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Introduced Version Senate Bill 167 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia Legislature

2017 regular session

Introduced

Senate Bill 167

By Senators Woelfel and Ojeda

[Introduced February 8, 2017; referred
to the Committee on the Judiciary
]

A BILL to amend and reenact §15-2B-2, §15-2B-3, §15-2B-5, §15-2B-6, §15-2B-9 and §15-2B-11 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §15-9B-4, all relating to DNA evidence; requiring the collection of DNA samples from individuals arrested for certain felony crimes for inclusion in and search of the DNA databank; defining terms; providing that DNA samples shall be taken by buccal swab rather than drawing blood; authorizing certain cooperative agreements; requiring qualified arrestees to submit to a DNA sample collection during the arrest intake; requiring a DNA sample be taken of any person convicted of a felony offense; authorizing the use of the DNA sample in accordance with this article; authorizing law-enforcement and corrections employees to use reasonable force to obtain a DNA sample when an individual refuses; limiting liability when a person obtaining a DNA sample acts in good faith and considering the sample taken in accordance with this article; setting forth a process for handling samples taken in error; requiring Superintendent of the State Police to submit emergency and legislative rules detailing the collection of DNA samples from qualifying arrestees; setting forth a process for expungement of the DNA sample; stating that any database match is not invalidated by a failure to or delay in expunging records; expanding authority of the Sexual Assault Forensic Examination Commission; requiring the commission to authorize a subgroup to establish protocols and propose legislative rules regarding the submission of sexual assault forensic examination kits in a timely manner from health care providers to law-enforcement agencies and from law-enforcement agencies to the West Virginia State Police, the Marshall University Forensic Science Center or certain other accredited laboratories with certain restrictions and requirements; authorizing promulgation of emergency rules with certain restrictions; requiring the rules to address testing of the kits, return of the kits and retention of the kits; permitting certain repackaging of kits not associated with an open case file pursuant to requirements of the commission; and ensuring that the changes and associated rules do not create a claim or right to relief by any person.

Be it enacted by the Legislature of West Virginia:


That §15-2B-2, §15-2B-3, §15-2B-5, §15-2B-6, §15-2B-9 and §15-2B-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §15-9B-4, all to read as follows:

ARTICLE 2B. DNA DATA.


§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 arrested or convicted of certain crimes to provide a blood sample for submit to a 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:

(1) “Arresting authority” means the law-enforcement officer who arrests the individual or an authorized representative of the agency responsible for the arrest.

(1) (2) "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.

(2) (3) "Conviction" includes convictions by a jury or court, guilty plea, or plea of nolo contendere.

(3) (4) "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.

(4) (5) "Division" means the West Virginia State Police."

(5) (6) "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 relationships and forensic identification.

(6) (7) "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".

(7) (8) "DNA sample" means a tissue, fluid or other bodily sample the cells collected through a buccal swab, also known as a buccal smear, that is collected from the inside of a person’s cheek and is suitable for testing, provided pursuant to this article or submitted to the division laboratory for analysis pursuant to a criminal investigation.

(8) (9) "FBI" means the Federal Bureau of Investigation.

(9) (10) "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.

(10) (11) "Management rules" means the rules promulgated by the West Virginia State Police that define all policy and procedures in the administration of this article.

(11) (12) "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.

(13) “Qualified arrestee” means any individual arrested for a felony crime of violence against the person or a felony offense where the victim was a minor child, as those phrases are defined in section twenty-seven, article five, chapter twenty-eight of this code.

(14) “Qualified offender” means any person convicted of a qualifying offense.

(12) (15) "Qualifying offense" means any felony offense as described in section six of this article or any offense requiring a person to register as a sex offender under this code or the federal law. For the purpose of this article, a person found not guilty of a qualifying offense by reason of insanity or mental disease or defect shall be required to provide a DNA sample in accordance with this article.

(13) (16) "Registering Agency" means the West Virginia State Police.

(14) (17) "State DNA database" means all DNA identification records included in the system administered by the West Virginia State Police.

(15) (18) "State DNA databank" means the repository of DNA samples collected under the provisions of this article.


