concurring.
Although I agree with the majority’s conclusion that the constitution is not violated by a statute that requires certain juvenile offenders to provide a blood sample for DNA testing, I would analyze the issue differently.
ORS 419C.473(1) applies to child, because he was found to be within the jurisdiction of the juvenile court for acts which, had they been committed by an adult, would have *155constituted rape in the first degree. That is one of a small list of offenses that the legislature has deemed to be so serious that additional identifying information should be on file. The obvious goal of the statute is that child will be more easily identified and apprehended if he ever commits a crime in which he leaves in his wake a sampling of his DNA, which can be found in blood, semen, skin and hair follicles.
By authorizing the extraction of a blood sample, ORS 4190.473(1) authorizes a type of search and seizure by a government agency. State v. Milligan, 304 Or 659, 664, 748 P2d 130 (1988). Therefore, it implicates Article I, section 9, of the Oregon Constitution, which protects citizens from “unreasonable” searches and seizures by the government. Thus, I see our first task as one of determining whether, under the Oregon Constitution,1 a blood draw is unreasonable when required of juveniles who have committed the adult equivalent of murder, a felony sex offense, or burglary with intent to commit a felony sex offense, and who have, as a consequence, come within the jurisdiction of the juvenile court.
I would hold that the challenged statute is clearly reasonable, for a number of reasons. First, it is narrow in scope. It does not require that an individual give more than one DNA blood sample in his or her lifetime, ORS 419C.473(2)(a),2 it does not require that any blood sample be provided if the drawing of that sample would create an unreasonable health risk to the donor, ORS 419C.473(2)(b), and it does not apply to mere suspects or arrestees. The search does not take place unless there is a conviction or its juvenile court equivalent, and its level of invasiveness is “minor.” State v. Heintz, 286 Or 239, 249, 594 P2d 385 (1979).
Second, the reasons for and consequences of a search and seizure under ORS 419C.473 comport with long-*156accepted, traditional goals of our criminal justice system, namely, to deter future criminal conduct and to apprehend those who violate criminal laws, by allowing compilation of data that will help identify individuals who have left evidence of their identity at the scene of a crime.3 Although the dissent complains that the blood draw in this case does not comport with the general search and seizure rules that require “individualized suspicion” and a search warrant or an exception to the warrant requirement, those rules were established to address very different circumstances: They decrease the likelihood that an innocent citizen will be subjected to groundless, i.e., unreasonable, searches by the government, in its quest for evidence of crime.4 Those rules have little applicability to juveniles who have been adjudicated to have committed — or, under ORS 137.076, to adults who have been convicted of — a criminal offense.
When a blood draw takes place in the post-adjudication/post-conviction context, the relevant inquiry is no longer whether an officer had probable cause to believe that an individual committed a crime, or whether a warrant could have been timely secured. In this context, the rules requiring individualized suspicion, and the protections that are afforded by those rules, yield to concepts such as ‘ ‘penological objectives,” which place greater emphasis on the public’s interest in maintaining security and rehabilitating criminals. Our focus shifts to whether the governmental action is unreasonable and whether the constraints, if any, that are placed on the adjudicated juvenile or convicted adult are “capricious” or “irrelevant” to the affected individual’s status. State v. Robinson, 217 Or 612, 616, 343 P2d 886 (1959).5 *157Given the serious nature of the offenses committed by child and the high rates of recitivism for violent offenders, a statute that allows the police to take and keep a sample of child’s blood cannot legitimately be deemed “irrelevant” to child’s offense nor “unreasonable” under Article I, section 9. It bears “a reasonable relationship to the reformation of the offender [and] the protection of the public.” State v. Culbertson, 29 Or App 363, 372, 563 P2d 1224 (1977).
