28 C.F.R. § 28.12

Collection of DNA samples

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(a) The Bureau of Prisons shall collect a DNA sample from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of—

(1) A Federal offense (including any offense under the Uniform Code of Military Justice); or

(2) A qualifying District of Columbia offense, as determined under section 4(d) of Public Law 106-546.

(b) Any agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States. For purposes of this paragraph, “non-United States persons” means persons who are not United States citizens and who are not lawfully admitted for permanent residence as defined in 8 CFR 1.2. Unless otherwise directed by the Attorney General, the collection of DNA samples under this paragraph may be limited to individuals from whom the agency collects fingerprints and may be subject to other limitations or exceptions approved by the Attorney General. The DNA-sample collection requirements for the Department of Homeland Security in relation to non-arrestees do not include, except to the extent provided by the Secretary of Homeland Security, collecting DNA samples from:

(1) Aliens lawfully in, or being processed for lawful admission to, the United States;

(2) Aliens held at a port of entry during consideration of admissibility and not subject to further detention or proceedings; or

(3) Aliens held in connection with maritime interdiction.

(d) Each individual described in paragraph (a) or (b) of this section shall cooperate in the collection of a DNA sample from that individual. Agencies required to collect DNA samples under this section may use or authorize the use of such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual described in paragraph (a) or (b) of this section who refuses to cooperate in the collection of the sample.

(e) Agencies required to collect DNA samples under this section may enter into agreements with other agencies described in paragraph (a) or (b) of this section, with units of state or local governments, and with private entities to carry out the collection of DNA samples. An agency may, but need not, collect a DNA sample from an individual if—

(1) Another agency or entity has collected, or will collect, a DNA sample from that individual pursuant to an agreement under this paragraph;

(2) The Combined DNA Index System already contains a DNA analysis with respect to that individual; or

(3) Waiver of DNA-sample collection in favor of collection by another agency is authorized by 42 U.S.C. 14135a(a)(3) or 10 U.S.C. 1565(a)(2).

(f) Each agency required to collect DNA samples under this section shall—

(1) Carry out DNA-sample collection utilizing sample-collection kits provided or other means authorized by the Attorney General, including approved methods of blood draws or buccal swabs;

(2) Furnish each DNA sample collected under this section to the Federal Bureau of Investigation, or to another agency or entity as authorized by the Attorney General, for purposes of analysis and entry of the results of the analysis into the Combined DNA Index System; and

(3) Repeat DNA-sample collection from an individual who remains or becomes again subject to the agency's jurisdiction or control if informed that a sample collected from the individual does not satisfy the requirements for analysis or for entry of the results of the analysis into the Combined DNA Index System.

(g) The authorization of DNA-sample collection by this section pursuant to Public Law 106-546 does not limit DNA-sample collection by any agency pursuant to any other authority.

[AG Order No. 3023-2008, 73 FR 74942, Dec. 10, 2008; Order No. 4646-2020, 85 FR 13493, Mar. 9, 2020]

Notes of Decisions

Cited in 18 cases (3 in the last 5 years), 2003–2025 · leading case: United States v. Mitchell, 652 F.3d 387 (3rd Cir. 2011).

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United States v. Mitchell, 652 F.3d 387 (3rd Cir. 2011). · cites it 12× “§ 14135a(a)(1)(A) [2] and its implementing regulation, 28 C.F.R. § 28.12 . The statute, as amended in 2006, permits the collection of DNA samples from "individuals who are arrested, facing charges, or convicted.”

United States v. Carmichael, 343 F.3d 756 (5th Cir. 2003). · cites it 2× “§ 14135a(a)(l); see also 28 C.F.R. § 28.12 (a) (Department of Justice's implementing regulations).”

United States v. Thomas Kriesel, Jr., 720 F.3d 1137 (9th Cir. 2013). · cites it 4× “The regulations are codified in 28 C.F.R. § 28.12 (b), which provides that “[a]ny agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested, facing charges, or convicted,”…”

United States v. Baker, 658 F.3d 1050 (9th Cir. 2011). · cites it 2× “28 C.F.R. § 28.12 (b). According to the government, whether or not subsection (a)(2) permits the probation condition at issue here is irrelevant, because subsection (a)(1) and the implementing regulation permit the condition.”

United States v. Wynn, 553 F.3d 1114 (8th Cir. 2009). · cites it 2× “§ 14135a(a)(1)(B); 28 C.F.R. § 28.12 (a), and Wynn made no showing about the procedures used by the BOP to collect DNA or the qualifications of personnel who do so.”

United States v. Pool, 621 F.3d 1213 (9th Cir. 2010). · cites it 2× “See 28 C.F.R. § 28.12 (b). The majority would uphold the warrantless pretrial seizure by applying the "totality of the circumstances" test that balances the intrusion into privacy of the individual against the interest in protecting society as a whole.”

United States v. Mitchell, 681 F. Supp. 2d 597 (W.D. Pa. 2009). · cites it 3× “§ 14135a(a)(l)(A) and its accompanying regulation 28 C.F.R. § 28.12 . Mitchell, through counsel, objected to the pretrial collection of his DNA 1 , and requested leave to file a brief in support of his position.”

State v. Webb, 133 So. 3d 258 (La. Ct. App. 2014). · cites it 2× “§ 14135a(a), authorizing the warrantless collection of a DNA sample from persons who are arrested, facing charges, or convicted, and regulations by the Attorney General mandating collection of the sample, see 28 C.F.R. § 28.12 (b)(2009)(“Any agency of the United States that…”

United States v. Pool, 645 F. Supp. 2d 903 (E.D. Cal. 2009). “The many courts that have addressed the issue of DNA testing have struggled with concerns regarding the safeguards in place for the DNA storage and the possi *912 bility of misuse.”

State v. Franklin, 76 So. 3d 423 (La. 2011). · cites it 2× “§ 14135a(a), authorizing the war-rantless collection of a DNA sample from persons who are arrested, facing charges, or convicted, and regulations by the Attorney General mandating collection of the sample, see 28 C.F.R. § 28.12 (b)(2009)(“Any agency of the United States that…”

Mark Jones v. MSPB, 103 F.4th 984 (4th Cir. 2024). “§ 40702 (a)(1)(A); 28 C.F.R. § 28.12 (b). So CBP tasked WMDD with developing a pilot 2 As explained by the U.”

Roosevelt Simmons v. K. Cimock, 576 F. App'x 967 (11th Cir. 2014). “§ 14136a; 28 C.F.R. § 28.12 , and Simmons has failed to show that the defendants’ actions violated any clearly-established constitutional rights, see Andujar v.”

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