Senate Bill No. 146
(By Senator Barnes)
____________
[Introduced February 11, 2009; referred to the Committee on the
Judiciary.]
]
____________
A BILL to amend and reenact §15-2B-6 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto
thirteen new sections, designated §15-2B-15, §15-2B-16,
§15-2B-17, §15-2B-18, §15-2B-19, §15-2B-20, §15-2B-21,
§15-2B-22, §15-2B-23, §15-2B-24, §15-2B-25, §15-2B-26 and
§15-2B-27, all relating to the collection of DNA samples from
persons arrested for certain felonies.
Be it enacted by the Legislature of West Virginia:
That §15-2B-6 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto thirteen new sections, designated §15-2B-15, §15-2B-16,
§15-2B-17, §15-2B-18, §15-2B-19, §15-2B-20, §15-2B-21, §15-2B-22,
§15-2B-23, §15-2B-24, §15-2B-25, §15-2B-26 and §15-2B-27, all to
read as follows:
ARTICLE 2B. DNA IDENTIFICATION ACT.
§15-2B-6. DNA sample required for DNA analysis upon arrest, DNA
sample required for certain prisoners.
(a) Any person
arrested 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, or section twelve, article eight, chapter sixty-one of
this code (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 arrested for 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 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)
Notwithstanding the provisions in section seventeen of
this article, any person
convicted of arrested for a violation of
section five or thirteen, article two, chapter sixty-one of this
code, section one, two, three, four, five, seven, eleven or twelve,
article three of said chapter (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 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 shall provide a DNA sample to
be used for DNA analysis as
further 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
and those set forth in section seventeen of this article.
(f) When a person required to provide a DNA sample pursuant to
this
section article 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 arrested for 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
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.
§15-2B-15. Purpose.
The purpose of the DNA Identification Act is to:
(a) Establish a DNA identification system for covered
offenders and persons required to provide a DNA sample pursuant to
the provisions of sections six and sixteen of this article.
(b) Facilitate the use of DNA records by local, state and
federal law-enforcement agencies in the:
(1) Identification, detection or exclusion of persons in
connection with criminal investigations; and
(2) Registration of sex offenders required to register
pursuant to the provisions of the Sex Offender Registration Act,
section two, article twelve, chapter fifteen;
(3) Establish a missing persons DNA identification system
consisting of the following DNA indexes:
(A) Unidentified persons;
(B) Unidentified human remains; and
(C) Relatives of, or known reference samples from, missing
persons; and
(4) Facilitate the use of DNA records by local, state and
federal law-enforcement agencies and the state medical investigator
in the identification and location of missing and unidentified
persons or human remains.
§15-2B-16. Definitions.
As used in this article, the following terms have the meanings
set forth:
(a) "Administrative center" means the law-enforcement agency
or unit that administers and operates the DNA identification system
pursuant to the provisions of the DNA Identification Act;
(b) "DNA" means deoxyribonucleic acid;
(c) "Felony" means:
(1) A sex offense as defined in sections three, four, five and
seven of article eight-b, chapter sixty-one of the West Virginia
Code, 1931, as amended; or
(2) Any other felony offense that involves death, great bodily
harm, aggravated assault, kidnaping, burglary, larceny, robbery,
aggravated stalking, use of a firearm or an explosive or a violation pursuant to the Anti-terrorism Act of 2001.
(d) "Sample" means a sample of biological material that is
sufficient for DNA testing.
§15-2B-17. Persons from whom DNA is required and handling
procedures.
(a) A person eighteen years of age or over who is arrested for
the commission of a felony under the laws of this state or any
other jurisdiction shall provide a DNA sample to jail or detention
facility personnel upon booking. A sample is not required if it is
determined that a sample has previously been taken, is in the
possession of the administrative center, has not been expunged
pursuant to the DNA Identification Act and is sufficient for DNA
identification testing.
(b) Jail or detention facility personnel who collect samples
pursuant to this section shall forward the samples to the
administrative center.
(c) Samples shall be collected in accordance with rules and
procedures adopted by the DNA oversight committee, shall be subject
to the confidentiality and penalty provisions of the DNA
Identification Act and shall be used only as authorized by that
act.
§15-2B-18.
Administrative Center.
(a) The administrative center shall be an appropriate unit of
the department or such other qualified West Virginia law-enforcement agency as the Secretary of Public Safety may
designate in accordance with this section.
(b) The administrative center shall:
(1) Establish and administer the DNA identification system.
