Supreme Court Rules Individuals Convicted of Domestic Violence Cannot Own a Gun

Supreme Court Rules Individuals Convicted of Domestic Violence Prohibited From Gun Ownership

Supreme Court Rules Individuals Convicted of Domestic Violence Cannot Own a Gun

Today, in Voisine v. United States,  the Supreme Court ruled that individuals convicted of misdemeanor domestic violence are prohibited from owning a gun under U.S.C. §922(g)(9). In another Supreme Court case, United States v. Castleman, the Court established that an individual loses his or her gun rights after being convicted of intentional domestic assault; however, there was still a question of whether an individual could be prohibited from owing a gun when the domestic violence conduct was reckless and not intentional.

Short Answer: Yes, an individual convicted of reckless domestic assault or battery is prohibited from owning a gun under federal law.

Can reckless conduct cause a person to lose his or her gun rights?

The two petitioners in Voisine were both convicted of domestic violence under the Maine Criminal Code § 207. Maine Criminal Code § 207 defines assault as “… intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person”.

The petitioners argued that the conduct which led to the criminal conviction was not intentional, but reckless and should not be considered a violation of U.S.C. §922(g)(9) or result in the loss of gun ownership rights.

The Supreme Court reasoned that Congress intended for individuals convicted of intentional assault and reckless assault to be barred from owning a firearm. In the 12 page opinion, the Court explained Congress’s definition of a “misdemeanor crime of violence” contains no exclusion for convictions based on reckless behavior and that “a person who assaults another recklessly uses force, no less than one who carries out that same action knowingly or intentionally”. The Court further asserted that “[f]irearms and domestic strife are a potentially deadly combination.

Can a person convicted of domestic violence in Ohio lose his or her gun rights?

34 states, including Ohio, have statutes which criminalize intentional and reckless harm against a family or household member. Under Ohio Revised Code § 2919.25 an individual may be convicted of domestic violence if he or she does the following:

  1. Knowingly causes or attempts to cause physical harm to a family or household member;
  2. Recklessly causes serious physical harm to a family or household member; or
  3. By threat or force, knowingly causes a family or household member to believe that the offender will cause imminent physical harm to the family or household member.

If an individual is convicted of domestic violence under Ohio Revised Code § 2919.25 he or she is prohibited from owning a gun under the federal statute U.S.C. §922(g)(9) regardless of whether the conduct was intentional or reckless.

Hire an attorney to increase likelihood of retaining gun ownership rights

Immediately after being accused or charged with domestic violence, it is important to consult an experienced domestic violence defense attorney. Individuals who represent themselves or hire a less experienced attorney are often scared into taking a plea deal in domestic violence cases. While a plea deal may result in little or no jail time, a domestic violence conviction will cause the individual to lose gun ownership rights.

Brian Joslyn of Joslyn Law Firm is an experienced domestic violence defense attorney. He has years of experience defending individuals accused and charged with domestic violence, domestic assault, aggravated assault, sexual battery, and rape. He is widely respected by the special domestic violence prosecutors and criminal court judges.

From the initial consultation, the team of attorneys will begin developing the strongest defense strategies to obtain the best possible results in your case. The Joslyn Law Firm aggressively defends individuals throughout Franklin County, including Columbus, Sunbury, Dublin, Reynoldsburg, Worthington, Groveport, Plain City, Heath, Granville, Baltimore, Bremen, South Bloomfield, New Holland, Commercial Point, and surrounding areas.

Contact the Joslyn Law Firm at (614) 444-1900 or (888) USA-RIGHTS for a free evaluation of your domestic violence case.

References: Voisine v. United States


Second Amendment and Gun Rights of Ohio Residents

Ohio Lawmakers Amend Gun Crime LawsThe Second Amendment of the United States Constitution, which grants Americans the right to keep and bear arms, has been a constant topic of debate since it’s ratification in 1791.

Originally, construed to allow individuals the right to keep and bear arms connected to necessary militia service, the United States Supreme Court held in 2008 that the Second Amendment protects an individual’s right to bear arms unconnected with service in a militia. Further, the Supreme Court held that an individual may use arms for traditionally, lawful purposes, such as self-defense within a home.

Despite the Supreme Court’s relatively recent clarification of the Second Amendment, there continues to be much debate regarding gun ownership, including whether a person should have an individual right to own a firearm, whether individual firearm ownership contributes to gun violence, and whether additional restrictions should be placed on individuals to prevent mass shootings and other catastrophic events.

