ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 3054
(By Delegates Miley, Longstreth, Fleischauer,
Skaff, Hamilton, Sobonya and C. Miller)
[Passed March 12, 2011; in effect ninety days from passage.]
AN ACT 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
the collection and use of DNA data generally; providing for
the collection of DNA samples from certain persons; providing
for a penalty of contempt for a person refusing to furnish a
DNA sample pursuant to a court order; 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.
§15-2B-3. Definitions.
As used in this article:
(1) "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) "Conviction" includes convictions by a jury or court,
guilty plea, or plea of nolo contendere.
(3) "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) "Division" means the West Virginia State Police.
(5) "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.
(6) "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) "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.
(8) "FBI" means the Federal Bureau of Investigation.
(9) "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) "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) "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.
(l2) "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) "Registering Agency" means the West Virginia State
Police.
(14) "State DNA database" means all DNA identification records included in the system administered by the West Virginia State
Police.
(15) "State DNA databank" means the repository of DNA samples
collected under the provisions of this article.
§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 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 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) 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.
§15-2B-7. Tests to be performed on DNA sample.
The tests to be performed on each 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 rule regarding the typing and analysis of the 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 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) 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.
(c) The Superintendent of the 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 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 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) 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-10. DNA database exchange.
(a) The 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 DNA samples
submitted pursuant to the procedures for conducting DNA analysis of
DNA samples.
(b) The 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 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;
(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 West Virginia State Police shall
promulgate 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 West Virginia State Police may release DNA samples,
without personal identifying information, to any agency or entity with which the 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.
§15-2B-12. Confidentiality; unauthorized uses of DNA databank;
penalties.
(a) All DNA profiles and samples submitted to the 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 confined in jail for a period not to exceed one year, or
both fined and 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 confined in jail for a period not to exceed one year, or both fined and 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, for criminal discovery
purposes, more than the DNA profile(s) and identifying information
generated as a result of the search that led to the match between
the case evidence and the defendant.
§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.
For persons convicted after July 1, 2011, 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,
unless the court finds that undue hardship would result. This fee
shall be collected by the sentencing court or the agency
responsible for the collection of the DNA sample and remitted to
the State Treasury on or before the tenth of every month. Notwithstanding any other provision of this code to the contrary,
all moneys collected as a result of this fee shall be deposited in
a special account within the State Treasury to be known as the
"West Virginia State Police DNA Database Account" to be
administered by the Superintendent of the West Virginia State
Police. Expenditures from the fund are authorized from collections
for purposes associated with the processing of DNA samples for the
DNA database.
§15-2B-16. Partial matches and the DNA database.
The division may use the data in the DNA database for partial
match analysis for criminal investigations of murder, kidnapping
and first and second degree sexual assault, as defined in this
code, where all investigated leads have been exhausted. The
division shall follow the standards and procedures defined in the
Interim Plan when replying to requests for partial match
information from criminal justice agencies from within or outside
the state until such time as the division promulgates management
rules.