The DNA identification system shall provide for collection,
storage, DNA testing, maintenance and comparison of samples and DNA
records for forensic and humanitarian purposes. Those purposes
shall include generation of investigative leads, statistical
analysis of DNA profiles and identification of missing persons and
unidentified human remains. Procedures used for DNA testing shall
be compatible with the procedures the Federal Bureau of
Investigation has specified, including comparable test procedures,
laboratory equipment, supplies and computer software. Procedures
used shall meet or exceed the provisions of the Federal DNA
Identification Act of 1994 regarding minimum standards for state
participation in CODIS, including minimum standards for the
acceptance, security and dissemination of DNA records;
(2) Coordinate sample collection activities;
(3) Perform or contract for DNA testing;
(4) Serve as a repository for samples and DNA records;
(5) Act as liaison with the Federal Bureau of Investigation
for purposes of CODIS;
(6) Adopt rules and procedures governing:
(A) Sample collection;
(B) DNA testing;
(C) The DNA identification system and DNA records;
(D) The acceptance, security and dissemination of DNA records;
and
(E) Communication between local, state and federal
law-enforcement agencies, the corrections department and local
jails and detention facilities in order to minimize duplicate
sample collections from the same individual;
(7) Provide training to jail and detention facility personnel
who are required to collect samples pursuant to section one of this
article;
(8) Be reimbursed for the costs of sample collection and DNA
testing of samples taken for the purposes of the identification of
missing persons and unidentified human remains;
(9 Establish and administer the missing persons DNA
identification system as a part of the DNA identification system;
and
(10) Establish and administer the sex offender DNA
identification system as part of the DNA identification system.
(c) The Governor may designate, pursuant to a joint powers
agreement, the crime laboratory of the police department for the
largest municipality in a Class A county having a population of
more than two hundred fifty thousand at the most recent federal
decennial census to act as the administrative center.
(d) The Governor may designate, pursuant to a joint powers
agreement, any other law-enforcement agency to act as
administrative center upon recommendation of five voting members of
the DNA advisory committee.
§15-2B-19. Collection of samples.
(a) A covered offender shall provide one or more samples to
the administrative center, as follows:
(1) A covered offender convicted on or after July 1, 2009,
shall provide a sample immediately upon request to the corrections
department as long as the request is made before release from any
correctional facility or, if the covered offender is not sentenced
to incarceration, before the end of any period of probation or
other supervised release;
(2) A covered offender incarcerated on or after July 1, 2009,
shall provide a sample immediately upon request to the corrections
department as long as the request is made before release from any
correctional facility;
(3) A covered offender on probation or other supervised
release on or after July 1, 2009, shall provide a sample
immediately upon request to the corrections department as long as
the request is made before the end of any period of probation or
other supervised release; and
(4) A covered offender required to register or renew his
registration pursuant to the provisions of the Sex Offender Registration Act, section two, article twelve, chapter fifteen of
the code of West Virginia as amended, shall provide a sample
immediately upon request to the county sheriff located in any
county in which the sex offender is required to register, unless
the sex offender provided a sample while in the custody of the
corrections department or to the county sheriff of another county
in West Virginia in which the sex offender is registered.
(b) A person eighteen years of age or over who is arrested on
or after July 1, 2009, for the commission of a felony as provided
in section two of this article will provide a sample immediately
upon request to jail or detention facility personnel, unless:
(1) The person has previously provided a sample sufficient for
DNA testing pursuant to the provisions of this section;
(2) The sample is in the possession of the administrative
center; and
(3) The sample has not been expunged.
(c) Samples from unidentified persons or relatives of a
missing person shall be provided to the administrative center, as
follows:
(1) Upon the completion of a permission to search form
authorizing the collection of a DNA sample;
(2) Upon the receipt of a properly executed search warrant; or
(3) Upon the issuance of a court order.
(d) Samples from unidentified human remains shall be provided by the state medical investigator.
(e) Samples of known reference materials from missing persons
shall be provided by the investigating law-enforcement agency.
§15-2B-20.
Confidentiality; disclosure and dissemination of DNA
records.
(a) DNA records and samples are confidential and shall not be
disclosed except as authorized in the DNA Identification Act
pursuant to the rules and regulations developed and adopted by the
DNA oversight committee.
(b) The administrative center shall make DNA records available
for identification, comparison and investigative purposes to local,
state and federal law-enforcement agencies and the state medical
investigator pursuant to the rules developed and adopted by the DNA
oversight committee. The administrative center may disseminate
statistical or research information derived from samples and DNA
testing if all personal identification is removed pursuant to the
rules developed and adopted by the DNA oversight committee.
(c) To minimize duplicate sample collection and testing, the
administrative center may make information available, by secure
electronic methods, to local, state and federal law-enforcement
agencies, the corrections department, jails and detention
facilities for the purpose of verifying whether a sample has been
collected from a specific individual. Information provided under
this subsection shall not include DNA testing results.
§15-2B-21. DNA searches.
(a) Searches of samples collected pursuant to the DNA
Identification Act, for purposes of the missing persons DNA
identification system, shall be limited to searches against DNA
indexes consisting of:
(1) Unidentified persons;
(2) Unidentified human remains;
(3) Relatives of, or known reference samples from, missing
persons;
(4) Covered offenders as defined by the DNA Identification Act
and maintained by the DNA identification system; and
(5) Persons arrested for the commission of a felony as
provided in section two of this article.
