The Orange County district attorney’s office has agreed to begin removing profiles from its controversial DNA database to settle a lawsuit that questioned whether the program is constitutional.
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The agreement comes months after District Attorney Todd Spitzer suspended the office’s $2.5 million DNA collection program for 2026 amid budget cuts, leading to questions on the fate of the database.
Created in 2007 by former District Attorney Tony Rackauckas, the program allowed prosecutors to drop charges or offer reduced sentences for low-level misdemeanor defendants in exchange for their genetic material — earning the nickname “spit and acquit.”
State and federal laws allow DNA to be collected and stored in state and national databases for felony and some misdemeanor offenses, such as arson and some sexual crimes. Orange County, however, collects DNA locally for misdemeanors, such as driving under the influence.
Spitzer heavily criticized the local program while campaigning for office in 2018, but decided after his election to keep the local database after learning of its potential as a crime-solving tool.
UC Irvine criminology professor emeritus William Thompson filed suit in 2021, alleging the program is a secretive form of genetic surveillance not authorized by state law. Thompson is a longtime watchdog over DNA analyses and aided in the shutdown of Houston’s crime lab in 2002.
“There are dangers … (contributors to the DA’s database) could be linked to a crime mistakenly or falsely,” Thompson said. “It could affect you and it can also affect your relationships through familial searching.”
He said the settlement installs some important guardrails onto the program.
“It does not accomplish everything I hoped it would accomplish, but I think it’s an important step in the right direction,” Thompson said. “It moves us away from where misdemeanor charging decisions were based on the office trying to build a database.”
Spitzer countered that the settlement resulted only in the codifying of safeguards already in place to protect the integrity of the DNA program and the rights of defendants.
The agreement calls for the program to automatically remove DNA profiles after 15 years from the time of collection for more than 1,300 low-level crimes, such as trespassing, resisting an officer and being a public nuisance. The DNA sample must be destroyed within six months after the profile is expunged, according to the settlement.
Additionally, those charged with municipal code violations and infractions would not have to give up their DNA, the agreement says.
People whose crimes are not eligible for automatic removal — because they have a higher rate of recidivism — can apply for expungement 25 years after the date of their DNA collection, Thompson said. An application for expungement will be provided on the DA’s website.
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Furthermore, Spitzer agreed not to use the genetic database to search for family connections to DNA collected from a crime unless the offense is considered major or of a violent nature, the agreement says.
Thompson said another important component of the settlement is that it requires a plea offer involving the DNA program to remain open for 30 days, allowing the defendant time to consult with an attorney. Thompson said defendants in the past allegedly were being rushed into taking the deal.
“What was happening is that people were not being given adequate information, adequate time to make a good decision,” he said.
According to the settlement, prosecutors will have to produce an annual report on the number of hits and the number of crimes solved through the database.
Thompson said research during the lawsuit found that the vast majority of people in the database did not come up as matches in criminal investigations.
“It may be the district attorney became aware as a result of the litigation that the bang for the buck had not been as great as what was hoped,” Thompson said.
As of August 2024, the OC DNA database contained approximately 210,000 person profiles and 16,662 crime scene profiles. According to the district attorney’s office, there have been 1,341 hits or investigative leads, 35% resulting in filed cases.
The settlement comes as countywide budget cuts have effectively suspended the DNA collection efforts, leaving the future of the program unclear.
New DNA samples are not currently being added to the database and civilian employees who were tasked with collecting the genetic material as part of the program have been reassigned, according to the DA’s office.
That doesn’t necessarily mean the program is being shut down forever, DA spokesperson Kimberly Edds said. The future of the office’s DNA efforts will likely depend on the budget outlook.
“This is a heartbreaking loss to the victims whose justice may be delayed because of DNA collection interruption for the OCDA DNA database,” Spitzer said in a statement. “We are hopeful that any interruption in the collection of DNA samples for the OCDA database will be temporary.”
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