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Nason v. State12/3/2004
Mark D. Nason was convicted of first-degree assault, AS 11.41.200(a), and he is currently serving a prison sentence at the Spring Creek Correctional Center.
Because Nason's offense is a felony "crime against a person" under AS 11.41, Nason was asked to submit to a cheek swabbing procedure that would preserve a sample of his DNA for inclusion in Alaska's DNA database. Under AS 44.41.035(b), the Department of Public Safety is directed to "collect ... a blood sample, oral sample, or both, from ... a person convicted of a crime against a person ... under AS 11" for inclusion in the state's DNA registration system.
Citing privacy concerns, Nason refused to provide a DNA sample. Based on this refusal, Nason was convicted of violating AS 11.56.760(a)(2), which makes it a crime for any person who has been convicted of an offense listed in AS 44.41.035(b) to refuse to provide the statutorily mandated DNA sample at the request of a correctional officer or police officer.
In this appeal, Nason attacks Alaska's DNA collection statute - by which we mean the combination of AS 44.41.035(b) (specifying the persons whose DNA is to be collected) and AS 11.56.760(a) (making it a crime to fail to comply with an authorized request for DNA). Nason contends that the DNA collection statute unlawfully infringes his Fourth Amendment right to be free from unreasonable searches. He also argues that the statute infringes the right to privacy implicitly guaranteed by the United States Constitution and explicitly guaranteed by Article I, Section 22 of the Alaska Constitution. Finally, Nason argues that AS 44.41.035(b) violates Alaska's constitutional guarantee of equal protection under the law because it only requires DNA samples from people convicted of some felonies (felonies that qualify as "crimes against a person"), while people convicted of other serious crimes are not required to provide a DNA sample.
For the reasons explained here, we conclude that Nason has failed to rebut the presumptive constitutionality of the DNA collection statute. We therefore uphold the statute in Nason's case, but we do so without reaching the merits of potential Fourth Amendment and right of privacy attacks that might be brought against the statute.
We further hold that, assuming the constitutionality of the DNA collection statute, the Alaska Legislature did not violate the equal protection clause when it decided to require collection of DNA samples from defendants convicted of a felony crime against a person under AS 11.41, as opposed to other felonies.
We note that, since the time Nason was prosecuted, the legislature has amended AS 44.41.035(b) to require collection of DNA samples from all persons convicted of any felony under our criminal code (Title 11), as well as any misdemeanor "crime against a person" (i.e., any misdemeanor defined in AS 11.41), or any felony defined in AS 28.35 (i.e., felony driving under the influence , felony breath-test refusal, and felony hit-and-run), or any misdemeanor offense for which sex offender registration is required. See SLA 2003, ch. 88, § 5. We express no opinion on the constitutionality of this broader DNA collection.
Nason's Fourth Amendment and Right of Privacy Attacks on the DNA Collection Statute
For the most part, Nason's constitutional attacks on the DNA collection statute consist of conclusory assertions (1) that he has a fundamental right of privacy in his DNA, (2) that the State has no overriding governmental interest in collecting his DNA, and (3) that collection of his DNA is an unreasonable, suspicionless search.
Nason cites only one case on point: United States v. Kincade (I), 345 F.3d 109
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