Did You Know that Law Enforcement Can Obtain Your DNA While Criminal Charges are Pending?

Question

Under what circumstances can you be required to provide a DNA sample if arrested under federal or state law?

  • Under federal law, anyone arrested can be required to submit a DNA sample.

  • Under Illinois law, collection of DNA prior to conviction is only permissible if charged with the most serious crimes (e.g., murder, aggravated sexual assault, home invasion).

  • Anyone convicted of a felony in Illinois must submit a DNA sample to the Illinois State Police.

  • Illinois law only authorizes the destruction (expungement) of DNA samples when aconviction is vacated due to actual innocence or if the charges warranting collection prior to conviction are dismissed or amended to charges that don't authorize DNA collection.

Last fall during Midway Blitz a number of protesters were arrested outside the Broadview ICE facility, in suburban Cook County. For many of these protesters, it was their first time being arrested or detained.

Some of the protesters taken into custody by ICE were never formally charged with a crime. For those charged (battery to an ICE officer), many ended up having their charges dismissed either because the allegations of criminal misconduct were unfounded (ICE officer lied) or, in a few cases, prosecutorial misconduct led to the dismissal of charges.

While considerable news coverage was given to these arrests, no coverage was given to the fact these protesters were ordered to submit a DNA sample – without regard to whether they were ever charged with a crime. If they refused to do so, they were falsely threatened with felony charges for failing to cooperate. Under the federal law, failure to provide a DNA sample is a misdemeanor.

Federal Law Authorizes DNA Collection Following Arrest

Under the federal DNA Identification Act of 1994 and DNA Analysis Backlog Elimination Act of 2000 (collectively referred to as the “DNA Act”), federal law enforcement has the authority to collect a DNA sample from anyone who has been “arrested, facing charges, or convicted” of a felony, any crime of violence or sexual abuse offense, or an attempt or conspiracy to commit any of the aforementioned crimes. 34 U.S.C. Sec. 40702 (a)(1)(A), (d)(1)-(4).

DNA samples are used to create a DNA profile that is uploaded to the Combined DNA Index System (“CODIS”). This system houses DNA profiles collected by federal and state law enforcement agencies and is maintained by the FBI. The purpose of CODIS is to help identify crime suspects.

The federal expansion of DNA collection to include arrestees and illegal immigrants (defined as someone living in the U.S. without proper authorization), occurred in 2006. The rationale provided at the time: assist in the identification and prosecution of sexual predators and those immigrants who’d committed crimes while living in the U.S.

Illinois Protesters File Lawsuit to Challenge ICE’s DNA Collection & Retention

Four Broadview protesters arrested during the Midway Blitz filed suit in federal court earlier this year, arguing that their First and Fourth Amendment rights were violated when they were ordered to provide DNA samples after being detained.

Of the four protesters, two were released without being charged and the other two protesters faced misdemeanor charges that a judge later dismissed. Despite the fact none of these arrests resulted in a conviction, the federal government still has their DNA.

The protesters contend that the real reason ICE officers obtained their DNA was for surveillance (not law enforcement) purposes. See Briggs v. Mullin (Case No. 1:26-cv-05238, filed May 6, 2026 in N.D. ILL).  

Unlike most state DNA collection laws -- which place limits on the collection of DNA prior to conviction -- the federal DNA Act contains no such limits. To date, the U.S. Supreme Court has not ruled on the constitutionality of the DNA Act. In fact, the last time the Court considered the constitutionality of collecting DNA prior to conviction was in 2013.

In Maryland v. King, 569 U.S. 433 (2013), the Court was asked to determine whether Maryland’s DNA pre-conviction collection law was a legal search, consistent with the Fourth Amendment’s protections against unlawful search and seizure.

In a 5-4 ruling, the Court upheld Maryland’s DNA collection law (finding no Fourth Amendment violation), relying on these factors: 1) Maryland’s DNA collection was limited to arrests for violent felony offenses, and 2) collection only took place after an indictment had been returned or probable cause had been met. Notably, the factors the U.S. Supreme Court cited in upholding Maryland’s DNA collection law are not present in the federal DNA Act.

Whatever the outcome in Briggs v. Mullin, it is fair to say that the case will end up before the Supreme Court. A ruling on whether the federal DNA Act’s collection practices run afoul of the Fourth Amendment (in the absence of charges or indictment) is long overdue.[1]

Given how often ICE officers have been caught lying – forcing Justice Department lawyers to dismiss criminal charges against protesters in Chicago and elsewhere -- should cause anyone who values their First and Fourth Amendment rights to be alarmed.     

Illinois DNA Collection

Illinois is one of 34 states that collects DNA prior to conviction for some or all felony offenses. Nineteen states collect DNA from arrestees for any felony offense. Illinois is among 15 states that collect DNA from arrestees charged with the most serious felony crimes.

Initially, Illinois only collected DNA for certain convictions. That changed in 2012, when the state’s DNA Database Act was amended to allow for the collection of DNA prior to conviction:

  • First-degree murder;

  • Home invasion;

  • Predatory criminal sexual assault of a child;

  • Aggravated criminal sexual assault (of an adult or child); and

  • Criminal sexual assault (adult or child).

Like the Maryland law, Illinois only permits arrestee DNA collection after indictment (adult cases) or a probable cause hearing.

Once someone has been convicted, the list of offenses subject to DNA collection includes:

  • Any felony offense;

  • Any offense (misdemeanor or felony) that subjects someone to registration under the Sex Offender Registration Act;

  • Anyone institutionalized after being found guilty but mentally ill of a sexual offense;

  • Any crime resulting in a life sentence;

  • Stalking (misdemeanor and felony); and

  • Any conviction for attempt to commit any of the aforementioned crimes.

