Florida Statutes
Fla. Stat. § 760.40 (2025)
Genetic testing; definitions; express consent required; confidentiality; notice of use of results.
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760.40 Genetic testing; definitions; express consent required; confidentiality; notice of use of results.—
(1) As used in this section, the term:
(a) “DNA analysis” means the medical and biological examination and analysis of a person’s DNA to identify the presence and composition of genes in that person’s body. The term includes DNA typing and genetic testing.
(b) “DNA sample” means any human biological specimen from which DNA can be extracted or the DNA extracted from such specimen.
(c) “Exclusive property” means the right of the person whose DNA has been extracted or analyzed to exercise control over his or her DNA sample and any results of his or her DNA analysis with regard to the collection, use, retention, maintenance, disclosure, or destruction of such sample or analysis results.
(d) “Express consent” means authorization by the person whose DNA is to be extracted or analyzed, or such person’s legal guardian or authorized representative, evidenced by an affirmative action demonstrating an intentional decision, after the person receives a clear and prominent disclosure regarding the manner of collection, use, retention, maintenance, or disclosure of a DNA sample or results of a DNA analysis for specified purposes. A single express consent may authorize every instance of a specified purpose or use.
(2) Except as provided in s. 817.5655, a person or entity may only perform DNA analysis with express consent. The results of such DNA analysis, whether held by a public or private entity, are the exclusive property of the person tested, are confidential, and may not be disclosed without express consent. Such information held by a public entity is exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(3) A person who performs DNA analysis or receives records, results, or findings of DNA analysis must provide the person tested with notice that the analysis was performed or that the information was received. The notice must state that, upon the request of the person tested, the information will be made available to his or her physician. The notice must also state whether the information was used in any decision to grant or deny any insurance, employment, mortgage, loan, credit, or educational opportunity. If the information was used in any decision that resulted in a denial, the analysis must be repeated to verify the accuracy of the first analysis, and if the first analysis is found to be inaccurate, the denial must be reviewed.
History.—s. 1, ch. 92-101; s. 10, ch. 93-204; s. 1, ch. 94-90; s. 420, ch. 96-406; s. 1795, ch. 97-102; s. 15, ch. 98-251; s. 7, ch. 2001-127; s. 40, ch. 2005-39; s. 3, ch. 2009-190; s. 2, ch. 2021-216.
Arrestable Offenses under F.S. 760.40
M = misdemeanor · F = felony · degree: F=1st S=2nd T=3rd§760.40INVADE PRIVACYRENUMBERED. SEE REC # 9467
Notes of Decisions
Cited in 8
cases (1 in the last 5 years), 2003–2023 · leading case: Doe v. Suntrust Bank, 32 So. 3d 133 (Fla. 2d DCA 2010).
Doe v. Suntrust Bank, 32 So. 3d 133 (Fla. 2d DCA 2010). “Additionally, the Does argued that section 760.40, Florida Statutes (2005), prohibits the court from ordering them to submit a DNA sample for testing.”
Hous. Opportunities Proj. for Excellence, Inc. v. Spv Realty, Lc, 212 So. 3d 419 (Fla. 3d DCA 2016). “” Chapter 760 also includes a genetic testing privacy law, section 760.40, a provision empowering the Attorney General to bring a civil or administrative action on behalf of an individual injured as a result of interference 8 voluntarily vacated an apartment at the request of…”
Greenberg v. Miami Child.'s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064 (S.D. Fla. 2003). “Fla. Stat. § 760.40 (2002). This statute, however, is inapplicable under a common law theory of conversion, because by its plain meaning, it only provides penalties for disclosure or lack of informed consent if a person is being genetically analyzed.”
State Of Florida, Dept. Of Revenue v. Gary L. Ceasar, Jr., 188 So. 3d 989 (Fla. 1st DCA 2016). “See § 760.40(2)(a), Fla. Stat. ("DNA analysis may be performed only with the informed consent of the person to be tested, and the results of such DNA analysis, whether held by a public or private entity, are the exclusive property of the person tested, are confidential, and may…”
State v. Gibson, 150 So. 3d 1240 (Fla. 3d DCA 2014). “A separate statute, section 760.40, Florida Statutes (2012), the “DNA Database Act,” regulates the performance and use of DNA analysis, but does not apply to “criminal prosecution,” determinations of paternity, or DNA analysis conducted under section 943.”
William Marvin Douberley v. Harold Peerenboom (Fla. 4th DCA 2023). “2 The Perlmutters’ intentional tort counts relied generally upon section 760.40, Florida Statutes (2013), which at the time 1 pertinently stated: (a) Except for purposes of criminal prosecution, except for purposes of determining paternity as provided in s.”
Douberley v. Perlmutter, 219 So. 3d 854 (Fla. 4th DCA 2017). “The defendants argued that the crime-fraud exception applied because section 760.40, Florida Statutes, requires anyone doing DNA testing to first get the person’s consent and to .”
Greenberg v. Miami Child.'s Hosp. Res. Inst., Inc., 264 F. Supp. 2d 1064 (S.D. Fla. 2003). “Fla. Stat. § 760.40 (2002). This statute, however, is inapplicable under a common law theory of conversion, because by its plain meaning, it only provides penalties for disclosure or lack of informed consent if a person is being genetically analyzed.”
— 760.40(1) — 1 case
Doe v. Suntrust Bank, 32 So. 3d 133 (Fla. 2d DCA 2010). “Additionally, the Does argued that section 760.40, Florida Statutes (2005), prohibits the court from ordering them to submit a DNA sample for testing.”
— 760.40(2) — 1 case
William Marvin Douberley v. Harold Peerenboom (Fla. 4th DCA 2023). “2 The Perlmutters’ intentional tort counts relied generally upon section 760.40, Florida Statutes (2013), which at the time 1 pertinently stated: (a) Except for purposes of criminal prosecution, except for purposes of determining paternity as provided in s.”
— 760.40(2)(a) — 2 cases
Doe v. Suntrust Bank, 32 So. 3d 133 (Fla. 2d DCA 2010). “Additionally, the Does argued that section 760.40, Florida Statutes (2005), prohibits the court from ordering them to submit a DNA sample for testing.”
State Of Florida, Dept. Of Revenue v. Gary L. Ceasar, Jr., 188 So. 3d 989 (Fla. 1st DCA 2016). “See § 760.40(2)(a), Fla. Stat. ("DNA analysis may be performed only with the informed consent of the person to be tested, and the results of such DNA analysis, whether held by a public or private entity, are the exclusive property of the person tested, are confidential, and may…”
— 760.40(2)(b) — 2 cases
Doe v. Suntrust Bank, 32 So. 3d 133 (Fla. 2d DCA 2010). “Additionally, the Does argued that section 760.40, Florida Statutes (2005), prohibits the court from ordering them to submit a DNA sample for testing.”
Douberley v. Perlmutter, 219 So. 3d 854 (Fla. 4th DCA 2017). “The defendants argued that the crime-fraud exception applied because section 760.40, Florida Statutes, requires anyone doing DNA testing to first get the person’s consent and to .”
— 760.40(3) — 2 cases
Doe v. Suntrust Bank, 32 So. 3d 133 (Fla. 2d DCA 2010). “Additionally, the Does argued that section 760.40, Florida Statutes (2005), prohibits the court from ordering them to submit a DNA sample for testing.”
Douberley v. Perlmutter, 219 So. 3d 854 (Fla. 4th DCA 2017). “The defendants argued that the crime-fraud exception applied because section 760.40, Florida Statutes, requires anyone doing DNA testing to first get the person’s consent and to .”
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