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Collecting DNA Samples

This page explains the rules governing when the Police can ask for your consent to provide a DNA sample, and when the Courts can require you to provide one.

Introduction

Police requests for DNA samples: giving a sample by consent

Compulsion orders: giving a sample when required by the Courts

The DNA profile databank

Disposal of DNA samples

Introduction

The Criminal Investigations (Bodily Samples) Act 1995 sets out rules for when the Police can take DNA samples from suspect during criminal investigations.

What is DNA?

DNA, a nucleic acid found in every cell of the human body, contains each person’s individual genetic code. Because each person’s DNA is slightly different, it can be used to identify them. It’s therefore useful as evidence in solving crimes.

How is a DNA sample taken?

A DNA sample is taken either by a buccal test, which is done by swabbing the inside of the mouth, or by a blood test, which is usually done by pricking a finger.

A person can choose which method is to be used, unless a judge orders that it must be done in a particular way.

When can the Police take a DNA sample?

The Police can take a DNA sample from you in the following three situations:

  • With your consent - The Police can take a sample if they suspect you of any offence for which you can be imprisoned (an "imprisonable" offence), and you've consented to them taking the sample.
    • But if you're aged 14, 15 or 16, your consent isn't legally effective unless one of your parents has also consented. In general, children under 14 can't be charged with criminal offences (for exceptions to this, click here), and they aren't covered by these laws allowing DNA samples to be taken.
  • By court order - If the Police suspect you of an imprisonable offence, the courts can order you to give a sample (these are called "compulsion orders").
  • If you're arrested or about to be charged - The Police can require you to give a DNA sample if they've arrested you for an imprisonsable offence or if they intend to charge you with an imprisonable offence.
    • But if you're under 17 the Police can only do this if the offence in question is one of a special category of serious offences; these are listed in the Schedule to the Criminal Investigations (Bodily Samples) Act 1995.

The Police must follow the proper procedures for taking the sample.

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Police requests for DNA samples: giving a sample by consent

Steps the Police must take when requesting DNA samples

If the Police have reasonable grounds to believe that a DNA sample would confirm or disprove that you were involved in an imprisonable offence, they can ask you to give a DNA sample.

The Police must give you information about your rights and the processes for taking and analysing the sample. As well as giving you a written notice, they must also tell you certain key things, in a way and in language you can understand, including:

  • the offence their request relates to
  • that they have reasonable grounds to believe the sample will confirm or disprove your involvement in the offence
  • that you don’t have to give a sample, and if you do consent to giving it, you can withdraw your consent at any time before giving the sample
  • that you can talk to a lawyer before deciding whether to consent
  • that the sample can be used in evidence against you in court
  • that if you don't consent, and there's good reason to suspect you committed the offence, the Police might apply to the District Court for a compulsion order requiring you to give the sample.

You have 48 hours to decide whether to consent to giving a sample. After that, you’re taken to have refused consent.

Special requirements for requesting DNA samples from young people

If you’re aged 14, 15 or 16 and the Police want to request a DNA sample from you, the conditions explained above still apply, but with these modifications:

  • notifying parents:
    • the Police must take all reasonable steps to also give a copy of the notice to one of your parent
  • parental consent:
    • the Police must tell you that a sample can only be taken if both you and a parent consent, and that your parent doesn’t have to consen
    • the written notice given to you and your parents must also say that if your parent consents to the sample, they can withdraw their consent at any time before the sample is taken
    • the notice must also say that your parent may wish to talk a lawyer before deciding whether to consent.

The Police can’t request a sample from a child who’s under 14, with the following exception.

If you’re 10 or older but under 14, and the Police suspect you of committing offences, the Police can ask for a buccal sample (a swab from inside the mouth). If this tends to prove you were involved in the offence, the Police or someone else can then apply to the Family Court for a care and protection declaration. In general, children under 14 can’t be charged with criminal offences. For more information about care and protection processes, see Info sheet Children And Young People – Care And Protection

In what form does consent to a DNA sample request have to be given?

