OPINION
NOYES, Judge.
Each appellant was adjudicated a delinquent child based on allegations that he had molested another child. The juvenile court placed each appellant on probation and, at the request of the State, ordered as a condition of probation that the juvenile provide a blood sample to the Arizona DNA Identification System. Each appeal challenges only the legality of the DNA-testing order. We conclude that the juvenile court lacks authority to enter those orders.
The appeals are factually unrelated but’ consolidated because they present only the same legal issue. There is no need to discuss the underlying facts, other than to note that in two of the cases the State requested, and the juvenile court denied, transfer of the juvenile for prosecution as an adult, and in none of the cases was the victim exposed to the juvenile’s blood or bodily fluids. In granting the State’s motion to order DNA testing in each of the cases, the courts provided varying explanation and regulation. In JV-508801, Judge Campbell stated:
THE COURT FINDS that it has inherent authority to order DNA testing of this juvenile as a term of probation in a case of a child molest conviction as a deterrent to reoffend and encouragement to submit to treatment.
IT IS ORDERED that the DNA testing reports shall be handled in such a manner that the juvenile’s name be kept confidential at the DNA Bank. The sample should be identified with a Juvenile number only such as is used on a matter under appeal. The State would be required to petition for authority to release name of the juvenile for the sample.
In JV-509382, Judge Armstrong stated, “IT IS ORDERED granting the State’s Motion for DNA testing— The juvenile may petition the court any time prior to his 18th birthday for an order to seal or destroy the DNA prints based on his rehabilitation. The Court will decide the issue after hearing.” In JV-510161, Commissioner Waddell stated, “IT IS ORDERED that the juvenile undergo [177]*177DNA testing.” Each court stayed its own order pending appeal.
The appellants present several challenges to the legality of the DNA-testing orders. We discuss only the one we find dispositive: the argument that the juvenile court has neither express nor inherent authority to order a juvenile delinquent into the Arizona DNA Identification System.
The Arizona DNA Identification System was created in 1998 by the enactment of Ariz.Rev.Stat.Ann. (“A.R.S.”) section 41-2418(A) (Supp.1994), which provides: “The Arizona Deoxyribonucleic Acid Identification System is established in the department of public safety [“DPS”] for the purposes of conducting deoxyribonucleic acid testing and analysis pursuant to §§ 18-4438 and 31-281.”
A.R.S. section 13-4438 (Supp.1994) requires that, when a person convicted of a sexual offense is released from incarceration or placed on probation, the responsible agency “shall secure a blood sample sufficient for [DNA] testing and extraction” and transmit it to DPS. A.R.S. section 31-281 (Supp.1994) requires that a person convicted of a sexual offense “shall submit to [DNA] testing for law enforcement identification purposes. Reports of the tests shall be maintained by the department of public safety.”
The above-referenced sex-offender statutes are the only feeder statutes for the Arizona DNA Identification System, and they apply only to persons who have been convicted of a sexual offense. A juvenile delinquent is not such a person. A.R.S. section 8-207(A) (1989) provides that adjudication of delinquency “shall not be deemed a conviction” (except as provided in A.R.S. section 28-444(C) (Supp.1994) regarding certain traffic offenses). See also Webb v. Rose, 20 Ariz.App. 450, 452, 513 P.2d 988, 990 (1973) (“It is clear that a final disposition of a delinquency matter by the Juvenile Court does not constitute a ‘conviction’ ...”).
The legislative history of A.R.S. section 41-2418(A) indicates that it was enacted as part of the national effort to identify and deter repeat sex criminals:
[There is a] need for the DNA identification system and its ability to readily identify repeat criminals in certain cases, including rape.
[H]aving access to DNA results of sex offenders helps to identify repeat offenders and ... DNA testing would not only aid in investigative efforts but serve as a deterrent.
Mr. Carey stated that Arizona was one of six “pilot states” selected to participate in the federal DNA testing program. Mr. Carey stated that at the present time, Arizona was unable to connect with the national DNA database because Arizona’s database was not yet up and running. Mr. Carey explained that having access to DNA test results of sex offenders helps to identify repeat offenders and that DNA testing would not only aid in investigative efforts but serve as a deterrent.
DNA Testing: Minutes of Hearings on S.B. 1217 Before the Senate Judiciary Comm, and the Senate Appropriations Comm., 41st Legis., 1st Reg.Sess. (Feb. 16 & 24, 1993) (remarks of Todd Griffith, Crime Laboratory Superintendent, Department of Public Safety and Rob Carey, Deputy Attorney General).
