Introduced Version
House Bill 2188 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2188
(By Delegates Sumner, Howell, Sobonya and C. Miller)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §15-2B-6 and §15-2B-11 of the Code of
West Virginia, 1931, as amended, all relating to DNA testing
of persons arrested for certain offenses, storing of DNA
samples from sexual assault victims and expungement of samples
absent a conviction.
Be it enacted by the Legislature of West Virginia:
That §15-2B-6 and §15-2B-11 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2B. DNA DATA.
§15-2B-6. DNA sample required for DNA analysis upon conviction;
DNA sample required for certain prisoners.
(a) Any person convicted of an offense described in section A
person arrested for a violation of section one, four, seven, nine
or nine-a, article two, chapter sixty-one of this code when that the offense constitutes a felony or arrested for violations found
in section ten, ten-a, ten-b, twelve, fourteen or fourteen-a,
article two, chapter sixty-one of this code or arrested for
violations found in section twelve, article eight, of said chapter
sixty-one when that the offense constitutes a felony, shall provide
a DNA sample to be used jail or detention facility personnel upon
booking for DNA analysis as described in this article. Further,
any person convicted of any arrested for an offense described in
article eight-b or eight-d, of said chapter sixty-one of this code
shall provide a DNA sample to be used jail or detention facility
personnel upon booking for DNA analysis as described in this
article.
(b) Any A person presently incarcerated in a state
correctional facility or a jail in this state after arrest or
conviction of any offense listed in subsection (a) of this section
shall provide a DNA sample to be used for purposes of for DNA
analysis as described in this article.
(c) Any A person convicted of arrested for a violation of
section five or thirteen, article two, chapter sixty-one of this
code or section one, two, three, four, five, seven, eleven or
twelve, article two, chapter sixty-one when that the offense
constitutes a felony or subsection (a), section thirteen, article
three, of said chapter section chapter sixty-one of this code or
section three, four, five or ten, article three-e, of said chapter sixty-one or section three, article four, of said chapter
sixty-one, shall provide a DNA sample to be used jail or detention
facility personnel upon booking for DNA analysis as described in
this article.
(d) Any person convicted of A person arrested for an offense
which constitutes a felony violation of the provisions of article
four, chapter sixty-a of this code; or of an attempt to commit a
violation of section one or section fourteen-a, article two,
chapter sixty-one of this code; or an attempt to commit a violation
of article eight-b of said chapter chapter sixty-one shall provide
a DNA sample to be used jail or detention facility personnel upon
booking for DNA analysis as described in this article.
(e) The method of taking the DNA sample is subject to the
testing methods utilized by the West Virginia State Police Crime
Lab.
(f) When a person required to provide a DNA sample pursuant to
this section refuses to comply, the state shall apply to a circuit
court for an order requiring the person to provide a DNA sample.
Upon a finding of failure to comply, the circuit court shall order
the person to submit to DNA testing in conformity with the
provisions of this article.
(g) The West Virginia State Police may, where not otherwise
mandated, require any a person convicted of a felony offense under
the provisions of this code article to provide a DNA sample to be used for the sole purpose of criminal identification of the
convicted person who provided the sample Provided, That if the
person is under the supervision of the criminal justice system at
the time the request for the sample is made. Supervision includes
prison, the regional jail system, parole, probation, home
confinement, community corrections program and work release.
(h) No part of the genetic information that is authorized to
be collected pursuant to this article may be used for any purpose
other than to establish the identity of the individual. identity.
The biological sample obtained to conduct the identity test not
necessary to conduct a present or future identity test shall be
destroyed following the performance of the initial identity test
analysis.
_____(i) Samples from biological material collected pursuant to a
medical examination of a sexual assault victim shall be submitted
to the state's designated DNA typing, testing and research
laboratory for DNA testing. Records derived from DNA testing that
qualify for insertion into CODIS, the Federal Bureau of
Investigation's National DNA Index System for storage and exchange
of DNA records submitted by forensic DNA laboratory, shall be
submitted by the laboratory to the state databank.
§15-2B-11. Expungement.
(a) Any person whose DNA record or profile has been included
in the state database and whose DNA sample is stored in the state databank or the state's designated DNA typing, testing and research
laboratory, may apply for expungement on the grounds that the
felony conviction that resulted in the inclusion of the person's
DNA record or profile in the state database or the inclusion of the
person's DNA sample in the state databank has been reversed and the
case dismissed; or, in the case of persons whose arrest led to the
inclusion of the same, that the arrest has either:
_____(1) Resulted in a felony charge that has been resolved by a
dismissal, nolle prosequi, successful completion of a pretrial
diversion program or a conditional discharge, misdemeanor
conviction or acquittal; or
_____(2) Not resulted in a felony charge within one year of arrest.
_____(b) The person requesting expungement, either individually or
through an attorney, may apply to the court for expungement of the
record. A copy of the application for expungement shall be served
on the prosecuting attorney for the judicial district in which the
felony conviction was obtained not less than twenty days prior to
the date of the hearing on the application. A certified copy of
the order reversing and dismissing the conviction shall be attached
to an order of expungement.
(b) (c) Upon receipt of an order of expungement, the division
shall purge the DNA record and all other identifiable information
from the state database and the DNA sample stored in the state
databank covered by the order. If the individual has more than one entry in the state database and databank, then only the entry
covered by the expungement order shall be deleted from the state
database or databank.
NOTE: The purpose of this bill is to require DNA testing for
individuals arrested for certain offenses, to provide for storage
of DNA samples from sexual assault victims and to provide for
expungement of DNA samples from persons not convicted of an
offense.
Strike-throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would
be added.