Why is there a debate in the first place?

There involves considerable debate regarding the Second Amendment for multiple reasons. First, the Second Amendment was drafted over 225 years ago. The United States was an entirely different place in 1791. The American Revolutionary War, during which the United States ceded from Great Britain, ended only eight years prior. The United States had been involved in a domestic war called the Northwest Indian War against numerous Native American tribes for five years. Also, the United States only consisted of fourteen states.

Regular, non-military Americans, living in this new country with wild and unchartered terrain, were often the only line of defense in their town or village during times of war. This historical context has caused many persons to believe the drafters of the Second Amendment intended for individuals to keep and bear arms connected to a militia only.

Advocates of gun restrictions and limitations often assert contemporary Americans are no longer responsible for the defense of their towns and villages. Americans have law enforcement and military personnel to respond to emergency situations and threats to security.

Pro-gun advocates (persons who support the individual right to bear arms) assert the nature of threats have changed since 1791. While an individual is not responsible for the protection of an entire village or town, he or she is responsible for self-defense and the defense of their home.

Gun Rights in Ohio

The state of Ohio would be considered a “Pro-Gun” state. There are few restrictions and prohibitions regarding gun ownership in the state of Ohio.  The Ohio State Constitution provides:

The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

An individual age 21 or older may purchase handgun without a permit in the state of Ohio. Without a license the individual may only carry the weapon at his or her home. To carry or possess the weapon outside of the home, the individual must obtain a permit. Ohio is considered a “traditional open carry state”, which means with valid permit a gun owner may openly carry a firearm in public or engage in concealed carry, where the firearm is not visible to the casual observer.

To qualify for a permit, an individual must satisfy the following requirements:

  1. Must be at least 21 years of age
  2. Must be an Ohio resident for 45 days
  3. Must be a resident in home county for 30 days
  4. Must complete required education course and obtain a certificate
  5. Pass a criminal background check
  6. Pass a mental competency check

Common Firearm Related Charges

Despite the pro-gun laws in Ohio, there are several criminal charges that may result from unlawful possession of a firearm, including:

  • Improper Discharge of a Firearm: While Ohio does have relatively relaxed gun laws, there are several places an individual may not fire or discharge a firearm, including the occupied habitation of another, a school zone, within 1,000 feet of a school building (with intent to cause physical harm, panic, or fear), over a cemetery, and a public road or highway.
  • Using Firearms While Intoxicated: An individual may not possess or use a firearm while under the influence of drugs or alcohol. It is not required that the individual be intoxicated or have a blood alcohol content (BAC) over 0.08.
  • Possession of a Firearm by a Convicted Felon: Generally, an individual convicted of violent felony or any drug-related offense or under the indictment of a violent felony or any drug related offense may not possess a firearm

Other Persons Not Permitted to Possess a Firearm

There are also specific classes of persons who may not possess a firearm. Should the following classes of persons be found in possession of a firearm, he or she will be subject to criminal charges:

  • Drug dependent person
  • Chronic Alcoholic
  • Person who has been adjudicated mentally incompetent
  • Any person who has been committed to a mental institution
  • A fugitive from justice


The debate regarding gun rights and the limitations with undoubtedly continue. To avoid criminal charges, it is important to be knowledge about the constant legislative changes.

Brian Joslyn of Joslyn Law Firm is an experience criminal defense attorney and member of the National Rifle Association (NRA). He proudly represents clients facing all types of firearm offenses, including carry a concealed weapon, improper discharge of a weapon, and possession of a firearm by a convicted felon.

Brian Joslyn and the attorneys of the Joslyn Law Firm represent individuals facing firearms charges throughout Ohio, including Franklin County, Pickaway County, Madison County, Delaware County, Licking County and Fairfield County.

If you are facing any firearms charges, contact the Joslyn Law Firm at (614) 444-1900 for a confidential review of your case.

House Bill 347 Aims to Reform Ohio Civil Asset Forfeiture Law

Carrying a large amount of cash is risky. The fear of theft or losing the money is palpable, but new, unlikely culprits have emerged — culprits with a badge and a gun.

In recent years, thousands of people nationwide have forfeited large amounts of cash and other property seized by the police without an arrest, a trial, or a conviction. Known as “civil asset forfeiture,” the practice allows law enforcement to seize personal property based only on the suspicion that the property is linked to criminal activity. The government then often legally sells or keeps the proceeds of its ill-gotten gains.

