Gen. 135] 135

CRIMINAL PROCEDURE

DNA DATA BASE – INTERPRETATION OF STATUTE THAT

AUTHORIZES DNA SAMPLING OF INMATES WHO HAVE BEEN

PREVIOUSLY CONVICTED OF QUALIFYING OFFENSES 

June 20, 2006

Mr. John Tobin

Director, Forensic Sciences Division

Maryland State Police 

You have asked for our opinion concerning the authority of the

Maryland State Police Forensic Science Division (“Crime Lab”) to

include certain DNA samples in the statewide DNA data base. State

law mandates that DNA samples be collected from certain categories

of individuals. One category consists of individuals who have been

convicted of certain qualifying offenses in the past and who

remained incarcerated after October 1, 1999. With respect to that

category, you ask:

(1) May the Crime Lab collect and maintain a DNA sample

from an inmate who was imprisoned for both qualifying and nonqualifying offenses without determining whether the portion of the

sentence attributable to the qualifying offense has been completely

served?

(2) May the Crime Lab collect and maintain a DNA sample

from an inmate who has been convicted of a qualifying offense in

the past, but who is currently serving a sentence for a non-qualifying

offense?

In our opinion, the relevant statute does not require that an

inmate be currently serving a sentence for a qualifying offense in

order to be eligible for DNA sampling, so long as the inmate has

been convicted at some time of a qualifying offense. 
136 [91 Op. Att’y

I

Background 

A. Statewide DNA Data Base

DNA stands for deoxyribonucleic acid, a substance that carries

genetic information in human beings. Comparisons of DNA

evidence with known samples can lead to the identification of

individuals involved in crimes or other incidents. The results of

such comparisons are therefore admissible in criminal cases and

other proceedings under certain conditions. See 89 Opinions of the

Attorney General 189 (2004).

State law directs the Crime Lab to maintain a statewide DNA

data base and DNA repository. Annotated Code of Maryland, Public

Safety Article (“PS”), §2-502. The data base consists of

identification characteristics of DNA samples stored in the statewide

DNA repository. PS §2-506. The repository consists largely of

samples obtained from individuals who have been convicted of

felonies or two other predicate offenses: burglary in the fourth

degree (Annotated Code of Maryland, Criminal Law Article §6-205)

and breaking and entering a motor vehicle (Criminal Law Article §6-

206). The DNA data base law identifies the individuals to be

sampled as follows:

(1) ... [A]n individual who is convicted of

a felony or a violation of §6-205 or §6-206 of

the Criminal Law Article shall:

(i) have a DNA sample

collected either at the time of sentence or on

intake to a correctional facility, if the

individual is sentenced to a term of

imprisonment; or

(ii) provide a DNA sample as a

condition of sentence or probation, if the

individual is not sentenced to a term of

imprisonment.

(2) An individual who was convicted of

a felony or a violation of §6-205 or §6-206 of

the Criminal Law Article on or before October

1, 2003 and who remains confined in a
Gen. 135] 137

 Apparently, conflicting advice has been given informally in the 1

past by attorneys advising the Department of Public Safety and

Correctional Services and the Department of State Police as to whether the

data base law authorized sampling of an individual who was currently

serving a sentence for a non-qualifying offense, but who had been

convicted of a qualifying offense in the past. 

correctional facility on or after October 1,

1999, shall submit a DNA sample to the

Department.

PS §2-504(a). The Court of Appeals has held that the collection of

DNA samples from incarcerated individuals is constitutional and

does not violate the Fourth Amendment. State v. Raines, 383 Md.

1, 857 A.2d 19 (2004).

Your two questions relate to DNA sampling of inmates. The

answers to both questions turn on whether the statute limits the

universe of inmates to be sampled to those serving a sentence for a

qualifying offense at the time of sampling.1

II

Analysis

A. Statutory Language

The DNA data base law authorizes the DNA sampling of two

categories of convicts: (1) those newly convicted of qualifying

offenses and (2) inmates previously convicted of those offenses.

The statute describes the second category to include an “individual

who was convicted of [a qualifying offense] on or before October 1,

2003 and who remains confined in a correctional facility on or after

October 1, 1999....” PS §2-504(a)(2) (emphasis added).

The meaning of the verb phrase “remains confined” is

somewhat ambiguous, but is critical to the answer to your questions.