The state’s DNA collection rules (both pre- and post-conviction) apply equally to adult (ages 18 and over) and juvenile (ages 13-17) offenders. 730 ILCS 5/5-4-3.

Under What Circumstances are DNA Samples Eligible for Expungement?

At the present, the Illinois DNA Database Act only authorizes the expungement (destruction) of DNA (and one’s DNA profile in CODIS) for two reasons.

Case Dismissal or Acquittal

The expungement of a DNA sample collected prior to conviction is warranted when the charges that led to the arrestee’s DNA collection are dismissed by the court or withdrawn by the State’s Attorney.

Conviction Overturned Based on Actual Innocence

DNA expungement also applies to convictions that have been overturned or vacated on the basis of actual innocence.[2] Although the DNA Database Act lists two ways of establishing actual innocence -- by a court or the granting of a pardon based on actual innocence – pardons in Illinois are never granted on the basis of actual innocence.

In Illinois, in order to obtain compensation for being wrongfully convicted a defendant must obtain a Certificate of Innocence. The other benefit of obtaining a Certificate of Innocence is that the court is ordered to expunge the record of arrest and seal the record reflecting the dismissal of the conviction. 735 ILCS 5/2-702.[3]

Convictions Vacated on Other Grounds Not Eligible for DNA Expungement

Convictions Vacated on Constitutional Grounds

Between 2008 and 2010, the U.S. Supreme Court issued two critical decisions that resulted in a more expansive reading of the Second Amendment. See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010). The impact of these rulings was to decriminalize possession of a firearm outside of one’s residence. In 2013, the Illinois Supreme Court adopted the Court’s Second Amendment analysis in People v. Aguilar, 2 N.E.3d 321 (Ill. 2013).

The ruling in Aguilar effectively invalidated several sections of the Illinois Criminal Code relating to the possession of a firearm. These provisions typically involved someone having a gun in their car or in their coat pocket.

Currently, there is no statutory right to request DNA expungement based on the constitutionality of the criminal violation.[4]

Qualified or Special Probation

Another scenario that does not authorize DNA expungement is where a defendant is sentenced to special or qualified probation for a felony offense.[5] Provided that probation is completed successfully, the judge overseeing the case vacates and dismisses the charges. Even though these individuals are eligible to expunge their court record in five years, they currently have no right to expunge their DNA specimen despite having no felony conviction on their record. 

Who Initiates the Expungement of DNA in Illinois?

The DNA Database Act provides the following guidance:

Upon receipt of notification of a reversal of a conviction based on actual innocence … the [State Police] Department shall by rule prescribe procedures to ensure the record and any specimens …are destroyed and a letter is sent to the court verifying the expungement is completed.

For specimens required to be collected prior to conviction … the [DNA] specimen [shall be] destroyed upon receipt of a certified copy of a final court order … . The Department shall by rule prescribe procedures to ensure that the record and any specimens … are destroyed and a letter is sent to the court verifying the expungement is completed. (Emphasis added.)

730 ILCS 5/5-4-3(f-1).

When I reached out to the ISP for further clarification, I was referred to Illinois Administrative Code, Title 20, Section 1285.70. Unfortunately, the regulation merely paraphrases the statutory language.

Absent any step-by-step procedures or a form to fill out and submit to the State Police, the only way to ensure that a defendant’s DNA is expunged is to have one’s legal representative submit a certified court order to the ISP’s forensic unit. Ideally, the court order should specify the legal basis authorizing expungement.

It is unclear if a Certificate of Innocence is required for the expungement of DNA based on actual innocence. When asked, the State Police referred me back to the statute, 730 ILCS 5/5-4-3(f-1). The statute, however, is silent on whether a Certificate of Innocence is needed.   

Concluding Thoughts

Until such time the U.S. Supreme Court is asked to address the constitutionality of DNA collection under federal law, ICE officials will no doubt continue to collect DNA based on the flimsiest allegations of wrongdoing.

As currently written, Illinois law provides few avenues for DNA expungement – even where the applicable felony conviction is vacated and dismissed. The only way to expand the grounds for DNA expungement is for those impacted to advocate for themselves. Everyone should know who their state senator and representative are.


[1] Only five of the nine justices who participated in Maryland v. King remain on the Court today. The three justices that sided with the majority include Justices Roberts, Thomas, and Alito. The two justices that sided with the dissent include Justices Sotomayor and Kagan.

[2] Cook County leads the U.S. in the number of individuals who have been exonerated for crimes they did not commit. That number stands at 488. (Website last checked on Aug. 27, 2026.)

[3] Someone is entitled to receive a Certificate of Innocence if s/he satisfies the criteria set forth in section 5/2-702(g): 1) has been convicted of a felony and served all or part of their sentence; 2) conviction was reversed or vacated and charges dismissed, found not guilty or retrial or state declined to retry; and 3) defendant’s conduct did not cause him or her to be convicted.

[4] In 2025, the Illinois Supreme Court held that a defendant/appellant was not entitled to receive a Certificate of Innocence after his gun conviction was vacated under Aguilar because he could not prove he was innocent of all the charges. Some of the original gun charges were dismissed absent a determination of guilt or innocence. The dismissed gun charges had not been held unconstitutional. People v. Reed, 2025 IL 130595 (Oct. 23, 2025).

[5] Special/qualified probation is a form of deferred prosecution and is reserved for first-time or youthful offenders, individuals suffering from a substance abuse disorder, or who have had their case assigned to one of the specialty courts (e.g., mental health, veteran’s, substance abuse).

Ina Silvergleid