(b) Searches of samples collected from unidentified persons or
relatives of missing persons pursuant to the DNA Identification Act
shall not be performed against DNA indexes consisting of
evidentiary samples resulting from criminal investigations.
§15-2B-22. Enforcement.
(a) The Attorney General or county prosecutor may petition a
circuit court for an order requiring a covered offender or a person
required to provide a DNA sample pursuant to the provisions of
section three of this article, to:
(1) Provide a sample; or
(2) Provide a sample by alternative means if the covered offender or person will not cooperate.
(b) Nothing in this section shall prevent the collection of
samples by order of a court of competent jurisdiction or the
collection of samples of covered offenders.
§15-2B-23. Expungement of samples and DNA records from the DNA
identification system and CODIS.
(a) A person may request expungement of the person's sample
and DNA records from the DNA identification system on the following
grounds:
(1) The conviction that led to the inclusion of the sample has
been reversed; or
(2) The arrest that led to the inclusion of the sample has:
(A) Resulted in a felony charge that has been resolved by a
dismissal, nolle prosequi, successful completion of a
pre-prosecution diversion program or a conditional discharge,
misdemeanor conviction or acquittal; or
(B) Not resulted in a felony charge within one year of arrest.
(b) The administrative center shall expunge a person's sample
and DNA records from the DNA identification system when the person
provides the administrative center with the following materials:
(1) A written request for expungement of the sample and DNA
records; and
(2) A certified copy of a court order that reverses the
conviction that led to the inclusion of the sample; or
(3) For samples included pursuant to arrest:
(A) A certified copy of the dismissal, nolle prosequi,
successful completion of a pre-prosecution diversion program or a
conditional discharge, misdemeanor conviction or acquittal; or
(B) A sworn affidavit that no felony charges arising out of
the arrest have been filed within one year.
(c) When a person's sample and DNA records are expunged from
the DNA identification system, the head of the administrative
center shall ensure that the person's sample and DNA records are
expunged from CODIS.
(d) The administrative center shall not expunge a person's
sample and DNA records from the DNA identification system if the
person has a prior felony conviction or a pending felony charge for
which collection of a sample is authorized pursuant to the
provisions of the DNA Identification Act.
§15-2B-24. DNA fund created; purposes.
(a) The "DNA identification system fund" is created in the
State Treasury.
(b) The fund shall consist of all money received by
appropriation, gift or grant, and all investment income from the
fund.
(c) Money and investment income in the fund at the end of any
fiscal year shall not revert to the General Fund but shall remain
in the fund.
(d) Money and investment income in the fund is appropriated to
the administrative center for expenditure in fiscal year 2009 and
subsequent fiscal years for the purposes of the fund.
(e) The fund shall be used for the purposes of the DNA
Identification Act, including paying the expenses incurred by the
administrative center and all other reasonable expenses. The
administrative center may use money in the fund for loans or grants
of money, equipment or personnel to any law-enforcement agency,
correctional facility, jail, detention facility, judicial agency,
the public defender department or the office of the State Medical
Investigator, upon recommendation of the DNA oversight committee.
§15-2B-25. Sexual assault; submission of DNA samples by law
enforcement and laboratories.
(a) Samples from biological material collected pursuant to a
medical examination of a sexual assault victim shall be submitted
by the investigating law-enforcement agency to that agency's
servicing laboratory for DNA testing. Records derived from DNA
testing that qualify for insertion into CODIS shall be submitted by
the servicing laboratory to the administrative center.
(b) As used in this section:
(1) "Administrative center" means the law-enforcement agency
or unit that administers and operates the DNA identification system
pursuant to the provisions of the DNA Identification Act.
(2) "Biological material" means material that is derived from a human body and includes bodily fluids, hair and skin cells;
(3) "CODIS" means the Federal Bureau of Investigation's
national DNA index system for storage and exchange of DNA records
submitted by forensic DNA laboratories;
(4) "DNA" means deoxyribonucleic acid;
(5) "DNA testing" means a forensic DNA analysis that includes
restriction fragment length polymorphism, polymerase chain reaction
or other valid methods of DNA typing performed to obtain
identification characteristics of samples; and
(6) "Sample" means a sample of biological material sufficient
for DNA testing.
§15-2B-26. Severability.
If any part of application of this article is held invalid,
the remainder of its application to other situations or persons
shall not be affected.
§15-2B-27. Effective date.
The effective date of the provisions of this article is July
1, 2009.
NOTE: The purpose of this bill is to allow DNA samples to be
taken from arrested persons and to provide a database of persons
arrested for felonies to aid in solving crimes.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§15-2B-15 through §15-2B-27 are new; therefore,
strike-throughs and underscoring have been omitted.