H. B. 2291
(By Mr. Speaker, Mr. Chambers, and Delegates
Leach and Jenkins)
[Introduced January 31, 1995; referred to the
Committee on the Judiciary.]
A BILL to repeal section twenty-four-a, article two, chapter
fifteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend chapter fifteen
of said code by adding thereto a new article, designated
article two-b, relating to blood sampling for DNA law
enforcement; AIDS-related medical testing, and records
confidentiality and testing.
Be it enacted by the Legislature of West Virginia:
That section twenty-four-a, article two, chapter fifteen of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; and that chapter fifteen of said code be
amended by adding thereto a new article, designated article two-b, to read as follows:
ARTICLE 2B. DNA DATA.
§15-2B-1. Short title.
This article may be cited as the "DNA Database and Databank
Act of 1995."
§15-2B-2. Policy.
It is the policy of the state to assist federal, state and
local criminal justice and law-enforcement agencies in the
identification, detection, and/or exclusion of individuals who
are subjects of the investigation or prosecution of violent
crimes, sex-related crimes and other crimes against the person.
Identification, detection and exclusion is facilitated by the
analysis of biological evidence that is often left by the
perpetrator or is recovered from the crime scene or evidence
remaining on perpetrator. The analysis of biological evidence
can also be used to support development of a population
statistics database, when personal identifying information is
removed; to support identification research and protocol
development of forensic DNA analysis methods, for quality control
purposes and for other humanitarian purposes.
§15-2B-3. Definitions.
As used in this article, unless another meaning is specified
or the context clearly requires otherwise, the following terms
have the meanings specified:
(a) "CODIS" means the FBI's national DNA identification
index system that allows for the storage and exchange of DNA
records submitted by state and local forensic DNA laboratories.
The term CODIS is derived from combined DNA index system.
(b) "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.
(c) "DNA advisory board" refers to a group that has been
authorized to be established through the enactment of the federal
1994 crime bill which includes the "DNA Identification Act of
1994."
(d) "DNA records" means DNA identification information
stored in the state DNA database or CODIS for the purpose of
generating investigative leads or supporting statistical
interpretation of DNA test results. 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
collectively referred to as the DNA profile of an individual.
(e) "DNA sample" in this article means the DNA extracted
from a blood sample provided by any person convicted of offenses
covered by this article or submitted to the WVDPS laboratory for
analysis pursuant to a criminal investigation.
(f) "FBI" means the Federal Bureau of Investigation.
(g) "Juvenile offender" refers to those persons under the
age of eighteen years as defined in subsection (2), section five
of chapter forty-nine.
(h) "MUNDAL" means the Marshall University DNA laboratory
and refers to the memorandum of understanding between the West
Virginia division of public safety and the Marshall University
Research Corporation regarding the mutual cooperative effort
ongoing in DNA analysis within the state of West Virginia, and
serves to designate Marshall University as the DNA typing,
testing and research laboratory supporting the West Virginia division of public safety.
(i) "State DNA database" means the WVDPS's DNA
identification record system to support law enforcement. It is
administered by the WVDPS and provides DNA records to the FBI for
storage and maintenance in CODIS. The WVDPS's DNA database
system is the collective capability provided by computer software
and procedures administered by the WVDPS to store and maintain
DNA records related to forensic casework, to convicted offenders
required to provide a DNA sample under this article, and to
anonymous DNA records used for research or quality control.
(j) "State DNA databank" means the repository of DNA samples
collected under the provisions of this article.
(k) "TWGDAM" means technical working group on DNA analysis
methods.
(l) "Universal precautions" refers to the center for disease
control's federally established guidelines on how to handle
biological fluids.
(m) "WVDPS" means the West Virginia Division of Public
Safety. The WVDPS is responsible for the policy management and
administration of the state DNA identification record system to support law enforcement, and for liaison with the FBI regarding
the state's participation in CODIS.
§15-2B-4. Procedural compatibility with the FBI.
(a) The DNA identification system as established by the
WVDPS shall be compatible with the procedures specified by the
FBI, including use of comparable test procedures, laboratory
equipment, supplies and computer software.
