jamaal Allah is serving time for two drug offenses, and A.A., a 15-year-old Princeton Junction boy, is on probation for a juvenile delinquency offense based on an altercation with a police officer. Juveniles are subject to the law if they commit an act that would fall under the law if committed by an adult. The plaintiffs’ lawyer, Gitanjali Gutierrez, says New Jersey’s DNA collection law has a longer reach than those in other states and fails to strike a proper balance between the rights of defendants and those of the general public. “In order to achieve that balance, the state must make a showing of individual suspicion before violating an individual’s bodily integrity,” says Gutierrez, a fellow at Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione, who is joined on the case by partner Lawrence Lustberg. The suit claims that compulsory collection violates the individual’s right to privacy, citing New Jersey Transit PBA Local 304 v. New Jersey Transit Corp., 151 N.J. 531 (1977). There, the Supreme Court upheld urine testing of police officers but made such tests subject to state and federal constitutional scrutiny. Attorney General Peter Harvey responded to the ACLU suit by issuing a statement defending the mandatory DNA sampling. “We believe the DNA law is valid and will vigorously defend it. DNA is one of the most important tools being used to solve cold cases, particularly rapes and homicides. “It will help provide justice to crime victims and their families by identifying the criminals who hurt them. DNA collections from convicted felons are now being used in more than 25 states and have survived numerous legal challenges,” Harvey’s statement said. The ACLU is amicus in a federal suit challenging New Jersey’s DNA law. It was filed last October in Camden by marijuana legalization activist Ed “NJ Weedman” Forchion, who seeks relief from the DNA law on his own behalf.

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