as: 187 Ariz. 419, 930 P.2d 496)
the Matter of the APPEAL IN MARICOPA COUNTY JUVENILE ACTION NOS. JV-512600 AND
1 CA-JV 96-0034, 1 CA-JV 96-0020.
of Appeals of Arizona,
1, Department D.
Denied Jan. 14, 1997.
appeal presents four issues which we resolve against the juveniles.
First, we hold that a juvenile can be required to submit to deoxyribonucleic
acid (DNA) testing based on a delinquent act occurring prior to the enactment
of Arizona Revised Statutes Annotated (A.R.S.) sections 13- 4438 and 31-281.
Second, A.R.S. sections 13-4438 and 31-281, which compel DNA testing, are
constitutionally permissible and do not violate a juvenile's right to privacy
or right to be free from unreasonable searches and seizures. Third, the
Arizona Constitution's grant of exclusive jurisdiction to the juvenile court
over a child is not violated by A.R.S. section 31-281(C), which allows use of
the DNA test results beyond the juvenile's eighteenth birthday. Fourth,
A.R.S. sections 13-4438 and 31-281 are not violative of the declared mission
of the juvenile court, which is rehabilitation and treatment.
AND PROCEDURAL BACKGROUND
juvenile was charged with three counts of child molestation. He admitted
one count and the remaining counts were dismissed. In a separate case,
another juvenile was charged with four counts of child molestation. He
admitted two counts, and the remaining counts were dismissed. Both
juveniles were placed on probation in the physical custody of the Dorothy
Mitchell Residence, a residential treatment center for youths. In both
cases, the court ordered DNA testing, but granted stays "pending appeal
in this matter."
Court ordered the consolidation of these two cases for appeal because they
raise the same issues.
juveniles argue that A.R.S. sections 13-4438 [FN1] (Supp.1995) and **499 *422
31-281 [FN2] (1996), which became effective on July 13, 1995, as they relate
to juveniles, cannot be applied retroactively pursuant to A.R.S. section 1-244
(1995), and therefore, do not affect the juveniles because their crimes were
committed before July 13, 1995. Arizona Revised Statutes Annotated
section 1-244 provides that "[n]o statute is retroactive unless expressly
A.R.S. § 13-4438 provides in pertinent part:
B. Except as provided in subsection
E of this section, before a person who was convicted or adjudicated delinquent
of a sexual offense as provided in §§ 13-1403, 13-1404, 13-1405, 13-1406,
13-1410, 13-1411, 13-1412 or 13- 3608 and who was sentenced to a term of
incarceration in a county jail detention facility or a county juvenile
detention facility is released, the county jail detention facility shall
secure a blood sample sufficient for deoxyribonucleic acid testing and
extraction. The county jail detention facility shall transmit the sample
to the department of public safety.
Except as provided in subsection E of this section, within fifteen days after
a person is convicted or adjudicated delinquent of a sexual offense as
provided in §§ 13-1403, 13-1404, 13-1405, 13-1406, 13-1410, 13-1411, 13-
1412 or 13-3608 and is sentenced to a term of probation, a county probation
department shall secure a blood sample sufficient for deoxyribonucleic acid
testing and extraction. The county probation department shall transmit
the sample to the department of public safety.
Except as provided in subsection E of this section, before a person who was
adjudicated delinquent of a sexual offense as provided in §§ 13-1403,
13-1404, 13-1405, 13-1406, 13-1410, 13-1411, 13-1412 or 13-3608 and who was
committed to a secure care facility, the department of juvenile corrections
shall secure a blood sample sufficient for deoxyribonucleic acid testing and
extraction. The department of juvenile corrections shall transmit the
sample to the department of public safety.
E. A blood sample shall not be
secured pursuant to subsection A, B, C or D of this section if the scientific
criminal analysis section of the department of public safety has previously
made a deoxyribonucleic acid analysis of the person's blood pursuant to this
section and maintains a report of the results.