The concept of “innocent until proven guilty,” a hallmark of the American criminal justice system, does not apply under many current civil asset forfeiture laws.

Once money or property is seized, getting it returned is difficult and costly and sometimes takes a year or more, in part because the law shifts the burden of proof from the government to the person whose cash or property was seized, forcing him or her to prove that it was not acquired illegally. The government will sometimes even go as far as suing the cash (you read that correctly) in an effort to make the rightful owner prove that the cash was not acquired illegally.

Under existing Ohio law (Ohio Revised Code Title XXIX, Chapter 2981), the authorities can seize cash or other property, including real estate and vehicles, if they suspect it is connected with a crime — even when no charges are filed. If you want your money back after it is seized, you need to go to court and fight the government.

If you have had money or property seized by the police or another law enforcement agency, you should seek the advice of an experienced attorney who will help you fight the seizure and work to get all your cash or property returned to you.

Call the criminal defense attorneys at the Joslyn Law Firm to learn more about forfeiture law in Columbus, Ohio, in Franklin County, Ohio, and surrounding areas.

The attorneys at the Joslyn Law Firm can explain the important deadlines that apply after a notice of seizure is issued or a seizure occurs in Ohio, so don’t delay. We can represent you at an adversarial preliminary hearing and in subsequent court appearances, if necessary. Let us put our experience to work for you.

Forfeiture Reaps Billions for Law Enforcement Coffers

Law enforcement agencies often rely on forfeiture to contribute to their operating budgets, even though the law was not initially intended that way and the law specifically prohibits seized assets from funding certain police activities.

Designed to help fight large drug trafficking organizations as part of the “war on drugs,” civil asset forfeiture has mushroomed into a cash cow for law enforcement, an activity its critics say is motivated by profit rather than crime-fighting.

A 2014 report in the Washington Post found that, under the U.S. Department of Justice’s Asset Forfeiture Program (AFP), police seized $2.5 billion in money and property nationally since 2001 from nearly 62,000 people who were not charged with a crime and without issuing a warrant. In order to seize the assets, all the police had to do was suspect that the assets were crime-related.

These seizures often occur during traffic stops, giving new meaning to the phrase “highway robbery.” Airports are another popular place for civil asset seizures. Law enforcement has also seized homes, boats, and other valuable property under civil asset forfeiture laws.

About $1.7 billion of the $2.5 billion seized from 2001-2014 eventually went to state and local law enforcement agencies while the other $800 million went to federal agencies such as the Department of Justice and the Department of Homeland Security, the Post reported; the median amount of a seizure was $8,800.

Only about one in six of the 62,000 seizures were legally challenged, the Post reported, in part because of the expense of fighting against the government. But in 41 percent of the seizures that were challenged, the government agreed to return money.

The appeals process took more than a year in 40 percent of the cases that were challenged, and often required owners of the cash to sign agreements not to sue police over the seizures, the Post said. Defendants also had to pay their own legal bills.

A report titled “Federal seizure program that benefits cops called ‘legal robbery'” in the Cincinnati Enquirer and other news outlets in September 2015 said that federal and local authorities across the country have seized more than $4.1 billion in assets since 2006.

The Institute for Justice, a non-profit legal group based in suburban Washington D.C., reported on its web site that Ohio law enforcement agencies received more than $83 million from the federal Equitable Sharing Program over nine years from 2000-2008.  The Institute for Justice sued the city of Philadelphia in 2014 over its civil asset forfeiture laws.

Challenging Forfeiture Laws

Critics of civil asset forfeiture portray it as “legal robbery” — comedian John Oliver lambasted the practice on his HBO show “Last Week Tonight” in October 2015 and the American Civil Liberties Union (ACLU) laments “police abuse of civil asset forfeiture has shaken our nation’s conscience.” Advocates point to the benefits of using the proceeds of civil asset forfeiture to outfit law enforcement with new equipment and combat illegal drugs.

Forfeiture laws that allow police to seize cash or other property and keep it have been attacked on due process and constitutional grounds in several states in recent years. Notably, New Mexico and Montana both reformed their forfeiture laws in 2015 and bills to reform forfeiture in Michigan were sent to that state’s governor for his signature in October 2015.

In Ohio, two lawmakers introduced a bill in the state legislature in September 2015 seeking to reform the state’s existing forfeiture law.

Ohio House Bill 347, filed by Rep. Robert McColley and Rep. Thomas E. Brinkman, Jr., would repeal certain parts of the existing law while adding and revising other sections. Much of the wording of the proposed changes to Ohio law is similar to the wording of the new laws enacted in New Mexico and Montana and the one pending in Michigan.