Consent must be:

  • in writing and signed by the person giving it, or
  • given verbally and recorded on video.

Compulsion orders: giving a sample when required by the Courts

In certain cases the courts can make a compulsion order requiring a person to provide a DNA sample.

When can the Police get a compulsion order?

The Police can apply to the District Court for a compulsion order to take a DNA sample from you if:

  • the Police have good reason to suspect that you’ve committed an offence for which you can be imprisoned (an "imprisonable offence"), and
  • you’ve refused a Police request for a DNA sample.

Will I be told that the Police have applied for a compulsion order?

Yes, the Police must send you a notice, telling you that they’ve applied to the court and that you can give evidence to the court opposing the compulsion order.

What happens if a compulsion order is granted?

If the District Court grants a compulsion order, the order will set out the details of when and where you must go to give a sample. You can take your lawyer or another person with you when you give the sample.

Special requirements for compulsion orders relating to young people

If you’re under 17, the following additional conditions apply:

  • type of offence – the alleged offence must be one for which you can legally be charged. The rules in this area are as follows:
    • children under 10 can’t be charged with an offence
    • children aged 10 or 11 can be charged only with murder or manslaughter
    • children aged 12 or 13 can be charged with murder, manslaughter and certain other serious offences (see Infosheet Children and Young People – Youth Justice: Ages of criminal responsibility).
    • Young people aged 14, 15 or 16 can be charged with any offence.
  • notifying parents – a copy of the application must also be served on one of your parents
  • appearing at the hearing – the following people are entitled to appear and give evidence to the District Court, opposing a compulsion order being made:
    • you yourself
    • your lawyer (the judge will appoint one for you if you don’t have one)
    • your lay advocate, if the Youth Court has appointed one for you
    • your parents
    • a lawyer representing your parents, and
    • any other person who has the District Court’s permission.

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Giving a DNA sample when under arrest or about to be charged

 

When the Police can require you to give a DNA sample

The Police can require you to give a DNA sample if they've arrested you for an imprisonable offence or if they intend to charge you with an imprisonable offence.

However, if you're under 17 the Police can only do this if the offence in question is one of a special category of serious offences that are listed in the Schedule to the Criminal Investigations (Bodily Samples) Act 1995. These include:

  • various sexual offences
  • murder and manslaughter
  • violent offences such as wounding with intent to cause grievous bodily harm and aggravated injury
  • kidnapping or abduction
  • burglary, robbery and theft
  • arson
  • poisioning and infecting with disease
  • smuggling migrants and trafficking in people.

You can read the Act at www.legislation.govt.nz.

This power doesn’t apply to children under 14.

DNA information obtained from the sample can’t be used in court against you.

It’s a criminal offence to refuse to allow the Police to take a sample in these situations if, as a result of your refusal, the Police don’t take a sample. For this you can be jailed for up to three months of rined up to $2,000.

Information the Police must give you if they require a sample

The Police must give you information about your rights and the processes for taking and analysing the sample. As well as giving you a written notice, they must also tell you certain key things, in a way and in language you can understand, including:

  • what the particular offence is
  • when and for how long your DNA information can be stored in a DNA databank and who will have access to it
  • how and by whom the sample can be taken (you can choose whether to have it taken by a fingerprick or a moth swab)
  • that if you’re aged 14, 15 or 16, you have the right to have a parent or caregiver with you when you give the sample, and also a lawyer or other person of your choice
  • that if you refuse to give a DNA sample, the Police can use reasonable force to take a fingerprick sample from you
  • that the results of the sample cannot be used in court against you.

How long can the Police keep my DNA information for?

Once you’ve been charged with the offence, the Police can store your DNA profile on a temporary databank. It can be kept there until, depending on the outcome of your case, it must be deleted or can be stored in the permanent databank.