F. The department of public safety
shall conduct an analysis of the samples that it receives and shall make and
maintain a report of the results of each deoxyribonucleic acid analysis.
A.R.S. § 31-281 provides in pertinent part:
A person convicted or adjudicated delinquent of a sexual offense as provided
in §§ 13-1403, 13-1404, 13-1405, 13-1406, 13-1410, 13-1411, 13- 1412 or
13-3608 shall submit to deoxyribonucleic acid testing for law enforcement
identification purposes. Reports of the tests shall be maintained by the
department of public safety.
Results of any tests secured pursuant to this section from a person
adjudicated delinquent may be used for any law enforcement identification
purpose, including adult prosecutions.
The State asserts that it is unclear whether this statute applies to criminal
legislation. We find no such ambiguity. "Although the general
rule is that legislation will have prospective application only, the rule is
otherwise where the legislation is merely procedural in nature and does not
affect substantive rights." State v. Warner, 168 Ariz. 261, 264,
812 P.2d 1079, 1082 (App.1990). "Our courts have consistently held
that a criminal defendant has no vested or substantive right to a particular
mode of procedure." Id.
Generally, "a substantive law creates, defines and regulates rights while
a procedural [law] prescribes the method of enforcing such rights or obtaining
redress." Allen v. Fisher, 118 Ariz. 95, 96, 574 P.2d 1314, 1315
(App.1977). Arizona Revised Statutes Annotated sections 13-4438 and 31-
281 are investigatory tools. The DNA material is extracted after
adjudication and has no effect on the underlying offense or punishment.
The statutes are procedural in nature and may be retroactively applied.
The juveniles also argue that A.R.S. sections 13-4438 and 31-281 are a
form of punishment being applied retroactively, which is proscribed by the
United States and Arizona Constitutions. The United States Constitution
provides that "[n]o state shall ... pass any ... ex post facto Law."
U.S. Const. art. I, § 10. The Arizona Constitution provides "[n]o
... ex-post-facto law ... shall ever be enacted." Ariz. Const. art.
2, § 25. "We ordinarily interpret the scope of a clause in the Arizona
Constitution similarly to the United States Supreme Court's interpretation of
an identical clause in the federal constitution." State v. Noble,
171 Ariz. 171, 173, 829 P.2d 1217, 1219 (1992). The application of A.R.S.
sections 13-4438 and 31-281 to the juveniles "violates the ex post facto
clause only if it is a 'law that changes the punishment, and inflicts a
greater punishment than the law annexed to the crime, when committed.' "
Id. 171 Ariz. at 174, 829 P.2d at 1220 (citations omitted). We must look
to "whether the legislative aim was to punish [an] individual for past
activity, or whether the restriction of the individual comes about as a
relevant incident to a regulation of a present situation." De Veau
v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109 (1960).
The legislative history strongly indicates that the primary objective of A.R.S.
sections 13-4438 and 31-281 is to aid investigative efforts in identifying
repeat offenders by "matching up" a person with a crime. See
DNA Testing of Sexual Offenders: Minutes of Hearings on S.B. 1217 Before
the Senate Judiciary Comm., 41st Leg., 1st Sess. (Feb. 16, 1993) (statement of
Todd Griffith, Crime **500 Laboratory Superintendent, Department of Public
Safety); DNA Testing of Sexual Offenders: Hearings on S.B. 1217
Before the Senate Appropriations Comm., 41st Leg., 1st Sess. (Feb. 24, 1993)