The Ohio bill seeks to change the legal standard of proof to one where the government must show “clear and convincing evidence” of a crime that permits forfeiture instead of relying on the current, lesser standard of a “preponderance of the evidence” (§2981.09(A), proposed). (The standard for a criminal proceeding is that guilt must be proven “beyond a reasonable doubt.”)

The proposal also would prohibit local police from coordinating with federal authorities unless the amount of property seized was more than $50,000.

Overwhelming Public Support

In a September 2015 poll of Ohio residents conducted for the U.S. Justice Action Network and its non-profit advocacy group, Fix Forfeiture, 81 percent of respondents said Ohio’s civil asset forfeiture law was “in need of reform,” while only 7 percent believed the current system is “working well now.”

Fix Forfeiture’s message is that forfeiture is clearly an area ripe for reform, and fixing it will be a significant step toward making Ohio’s criminal justice system smarter, fairer, and more effective.

Keep in mind that although positive changes to Ohio forfeiture law are underway and have broad public support, law enforcement officials certainly won’t give up such a windfall of cash without a fight. Current laws impose strict deadlines how much time you have to challenge a civil asset seizure, so if your money or property have been seized, you should act quickly to protect it from forfeiture.

The Joslyn Law Firm represents clients whose cash, property, or other assets have been seized by law enforcement in Columbus, Ohio, as well as Franklin County, Delaware County, Madison County, Licking County, Fairfield County, and Pickaway County, Ohio. Call us today. Our experienced criminal defense attorneys in Columbus, Ohio, are ready to explain Ohio’s current civil asset forfeiture laws to you and fight for your rights — and your property.


Ohio House Bill to Change Police Requirements and Increase Training


The Ohio House approved a bill this week that would change the requirements to become a law enforcement officer in the state and increase the number of training hours applicants must complete.

The bill, introduced by Republican representatives Tim Derickson of Oxford and Nathan Manning of North Ridgeville, was aimed at improving relationships between local police and their communities, according to The Columbus Dispatch.

The nation has seen increased coverage of controversial fatal police shootings, including the shooting of John Crawford, a 22-year-old black man who was shot and killed last August in a Dayton-area Walmart while holding an air rifle.

Tamir Rice, a 12-year-old black child, was fatally shot in November in a Cleveland park while holding a BB gun. The deaths of these two Ohio residents sparked protests and concern regarding police actions. Some state officials have been examining law enforcement practices.

The new measures in the bill are a result of recommendations for upgrading police training and standards by committees convened by Attorney General Mike DeWine and Gov. John Kasich. The committees were established in response to the protests.

Ohio is one of only three states that does not require law enforcement officers to have a high school diploma or a certificate of high school equivalence before becoming an officer. However, House Bill 204 would make having one mandatory.

If a person has been appointed a police officer before the bill is passed, he or she would not have to meet the requirement. This means the person still could be an officer, if hired for the job before the date of the bill, without a diploma or GED.

The bill also would lift the current training cap of 650 hours, adding the attorney general will not restrict the state police training commission from establishing a higher amount if deemed necessary. This could allow increased training beyond the 650, although it would not be mandatory.

Proper police training is critical in ensuring a person’s rights are not violated during an arrest. Violations often include interrogation without Miranda warnings or in violation of an individual’s Fifth Amendment rights, conducting a search and seizure without probable cause or a warrant and unlawful execution of a search and seizure warrant.

If the person’s rights were violated, this could be a criminal defense to the charges. An experienced criminal defense attorney can challenge the admissibility of evidence or file a motion to suppress evidence. This could be the difference between a conviction and having the charges dismissed.

If you are arrested for a criminal offense in Ohio, contacting an experienced defense attorney is important. Contact Joslyn Law Firm at (614) 444-1900 to schedule a free initial consultation and learn more about how to protect yourself after criminal charges.

Misunderstanding of Law Still Could Produce Reasonable Suspicion

If a police officer stops a driver based on a mistaken understanding of the law, the driver’s Fourth Amendment rights have not been violated, according to a U.S. Supreme Court ruling last month.

The court ruled 8-1 in Heien v. North Carolina, a case in which an officer stopped a driver who was traveling with only one working brake light. The officer cited a brake light malfunction as the reason for the stop, but also searched the car and found cocaine.

