ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 252
(Senators Plymale, Wagner, Wooton, Buckalew,
Scott, Schoonover and Chafin, original sponsors)
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[Passed March 9, 1995; in effect from passage.]
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AN ACT 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 generally to blood
sampling and analyses for DNA database and databank act of
1995; policy of DNA database; definitions; division of
public safety to implement database; division to inspect
facilities; cooperative agreements; promulgation of
legislative rules; compatibility of state program with
federal guidelines; requirement of blood sample upon
conviction of certain crimes and for certain prisoners;
tests; maintenance of records and samples; procedures for
drawing blood; the database exchange; disclosure of record;
expungement of DNA records; confidentiality, unauthorized
use of databank, neglect of duties, destruction of samples; and penalties.
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as amended, be repealed; and that said chapter be amended by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 this state to assist federal, state and
local criminal justice and law-enforcement agencies in the
identification, detection and exclusion of individuals who are
subjects of the investigation or prosecution of violent crimes,
sex-related crimes and other crimes against the person. In
furtherance of such assistance, the Legislature finds:
That the analysis of DNA contained in biological evidence
that may be recovered from a crime scene facilitates such
identification, detection and exclusion;
That the comparison of DNA data recovered from a crime
scene with existing DNA records maintained in a central DNA
database further facilitates such identification, detection and
exclusion; and
That requiring individuals convicted of certain crimes to
provide a blood sample for DNA analysis with the resulting DNA
records maintained in a central DNA database will likewise
further facilitate the aforementioned identification, detection
and exclusion and may serve to discourage recidivism.
Therefore, the Legislature finds that assisting federal,
state and local criminal justice and law-enforcement agencies
through the use and development of DNA analysis is of the utmost
importance and urgency in this state and that a DNA
identification system shall be established as described in this
article.
§15-2B-3. Definitions.
As used in this article the following terms have the
meanings specified:
(a) "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 the DNA extracted from a blood
sample provided by any person convicted of offenses covered by
this article or submitted to the division laboratory for
analysis pursuant to a criminal investigation.
(d) "FBI" means the federal bureau of investigation.
(e) "State DNA database" means all DNA identification
records included in the system administered by the West Virginia
division of public safety.
(f) "State DNA databank" means the repository of DNA
samples collected under the provisions of this article.
(g) "Division" means the West Virginia division of public
safety.
§15-2B-4. Division of public safety to establish and administer
DNA identification system; inspection of laboratories.
(a) The division shall establish a DNA identification
system consisting of a state DNA database and a state DNA
databank compatible with the procedures specified by the FBI.
(b) The division shall be the administrator of the state
DNA databank and database and the DNA identification system.
(c) The division shall supervise all DNA forensic
laboratories in this state to ensure that such laboratories are
acting in compliance with applicable provisions of state and
federal law. The division may inspect or monitor such
facilities and may prohibit any such laboratory from
participating in the exchange of information when the division finds that the facility has not acted in conformity with state
and federal laws. The superintendent of the division shall
further promulgate a legislative rule pursuant to chapter
twenty-nine-a of this code regarding the monitoring, inspection
and prohibition on the exchange of information.
(d) The superintendent of the division shall further
establish standards for testing and quality assurance of DNA
testing and the exchange of information through the promulgation
of a legislative rule pursuant to chapter twenty-nine-a of this
code.
(e) The superintendent of the division of public safety
shall promulgate additional legislative rules pursuant to
chapter twenty-nine-a of this code necessary to establish and
administer the DNA database and databank consistent with the
requirements of state and federal law and consistent with the
systems employed by the FBI.
§15-2B-5. Authority of division to enter into cooperative
agreements.
The division may enter into cooperative agreements with
public or private agencies or entities to provide any service or
facility associated with the administration of the DNA database
and databank: Provided, That the division is authorized only to
contract services and/or facilities for DNA typing, testing and
research with Marshall University.
§15-2B-6. Blood sample required for DNA analysis upon
conviction; blood sample required for certain prisoners.
(a) Any person convicted of an offense described in section
one, two, three, 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 blood 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 blood sample to be used
for DNA analysis as described in this article.
(b) All persons incarcerated in the state penitentiary or
any regional jail in this state who are incarcerated due to the
conviction of any offense listed in subsection (a) of this
section who are incarcerated on the first day of July, one
thousand nine hundred ninety-five, or who are convicted of any
such offense on or after the first day of July, one thousand
nine hundred ninety-five, shall have a blood sample drawn for
purposes of analysis and storage of the DNA.
(c) When a person who is required to submit to blood
testing as required by this section refuses to comply with any
blood testing, 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 shall order the prisoner to submit to blood testing in conformity with the provisions of this article.
§15-2B-7. Tests to be performed on blood sample.
The tests to be performed on each blood 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 sample shall be consistent with any specifications
required by federal law.
§15-2B-8. Maintenance of DNA samples and records.
DNA records and samples shall be stored and maintained by
the division in the state DNA database and databank,
respectively. DNA samples, without personal identifying
information, may also be stored in any DNA typing, testing and
research laboratory selected by the division pursuant to section
five of this article.
§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 is drawn from all persons described in section
six of this article. When any person convicted of an offense
described in said section is not incarcerated, the sheriff in
such county where the person is convicted shall ensure that
blood is drawn from such person at the regional facility:
Provided, That blood may be drawn at a county jail or at a prison, regional facility or local hospital unit when so ordered
by the sentencing court. The sheriff shall transport such
persons who are not incarcerated to the facility where the blood
is drawn.
(b) The superintendent of the division 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
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 shall promulgate
legislative rules pursuant to chapter twenty-nine-a of this code
governing the procedures to be used in the withdrawal of blood
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.
§15-2B-10. DNA database exchange.
(a) The division shall receive DNA samples, store, analyze,
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.
(b) The division 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, 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.
(c) The superintendent of the division 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 may release DNA samples, without personal
identifying information, to any agency or entity with which the
division contracts pursuant to section five of this article.
§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. 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) 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.
§15-2B-12. Confidentiality; unauthorized uses of DNA databank;
penalties.
(a) All DNA profiles and samples submitted to the division
of public safety 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 fifty dollars nor more than five hundred dollars or be
imprisoned in the county or regional jails for a period not to
exceed one year, or both fined and imprisoned.
(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 fifty dollars
nor more than five hundred dollars or be imprisoned in the
county or regional jails for a period not to exceed one year, or
both fined and imprisoned.
§15-2B-13. Neglect of duties; destruction of samples; penalties.
(a) Any person who neglects or refuses 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 fifty
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. Further, such neglect
constitutes misfeasance in office and may subject that person to
removal from office.
(b) Any person who willfully removes, destroys or mutilates
any of the DNA samples, records or other information acquired or
stored pursuant to this article is guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not less than fifty
dollars nor more than five hundred dollars or imprisoned in the
county or regional jail not to exceed one year, or both fined
and imprisoned.