CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 568, 2010 WL 323031
...ng that paternity can be established in a proceeding to determine the beneficiaries of a trust. Adrian and Evelyn again objected arguing that the court was without authority to compel them to submit to DNA testing. Additionally, the Does argued that section 760.40, Florida Statutes (2005), prohibits the court from ordering them to submit a DNA sample for testing....
...Accordingly, we conclude that the trial court would have the authority to order Adrian and Evelyn to provide a buccal swab sample for testing to determine the paternal relationship between Doe and Madelin unless somehow prohibited by other law. Adrian and Evelyn contend that section 760.40 prohibits the court from ordering them to submit to DNA testing....
...The fact that the individual may have done so pursuant to a court order is beside the point in determining whether, from the analyst's perspective, an individual has consented to having their DNA analyzed. Nor does the plain language of the statute support the construction offered by the petitioners. Section 760.40 is aimed at two types of individuals or entities: those who analyze DNA and those who receive the records, results, or findings of the analysis. It criminalizes performing DNA analysis or disclosing the results without obtaining the informed consent of the person tested. See § 760.40(2)(b). It also provides confidentiality for results held by public entities by exempting them from the public records law. See § 760.40(2)(a). Finally, it requires that the person tested be notified that the analysis was performed and whether the information was used in any decision to grant or deny any insurance, employment, mortgage, loan, credit or educational opportunity. See § 760.40(3)....
...The exceptions in subsection (2)(a) are circumstances in which the legislature chose not to afford these protections. [6] They are not, as the petitioners contend, the only circumstances in which a court may order testing. [7] The petitioners' contention that the exceptions listed in section 760.40 represents the only circumstance in which a court is authorized to order an individual to submit to DNA testing, ignores the reality that courts routinely order DNA testing under a variety of circumstances not specified in section 760.40....
...er general discovery principles. The narrow question presented by this case is whether the circuit court departed from the essential requirements of the law by ordering Adrian and Evelyn to submit to DNA testing as part of the discovery process when section 760.40, Florida Statutes (2005), clearly prohibits such DNA testing without informed consent. Because I believe that the circuit court was bound by the limitations in section 760.40, I would answer that question in the affirmative and grant the writ of certiorari....
...rn out of wedlock under section
732.108(2)(b), Florida Statutes (2005). See §
742.12(1), Fla. Stat. (2005) (providing for DNA testing of the child, mother, and alleged fathers "[i]n any proceeding to establish paternity") (emphasis added). However, section
760.40 imposes limitations on the court's authority to order such DNA testing. Section
760.40 is entitled "Genetic testing; informed consent; confidentiality; penalties; notice of use of results." It provides in pertinent part as follows: (2)(a) Except for purposes of criminal prosecution, except for purposes of determining paternity as provided in s....
...may not be disclosed without the consent of the person tested. (Emphasis added.) "DNA analysis" is defined as "the medical and biological examination and analysis of a person to identify the presence and composition of genes in that person's body." § 760.40(1)....
...The court shall direct that the tests be conducted by a qualified technical laboratory. *143 (Emphasis added.) This section thus authorizes a court to require a child, mother, and putative father to submit to DNA testing. Reading this statute in conjunction with section
760.40, a court is authorized to require such DNA testing on the child, mother and putative father without their informed consent. However, because section
742.12(1) does not authorize a court to require a putative sibling to submit to DNA testing, the prohibition against DNA testing without informed consent in section
760.40(2)(a) applies to putative siblings....
...While the circuit court was authorized by section
742.12(1) to order DNA testing of the child, the mother, and the putative father in order to make a paternity adjudication, it was not authorized to order DNA testing of others absent their informed consent as required by section
760.40(2)(a)....
...The majority devalues the privacy right at issue in this case by asserting that the intrusion on one's privacy is minimal because the test is noninvasive and used only to compare the putative child's DNA to that of the legitimate children. The privacy right protected by section 760.40(2)(a) is not just the right to be free from unwarranted physical intrusion, but the right to keep private one's DNA composition....