Nothing in the statutes (or legislative history) relevant to the Arizona DNA Identification System refers to delinquent children, and that omission is significant. If the legislature intended that delinquent children be included in a DNA data bank of convicted sex criminals, it would have legislated to that effect, as it has in other instances. For example, A.R.S. section 13-1415 (Supp.1994) requires that persons arrested for or convicted of a sexual offense submit to testing for the HIV virus in certain circumstances. This statute applies to convicted persons, which means that it does not apply to delinquent children—but the legislature has enacted another statute which does. A.R.S. section 8-241(N) (amended 1994) provides:
N. On the request of a victim of a delinquent act that may have involved significant exposure as defined in § 13-1415 [contact of the victim’s ruptured or broken skin or mucous membranes with a person’s blood or body fluids, other than tears, sali[178]*178va or perspiration ...] or that if committed by an adult would be a sexual offense, the prosecuting attorney shall petition the adjudicating court to require that the delinquent child be tested for the presence of the human immunodeficiency virus.
The legislature created the Arizona DNA Identification System by enacting A.R.S. section 41-2418(A), and it created the data base for that system by enacting A.R.S. sections 13-4438 and 31-281. Because these statutes apply to certain convicted persons, they are criminal code statutes. Because they are criminal code statutes, they cannot be expanded by the courts. See Vo v. Superior Court, 172 Ariz. 195, 204, 836 P.2d 408, 417 (App.1992) (“Arizona is a ‘code state,’ and this court is legislatively precluded from creating new crimes [and punishments] by expanding the common law through judicial decision. A.R.S. § 13-103.”). “Defining crimes and fixing penalties are legislative, not judicial functions.” State v. Wagstaff, 164 Ariz.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
NOYES, Judge.
Each appellant was adjudicated a delinquent child based on allegations that he had molested another child. The juvenile court placed each appellant on probation and, at the request of the State, ordered as a condition of probation that the juvenile provide a blood sample to the Arizona DNA Identification System. Each appeal challenges only the legality of the DNA-testing order. We conclude that the juvenile court lacks authority to enter those orders.
The appeals are factually unrelated but’ consolidated because they present only the same legal issue. There is no need to discuss the underlying facts, other than to note that in two of the cases the State requested, and the juvenile court denied, transfer of the juvenile for prosecution as an adult, and in none of the cases was the victim exposed to the juvenile’s blood or bodily fluids. In granting the State’s motion to order DNA testing in each of the cases, the courts provided varying explanation and regulation. In JV-508801, Judge Campbell stated:
THE COURT FINDS that it has inherent authority to order DNA testing of this juvenile as a term of probation in a case of a child molest conviction as a deterrent to reoffend and encouragement to submit to treatment.
IT IS ORDERED that the DNA testing reports shall be handled in such a manner that the juvenile’s name be kept confidential at the DNA Bank. The sample should be identified with a Juvenile number only such as is used on a matter under appeal. The State would be required to petition for authority to release name of the juvenile for the sample.
In JV-509382, Judge Armstrong stated, “IT IS ORDERED granting the State’s Motion for DNA testing— The juvenile may petition the court any time prior to his 18th birthday for an order to seal or destroy the DNA prints based on his rehabilitation. The Court will decide the issue after hearing.” In JV-510161, Commissioner Waddell stated, “IT IS ORDERED that the juvenile undergo [177]*177DNA testing.” Each court stayed its own order pending appeal.
The appellants present several challenges to the legality of the DNA-testing orders. We discuss only the one we find dispositive: the argument that the juvenile court has neither express nor inherent authority to order a juvenile delinquent into the Arizona DNA Identification System.
The Arizona DNA Identification System was created in 1998 by the enactment of Ariz.Rev.Stat.Ann. (“A.R.S.”) section 41-2418(A) (Supp.1994), which provides: “The Arizona Deoxyribonucleic Acid Identification System is established in the department of public safety [“DPS”] for the purposes of conducting deoxyribonucleic acid testing and analysis pursuant to §§ 18-4438 and 31-281.”
A.R.S. section 13-4438 (Supp.1994) requires that, when a person convicted of a sexual offense is released from incarceration or placed on probation, the responsible agency “shall secure a blood sample sufficient for [DNA] testing and extraction” and transmit it to DPS. A.R.S. section 31-281 (Supp.1994) requires that a person convicted of a sexual offense “shall submit to [DNA] testing for law enforcement identification purposes. Reports of the tests shall be maintained by the department of public safety.”