The dissent incorrectly suggests that, although a class-based restriction on convicted felons’ constitutional right to bear arms was upheld in State v. Robinson, supra, no class-based restriction would be permissible in the arena of search and seizure. Yet the case law regarding penological objectives has allowed precisely such restrictions by upholding class-based searches and seizures that do not rely on individualized suspicion. For example, a convicted felon who is incarcerated may be subjected to a body cavity search if he or she has been in contact with visitors from outside the institution. Bell v. Wolfish, 441 US 520, 99 S Ct 1861, 60 L Ed 2d 447 (1979). Prison officials need not suspect that a particular prisoner is carrying contraband in a body cavity before they can conduct a search. To advance the valid penological objective of maintaining the security of the institution, prison officials are allowed to search the entire class of prisoners who, for example, have had the opportunity to come into physical contact with visitors and have thereby had an opportunity to obtain contraband. Similarly, jail cells can be searched for weapons without officials suspecting that each of the individuals in those cells is in possession of a weapon. Hudson v. Palmer, 468 US 517, 104 S Ct 3194, 82 L Ed 2d 393 (1984). Those are but a few examples of how penological *158objectives support searches in the post-adjudication/post-conviction context that are not limited by the pre-conviction, individualized suspicion-based rules regarding search and seizure.
Third, although the dissent recognizes that convicted offenders are not entitled to the same constitutional protections as other citizens when there is a valid penological justification for the government’s action, see 129 Or App at 165, it ignores entirely the fact that deterrence is an integral part of rehabilitation. If a convicted felon is the type of individual who will be deterred from future criminal conduct based on the knowledge that she or he will be apprehended and held responsible for that conduct, there can be little dispute that application of the statute at issue in this case will be a considerable deterrent for such an individual. Whereas one may successfully avoid leaving a fingerprint at the scene of a crime, it would be considerably harder to avoid unintentionally leaving behind a flake of skin or a follicle of hair while committing a violent crime. If a convicted felon knows that those “leavings” will reveal his or her identity and is therefore deterred from committing a crime, the rehabilitative process has begun. Rehabilitation does not require that one never considers committing another crime; it requires that one never act on such thoughts. In sum, I would hold that ORS 419C.473 is justified by penological considerations.
In its final paragraph, the dissent expresses concerns about “infants in maternity wards” being subjected to involuntary blood extractions. 129 Or App at 166. Let’s get real. This case is not about law-abiding citizens. It is not about infants singing too loud in the nursery, or toddlers who have taken their buddies’ tricycles without permission. This case is about big boys who are committing serious and often brutal crimes against other people — crimes such as rape, sodomy and murder. This case is about a statute that may help convey a message to a small group of juveniles who have been found to have committed one or more of a very limited number of very serious acts which, if committed by an adult, would constitute a very serious crime. If the juvenile justice system is ever to succeed, it must send a message — consistent, loud and clear — to the youthful offenders in this state who are *159bent on committing serious crimes, that one of the consequences for their misdeeds is that they will be more readily identified, if they commit other misdeeds in the future. If the system can teach these juveniles that there are consequences to their actions, that they will be held accountable, it will have served both them and society well.
Fourth, I believe very strongly that an analysis of the constitutionality, i.e., the reasonableness, of the blood draw authorized by ORS 419C.473, also must give due consideration to the protection of the public, which has always been —and should forever continue to be — one of the vital concerns of our criminal justice system. Although the dissent criticizes such considerations as an impermissible “balancing” of public and private rights, the fact of the matter is that convicted criminals and juvenile delinquents have, by their very actions, already impaired their constitutional rights to, inter alia, liberty, privacy and freedom of association. As a consequence of his acts and the juvenile court’s having assumed jurisdiction over him, child in this case has privacy interests that are dramatically lower than those enjoyed by children in general.6 Losing the “right” to keep one’s DNA pattern private is an acceptable loss of privacy incident to the commission of specific, serious crimes. I would hold — unequivocally — that the statute at issue does not violate any privacy interest that rationally can be maintained by an individual who is judicially found to have committed first degree rape.