(b) The superintendent of the division of public safety
shall promulgate administrative procedural rules necessary to
carry out the provisions of the DNA database and databank
identification system to include procedures for the database and
databank system usage and integrity and cooperation with CODIS.
§15-2B-5. Blood sample required for DNA analysis upon
conviction
.
The division of corrections, regional jails, county jails
and felon facilities shall obtain blood samples for DNA
identification testing.
(a) On or after the first day of July, one thousand nine
hundred ninety-five, a person who is convicted of any of the
crimes listed in subdivision (d) of this section shall have a DNA sample drawn upon intake to a jail or prison. In addition every
person convicted on or after the first day of July, one thousand
nine hundred ninety-five, of any of these crimes, but who is not
sentenced to a term of confinement, shall immediately provide a
DNA sample as a condition of the sentence. A person who has been
convicted and incarcerated without the possibility of parole or
release as a result of a conviction of one or more of these
crimes prior to the first day of July, one thousand nine hundred
ninety-five, shall provide a DNA (blood) sample within six months
of the first day of July, one thousand nine hundred ninety-five.
A person who has been convicted and incarcerated with the
possibility of parole or release as a result of a conviction of
one or more of these crimes prior to the first day of July, one
thousand nine hundred ninety-five, shall provide a DNA sample
(blood) not less then six calendar months prior to parole or
release.
(b) Juveniles who are convicted of a felony, which if
committed by an adult would require the collection of a DNA
(blood) sample in accordance with DNA legislation, shall provide
a DNA (blood) sample for analysis.
(c) Pursuant to subdivision (a) of this section, blood
samples shall be taken from all those incarcerated within the
state. If the prisoner refuses to give a blood sample, the state
shall apply to a circuit court for an order requiring the
prisoner to permit a blood sample to be withdrawn for the purpose
of DNA typing and testing. The circuit court, barring any valid
objections, shall require the prisoner to comply.
(d) Crimes covered by this article include:
(1) First and second degree murder;
(2) Voluntary manslaughter;
(3) Involuntary manslaughter;
(4) Attempt to kill or injury by poison;
(5) Malicious or unlawful assault; assault; battery and
recidivism of battery; assault on police officers, conservation
officers, county or state correctional officers;
(6) Stalking;
(7) Assault during commission of or attempt to commit a
felony;
(8) Violent crimes against the elderly;
(9) Robbery or attempted robbery; bank robbery and assaults in committing or attempting;
(10) Abduction of person; kidnapping or concealing child;
(11) Enticing away or otherwise kidnapping any person; when
kidnapped person returned alive and uninjured after ransom paid
and without ransom paid; discretion of jury or court as to parole
when life imprisonment imposed;
(12) Threats to kidnap or demand ransom;
(13) Concealment or removal of minor child from custodian or
from person entitled to visitation;
(14) Aiding or abetting in offense under sections fourteen
(c) and (d), article two of chapter sixty-one;
(15) Domestic violence -- criminal acts;
(16) Incest;
(17) Disinterment or displacement of dead body or part
thereof; damage to cemetery or graveyard;
(18) Sexual assault in the first degree;
(19) Sexual assault in the second degree;
(20) Sexual assault of a spouse;
(21) Sexual abuse in the first degree;
(22) Sexual offenses;
(23) Death of a child by a parent, guardian or custodian or
other person by child abuse; and
(24) Sexual abuse by a parent, guardian or custodian,
parent, guardian or custodian allowing sexual abuse to be
inflicted upon a child; displaying of sex organs by a parent,
guardian or custodian.
§15-2B-6. Tests to be performed on blood sample.
The tests to be performed on each blood sample are to
analyze and type the genetic markers contained in or derived from
the DNA in accordance with these markers specified by the DNA
advisory board.
§15-2B-7. Purposes of DNA testing.
DNA testing may be used:
(a) For law enforcement identification purposes in support
of CODIS.
(b) For research and administrative purposes, including:
(1) Development of a population database when personal
identifying information is removed;
(2) Support of identification research and protocol
development of forensic DNA analysis methods;
(3) Quality control purposes; and
(4) Assistance in the recovery or identification of human
remains from mass disasters or for other humanitarian purposes,
including identification of missing persons.