First, it could be interpreted to mean that the inmate is still serving

the sentence for the conviction referenced earlier in the same

sentence – i.e., the offense that qualifies the inmate for DNA

sampling. Under this interpretation, once the sentence for the

qualifying offense is completely served, the inmate no longer

qualifies for DNA testing, even if the inmate is still incarcerated as
138 [91 Op. Att’y

See Roget’s International Thesaurus (3d ed. 1962) at p. 1097. 2

a result of other offenses. This interpretation would require a

determination of the precise basis of the inmate’s current

confinement.

Second, the phrase could signify only that the inmate has been

continuously incarcerated since the conviction for the qualifying

offense, without implying any condition on the basis of the inmate’s

current confinement. Under this interpretation, one need only

determine that the inmate was previously convicted of a qualifying

offense and has not been released from custody in the interim.

Finally, the word “remains” may be used simply in the sense of

“is present” and is not meant to signify that the inmate has been in 2

continuous confinement nor that the current confinement is based on

the qualifying conviction. Under this interpretation, the prior

conviction for a qualifying offense coupled with current confinement

renders the inmate eligible for sampling. There would be no need to

parse out whatsentence or sentences the inmate is serving at the time

of sampling or to investigate whether the individual had been out of

State custody since the time of the qualifying conviction.

To select among these alternatives, we look to relevant court

decisions and the legislative history of the DNA data base statute.

B. Court Decisions

To our knowledge, no Maryland reported decision directly

addresses your questions. However, the circumstances of the Raines

case lend some support to a reading of the statute that would make

an inmate with a past qualifying conviction eligible for DNA

sampling, regardless of the basis or continuity of the inmate’s

current confinement – the third alternative outlined above. As noted

previously, in Raines, the Court of Appeals addressed the

constitutionality of the DNA sampling authorized by the DNA data

base statute. In setting out the facts of the case, the Court noted that

Raines qualified for DNA sampling as a result of his 1982 robbery

conviction and that, at the time of sampling in 1999, he was

incarcerated for another offense unrelated to the 1982 robbery.

Raines, 383 Md. at 5 n.5. Thus, it appears that Raines was not

necessarily incarcerated for a qualifying offense at the time of the

DNA sampling – or at least that the Court believed that it made no
Gen. 135] 139

 It is possible that, as a result of a parole violation based on his 3

subsequent criminal activity, Raines might have also been serving a

portion of the 1982 sentence at the time of his DNA sampling. However,

the Court did not explore that issue. 

An earlier version of the statute was even clearer, providing for 4

DNA sampling of an individual who had been convicted of a qualifying

offense “and who is still serving a term of confinement in connection

therewith...” 837 A.2d at 653.

difference in light of his 1982 qualifying conviction. The Court did 3

not specifically address the propriety of sampling an individual who

was currently incarcerated for a non-qualifying offense, as Raines

apparently had not raised that issue. Nevertheless, the Court

appeared to accept the idea that the statute authorized such a

sampling if the individual had been previously convicted of a

qualifying offense.

Courts in two other states have reached differing conclusions

on whether a state DNA sampling law applies to an inmate

previously convicted of a qualifying offense but currently serving a

sentence for a non-qualifying offense. These decisions are of limited

utility in construing PS §2-504(a) as they turn, to some extent, on the

particular language of statutes that are not identical to the Maryland

law.

In Smith v. Department of Corrections, 837 A.2d 652 (Pa.

Comm. Ct. 2003), the relevant Pennsylvania statute provided that a

person who had been convicted of a qualifying offense “and who

serves a term of confinement in connection therewith on or after [the

effective date of the statute] shall not be released in any manner

unless and until a DNA sample has been withdrawn.” 837 A.2d at

654 (emphasis added). Relying on the literal language of the statue, 4

the court held that the statute did not authorize DNA sampling of an

individual who had previously been convicted of a qualifying

offense, but who was currently confined for a non-qualifying

offense. Id.; see also Commonwealth v. Derk, 895 A.2d 622, 631-32

(Pa. Sup.Ct. 2006). The inclusion of the phrase “in connection

therewith” in the Pennsylvania statute clearly makes a connection

between the qualifying conviction and current confinement a

condition of DNA sampling of inmates. No similar phrase appears

in the Maryland statute.
140 [91 Op. Att’y

In Murphy v. Department of Correction, 711 N.E.2d 149

(Mass. Sup. Jud. Ct. 1999), the Massachusetts Supreme Judicial

Court construed a state statute that required DNA sampling of any

individual convicted of a qualifying offense “who is incarcerated ...

