Wе granted Kenny Quarterman’s application for interlocutory appeal from the trial court’s ruling upholding the constitutionality of OCGA § 24-4-60, which requires any person convicted of a felony and incarcerated in a State correctional facility to provide a sample for *384 DNA analysis to determine the identification characteristics specific to the person. Id. at (b). For the reasons that follow, we affirm.
In 2005, while Quarterman was incarcerated in the State prison system for a felony drug conviction, a DNA sample was collected from him pursuant to OCGA § 24-4-60 (b). The profile resulting from the DNA analysis was filed in the DNA databаse 1 maintained by the Georgia Bureau of Investigation. The State matched Quarterman’s DNA to DNA gathered from an underage female who had reported a sexual assault in June 2002. 2 After a fresh sample of Quarterman’s DNA was obtained by search warrant and typed, the report reflected that the DNA gathered from the 2002 victim originated from either Quarterman or his identical twin. The State then indicted Quarter-man on charges оf rape and statutory rape, which gave rise to his motions to suppress evidence and quash the indictment based on constitutional challenges to OCGA § 24-4-60.
1. Quarterman contends OCGA § 24-4-60 denies him equal protectiоn of the law because it requires DNA samples to be taken only from persons convicted of felonies who are incarcerated in State correctional facilities,
3
thereby treating such pеrsons differently than persons convicted of misdemeanors who are incarcerated in State correctional facilities for misdemeanants and persons who, although convicted of felonies, either serve their entire sentence incarcerated in county correctional facilities or who receive probated or suspended sentences. Assuming, arguendo, that Quarterman is similarly situatеd to persons accorded the different treatment,
4
“[a]n
*385
equal protection challenge is assessed under the ‘rational relationship’ test when [as here] neither a suspect class nor a fundamentаl right is affected by the challenged statute. [Cit.]”
Love v. State,
2. Assuming, without deciding, that Quarterman has a property interest in his DNA, he has failed to establish how OCGA § 24-4-60 violated either his procedural or substantive due process rights.
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“When a statute is under constitutional attack, this Court must presume it to be constitutional until it is established that the statute ‘manifestly infringes upon a constitutional provision or violates the rights of the people. . . .’ [Cit.]”
Cooper v. State,
3. In
Padgett,
supra,
4. The privilege against self-incrimination in the United States Constitution does not protect an individual from government compulsion to provide blood or other biological samples. See, e.g.,
Schmerber v. California,
5. In Vanderlinden v. Kansas, 874 FSupp. 1210 (D.C. Kansas) (1995), the court addressed an Eighth Amendment claim by plaintiffs, convicted felons, agаinst the Kansas DNA profiling statute, and that state’s contention that its statute was not penal, but rather was intended to further a legitimate governmental interest.
The eighth amendment prohibits any punishment which violates civilizеd standards of humanity and decency and “which is repugnant to the conscience of mankind.” Louisiana ex rel. Francis v. Resweber,329 U. S. 459 , 471 [(67 SC 374, 91 LE 422)] (1947). See also Estelle v. Gamble,429 U. S. 97 , 102-03 [(97 SC 285, 50 LE2d 251)] (1976). The court’s resolution of this argument depends upon its determination of whether the statute imposes punishment. Unless it is clеar punishment was intended, this inquiry turns on whether an alternative purpose for the provision is reasonably identifiable and whether it appears to be excessive in light of that purpose. Bell v. Wolfish,441 U. S. 520 , 538 [(99 SC 1861, 60 LE2d 447)] (1979). Here, the purpоse of establishing a DNA databank has been identified, and the methods for obtaining data provided by the statute are not excessive measures in response to the purpose. Plaintiffs have not shown any use of excessive force that might arguably state a claim of cruel and unusual punishment in obtaining [DNAsamples] through involuntary means. The court finds the statute is not penal and that means used to enforce the statute hаve not been shown to be malicious or grossly disproportionate to the refusal to comply with the statutory mandate.
Id. at 1216. For the reasons set forth in Vanderlinden, supra, we find no merit in Quarterman’s argument that OCGA § 24-4-60 violates the Eighth Amendment.
Judgment affirmed.
Notes
Although OCGA § 24-4-60 provides that thе “identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank" (emphasis supplied), it appears the information is actually stored in a DNA database. See Iraola, “DNADragnets-A Constitutional Catch?” 54 Drake L. Rev. 15,20-21 (2005) (“[w]hen discussing DNA analysis in the law enforcement context, it is important to understand the distinction between databanks and databases. Databanks store DNA samples consisting of blood, saliva, tissue or fluid. Databases, on the other hand, consist of portions of those samples which have been analyzed. The analysis, which yields a genotype or ‘profile’ expressed as a set of numbers, is what is entered into state or local databases____Databases that contain profiles from databank samples can be searched by computer to determine if thеre is a match with genotypes derived from samples recovered from the victim or the crime scene”).
The victim reported that she had been sexually assaulted by a man she knew as “Kenny,” but the police had been unable to ascertain her alleged assailant’s identity.
We note that OCGA § 24-4-60 (b) also requires DNA samples to be obtained from all convicted felons incarcerated in private correctiоnal facilities in this State pursuant to a contract with the Department of Corrections.
As we stated in
Reed v. State,
There are two prongs to an evaluation of legislation under an equal protection claim... and, as the legislation is presumptively valid, the claimant has the burden of proof as to both prongs. Initially, the claimant must establish that he is similarly situated to members of the class who are treated differently from him. Next, the claimаnt must establish that there is no rational basis for such different treatment.
[Cits.]
In his brief, Quarterman states merely that he “maintains his position for the purpose of making a record that may be needed in future proceedings or that may be needed when the scientific technology and uses of DNA evidence evolves even further.”