Although, for the reasons discussed above, I would conclude that ORS 419C.473 authorizes a “reasonable” search and seizure, I believe that a complete analysis of the statute’s constitutionality must include an additional step. The statute provides that, upon a finding of jurisdiction over a child who has committed one of the listed offenses,
“the court shall order the child to submit to the drawing of a blood sample in the manner provided by ORS 137.076. The court shall further order that as soon as practicable after the *160entry of the dispositional order, the law enforcement agency attending upon the court shall cause a blood sample to be drawn and transmitted in accordance with ORS 137.076. The court may also order the child to reimburse the appropriate agency for the cost of drawing and transmitting the blood sample.” ORS 4190.473(1).
For adult offenders, the court is directed to “include in the judgment of conviction an order stating that a blood sample is required to be drawn[.]” ORS 137.076(2)(b). Given the timing and the mandatory nature of the blood draw, and the fact that it is a governmental action that flows directly from the judgment of conviction, I believe that the blood draw should be viewed as one aspect of a juvenile’s disposition, or as one component of an adult offender’s sentence. As such, it must comport with the constitutional protections relating to sentencing, which I would summarize as follows: Criminal offenders may not be subjected to cruel and unusual punishment, Or Const, Art I, § 16; may not be treated “with unnecessary rigor,” Or Const, Art I, § 13; and may not be punished under laws that are founded on vindictive justice, Or Const, Art I, § 15. The taking of ablood sample to establish a DNA databank does not violate any of those constitutional protections.
For all of these reasons, I concur in the majority’s holding that the trial court did not err in requiring child to submit to a blood test pursuant to ORS 419C.473.
Edmonds and De Muniz, JJ., join in this concurrence.
A Virginia statute that allows the government to obtain blood samples from convicted felons for the creation of a DNA database that will be used in future law enforcement purposes has been held not to violate the Fourth Amendment to the United States Constitution. Jones v. Murray, 962 F2d 302, 307 (4th Cir), cert den 113 US 472 (1992).
ORS 419C.473(2)(a) provides that no blood draw is required if the child has previously provided an adequate blood sample.
The prospective use of DNA patterns serves the same function as the government’s collection of fingerprints, photographs and toe prints: It is an aid to identification. As the dissent acknowledges, the accumulation and use of those other identifying characteristics is not unconstitutional.
It is worth noting that, even under the rules on which the dissent would have us rely, an officer may draw blood to determine the level of intoxication of a person who is merely believed to be committing the crime of DUII. State v. Milligan, supra.
In Robinson, the defendant challenged the constitutionality of a statute that permanently bars convicted felons from possessing concealable firearms. The defendant in that case argued, correctly, that the statute amounts to a life-long impairment of his constitutional right to bear arms. Or Const, Art I, § 27. The Oregon Supreme Court upheld the statute. It noted, first, that the legislature “was attempting to prevent crimes of the kind in which concealed weapons play a part,” by placing *157constraints on persons “whose past conviction of a felony showed an unsocial attitude.” 217 Or at 616. The court continued:
“The legislature evidently believed that ex-convicts who possess [concealable] firearms * * * are more likely to commit evil than if they are forced to remain unarmed. We can not say that a classification based upon that proposition is capricious or that it is irrelevant to the legislative purpose. * * * [Even an individual who commits a non-violent felony] displays a lack of proper restraint to which virtually all others yield instinctively. By his own felonious conduct he classifies himself and places himself in a category different from that composed of the law abiding. When the legislature concludes that a person of that kind can not be trusted with a concealable weapon we surely can not say that its decision lacks reason.” 217 Or at 616-17. (Emphasis supplied.)
As we said in State v. Brotherton, 2 Or App 157, 160, 465 P2d 749 (1970),
“It has long been the rule that ‘[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ Price v. Johnson, 334 US 266, 285, 68 S Ct 1049, 92 L Ed 1356 (1948).”