The above-referenced sex-offender statutes are the only feeder statutes for the Arizona DNA Identification System, and they apply only to persons who have been convicted of a sexual offense. A juvenile delinquent is not such a person. A.R.S. section 8-207(A) (1989) provides that adjudication of delinquency “shall not be deemed a conviction” (except as provided in A.R.S. section 28-444(C) (Supp.1994) regarding certain traffic offenses). See also Webb v. Rose, 20 Ariz.App. 450, 452, 513 P.2d 988, 990 (1973) (“It is clear that a final disposition of a delinquency matter by the Juvenile Court does not constitute a ‘conviction’ ...”).
The legislative history of A.R.S. section 41-2418(A) indicates that it was enacted as part of the national effort to identify and deter repeat sex criminals:
[There is a] need for the DNA identification system and its ability to readily identify repeat criminals in certain cases, including rape.
[H]aving access to DNA results of sex offenders helps to identify repeat offenders and ... DNA testing would not only aid in investigative efforts but serve as a deterrent.
Mr. Carey stated that Arizona was one of six “pilot states” selected to participate in the federal DNA testing program. Mr. Carey stated that at the present time, Arizona was unable to connect with the national DNA database because Arizona’s database was not yet up and running. Mr. Carey explained that having access to DNA test results of sex offenders helps to identify repeat offenders and that DNA testing would not only aid in investigative efforts but serve as a deterrent.
DNA Testing: Minutes of Hearings on S.B. 1217 Before the Senate Judiciary Comm, and the Senate Appropriations Comm., 41st Legis., 1st Reg.Sess. (Feb. 16 & 24, 1993) (remarks of Todd Griffith, Crime Laboratory Superintendent, Department of Public Safety and Rob Carey, Deputy Attorney General).
Nothing in the statutes (or legislative history) relevant to the Arizona DNA Identification System refers to delinquent children, and that omission is significant. If the legislature intended that delinquent children be included in a DNA data bank of convicted sex criminals, it would have legislated to that effect, as it has in other instances. For example, A.R.S. section 13-1415 (Supp.1994) requires that persons arrested for or convicted of a sexual offense submit to testing for the HIV virus in certain circumstances. This statute applies to convicted persons, which means that it does not apply to delinquent children—but the legislature has enacted another statute which does. A.R.S. section 8-241(N) (amended 1994) provides:
N. On the request of a victim of a delinquent act that may have involved significant exposure as defined in § 13-1415 [contact of the victim’s ruptured or broken skin or mucous membranes with a person’s blood or body fluids, other than tears, sali[178]*178va or perspiration ...] or that if committed by an adult would be a sexual offense, the prosecuting attorney shall petition the adjudicating court to require that the delinquent child be tested for the presence of the human immunodeficiency virus.
The legislature created the Arizona DNA Identification System by enacting A.R.S. section 41-2418(A), and it created the data base for that system by enacting A.R.S. sections 13-4438 and 31-281. Because these statutes apply to certain convicted persons, they are criminal code statutes. Because they are criminal code statutes, they cannot be expanded by the courts. See Vo v. Superior Court, 172 Ariz. 195, 204, 836 P.2d 408, 417 (App.1992) (“Arizona is a ‘code state,’ and this court is legislatively precluded from creating new crimes [and punishments] by expanding the common law through judicial decision. A.R.S. § 13-103.”). “Defining crimes and fixing penalties are legislative, not judicial functions.” State v. Wagstaff, 164 Ariz. 485, 490, 794 P.2d 118, 123 (1990) (citing State v. Marquez, 127 Ariz. 98, 103, 618 P.2d 592, 597 (1980)).
The dissent argues that the juvenile court has the discretion to do what it did here. We agree with the dissent’s general discussion about the broad powers of the juvenile court in imposing conditions of probation; nothing we say here should be construed as a new limitation on those broad powers. We disagree, however, with any suggestion that the juvenile court can expand the criminal code, which is essentially what it did in these cases by subjecting delinquent children to criminal code regulations that the legislature enacted expressly for convicted sex offenders.
The Arizona DNA Identification System was enacted as part of a legislative response to sex crimes by adults. Whether to include delinquent children in that system is for the legislature to decide—together with safeguards and regulations that provide more uniform direction to DPS and the national law enforcement computer network than will be found in minute entry orders in individual juvenile court cases. Because the legislature has not acted regarding entry of delinquent children into the Arizona DNA Identification System, the law as it presently exists in Arizona does not permit ordering delinquent children into that system. See Matter of Maricopa County Juvenile Action No. JV-128676, 177 Ariz. 352, 353, 868 P.2d 365, 366 (App.1994) (“In exercising its discretion, the juvenile court is not, however, authorized to misapply the law or a legal principle.”).
We have reviewed the records for fundamental error and have found none. The adjudications and dispositions are affirmed, as modified by our order that the DNA-testing orders are hereby vacated.
GARBARINO, J., concur.