(statements of Rob Carey, Deputy Attorney General and Todd Griffith, Crime
*423 Laboratory Superintendent, Department of Public Safety). We find
that requiring juvenile sex offenders to submit to DNA testing pursuant to
A.R.S. sections 13-4438 and 31-281 is not punishment, and that retroactive
application of the statutes does not violate the ex post facto clause of the
United States or Arizona Constitutions. We are not alone in finding that
such testing does not constitute punishment. Accord Rise v. Oregon, 59
F.3d 1556, 1562 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1554,
134 L.Ed.2d 656 (1996); Gilbert v. Peters, 55 F.3d 237, 238-39 (7th Cir.
1995); Jones v. Murray, 962 F.2d 302, 309 (4th Cir.), cert. denied, 506
U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992); Kruger v. Erickson, 875
F.Supp. 583, 589 (D.Minn.1995), aff'd, 77 F.3d 1071 (8th Cir.1996);
Vanderlinden v. State, 874 F.Supp. 1210, 1216 (D.Kan.1995).
The juveniles also argue that A.R.S. sections 13-4438 and 31-281 cannot
be applied retroactively because A.R.S. section 1-246 provides:
the penalty for an offense is prescribed by one law and altered by a
subsequent law, the penalty of such second law shall not be inflicted for a
breach of the law committed before the second took effect, but the offender
shall be punished under the law in force when the offense was committed.
juveniles' argument that A.R.S. section 1-246 bars retroactive application of
the statutes fails because we find that A.R.S. sections 13- 4438 and 31-281
are not penal.
Unreasonable Search and Seizure and Right to Privacy
juveniles argue that required submission to DNA testing violates their right
to be free from unreasonable searches and seizures pursuant to the Fourth and
Fourteenth Amendments of the United States Constitution, and Article 2,
section 4 of the Arizona Constitution. Additionally, the juveniles argue
that DNA testing violates the right to privacy provided by the United States
Constitution and Article 2, section 8 of the Arizona Constitution. They
assert that A.R.S. sections 13-4438 and 31-281 impermissibly allow the State
to bypass the necessity of either obtaining a warrant based upon probable
cause or establishing an exception to the warrant requirement.
We recognize that a "compelled intrusion[ ] into the body for blood"
must be deemed a Fourth Amendment search. Schmerber v. State of
California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966).
Normally, a search or seizure is not considered reasonable unless it is
accompanied by a judicial warrant issued only after a finding of probable
cause. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619,
109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989). However, the procedural
safeguards required by A.R.S. sections 13-4438 and 31-281 are more stringent
than those required for the issuance of a warrant based upon a finding of
probable cause. Here, the order to draw blood follows either an
adjudication of delinquency, which is based on a determination beyond a
reasonable doubt, or a constitutionally safeguarded admission by a juvenile
that an enumerated sexual offense was committed. Further, it applies
only after the juvenile is incarcerated, committed to a secure care facility,
or placed on probation. Arizona Revised Statutes Annotated sections 13-4438
and 31-281 do not require an exception to the warrant rule. In effect, the
standard required by the statutes is beyond a reasonable doubt, which is a
substantially greater burden than the finding of probable cause required for a
A juvenile's right to privacy is not violated by the physical intrusion
involved in drawing blood or by subsequent DNA testing. Although the
physical intrusion involved in drawing blood infringes upon an individual's
expectation of privacy, the intrusion is reasonable in light of the need to
ensure public safety. See Skinner, 489 U.S. at 616, 620, 109 S.Ct. at
1412-13, 1414-15. Society recognizes that "blood tests do not constitute
an unduly extensive imposition on **501 *424 an individual's personal privacy
and bodily integrity." Winston v. Lee, 470 U.S. 753, 762, 105
S.Ct. 1611, 1617, 84 L.Ed.2d 662 (1985). Moreover, the expectation of
privacy is significantly diminished when one considers that the individual
asserting the claim has been adjudicated delinquent for committing a sexual
offense. The public's interest in effective law enforcement, crime
prevention, and the identification and apprehension of those who commit sex
offenses rightfully outweighs the intrusion on the delinquent juvenile's
privacy. A juvenile's right to be free from unreasonable searches and
seizures and right to privacy are not violated by A.R.S. sections 13-4438 or
Use of DNA Test Results Beyond Age Eighteen
The juveniles argue that the juvenile court lacks jurisdiction to order them
to undergo mandatory DNA testing, which may be used for any law enforcement
identification purpose, including adult prosecutions, beyond the age of
majority. The juveniles assert that Article VI, section 15 of the
Arizona Constitution limits the exclusive jurisdiction of the juvenile court
to age eighteen. Article VI, section 15 of the Arizona Constitution also
states in the last sentence that "[t]he powers of the judges to control
such children shall be as provided by law." "We submit that
[this] sentence of Article 6, § 15 means that once the juvenile court has
acquired proper jurisdiction over persons under the age of 18, it may continue
control over these persons as provided by law; which means as provided
by the legislature." Appeal in Maricopa County Juvenile Action No.