...e Florida and United States Constitutions. See §
90.501, Fla. Stat. (2005); cf. §
316.066(4), Fla. Stat. (2005) (creating a privilege for crash reports); §
766.101(5), Fla. Stat. (2005) (creating a privilege for medical review committee records). Section
760.40 effectively creates a privilege regarding DNA testing by requiring informed consent before such testing is performed and before any results of the testing are disclosed. I cannot accept the majority's conclusion that the purpose of section
760.40(2)(a) is to require an individual to sign a "consent" form against his or her will and under threat of sanctions by the circuit court in order to authorize DNA testing. There would appear to be no use for such a statute if DNA testing could be ordered by a court simply as part of the discovery process. Thus, the majority's interpretation of section
760.40(2)(a) would render it meaningless, and we are not permitted to construe statutes in that manner....
...*144 Furthermore, we are not permitted to ignore the clear intent of the legislature to protect the privacy rights of a person to his or her DNA. The majority's interpretation of the statute essentially inserts the qualifying phrase, "unless directed by a circuit court in the course of discovery," into section 760.40(2)(a)'s prohibition against DNA testing without informed consent. The majority supports this interpretation by expressing concern that section 760.40(2)(a) might preclude courts from ordering DNA testing against a party's will in certain types of cases. However, the legislature has expressly considered the circumstances under which informed consent should not be required by including exceptions within section 760.40(2)(a) itself. The majority's reservations about the consequences of applying the statutory protections in other types of cases do not justify interpreting section 760.40(2)(a) in a manner that completely eviscerates those protections....
...The person is also a lineal descendant of his or her father and is one of the natural kindred of all members of the father's family, if: (b) The paternity of the father is established by an adjudication before or after the death of the father. [5] Section 760.40 provides: Genetic testing; informed consent; confidentiality; penalties; notice of use of results. (1) As used in this section, the term "DNA analysis" means the medical and biological examination and analysis of a person to identify the presence and composition of genes in that person's body....
...ction to be placed in a statewide database accessible by an assortment of criminal justice agencies; section
742.12(3), Florida Statutes provides that the results of tests ordered pursuant to that section be filed in the court file. [7] On its face, section
760.40 is silent regarding when DNA testing may be ordered....
...According to the legislative history, the purpose of the statute was to provide confidentiality for the results of genetic testing akin to the statutory confidentiality afforded to medical records. See Fla. S. Comm. on Judiciary, CS/SB 980 (1992) Staff Analysis (Feb. 28, 1992) (Fla. State Archives). [8] For example, section
760.40 omits section
742.12(2), which provides for court-ordered scientific testing at the request of a party in a paternity action and section
742.18, which provides for scientific testing to disestablish paternity....
CopyPublished | Florida 4th District Court of Appeal
...collection, testing, and reporting of their
DNA; and civil conspiracy to defame them and falsely implicate them in criminal
conduct.
2
The Perlmutters’ intentional tort counts relied generally upon section 760.40,
Florida Statutes (2013), which at the time 1 pertinently stated:
(a) Except for purposes of criminal prosecution, except for purposes
of determining paternity as provided in s....
...fidential, and may not be
disclosed without the consent of the person tested. . . .
(b) A person who violates paragraph (a) is guilty of a misdemeanor
of the first degree, punishable as provided in s.
775.082 or s.
775.083.
§
760.40(2), Fla....
...gly
condoned, ratified, or consented to” Douberley’s intentional misconduct. The
trial court again found the Perlmutters made a reasonable evidentiary showing
in support of the motion. More specifically, the trial court permitted the
1 In 2021, section 760.40 was amended and subsection (2)(b), the misdemeanor
provision quoted below, was removed....
...Simultaneously, the legislature created section
817.5655, Florida Statutes (2021), to criminalize DNA testing and reporting results
without the donor’s consent, with limited exceptions.
2 Notably, as the trial court correctly ruled, the Perlmutters could not sue directly for
violation of section
760.40, as the statute did not provide for a private cause of action.
We also note the statute in effect at the time did not provide for punitive damages.
3
Perlmutters to seek punitive damages from Federal based on section
768.72(3)(a)
and (b), Florida Statutes (2013)....