§15-2B-8. Maintenance of DNA samples and records.
The DNA record shall be stored and maintained by the WVDPS
in the state DNA database. The DNA sample itself shall be stored
and maintained by the WVDPS and the state designated DNA typing,
testing and research laboratory at Marshall University in the
state DNA databank.
§15-2B-9. Procedures for withdrawal of blood sample for DNA
analysis.
Blood withdrawal to obtain DNA samples from persons upon
condition of sentencing or incarceration shall be drawn at the
place of incarceration, place of holding, and/or place of
presentencing as specified by the sentencing court. DNA samples
from convicted persons who are not sentenced to a term of
confinement shall be drawn at a county jail, prison, regional
facility or local hospital unit to be specified by the sentencing
court. Only a doctor of medicine or osteopathy or registered nurse, or trained medical technician may withdraw blood for the
purpose of DNA identification testing. In withdrawing blood for
the purpose of DNA identification testing, only a previously
unused and sterile needle and sterile vessel may be utilized and
the withdrawal shall otherwise be in strict accord with accepted
medical practices. No civil liability attaches to any person if
the blood was drawn according to recognized medical procedures
employing universal precautions as outlined by the national
Center for Disease Control. No person is relieved from liability
for negligence in the drawing of blood of any DNA analysis.
§15-2B-10. Procedures for conducting DNA analysis blood samples.
The WVDPS shall adopt procedural administrative rules
governing the procedures to be used in the submission,
identification, analysis and storage of DNA samples and typing
results of DNA samples submitted under this article and
compatible with guidelines established by the DNA advisory board.
The DNA sample and DNA profile as part of the West Virginia
databank shall be securely stored in the state and WVDPS
designated DNA typing, testing and research laboratory at
Marshall University. The DNA typing identification results shall be securely stored in the state database which will be maintained
solely by the WVDPS. These procedures shall also include quality
assurance guidelines including those from proficiency testing
agency to insure that DNA identification records meet all
technical and audit standards for laboratories which submit DNA
records to the state database. DNA records of testing shall be
retained on file at the WVDPS and MUNDAL.
§15-2B-11. DNA database exchange.
(a) The WVDPS shall receive DNA samples, store, analyze, or
contract out the DNA typing analyses to the MUNDAL which meets
the guidelines as established by the WVDPS and the DNA advisory
board; classify and file the DNA records consisting of all
identification characteristics of DNA profiles from blood samples
submitted pursuant to the procedures for conducting DNA analysis
of blood samples; and to make such information available as
provided in this section. The WVDPS shall contract out DNA
typing for CODIS to the WVDPS designated DNA typing, testing and
research laboratory at Marshall University. The Marshall DNA
laboratory will perform DNA typing in accordance with quality
assurance standards issued by the FBI director and the DNA advisory board. The DNA profile of individuals in the state
database shall be made available to local, state and/or federal
law-enforcement agencies, approved crime laboratories which serve
these agencies, or the prosecuting attorney's office upon written
or electronic request and in furtherance of an official
investigation of a criminal offense. These records shall also be
available upon receipt of a valid court order directing the WVDPS
to release these results to appropriate parties not listed above
when the court order is signed by a circuit court judge after a
hearing. The WVDPS shall maintain a file of such court orders.
(b) The WVDPS shall adopt procedural administrative rules
governing the methods by which law-enforcement agencies from
other states and countries can obtain information from the state
database and CODIS as well as procedures for verification of the
identity and authority of the requester.
(c) The WVDPS or the WVDPS designated DNA typing, testing
and research laboratory at Marshall University shall create a
separate population database comprised of DNA profiles from blood
samples obtained under this article, after all personal
identification is removed. The WVDPS may share or disseminate population database information with other law-enforcement
agencies, crime laboratories that serve them, or WVDPS designated
DNA typing, testing and research laboratories at Marshall
University to assist the WVDPS with statistical analysis. The
population database may be made available to a search by other
agencies participating in the CODIS system.
