ANCHORAGE - The state can not demand DNA samples of convicted sex offenders who have completed their sentences, under a temporary restraining order issued by a federal judge.
The state must first obtain a warrant and show there is probable cause to believe a crime has been committed, according to the order signed by U.S. District Judge James Singleton for Judge John Sedwick.
The order cited a recent 9th U.S. Circuit Court of Appeals decision that said forcing parolees to submit blood samples to the federal government violates their constitutional rights unless there is reasonable suspicion that a crime has been committed.
Instead of blood samples, Alaska uses swabs to take DNA samples from the mouth. But attorney Darryl Thompson said a new state law mandating the sampling still violates his client's right to freedom from unreasonable search and seizure.
An offender identified in court papers as John Doe sued the state in federal court on Oct. 3. The restraining order was issued on Oct. 6 and Sedwick has extended it until Oct. 31. The judge is considering whether to issue a preliminary injunction further extending the ban on state DNA testing.
Thompson said Doe is a registered sex offender who has finished his sentence and is no longer on parole or probation. Doe isnt under state supervision or custody any longer and shouldnt have to give a DNA sample, his attorney told the Anchorage Daily News.
Thompson has argued that the judge should continue to block the state from taking DNA samples until the lawsuit is resolved.
But Kenneth Rosenstein, an assistant attorney general, wrote in a response that preventing the state from taking DNA samples would be against the publics interest.
It would deprive the state of a particularly effective identification tool with respect to a class of offenders who exhibit a high rate of recidivism and who commit a class of crimes that results in the type of evidence from which DNA information can be derived, he wrote.
In written arguments, Rosenstein said the 9th Circuit decision should not apply to this case because Alaska does not draw blood to get the samples.
He added that the state law, passed this year, provides another method for identifying offenders. It can be a tool for exonerating people as well as a way to detect repeat offenders, according to court documents.
The bill had bipartisan support in the Legislature. Anchorage Republican state Rep. Tom Anderson, a prime sponsor, said it was intended to solve crimes, prevent future ones and exonerate innocent people.
Thompsons client, who has not provided DNA to the state so far, has asked the court to recognize his lawsuit as a class action representing all convicted Alaska sex offenders who have completed their sentences and are not on parole or probation.