The provision of the DNA Act (Pen. Code, § 295 et seq.) that requires a DNA sample to be taken from all adults arrested for or charged with a felony offense is unconstitutional under article I, section 13 of the California Constitution. Buza was arrested after setting a police car on fire. While confined in county jail and prior to any appearance before a judge, he refused to provide a DNA sample as required by the DNA Act (Pen. Code, § 296.1, subd. (a)(1)(A), 296 subd. (a)(2)(C)). A jury convicted Buza of felony offenses related to the arson and refusal or failure to provide a DNA specimen. (Pen. Code, § 298.1, subd. (a).) Buza appealed. In a previous opinion, the Court of Appeal held that the seizure of a person’s DNA shortly after arrest violates the Fourth Amendment right to be free from unreasonable search and seizures and reversed Buza’s conviction for failure to provide a DNA specimen. The California Supreme Court granted review and remanded the case with directions to vacate the prior decision and reconsider the matter in light of Maryland v. King (2013) __ U.S. __ [133 S.Ct. 1958] [rejecting Fourth Amendment challenge to a Maryland statute requiring collection of DNA from arrestees charged with “serious crimes”]. Held: Conviction reversed. Like the Fourth Amendment, article I, section 13 of the California Constitution protects people against unreasonable searches and seizures. However, it provides greater protection of an arrestee’s privacy interests than the Fourth Amendment. The court here found that the arrestee provisions of the DNA Act are invalid under the California Constitution because the governmental interest in DNA testing at this early stage does not outweigh arrestees’ reasonable expectation of privacy in their DNA information. The Act allows DNA to be collected from arrestees who will never be charged or convicted of any crime and places the burden on the arrestee to pursue an onerous expungement process that is unreviewable. The DNA Act also intrudes upon the privacy interests of individuals who have not had contact with law enforcement because it does not prohibit familial searching, which uses an individual’s DNA profile and a profile in the DNA database to implicate a close biological relative as a possible suspect.

The Court of Appeal was not required to defer to the U.S. Supreme Court’s decision in Maryland v. King in interpreting the California Constitution. In King, the majority opinion stated its intention to create a rule of national application despite acknowledging differences in various states’ DNA testing statutes. Here, the Court of Appeal declined to decide whether the differences between the California and Maryland DNA laws require a different resolution of the Fourth Amendment issue, and instead concluded that the DNA Act is unconstitutional under the California Constitution. Although article I, section 13 of the California Constitution is almost identical to the Fourth Amendment, a provision of the state Constitution may be construed differently from a parallel provision of the federal Constitution. (People v. Teresinski (1982) 30 Cal.3d 822 [enumerating relevant factors to consider in deciding whether California Constitution should be construed differently].) In analyzing the DNA Act under the California Constitution, the court declined to adopt the reasoning of King, finding that “the King majority’s view of the purpose of DNA testing thoroughly inapplicable to the California DNA Act, and the court’s view of the information exposed through DNA testing too dismissive of scientific knowledge and practical considerations.” The court here disagreed with the premise that DNA analysis is like a fingerprint that is used for the purpose of identification, rather than investigation. The court also concluded that Proposition 8 did not require it to follow federal precedent on this issue. The “substantive scope” of article I, section 13 was not altered by Proposition 8’s requirement that California courts admit evidence that would not be excluded under the Fourth Amendment. The question here is whether the state can criminalize the refusal to comply with a search that would violate the state’s proscription against unreasonable searches.