The car owner, however, argued there was no brake light violation of the law and therefore the stop and subsequent charges were not valid. State law requires drivers “be equipped with a stop lamp on the rear of the vehicle,” which he argued he did not violate.

In the Dec. 15 opinion, Chief Justice John G. Roberts Jr. said because the officer’s mistake about the brake light law was reasonable, the stop in this particular case was lawful under the Fourth Amendment, which prohibits unreasonable searches and seizure.

The case concerned a traffic stop in North Carolina in which an officer followed a driver who appeared “very stiff and nervous.” The officer stopped the car after following it for several miles and noticing only one brake light functioned. The officer examined the license and registration, both of which were valid.

However, the officer became suspicious during the stop and asked whether the two men had any sort of contraband. After denying it, the officer asked to search the car. The car owner, who previously was asleep in the back seat, agreed to a search, which resulted in the officers finding cocaine.

The state charged Heien, the owner, with attempted trafficking in cocaine. Heien moved to suppress the evidence seized from the car, contending that the stop and search had violated the Fourth Amendment of the U.S. Constitution. The trial court denied the suppression.

The case, however, was appealed in state court. The appeals court reversed the decision and found the mistaken belief that the driver had committed a traffic violation did not warrant “objectively reasonable justification” for a traffic stop. The driver was not in violation of the law, according to the ruling.

The state appealed, taking the case to the North Carolina Supreme Court. The higher court disagreed, stating the officer’s mistake was “reasonable,” which justified reasonable suspicion. An officer may make a mistake of the law, yet act reasonably, according to the ruling.

The U.S. Supreme Court agreed, saying the “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Chief Justice Roberts said, “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.”

Justice Sonia Sotomayer wrote a dissenting opinion, saying the court’s ruling further erodes the protection of civil liberties under the Fourth Amendment. The decision, she said, also will contribute to distrust between police and citizens.

Read the full U.S. Supreme Court decision here.

New Ohio Law Changes Who Can Have Criminal Records Sealed

Ohio is one of several states that has taken measures to help residents seal their criminal records. Now, a new state law is giving more people the opportunity to suppress past convictions.

Senate Bill 143 amended the definition of “eligible offender” who may apply for sealing under the Conviction Record Sealing Law. Previously the law only permitted the sealing of one felony and one misdemeanor conviction or two misdemeanor convictions, if the misdemeanors were not for the same offense.

Now, a person who has been convicted of two misdemeanors, regardless of whether or not they are the same offense, also can apply to have his or her record sealed. The bill, championed by State Sen. William Seitz of Cincinnati, went into effect Sept. 19.

Under the new law, if a person has two convictions for the same crime, he or she still may be eligible. For example, if a person is convicted of a misdemeanor possession of marijuana one year and convicted of the same crime the following year, the records still could be sealed.

It is important to know that Ohio practices the criminal sealing of records rather than expungement. Sealing means the record still exist, but it generally may not be viewed or examined by others, including the public. Only juvenile records may be expunged.

Some adult convictions cannot be sealed. Offenses in Ohio that cannot be sealed include any felony of the first or second degree; most misdemeanor and felony convictions where the victim is younger than 18; and violent offenses. Examples of violent offenses include:

  • Kidnapping
  • Assault (unless it is a misdemeanor)
  • Murder
  • Rape
  • Robbery
  • Arson
  • Sexual battery
  • Terrorism

Most sexual offenses are not eligible to be sealed, including illegal use of a minor in nudity-oriented material or performance and unlawful sexual conduct with a minor. In addition, several automobile-related offenses cannot be sealed, such as DUI, hit and runs and street racing.

The process to seek the sealing of a record is the same under the new law, but it does allow a person to request the sealing of multiple records in one application and for one fee. Someone who believes they are eligible to have their record sealed is required to file an application with the court, and submit a filing fee of $50. The fee now will be the same regardless of the number of records the application requests to have sealed.

Once the application is filed, the court will set a date for a hearing to determine whether the conviction should be sealed. The prosecutor will be notified of the hearing, and he or she will have the chance to file an objection to the application in which there must be specific reasons why the application should be denied.

The court will determine if the applicant is a first offender and if criminal proceedings are pending against the applicant. The court also will decide if the applicant has been sufficiently rehabilitated to the court’s satisfaction while considering the prosecution’s objections and weighing the applicant’s interests in sealing the record.

If the court decides the offender’s record should be sealed, the court will order all official records pertaining to the case sealed, and the proceedings will be considered to not have occurred. This could give offenders a fresh start and the opportunity to get their lives on track.

