Senate Bill No. 431
(By Senators Palumbo, Edgell, K. Facemyer, Jenkins,
Barnes, Klempa, Unger, Plymale, Yost and Nohe)
[Introduced February 4, 2011; referred to the Committee on the Judiciary; and then to the Committee on Finance.]
A BILL to amend and reenact §15-2B-3, §15-2B-6, §15-2B-7, §15-2B-9, §15-2B-10 and §15-2B-12 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §15-2B-15 and §15-2B-16, all relating to DNA data collection generally; providing definitions; authorizing the West Virginia State Police to administer DNA identification system; authorizing the West Virginia State Police to enter into certain cooperative agreements; requiring DNA sample be obtained upon conviction; identifying tests to be performed on DNA samples; providing authority to maintain samples; providing procedure for withdrawing and analyzing samples; providing procedure for exchanging samples with others; providing procedure for removing sample from database by expungement; providing for destruction of samples; providing penalties; and authorizing the West Virginia State Police to collect certain fees for DNA testing.
Be it enacted by the Legislature of West Virginia:
That §15-2B-3, §15-2B-6, §15-2B-7, §15-2B-9, §15-2B-10 and §15-2B-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §15-2B-15 and §15-2B-16, all to read as follows:
ARTICLE 2B. DNA DATA.
As used in this article: the following terms mean:
(a) "CODIS" means the Federal Bureau of Investigation's Combined DNA Index System that allows the storage and exchange of DNA records submitted by federal, state and local forensic DNA laboratories. The term "CODIS" includes the National DNA Index System administered and operated by the Federal Bureau of Investigation.
"Conviction" includes convictions by a jury or court, guilty plea, plea of nolo contendere or a finding of not guilty by reason of insanity or mental disease or defect. A finding of not guilty by reason of insanity or mental disease or defect is considered a conviction solely for purposes of this article insofar as the finding requires a person to provide a DNA sample.
"Criminal justice agency" means an agency or institution of a federal, state or local government, other than the office of public defender, which performs as part of its principal function, relating to the apprehension, investigation, prosecution, adjudication, incarceration, supervision or rehabilitation of criminal offenders.
"Division" means the West Virginia State Police.
"DNA" means deoxyribonucleic acid. DNA is located in the nucleus of cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification.
(b) "DNA record" means DNA identification information stored in any state DNA database pursuant to this article. The DNA record is the result obtained from DNA typing tests. The DNA record is comprised of the characteristics of a DNA sample which are of value in establishing the identity of individuals. The results of all DNA identification tests on an individual's DNA sample are also included as a "DNA record".
(c) "DNA sample" means a tissue, fluid or other bodily sample, suitable for testing, provided pursuant to this article or submitted to the division laboratory for analysis pursuant to a criminal investigation.
(d) "FBI" means the Federal Bureau of Investigation.
"Interim plan" means the plan used currently by the Federal Bureau of Investigation for Partial Match Protocol and to be adopted under the management rules of this article.
"Juvenile" and "child" refer to a person who has not attained the age of eighteen years or a person who is otherwise subject to the juvenile jurisdiction of a court pursuant to this article.
"Management rules" means the rules promulgated by the West Virginia State Police that define all policy and procedures in the administration of this article.
"Partial match" means that two DNA profiles, while not an exact match, share a sufficient number of characteristics to indicate the possibility of a biological relationship.
"Qualifying offense" means any felony offense as defined in the penal code in any jurisdiction of the person and any offense requiring a person to register as a sex offender under this code or the federal law.
"Registering Agency" means the West Virginia State Police.
(e) "State DNA database" means all DNA identification records included in the system administered by the West Virginia State Police.
(f) "State DNA databank" means the repository of DNA samples collected under the provisions of this article.
(g) "Division" means the West Virginia State Police.
§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 one, four, seven, nine, nine-a (when that offense constitutes a felony), ten, ten-a, ten-b, twelve, fourteen or fourteen-a, article two, chapter sixty-one of this code or section twelve, article eight of said chapter (when that offense constitutes a felony), shall provide a DNA sample to be used for DNA analysis as described in this article. Further, any person convicted of any offense described in article eight-b or eight-d of said chapter shall provide a DNA sample to be used for DNA analysis as described in this article.
(b) Any person presently incarcerated in a state correctional facility or a county or regional in jail in this state after conviction of any offense listed in subsection (a) of this section shall provide a DNA sample to be used for purposes of DNA analysis as described in this article.
(c) Any person convicted of a violation of section five or thirteen, article two, chapter sixty-one of this code, section one, two, three, four, five, seven, eleven, twelve(when that offense constitutes a felony) or subsection (a), section thirteen, article three of said chapter, section three, four, five or ten, article three-e of said chapter or section three, article four of said chapter, shall provide a DNA sample to be used for DNA analysis as described in this article.
(d) Any person convicted of 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 shall provide a DNA sample to be used for DNA analysis as described in this article.