§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 a service or facility associated with the administration of the DNA database and databank. In the event the division enters into any agreements for the purposes of (1) testing of qualified arrestee or qualified offender samples for CODIS; (2) criminal paternity cases; or (3) criminal casework; or (4) identification of human remains for the Office of Chief Medical Examiner using nuclear DNA technology, the division is authorized to only enter into such agreements with the Marshall University Forensic Science Center.


§15-2B-6. DNA sample required for DNA analysis upon conviction; DNA sample required for certain prisoners.

(a) Any qualified arrestee who is eighteen years of age or older and is arrested by an authorized arresting authority shall submit to a DNA sample collection during the intake process.  The DNA sample shall be used for DNA analysis as described in this article after a magistrate or circuit judge has made a finding that there was probable cause for the arrest. If a magistrate or circuit judge finds that there was no probable cause for the arrest, then the DNA sample collected shall be destroyed prior to submission to CODIS.

(a) (b) 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) a felony offense 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 sixty-one of this code shall provide a DNA sample to be used for DNA analysis as described in this article.

(b) (c) Any person presently incarcerated in a state correctional facility or 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) (d) 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) (e) 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 sixty-one of this code shall provide a DNA sample to be used for DNA analysis as described in this article.

(e) (f) The method of taking the DNA sample is subject to the testing methods used by the West Virginia State Police Crime Lab, the Marshall University Forensic Science Center or any other ANAB accredited DNA analysis laboratory within West Virginia. The DNA sample will be collected using a postage paid DNA collection kit provided by the West Virginia State Police.

(f) (g) 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) 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.

(i) 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 transferred person must submit 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. If the transferred person has already submitted a DNA sample that can be found in the national database, the accepting agency is not required to draw a second DNA sample.

(j) If a person convicted 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 of this obligation. Any such person may request a copy of the court order requiring the sample prior to the collection of the DNA sample.

(k) Duly authorized law-enforcement and corrections personnel may employ reasonable force in cases where an individual refuses to provide a DNA sample required under this article, and no such employee shall be civilly or criminally liable for the use of such reasonable force in the collection of the required DNA sample.

(l) A DNA sample obtained in good faith shall be considered to have been obtained in accordance with the requirements of this article and its use in accordance with this chapter is authorized. Once an error is determined to have occurred that caused a person’s DNA to be submitted improperly, the DNA record will be removed from CODIS and the DNA sample destroyed unless the individual has another qualifying offense or offenses.

(m) Persons authorized to collect DNA samples are not civilly or criminally liable for the collection of a DNA sample pursuant to this article if they perform these duties in good faith and in a reasonable manner according to generally accepted medical or other professional practices.

§15-2B-9. Procedures for withdrawal of blood sample for DNA analysis and for conducting analysis.


(a) The Superintendent of the West Virginia State Police shall promulgate an emergency rule and propose a legislative rule pursuant to chapter twenty-nine-a of this code establishing the procedure that an arresting authority shall use to obtain a DNA sample on a qualified arrestee.

(a) (b) Upon incarceration, the Division of Corrections, regional jails and felon facilities shall ensure that the DNA sample is collected from all persons described in section six of this article. When any person convicted of an offense described in section six is not incarcerated, the sheriff in the county where the person is convicted shall ensure that the DNA sample is collected from the person: Provided, That a DNA sample may be collected at a prison, regional facility or local hospital unit when so ordered by the sentencing court or other location determined by the sheriff.

(b) (c) The Superintendent of the 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 outlined by the Centers for Disease Control and Prevention. No civil liability attaches to any person when the blood was drawn according to recognized medical procedures employing the universal precautions. No person is relieved of liability for negligence in the drawing of blood for purposes of DNA testing collect DNA samples.

(c) (d) The Superintendent of the West Virginia State Police shall promulgate legislative rules propose rules for legislative approval pursuant to chapter twenty-nine-a of this code governing the procedures to be used in the 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) (e) The agency having control, custody or supervision of qualifying arrestees or persons convicted 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 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) (b) of this section, who has been put on notice of his or her obligation to provide a DNA sample and 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.

(g) Any court sentencing a person convicted of a qualifying offense to probation, on or after the effective date of the amendments to this section enacted during the regular session of the Legislature in 2011, shall order, as a condition of such probation, that the convicted person report to the local sheriff's department to provide a DNA sample within thirty days.


§15-2B-11. Expungement.