Ohio residents who previously were not able to have a record sealed can reapply if the conviction meets the new requirements. Sealing a criminal record does not erase the history entirely, but it can make it less visible to the public.

Read the full bill analysis here.

Supreme Court Ruling Says Drivers Can Challenge Breathalyzer Results

The Ohio Supreme Court ruled earlier this week that defendants facing drunk driving charges can challenge the accuracy of their breathalyzer tests, potentially changing the outcome of thousands of cases throughout the state.

Defendants now will be allowed to challenge the information received from their tests by obtaining data from prior results generated by the alcohol tester into which they blew, according to The Columbus Dispatch.

The court’s unanimous decision came as a result of a case in which a driver was arrested in Cincinnati in 2011 and was accused of having a blood-alcohol content of 0.143, nearly double the legal limit. A breath testing instrument called the Intoxilyzer 8000 was used to determine the amount.

The breath testing machine digitally sends information about the breathalyzer test to the Ohio Department of Health in Columbus and only reveals a portion of the information to the defendant and his or her attorney. The other information is concealed on a server in Columbus.

Ohio is an implied consent state, meaning when a person gets behind the wheel he or she is agreeing to allow police to perform a breathalyzer or another chemical test if arrested for a DUI/OVI. A person has a right to refuse, but he or she could face penalties.

When the Cincinnati driver attempted to obtain the additional breathalyzer data from the Ohio Department of Health, officials said the agency lacked the employees and technology to get the results, according to the ruling.

The Supreme Court upheld lower-court rulings dismissing the DUI case because health officials failed to turn over the data in response to a subpoena. The court also ruled the approval of the machine does not prevent an accused from challenging its results.

Ohio law prohibits drivers from challenging the general reliability of state-approved testing machines, but according to the ruling, it does not prevent a driver from challenging the reliability of a specific machine at the time of the alleged offense.

For example, a driver in Ohio cannot challenge the Intoxilyzer 8000 as a reliable machine. However, the person can claim the particular device used in his or her test may have malfunctioned at the time of the chemical test, even if he or she consented to it being performed.

There are many aspects of the chemical testing process during a suspected DUI/OVI  traffic stop that could be argued as ineffective or improperly implemented. The breathalyzer machine has a small margin of error and could be affected by things such as temperature and medical conditions.

Breathalyzer test cases are very scientific and complicated. Errors in DUI/OVI chemical testing can be used to weaken the prosecution’s case. If facing DUI charges, it is important to have an attorney who understands the science behind breathalyzer testing.

Read the Ohio Supreme Court ruling here.

Even if Acquitted, State Gets to Keep Your DNA

Under an Ohio Supreme Court ruling earlier this month, prosecutors can keep your DNA on file to use as evidence for future cases — even if you were ultimately acquitted on the charges for which they took your DNA to begin with.

In the case before the Court, the state took DNA from Cleveland man Dajuan Emerson while he was under investigation for rape in 2005. Police found seminal fluid on the victim. The DNA could not be attributed to Emerson, and he was acquitted of the charges. However, the state still entered his DNA into a DNA database as a digital profile. Two years later, Cleveland police investigating a murder found blood with DNA that did not match the victim’s. When they ran it through the state database, they found it matched Emerson’s. He was found guilty and sentenced to 25 years to life in prison.

Emerson’s lawyers argued that a person has a privacy interest in his or her DNA, and that, therefore, keeping the DNA of people who had been acquitted constituted a violation of that person’s Fourth Amendment constitutional right against unlawful searches and seizures. However, the court decided that since the state digitally creates a “DNA profile,” it becomes the state’s work product and it is within the state’s power to keep it. The state database, maintained by the Bureau of Criminal Investigation under the Attorney General’s Office, maintains about 500,000 digital profiles with the DNA of those convicted of felonies and those suspected of felonies.

It’s not clear the extent to which the state can continue to collect and maintain its DNA database. What is clear, however, is that the stakes are higher to keep your DNA out of the hands of the state.  Even if the state cannot build a sufficient case against you, they can use the evidence they do have for future prosecutions. If you have an experienced criminal defense lawyer on your side, however, that lawyer may be able to argue why your DNA should not be submitted at all.

The state is being allowed to encroach on your privacy under this ruling. If you give prosecutors an inch, they’ll take a mile. If you’re charged with any crime, it’s important to have an advocate who will vigorously fight the charges.