OR: Parents’ consent to taking DNA from juvenile wasn’t valid

A juvenile accused of a sex offense also has to consent with his parents to taking a DNA swab. The parent’s consent alone is not enough. In re H. K. D. S., 305 Ore. App. 86, 2020 Ore. App. LEXIS 811 (July 1, 2020):

In other words, for all practical purposes, the state is asking us to craft a new warrant exception or broaden an existing, more limited, one. Moreover, it is asking us to do so in a way that would mean that children do not receive the full range of procedural protections afforded to adults in the Oregon criminal justice system. In Oregon, children age 12 through 17 can potentially be held criminally responsible for their conduct, ORS 161.290, in just the same way that adults age 18 and above can. Yet the state proposes that children be afforded fewer rights than adults in the criminal investigatory process.

That counsels caution. Recognizing or expanding a warrant exception has significant consequences for the privacy of Oregonians. When undertaking to do so, we should proceed carefully and should entertain the state’s request for a new or expanded exception only when the state has made a strong and supported case as to why it is reasonable to recognize a new exception and forgo the protection to our privacy rights afforded by a neutral magistrate’s assessment of a proposed warrant. That is especially true where, as here, the state’s proposed rule of law (1) would result in children who are subject to criminal prosecution in this state receiving less in the way of criminal procedural protections than adults and (2) allows for a warrantless search that places children’s DNA in the hands of the state—something with consequences that likely go far beyond any that have yet transpired, and any that we have yet imagined.

Here, the state has not made that case. In particular, the state has not shown that obtaining a warrant would be particularly burdensome under circumstances like those in this case or that there are other factors in play that should cause us to conclude that the time is ripe for a new or expanded warrant exception.

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