Understanding your legal rights when police request fingerprints or body samples, such as saliva or blood, is essential. These procedures are often conducted as part of a criminal investigation, and it is crucial to know what police can and cannot do. The law provides safeguards, particularly for young people and individuals with cognitive disabilities or mental health conditions.

Fingerprinting Procedures

When Can the Police Take Your Fingerprints?

The rules for fingerprinting vary by age:

• Under 15 years old: Police must obtain a court order to take fingerprints.
• Aged 15 and older: Police can take fingerprints if they have reasonable grounds to believe you have committed an indictable offence, such as theft or assault.

Conditions for Taking Fingerprints

• Aged 15 to 17: A parent, guardian, or an independent adult must be present when fingerprints are taken, and the process must be audio or video recorded.
• Individuals with cognitive disabilities or mental illness: An independent third person must be present to ensure the individual’s rights are upheld.
• Minor offences: Police cannot take fingerprints for minor infractions like jaywalking or littering.

If you refuse to provide fingerprints, police may use reasonable force, but it must not be excessive. Seek legal advice if you believe your rights have been violated.

Retention and Destruction of Fingerprints

Police must destroy fingerprints after seven months if:

• No charges are filed within six months.
• The court finds you not guilty of the alleged offence.

Different rules apply for individuals under 18. You can inquire with the police to confirm if your fingerprints have been destroyed.

Body Sample Collection

Types of Body Samples

1. Intimate Samples:
2. Blood, saliva, or pubic hair
3. Anal, genital, or breast swabs
4. Mouth or dental impressions
5. Non-Intimate Samples:
6. Hair samples
7. Fingernail or toenail scrapings
8. External body swabs

Body samples are collected through forensic procedures to obtain evidence for legal use.

Your Right to Refuse

You have the right to refuse body sample collection, but police may obtain a court order to compel compliance. A senior police officer may authorise the collection of non-intimate samples without court approval if you are suspected of a serious crime.

• Aged 10 to under 15: Police must always obtain a court order.
• Aged 15 and older: Senior police officers may authorise non-intimate sample collection for serious offences, such as home invasion or drug trafficking.

A parent, guardian, or independent adult must be present during the collection, particularly for minors and individuals with cognitive disabilities.

Procedural Safeguards

• Intimate samples: Must be collected by a qualified medical professional, such as a doctor or nurse, of the same gender where possible.
• Non-intimate samples: Can be collected by a police officer.
• Police obligations: Police must inform you that you are not required to answer questions posed by medical professionals during sample collection.

Retention and Destruction of Body Samples

Police must destroy forensic samples after 12 months if:

• No charges are filed within that period.
• The court finds you not guilty.

However, if convicted of a serious crime, your DNA profile may be stored permanently in a national database.

Driving and Body Sample Collection

If you are involved in a motor vehicle accident, you may be required to provide a blood sample. Additionally, police may request a saliva swab to detect the presence of illicit drugs. Seek legal advice before agreeing to provide samples.

Key Legislation

1. Crimes Act 1958: Outlines various criminal offences and the legal processes associated with their investigation and prosecution, including provisions related to the collection of evidence such as fingerprints and body samples.
2. Criminal Procedure Act 2009: Sets out the framework for criminal investigations and proceedings, including the processes by which evidence such as fingerprints and body samples can be lawfully collected and used in court.
3. Children, Youth and Families Act 2005: Provides specific protections and procedures related to young people in the criminal justice system, including the collection and handling of forensic evidence such as fingerprints and body samples.

Resources and Support

1. Victoria Legal Aid: Provides free legal advice and representation to individuals facing legal issues, including those related to police procedures such as fingerprinting and body sample collection.
2. Independent Broad-Based Anti-Corruption Commission (IBAC): Oversees and investigates allegations of police misconduct, including improper handling of forensic procedures.
3. Law Institute of Victoria: Offers referrals to private legal practitioners who specialise in criminal law, ensuring individuals receive expert legal representation and advice on their rights regarding forensic procedures and police interactions.

Conclusion

It is crucial to understand your legal rights concerning fingerprinting and body sample collection, as this knowledge empowers you to make informed decisions and ensures you are treated fairly under the law. Being aware of these rights can help prevent unlawful or unethical treatment and allows you to seek appropriate legal remedies when necessary. Staying informed about the legal framework and seeking professional advice can protect your interests and provide peace of mind.

If you have concerns about fingerprinting or body sample collection procedures, or if you need legal guidance on protecting your rights, contact Pentana Stanton Lawyers today. Our experienced legal team provides expert advice and representation to safeguard your legal interests.

Visit our website or call us to schedule a confidential consultation and get the support you need.