on the effective date of this act, notwithstanding the date of such

conviction ....” 711 N.E.2d at 151. An inmate who had previously

been convicted of a qualifying offense, but who was currently

serving a sentence for a non-qualifying offense, argued that the

statute only applied to those inmates who were currently serving

sentences for qualifying offenses. Id. The Supreme Judicial Court

held that the statutory language “is clear; it requires any person ever

convicted of a listed offense, who is incarcerated on the effective

date of the statute, to provide a DNA sample.” Id. at 152. The court

observed that this construction not only suited the literal language of

the statute, but also carried out the policy underlying the statute to

identify or exclude individuals for criminal investigation and

prosecution. “The Legislature has evidently determined that the

statutory purpose is best served by collecting DNA samples from

individuals convicted of [qualifying offenses]. It is entirely rational

that, in pursuit of the statutory goal, the Legislature should provide

for collection of DNA samples from as many of these individuals as

possible.” Id. The court reasoned that it was also rational for the

Legislature not to require that samples be taken from those

previously convicted of qualifying offenses who were not currently

in confinement, given the burden of locating and sending officers to

collect samples from those individuals. Id. 

While PS §2-504(a) is not identical to the Massachusetts

statute, as noted above, it would be interpreted similarly if the phrase

“remains incarcerated” in the Maryland statute was meant to convey

the same meaning as “is incarcerated” (the third alternative outlined

above) or “is confined” (the Massachusetts statute). A review of the

legislative history of PS §2-504(a) reveals that it was inspired by

policy concerns similar to those articulated by the Massachusetts

court.

C. Legislative History

The Maryland DNA data base law was first enacted in 1994.

Chapter 458, Laws of Maryland 1994, then codified at Article 88B,

§12A. It was the product of an Administration bill that was intended

to create a State DNA data base similar to those established in at

least 22 other states, which would allow the State to participate in a

nationwide DNA data base network maintained by the Federal
Gen. 135] 141

The data base network is known as the Combined DNA Index 5

System (CODIS). See 42 U.S.C. §14135.

Bureau of Investigation. Testimony of Kevin Hughes, Governor’s 5

Legislative Office, and Col. Larry Tolliver, Superintendent of

Maryland State Police before the Senate Judicial Proceedings

Committee on House Bill 410 (1994). The purpose of the network

was to assist law enforcement agencies throughout the nation in

solving crimes involving repeat offenders, as well as to deter those

offenders. 

Although matching of evidentiary DNA samples was seen as

an effective tool for law enforcement, the lack of a data base of

DNA profiles for comparison was a stumbling block. “The bill

[was] designed to solve this problem by creating a data base

composed of samples obtained from persons convicted of sexual

offenses.” Floor Report for House Bill 410 (1994).

 To efficiently populate the data base with DNA samples that

would likely serve its law enforcement purposes, the statute

necessarily had to define a population for sampling that could be

reached in a cost-effective manner. The Administration targeted

known sex offenders currently incarcerated or on parole as the initial

source of samples for the data base. Testimony of Kevin Hughes,

Governor’s Legislative Office, and Col. Larry Tolliver, supra. It

was estimated that 5,000 incarcerated or paroled sex offenders

would be immediately eligible to be sampled under the proposed bill.

Id. Other types of offenders were to be added in the future, but the

original proposal was limited to sex offenders so as not to

“overwhelm the system” as it was launched. Id. Under the bill as

originally introduced, provision of a DNA sample by such an

individual would be a condition of release from custody or

supervision. House Bill 410, first reader (1994). 

Thus, the proposed bill limited the initial sampling in two

ways. First, it focused on convicted sex offenders – a category of

offenders seen as prone to recidivism whose offenses often involved

DNA evidence and who might be effectively deterred or detected by

the creation of the data base. Second, it limited the population of sex

offenders to be sampled to those on parole or in custody. In that

way, the bill focused on a subset whose location was presumably

already known to criminal justice authorities and over whom the

State could exert some leverage in obtaining the required samples.
142 [91 Op. Att’y

 A sentence in the Floor Report could be interpreted to express a 6

narrower view of the population subject to sampling. It stated that “the

data base will contain DNA samples only from persons who are convicted

of certain sexual offenses or who are already serving terms of

imprisonment for such offenses.” Floor Report for House Bill 410 (1994)

at p.2 (emphasis added). This sentence could be read to mean that the

only inmates to be sampled would be those currently serving terms for

qualifying offenses. However, neither this sentence nor the rest of the

Floor Report purported to exempt categories of individuals previously

convicted of qualifying offenses from sampling. As noted above, the

proponents of the data base law focused on inmates and other individuals

under the supervision of the State as a method for quickly populating the

data base in a cost-effective manner.