(a) Any qualifying arrestee whose DNA record has been included in the state DNA database in accordance with this article may apply for expungement on the grounds that the arrest on which the authority for searching and including the person’s DNA record or DNA profile was based has resulted in the charge being dismissed or has resulted in acquittal or no charge was filed within the statute of limitations for the offense. Upon receipt of a written application for expungement and any other information necessary to ascertain the validity of the request, the division shall expunge the DNA records and identifiable information in the database pertaining to the arrestee sample of the person and destroy the arrestee DNA sample from the person, unless the division determines that the person has otherwise become obligated to submit a DNA sample.

(a) (b) Any person convicted of a qualifying offense 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 applying for 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.

d)  Any identification, warrant, probable cause to arrest or arrest based upon a database match is not invalidated due to a failure to expunge or a reasonable delay in expunging records.

ARTICLE 9B. SEXUAL ASSAULT EXAMINATION NETWORK.

§15-9B-4.  Submission, testing and retention of sexual assault forensic examination kits.


(a) The Sexual Assault Forensic Examination Commission created by section one of this article shall establish a sub-group of persons with subject matter expertise to establish best-practice protocols for the submission of sexual assault forensic examination kits by the health care providers. The commission may propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, detailing the best-practice protocols. If the Legislature approves of the legislative rules, then Local Sexual Assault Forensic Examination Boards shall follow those rules. If legislative rules detailing the best-practice protocols are not proposed and approved, then Local Sexual Assault Forensic Examination Boards may adopt the best-practice protocols or use it as a guide to set out a system for submitting the sexual assault forensic examination kits from the health care provider to the relevant law-enforcement agency.

(b) The commission shall propose rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, that require law-enforcement agencies in possession of a sexual assault forensic examination kit to forward the sexual assault kit to the West Virginia State Police, the Marshall University Forensic Science Center or any other ANAB accredited DNA analysis laboratory within West Virginia, at the direction of the West Virginia State Police, for a DNA analysis of the sexual assault kit. The rule shall set forth the process and requirements for submissions, including a defined timeline for submission of kits in law-enforcement possession as of the effective date of this section and the time limits for the submission of future kits. The rule shall require the West Virginia State Police, the Marshall University Forensic Science Center or other ANAB accredited DNA analysis laboratory within West Virginia to perform a DNA analysis of any sexual assault examination kits pursuant to a defined timeline, to enter the resulting DNA record into the DNA database created pursuant to article two-b of this chapter, and to return the sexual assault kit to the law-enforcement agency that made the submission. The rule shall also set forth protocols for the law-enforcement agency to secure the sexual assault kit following the DNA analysis and set standards for retention of the evidence to ensure it will preserve the DNA evidence.

(c) If there is a nonreport, where a sexual assault kit is submitted to Marshall University Forensic Science Center or any other ANAB accredited DNA analysis laboratory within West Virginia, but the kit is not connected to an open case file, the kit shall be preserved in its original packaging for two years. After two years, the Marshall University Forensic Science Center or other ANAB accredited DNA analysis laboratory within West Virginia may archive the kit in a manner that allows easier storage and retains the ability to test the usable contents in the future if an open case file associated with the contents arises, pursuant to requirements created by the commission that ensure proper chain of custody is protected and contents are preserved appropriately.

(d) The failure of any law-enforcement agency to comply with any time limit specified in this section or the rules created at the direction of this section does not create, and may not be construed as creating, any basis or right to appeal, claim for or right to post conviction relief, or claim for or right to a new trial or any other claim or right to relief by any person.

(e) The commission may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code, in order to implement this section: Provided, That the emergency rules may not permit the destruction of any DNA evidence.


 

NOTE: The purpose of this bill is to allow law enforcement to obtain DNA samples from arrestees for certain criminal offenses, and that DNA samples shall be taken by buccal swab rather than drawing blood. The bill expands DNA sample collection to all those convicted of a felony offense. The bill expands the authority of the Sexual Assault Forensic Examination Commission and requires the commission to authorize a sub-group to establish protocols and propose legislative rules regarding the submission of sexual assault forensic examination kits in a timely manner from health care providers to law-enforcement agencies and from law-enforcement agencies to the West Virginia State Police, the Marshall University Forensic Science Center or certain other accredited laboratories with certain restrictions and requirements The bill also increases the preservation, submission and testing of certain DNA evidence.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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