Police used a NJ baby's mandatory blood sample to pursue a criminal case. Public defenders and a newspaper are now teaming up to sue over privacy concerns.

• New Jersey police used a baby's mandatory blood sample to pursue a decades-old criminal case.
• Public defenders and a newspaper have since teamed up to sue over privacy concerns.

New Jersey public defenders and a local news outlet are suing the state's health department and a laboratory after police used a baby's blood sample to pursue a decades-old criminal case, something the plaintiffs say "sidestepped" the defendant's rights.

"By serving a subpoena on the Newborn Screening Laboratory, the State Police sidestepped its constitutional obligation to develop probable cause and obtain a warrant," the New Jersey Office of the Public Defender and New Jersey Monitor allege in court documents filed in July and reviewed by Insider.

The New Jersey Office of the Public Defender and the New Jersey Monitor are seeking records to determine how often state agencies use the state's Newborn Screening Laboratory to aid in its investigations.

The New Jersey Office of the Public Defender and the news outlet allege that state police subpoenaed blood samples taken in 2012 from a baby — who is now around 9 years old — to perform DNA analysis and link the father of the child to a reopened sexual assault investigation from 1996. By obtaining a blood sample from the Newborn Screening Laboratory, state police were able to criminally charge the father, according to court documents.

"Alarmed by this practice it strongly believes constitutes an illegal search, OPD seeks to learn how often State agencies are utilizing the Newborn Screening Laboratory as an investigatory tool for its prosecutors in order to sidestep the constitutional rights of defendants to be free from warrantless searches and seizures," the agencies say in court documents.

New Jersey's Department of Health declined to comment on the lawsuit, and state police did not immediately respond to Insider's request for comment.

An opposition response is due September 16, and a hearing on the matter has been scheduled for October.

A stance of "extreme secrecy"

Starting in 1977, newborns in New Jersey must have blood samples taken within 48 hours of birth so the state can screen for any issues, and a small amount of dried blood remains available for 23 years.

The plaintiff's lawyer, CJ Griffin, said parents aren't necessarily informed of the blood draw and that even if they are aware, they can't opt out unless they prove a religious exemption.

Griffin told Insider her clients are not opposed to the health screening but are fighting for more transparency around the process.

"I think it's shocking that they're retaining this blood for so long," Griffin said. "It's also predictable."

DNA technology has improved vastly since the New Jersey retention schedule was created more than 40 years ago, and so have concerns over how genetic material is used by the government.

Authors of law review articles going back at least 10 years predict the government's misuse of these blood samples, Griffin said.

Earlier this year the San Francisco District Attorney dropped charges against a woman after it was discovered she was linked to a crime using her DNA collected during an investigation into her rape. Last August, a federal judge ruled that Michigan's program, which stored the blood samples of every newborn for 100 years and used it in medical research, was unconstitutional.

In that case, the plaintiff's attorney said the state had processed over 20 requests from law enforcement seeking the blood samples.

Griffin told Insider that the plaintiffs weren't seeking information in their records request that would identify cases the agency is investigating or other compromising information. They just want to know how many times the lab has responded to subpoenas from law enforcement, she said.

"Just, 'Hey, tell us how often this is happening,' and the state took this stand of extreme secrecy," she said. "The lack of any transparency whatsoever around this is highly problematic."