As noted above, the bill, as originally introduced, would have

provided for DNA sampling of all individuals who had been

convicted of certain sex offenses and were either in custody or on

parole. Concerns apparently were raised about the logistics and

expense of finding and obtaining samples from the offenders who

were not in the State’s physical custody. As a result, the

Administration offered an amendment, adopted by the General

Assembly, that removed parolees from the list of offenders required

to submit to DNA sampling. Administration representatives stated

that the amendment was “strictly a cost containment measure,”

reducing the anticipated cost of the program for the first year from

$1.4 million to under $1 million for fiscal year 1995. Letter from

Kevin Hughes, Assistant Legislative Officer, Office of the

Governor, to the Honorable Joseph Vallario, Chairman, House

Judiciary Committee (March 15, 1994). It is evident that, even with

this amendment, the intent was to sample as many individuals who

had been convicted of the qualifying offenses as possible within

fiscal constraints. There is no indication in the legislative record that

the General Assembly intended to make fine distinctions as to the

basis for a particular offender’s current incarceration.6

As ultimately enacted in 1994, the statute required anyone

convicted of a “qualifying crime of violence” – at that time defined

to include certain sexual offenses – to provide a DNA sample

following sentencing. It further provided that an individual who had

been convicted of such an offense prior to the effective date of the

statute and “who remains incarcerated on that date” would also

provide a DNA sample. Former Article 88B, §12A(d). As predicted

when the original bill was presented to the Legislature in 1994, the

statute has subsequently been amended to expand the range of

qualifying offenses for DNA sampling. See Chapter 490, Laws of
Gen. 135] 143

Maryland 1999 (adding murder, robbery, robbery with a deadly

weapon, first degree assault, and certain attempted crimes to the list

of qualifying offenses); Chapter 240, Laws of Maryland 2003

(revising statute to encompass current categories of qualifying

offenses: all felonies and violations of Criminal Law Article §6-205

and §6-206). In 2003, it was recodified as part of the new Public

Safety Article. Chapter 5, §2, Laws of Maryland 2003.

D. Summary

It thus appears that the Legislature was focused on gathering

DNA samples of the greatest interest to law enforcement authorities

in the most cost-effective manner. As a result, the sampling program

targeted offenders already in custody and those who would come

under State supervision in the future. Other than excepting parolees

from the sampling program for fiscal reasons, the General Assembly

did not explicitly exclude from the program other categories of

individuals with qualifying convictions who are in State custody.

There are also practical impediments to an interpretation that would

tie the inmate’s current confinement to the qualifying conviction. 

Many inmates are incarcerated for multiple offenses and may

be serving concurrent sentences, partially concurrent sentences,

consecutive sentences, or a combination of concurrent and

consecutive sentences. See Annotated Code of Maryland,

Correctional Services Article, §3-701 (defining “term of

confinement” for purposes of law governing diminution credits). If

an inmate who had been convicted of a qualifying offense could be

sampled only during the portion of his or her confinement that was

attributable to the qualifying offense, those charged with carrying

out the sampling mandate would face a likely insurmountable task

of unraveling and disaggregating various sentences, perhaps

assigning diminution credits to one or another. Cf. Secretary of

Public Safety and Correctional Services v. Hutchinson, 359 Md.

320, 321-23, 753 A.2d 1024 (2000) (referring to the “arcane world

of diminution credits” and the “intricate series of calculations”

necessary to determine when inmate has completed sentence or

becomes eligible for release); 84 Opinions of the Attorney General

50 (1999) (describing difficulty of computing good conduct credits

for inmates serving multiple sentences). None of these adjustments

and computations would change the two most critical facts that the

inmate had been previously convicted of a qualifying offense and

that the inmate was currently in State custody. The determination of

whether an inmate was eligible to be sampled would become a

highly complex endeavor, with little relation to the policy reasons
144 [91 Op. Att’y

underlying the statutory mandate for gathering DNA samples from

inmates. 

It is therefore unsurprising that, in Raines, neither the parties

nor the Court of Appeals raised any question as to whether the

inmate was eligible for sampling, even though his incarceration may

have been unrelated to his qualifying conviction. In our view, if the

Court of Appeals were squarely presented with the question, it

would likely conclude that PS §2-504(a) does not require that an

inmate be currently incarcerated for a qualifying offense in order to

be sampled.

III

Conclusion

In our opinion, PS §2-504(a) does not require that an inmate be

currently serving a sentence for a qualifying offense in order to be

eligible for DNA sampling, so long as the inmate has been convicted

at some time of a qualifying offense. 

J. Joseph Curran, Jr.

Attorney General

Sharon B. Benzil

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice