Lawmaker to review DNA database law after appellate court ruling

JoANNE VIVIANO

COLUMBUS, Ohio - The state legislator who sponsored a bill that requires all convicted felons to submit DNA samples said Thursday he's reviewing the law after an appeals court said it can't be applied retroactively.

"We can and will if we have to, right now, go ahead and get the retroactivity in there," said Rep. Robert Latta, a Republican from Bowling Green. "This law still does exactly what it's supposed to do. We're going to find people who commit crimes and convict them. We've got to make sure we take care of it."

The 9th Ohio District Court of Appeals in Akron ruled Wednesday that the law, enacted last year, could not be used to require a DNA sample from a man on probation for a 2002 conviction in driving under the influence.

Craig Consilio, 42, was placed on three years' community control in 2003 after serving a six-month sentence. As he neared the end of the period, he was told he had to submit the DNA sample. When he refused, a Summit County Common Pleas judge ordered him to comply.

The appeals court reversed the lower court's order, saying Consilio could not be forced to comply because the law does not include language that requires it be applied retroactively.

Attorney General Jim Petro said Wednesday that the ruling could have "disastrous ramifications" for the state's DNA database.

The database holds nearly 130,000 profiles of prisoners and offenders on probation; roughly 69,000 have been collected since the new law took effect.

Ninety-one of the new samples have been matched to unsolved crimes, said Petro spokesman Bob Beasley. He said most of the new DNA samples collected would apply to retroactive cases but did not have a specific number.

Older samples had been collected from violent criminals dating back to 1996. The 2005 law opened the collection to all felons.

"The database is very important on solving old crimes and new crimes. It's also important for protecting innocence," said Mark Godsey, associate professor of law at the University of Cincinnati School of Law and faculty director of the school's Ohio Innocence Project.

It's unlikely that the ruling will lead to a crush of appeals, said John Bay, chief counsel of legal defense at the Ohio Public Defender's office. While Consilio appealed before giving his sample, he said, most defendants have already given samples.

But the ruling could mean that DNA evidence collected in retroactive cases could be considered inadmissible in court, said Mary Ann Kovach, chief counsel of the criminal division at the Summit County prosecutor's office.

"I think that's the bigger issue or an area of more concern," she said. "We would want to prevent that, obviously."

She said the office will appeal the ruling to the Ohio Supreme Court.

Petro's office and Latta said they will support the appeal.