The DNA profile databank

The Police maintain a database of DNA profiles that they’ve collected from bodily samples, to use in future criminal investigations. However, there are restrictions on which profiles the Police can keep.

What can the Police use the databank for?

The Police can only access the information in the databank if they need to compare it with evidence that they’ve obtained in a criminal investigation.

When can the Police collect samples for the databank?

The Criminal Investigations (Bodily Samples) Act 1995 allows for the Police to collect DNA samples for the databank, in addition to the powers explained in the previous sections of this infosheet.

Samples can be collected from you for the databank in one of two ways:

  • with your consent
  • by a databank compulsion notice, without your consent.

Collecting samples by consent

If you’re 17 or older the Police can ask you to give a DNA sample for the databank. It’s up to you to decide whether or not to give a sample. The Police can’t ask a person under 17 for a sample.

The Police must give you information about your rights and the processes for taking and analysing the sample. As well as giving you a written notice, they must also tell you certain key things, in a way and in language you can understand, including:

  • the purpose of taking the sample
  • that you don’t have to give the sample, and that if you consent to giving it, you can withdraw your consent at any time before giving it
  • that you may want to talk to a lawyer before deciding whether or not to consent
  • that after the sample is analysed, you could be charged with a criminal offence
  • that at any time after the sample is taken you can withdraw your consent to the Police using the sample, except in certain cases.

If you’re in Police custody when they ask you for the sample, you have the right to talk to a lawyer about this.

Databank compulsion notices

The Police can issue a databank compulsion notice to take a sample from you if you’ve been convicted of an imprisonable offence.

If you’ve received a databank compulsion notice, you can ask for a court hearing to oppose the requirement to provide a sample.

If you don’t give the sample when required, including if you’ve been unsuccessful after a court hearing, the Police can apply for a warrant to arrest and hold you until they can take a sample.

If you still refuse to give a sample, the Police can use reasonable force to allow a suitably qualified person to take the sample.

How long DNA profiles and samples can be kept for

This section explains what happens to DNA information ("profiles") and samples taken under the Criminal Investigations (Bodily Samples) Act.

Samples taken from suspects with their consent or by court order

The following explains what happens to your sample and records, including your DNA profile, if the sample was taken with your consent or under a court order while you were a suspect in a Police investigation.

  • If you’re not charged, the Police must destroy the sample and records two years after the date it was taken, unless a District Court Judge allows a longer time.
  • If you’re charged but the Police withdraw the charge or you’re found not guilty, the sample and records must be destroyed as soon as practicable.
  • If you’re convicted, what happens depends on the type of offence:
    • If you’re convicted of an imprisonable offence, your DNA profile and other records can be kept indefinitely (although the sample that was taken from you must be destroyed as soon as possible after the time allowed for you to appeal your conviction has passed).
    • If the conviction isn’t for an imprisonable offence, the sample and records must be destroyed as soon as possible after the time allowed for you to appeal your conviction has passed.

Samples taken while you were under arrest or about to be charged

The following explains what happens to your sample and DNA profile if the sample was taken by the Police because they had arrested you for an imprisonable offence or because they intended to charge you with an imprisonable offence.

In all cases the sample itself must be destroyed as soon as practicable after a DNA profile is obtained from it.

As for the DNA profile and other records, the following rules apply:

  • if you’re not charged with the offence, the records must be destroyed two moths after the sample was taken
  • if you’re charged with the offence but the Police withdraw the charge or you’re found not guilty, the records must be destroyed as soon as practicable
  • if you’re convicted of the offence, the records can be kept indefinitely.

Samples collected for the databank by consent or under a compulsion notice

If you agreed to give a sample for storage in the DNA databank, then at any stage you can write to the Police to have your DNA profile taken off the databank.

If you gave a sample for the DNA databank under a compulsion notice after being convicted of an imprisonable offence, your DNA profile will be held in the databank indefinitely.

DNA samples taken from young people

There are special time limits for keeping DNA profile obtained from young people.  

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(Updated: March 2012)