J-86843, 125 Ariz. 227, 229, 608 P.2d 804, 806 (App.1980). Because the
legislature has expressly granted the juvenile court jurisdiction to order
mandatory DNA testing by enacting A.R.S. sections 13-4438 and 31-281, there
has been no violation of the Arizona Constitution.
The juveniles also argue that A.R.S. section 8-207(C) prohibits use of DNA
test results beyond the age of majority. Section 8-207(C) provides:
disposition of a child in the juvenile court may not be used against the child
in any case or proceeding in any court other than a juvenile court, whether
before or after reaching majority, except as provided by § 28-444.
use of a juvenile's DNA test results beyond the age of majority does not
violate section 8-207(C) because DNA testing is not punitive and is procedural
in nature. Section 8-207(C) relates to an adjudication and the
punishment imposed by the juvenile court and not to an order to submit to DNA
Finally, the juveniles argue that A.R.S. section 8-247, which allows for the
destruction of juvenile court records once the juvenile reaches the age of
majority, acts as a bar to the use of DNA test results beyond the age of
majority. We disagree. The discretion to destroy a juvenile's
court record lies with the juvenile court. However, A.R.S. section 8-247
does not provide the juvenile court discretion to destroy a Department of
Public Safety record. Nor does it preclude the legislature from
specifically providing for public agencies, such as the Department of Public
Safety, to maintain records concerning juveniles for purposes separate from
those of the juvenile court. Section 8-247 is inapplicable to the issues in
hold that A.R.S. sections 13-4438 and 31-281, which permit the use of a
juvenile's DNA test results in adult prosecutions, do not conflict with the
Arizona Constitution or A.R.S. section 8-207(C).
Purpose of Juvenile Court
The juveniles argue that A.R.S. sections 13-4438 and 31-281 violate the
philosophy and theory of the juvenile court and conflict with the provisions
of A.R.S. Title 8 relating to the basic idealogy of delinquency proceedings.
The philosophy of the juvenile court is to "stand[ ] in the position of a
protecting parent rather than a prosecutor." Application of Gault,
99 Ariz. 181, 188, 407 P.2d 760, 765 (1965), rev'd on other grounds, 387 U.S.
1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). "The purpose of
disposition following an adjudication of delinquency is rehabilitation, not
punishment." Appeal in Maricopa County Juvenile Action No.
JV-510312, 183 **502 *425 Ariz. 116, 118, 901 P.2d 464, 466 (App.1995).
While we must recognize the protective nature of the juvenile court's role, we
must also recognize society's need to detect and deter the repetitive
The juveniles assert, and we agree, that juvenile proceedings should be
conducted with an eye toward protection, treatment and guidance of children.
However, we disagree with the assertion that the two statutes at issue violate
this philosophy. DNA testing works in concert with these interests by
deterring the juvenile from committing future sex offenses, while aiding
police in investigating future crimes. We find that the statutes further
the protective and rehabilitative goals of the juvenile court.
the foregoing reasons, we affirm the juvenile court orders requiring the
juveniles to submit to DNA testing.
P.J., and GRANT, J., concur.