(e) The method of taking the DNA sample is subject to the testing methods utilized used by the West Virginia State Police Crime Lab. The DNA sample will be collected using a postage paid DNA collection kit provided by the West Virginia State Police.
(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 person convicted of a felony offense under the provisions of this code, 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 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. 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.
(h) Duly authorized law enforcement and state personnel designated by the collecting agency may employ reasonable force in cases where a person refuses to provide a DNA sample required under this article after first obtaining a court order requiring the person to provide a DNA sample. Those duly authorized law enforcement and state personnel designated by the collecting agency are not civilly or criminally liable for the use of reasonable force.
(i) On the effective date of the amendments to this section enacted during the regular session of the Legislature in 2011, any person required to register as a sex offender in this state and who has not already provided a DNA sample in accordance with this article, shall provide a DNA sample as determined by the registration agency in consultation with the West Virginia State Police Laboratory. The registering agency is responsible for the collection and submission of the sample under this article.
(j) Effective January 1, 2012, any juvenile under the supervision of the state as a result of an action which would be a qualifying crime if committed by an adult or if a juvenile commits an act which would be a qualifying crime if committed by an adult, and the juvenile is adjudicated delinquent for that act, is required to provide a DNA sample for the sole purpose of criminal identification. The expungement requirements and procedures shall be provided pursuant to section eleven of this article. A person who is convicted or adjudicated delinquent for a qualifying offense shall provide a DNA sample as a condition for any sentence or adjudication which disposition will not involve a period of incarceration. The confidentiality of juvenile records will comply with the standards described in section ten, article two-b, chapter fifteen of the code, as well as section seventeen, article five, chapter forty-nine and section one, article seven, chapter forty nine. The handling of the personal information associated with juvenile DNA records will comply with section eighteen, article five, chapter forty-nine where appropriate.
(k) When this state accepts a person from another state under any interstate compact, or under any other reciprocal agreement with any county, state or federal agency or any other provision of law whether or not the person is confined or released, the acceptance is conditional on the person providing a DNA sample if the person was convicted of an offense in any other jurisdiction which would be considered a qualifying offense as defined in section six if committed in this state, or if the person was convicted of an equivalent offense in any other jurisdiction. The person shall provide the DNA sample in accordance with the rules of the custodial institution or supervising agency. However, if the West Virginia State Police determines that such person has already submitted a DNA sample that is stored in the national database, the accepting agency is not required to draw a second DNA sample.
(l) If a person convicted or adjudicated of a qualifying offense is released without giving a DNA sample due to an oversight or error or because of the person's transfer from another jurisdiction, the person shall give a DNA sample for inclusion in the state DNA database after being notified by the West Virginia State Police Laboratory and, upon request by the person, being provided a copy of the court order prior to the DNA sample being collected.
§15-2B-7. Tests to be performed on blood sample.
The tests to be performed on each blood DNA sample shall analyze and type the genetic markers contained in or derived from the DNA sample in accordance with rules promulgated under this article. Any such rule regarding the typing and analysis of the blood DNA sample shall be consistent with any specifications required by federal law.
§15-2B-9. Procedures for withdrawal of blood sample for DNA analysis and for conducting analysis.
(a) Upon incarceration, the Division of Corrections, regional jails county jails and felon facilities shall ensure that the blood DNA sample is drawn collected from all persons described in section six of this article. When any person convicted of an offense described in said section six is not incarcerated, the sheriff in such the county where the person is convicted shall ensure that blood the DNA sample is drawn collected from such the person at the regional facility: Provided, That blood a DNA sample may be drawn collected at a county jail or at a prison, regional facility or local hospital unit when so ordered by the sentencing court or other location determined by the sheriff. The sheriff shall transport such persons who are not incarcerated to the facility where the blood is drawn.
(b) The superintendent of the division West Virginia State Police shall promulgate a legislative rule pursuant to chapter twenty-nine-a of this code establishing which persons may withdraw blood and further establishing procedures to withdraw blood. At a minimum, these procedures shall require that when blood is withdrawn for the purpose of DNA identification testing, a previously unused and sterile needle and sterile vessel shall be used, the withdrawal shall otherwise be in strict accord with accepted medical practices and in accordance with any recognized medical procedures employing universal precautions as may be outlined by the national Centers for Disease Control and Prevention. No civil liability attaches to any person when the blood was drawn according to recognized medical procedures employing such the universal precautions. No person is relieved of liability for negligence in the drawing of blood for purposes of DNA testing.
(c) The superintendent of the division West Virginia State Police shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code governing the procedures to be used in the withdrawal of blood collection of DNA samples, submission, identification, analysis and storage of DNA samples and typing results of DNA samples submitted under this article which shall be compatible with recognized federal standards.
(d) The agency having control, custody or supervision of persons convicted or adjudicated delinquent for qualifying offenses may, in consultation with and approval of the West Virginia State Police Laboratory, promulgate rules or policies specifying the time and manner of collection of the DNA samples as well as any other matter necessary to carry out its responsibilities under this article.
