PHOENIX - It's one thing to force those convicted of certain crimes in Arizona to submit to mandatory DNA testing for a statewide database.
But the Arizona Court of Appeals says forcing those individuals to pay for the DNA analysis is quite something else - it's illegal.
In a unanimous decision, the three-judge panel said if the state wants a DNA sample from Garland Reyes III it has to pick up the cost. Judge Maurice Portley, writing for the court, said there is no evidence the Legislature ever intended to make the cost a part of the penalty criminals have to pay.
Defense attorney Neal Bassett said there has been a trend by trial courts to impose these kinds of fees.
"They're so short on money that they're creating these fees and charging people, creating them out of thin air," he said.
"If a private business did that, the Attorney General's Office would go after them for fraud," Bassett continued. "But the court thinks that since it's part of the government it can create whatever fee we want to and, since it's just criminals, we can force them to pay it."
Stephanie Grisham, spokeswoman for Attorney General Tom Horne, said her agency has no plans to seek Supreme Court review.
According to court records, Reyes was arrested on suspicion of sending marijuana through the U.S. Postal Service.
A trial judge threw out several of the charges against him. But a jury convicted him on six counts of possession of marijuana.
The trial judge then ordered Reyes to submit to DNA testing as required by state law. The purpose is to add the person's profile to a state database that can be used to solve prior and future crimes.
Reyes did not contest that. But he did object to the judge ordering him to pay for it.
Portley said while the Legislature requires the Department of Corrections to get a DNA sample for testing, nothing in the law says who must pay.
Looking deeper, Portley said the aim of the law is "to aid investigative efforts in identifying repeat offenders by matching up a person with a certain crime."
He also noted legislators, in the same law, established the Arizona DNA Identification System to conduct the necessary testing and analysis, and lawmakers funded the system by imposing a surcharge on criminal and traffic fines.
"The Legislature did not direct that convicted felons pay the cost of the testing," Portley wrote. "If the Legislature wanted a convicted felon to pay the cost of his or her DNA testing, we presume it would say so expressly."
The appellate court also rejected arguments by the Attorney General's Office that the charge was allowed because the Legislature has authorized courts to impose fines and surcharges on felons. But Portley said this was not a fine but instead a fee, one which was not authorized.
Grisham said it now will be up to lawmakers whether they want to alter the statute to require or permit trial courts to impose the fee.
The amount of the fee was not spelled out, either in the trial judge's order or the appellate court ruling.