§15-2B-12. Cancellation of authority to exchange DNA records.
The WVDPS is authorized to revoke the right of a forensic
DNA laboratory within the state to exchange DNA identification
records with federal, state or local criminal justice agencies
whenever the required quality control and privacy standards
specified by the state for the state DNA database are not met by
these agencies.
§15-2B-13. Proficiency testing standards.
The MUNDAL and the West Virginia division of public safety
shall implement and follow DNA quality assurance and proficiency
testing standards issued by the FBI director and the DNA advisory
board. Until such DNA testing standards are issued by the
director of the FBI and the DNA advisory board, quality assurance
guidelines issued by the technical working group on DNA analysis methods and/or advisory board mandated to be developed by the
1994 federal crime legislation shall serve as the standards.
§15-2B-14. Authorized disclosure of DNA records.
Law-enforcement forensic DNA laboratories providing DNA
identification records to the state database may disclose or
allow access to DNA samples and DNA analysis collected only in
the following circumstances: (1) To criminal justice agencies
for law-enforcement identification purposes; (2) to a defendant
or defendant's council on written order of the circuit court in
which the case is pending; (3) for a population statistics
database, identification research and protocol development, or
quality control purposes, and then only if personal identifying
information is removed.
§15-2B-15. Maintain eligibility for federal grants.
The MUNDAL or the WVDPS that conducts or plans to conduct
forensic DNA analysis shall maintain eligibility to receive
federal grants under the "DNA Identification Act of 1994" and/or
other appropriate federal grants. To be eligible for such
grants, the DNA laboratory is required to certify to the Director
of the Bureau of Justice Assistance, United States Department of Justice that:
(a) DNA analysis is performed according to quality assurance
standards issued by the director of the FBI and the DNA advisory
board;
(b) DNA samples and test results are accessible only: (1)
To criminal justice agencies for law-enforcement identification
purposes; (2) to a defendant or defendant's council on written
order of the circuit court in which the case is pending; and (3)
for a population statistics database, identification research and
protocol development purposes, or for quality control purposes,
if personal identifying information is removed; and
(c) Each DNA analyst undergoes external proficiency testing
at least every six months by a program meeting standards issued
by the director of the FBI and the DNA advisory board.
§15-2B-16. 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 at Marshall University 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.
Like adults whose DNA test results are entered into the database,
juvenile samples shall be expunged only upon a reversal of the
conviction, not upon reaching adulthood. The person, 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) Upon receipt of an order of expungement, the WVDPS 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.
§15-2B-17. Unauthorized uses of DNA databank.
(a) 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.
(b) Any person who, without authorization, willfully obtains
individually identifiable DNA information from the state DNA
database or databank is guilty of a misdemeanor.
§15-2B-18. Confidentiality of records.
(a) All DNA profiles and samples submitted to the WVDPS and
the MUNDAL pursuant to this article shall be treated as
confidential except as provided in DNA database exchange.
(b) Only DNA records that directly relate to the
identification of individuals shall be collected and stored.
These records shall not be used for any purpose other than to
facilitate personal identification of an offender.
§15-2B-19. Penalties.
Any person mentioned in this article who neglects or
refuses, to make the report required herein, or to do or perform any act on his or her part to be done or performed in connection
with the operation of this article, is guilty of a misdemeanor,
and upon conviction thereof, shall be fined not less than twenty-
five dollars nor more than two hundred dollars or be imprisoned
in the county or regional jail for a period of not more than
sixty days, or both fined and imprisoned. Such neglect
constitutes misfeasance in office and subjects such persons to
removal from office. Any person who willfully removes, destroys
or mutilates any of the DNA samples, records or other information
of the division of public safety or violates the provisions of
section seventeen of this article is guilty of a misdemeanor, and
upon conviction thereof, shall be fined not more than one hundred
dollars or imprisoned, in the county or regional jail for not
more than six months, or both fined and imprisoned.
NOTE: The purpose of this article is to set forth
procedures in handling blood samples for DNA testing and DNA
results.
Article two-b, is new; therefore, strike-throughs and
underscoring have been omitted.