Ground has been broken on a new $12-million state crime lab in Waterbury. One of the main reasons for its construction is to provide vastly larger space for DNA collection.

More space is urgently needed because of a provision in a sex offender bill passed this year. S. 13 mandates that DNA be collected from anyone arraigned on felony (and some misdemeanor) charges.

The provision was controversial, for two reasons.

The first is that it’s likely unconstitutional. DNA collection, unless consented to, is a search and seizure. A warrant based on probable cause is needed for government to take such action, the Fourth Amendment says.

Courts have ruled that a warrant isn’t needed for DNA collection if you’re a convicted felon. Once convicted, your privacy is diminished.

But courts haven’t applied this “diminished privacy” standard to people simply arrested and arraigned, as S. 13 calls for. Vermont is one of the few states in the country to try this approach.

It’s a certainty the provision will be challenged when it goes into effect July 2011.

The second reason the provision was controversial was that crime lab officials said they couldn’t handle the huge increase in DNA samples. They didn’t have the facilities. And that’s what led to the delay in implementation of the provision.

More money was appropriated, and the project was put on a fast track. This month’s ground-breaking is evidence of the speed the Legislature wants a new lab built.

Ironically, though, in the same week that the project got underway, The New York Times reported that DNA might not be the foolproof identification tool that law enforcement has proclaimed it to be.

The Times reported that scientists in Israel had demonstrated that DNA evidence can be fabricated, “undermining the credibility of what has been considered the gold standard of proof in criminal cases.”

The Israeli scientists also showed, the Times said, “that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.

“’’You can just engineer a crime scene,’ said Dan Frumkin, lead author of the paper …. ‘Any biology undergraduate could perform this.’”

When the DNA section of S. 13 was debated in the House of Representatives, questions were raised why the state — if it had “probable cause” to believe someone had committed a crime — didn’t just ask for a warrant to collect a DNA sample, as required by the Fourth Amendment.

The answer was, essentially, that the state wants to compile as large a DNA database as possible. The fewest restrictions on the collection of DNA as possible will facilitate that.

DNA turns the tables on the ancient right of innocence until guilt is proven. With massive DNA databases in place, you become a suspect for any crime that’s committed. Police don’t need a reason to suspect you might have been involved. They just do a fast computer search of everyone’s DNA records to look for matches.

DNA has never been 100-percent foolproof, despite popular perceptions. It’s a probability, not a certainty, when a “match” is found, that the DNA belongs to the same person.

Now, however, with the news that DNA can be fabricated, a “match” may simply be the result of false evidence. That undermines DNA’s use as strong “proof” of guilt.

The state’s new DNA lab could eventually generate as many lawsuits as it does credible “matches.”

Tags: criminal law, privacy, search and seizure