(e) The agency or institution having custody, control or providing supervision of persons convicted or adjudicated delinquent for qualifying offenses, as appropriate, is authorized to contract with third parties to provide for the collection of the DNA samples described in section six of this article.
(f) A person, convicted of a qualifying offense and not incarcerated in a facility described in subsection (a) of this section, who has not submitted a court ordered DNA sample at the request of a law-enforcement agency, shall be responsible for notifying the agency designated in the court order and complying with that agency's directives for submitting a DNA sample. The person shall have thirty days from the receipt of the court order to comply unless there is a documented exception from the agency responsible for the DNA sample collection. A person refusing to comply with a court order directing that person submit a DNA sample may be considered in contempt.
§15-2B-10. DNA database exchange.
(a) The division West Virginia State Police shall receive DNA samples, store, analyze, classify and file the DNA records consisting of all identification characteristics of DNA profiles from blood DNA samples submitted pursuant to the procedures for conducting DNA analysis of blood DNA samples.
(b) The division West Virginia State Police may furnish DNA records to authorized law-enforcement and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same them, of other states within the United States and of the State of West Virginia upon proper request stating that the DNA records requested will be used solely:
(1) For law-enforcement identification purposes by criminal justice agencies;
(2) In judicial proceedings, if otherwise expressly permitted by state or federal laws; or
(3) If personal identifying information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes; or
(4) For the identification of unidentified human remains, missing persons and relatives of missing persons.
(c) The superintendent of the division West Virginia State Police shall promulgate further legislative rules pursuant to chapter twenty-nine-a of this code governing the methods by which any law-enforcement agency or other authorized entity may obtain information from the state DNA database consistent with this section and federal law.
(d) The division West Virginia State Police may release DNA samples, without personal identifying information, to any agency or entity with which the division West Virginia State Police contracts pursuant to section five of this article.
(e) The West Virginia State Police may release DNA samples for criminal defense and appeal purposes, to a defendant who is entitled to access to samples and analysis performed in connection with the case in which the defendant is charged or was convicted.
(f) Searches of the state DNA database shall be performed in accordance with state and federal law and procedures.
(g) If a DNA match is developed and it is later determined that the person's DNA sample was collected under this law by mistake, the West Virginia State Police may, upon completion of the confirmation process, still release the identification information to the investigation agency. The detention arrest or conviction of an individual based on this match is not invalidated.
§15-2B-12. Confidentiality; unauthorized uses of DNA databank; penalties.
(a) All DNA profiles and samples submitted to the division of public safety West Virginia State Police pursuant to this article shall be treated as confidential except as provided in this article.
(b) Any person who, by virtue of employment or official position has possession of or access to individually identifiable DNA information contained in the state DNA database or databank and who willfully discloses it in any manner to any person or agency not entitled to receive it is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or be imprisoned in the county or regional jails confined in jail for a period not to exceed one year, or both fined and imprisoned confined.
(c) Any person who, without authorization, willfully obtains individually identifiable DNA information from the state DNA database or databank is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or be imprisoned in the county or regional jails confined in jail for a period not to exceed one year, or both fined and imprisoned confined.
(d) DNA records and DNA samples submitted to the West Virginia State Police Laboratory pursuant to this article are exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code, or any other statutory provision or court opinion requiring the disclosure of public records.
(e) In case of a criminal proceeding, a request to access a person's DNA record must be made in accordance with rules for criminal discovery as provided in the West Virginia Code and the Rules of Criminal Procedure. The West Virginia State Police Laboratory is not required to provide the state DNA database for criminal discovery purposes.
§15-2B-15. Collection of fees to cover the cost of DNA profile entry into the DNA database and DNA databank; cost of collecting and analyzing DNA sample.
Unless the court finds that undue hardship would result, a
mandatory fee of $150, which is in addition to any other costs imposed pursuant to statutory authority, shall automatically be assessed on any person convicted of, or adjudicated delinquent for, a qualifying offense. Notwithstanding any other provision of this
code, amounts collected as a result of this fee shall be transferred to a special revenue account within the West Virginia State Police entitled the West Virginia State Police DNA Database Account. Funds deposited are only available for expenditures for purposes associated with the processing of DNA samples for the DNA database.
§15-2B-16. Partial matches and the DNA database.
In cases limited to murder, kidnapping and first and second degree sexual assault, as defined in this code, where all investigated leads have been exhausted and under the guidance of the management rules, the partial match analysis may be used as an investigative tool. The same standards and procedures defined in the management rules and in this section apply to requests for partial match information from criminal justice agencies from outside the state.
NOTE: The purpose of this bill is to authorize the West Virginia State Police to administer DNA identification system and the collection of DNA generally.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§15-2B-15 and §15-2B-16 are new; therefore, strike-throughs and underscoring have been omitted.