Arizona law mandates that DNA testing be performed on every person sentenced to a term of incarceration. Reyes was convicted and sentenced for possession of marijuana. The court ordered him to submit to DNA testing and pay for the cost of the test. Reyes appealed to the Court of Appeals of Arizona, Division 1, Department B, arguing that the order requiring him to pay the cost of the DNA testing violated his due process rights as the statute did not authorize the court to impose a fee.
Holding
The order requiring Reyes to pay the DNA testing fee for statutorily required DNA testing was vacated. Given that the statute was silent as to who would incur the costs of testing, the court looked to the legislative history. The primary objective of the law was to aid investigative efforts in identifying repeat offenders. Within the same bill, the legislature established the Arizona DNA Identification System for the purpose of conducting DNA testing and analysis. To finance the System, the legislature created the Arizona DNA Identification System Fund and funded it with a surcharge levied on fines. The law providing for surcharges set forth that “any person who must pay a criminal fine, a civil traffic fine, or a fine for violating certain local ordinances relating to operating a vehicle, or for violating a game and fish statute, must pay a surcharge.” A portion of these collected surcharges is used for the DNA Identification System Fund. This, as well as other statutes in which the legislature expressly indicated that a convicted felon was responsible for costs, indicates that if the legislature wanted convicted defendants to pay for the cost of their DNA testing, it would have said so expressly.
Though Reyes could be fined as part of his sentence and directed to pay a surcharge on any fine, the DNA testing fee was not a fine under the statute setting forth fines for felonies, and a portion of the surcharges imposed pursuant to fine is already used to fund the DNA Identification System Fund. Furthermore, the lower court did not indicate that the DNA testing fee was being imposed as a fine or surcharge at the sentencing hearing; it added the fee only after the hearing. As the legislature did not provide that defendants bear the costs of DNA testing in the statute mandating DNA testing, the lower court had no basis to order Reyes to pay the testing fee and therefore erred in doing so.
You can read relevant court documents here.