WEST virginia legislature
2022 regular session
Introduced
Senate Bill 422
By Senators Rucker, Romano, Baldwin, and Woodrum
[Introduced January 18, 2022; 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, all relating to DNA that is maintained for law-enforcement purposes in West Virginia; providing updates for the policy of maintaining DNA; updating definitions; adding language to further define and include qualified arrestees; updating where DNA may be stored; promulgating rules; and further defining expungement.
Be it enacted by the Legislature of West Virginia:
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. DNA records are an important identification tool that can be used to confirm and/or verify information provided by fingerprints, and to identify additional information on potential criminal activity not available through other records checks. 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 sample for submit to
a DNA analysis with the resulting eligible 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
imprisonment, 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 §28-5-27 of this code.
(14) “Qualified offender” means any person convicted of a qualifying offense.
(l2) (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; (3) criminal casework; or (4) identification of human remains, it shall first attempt to contract with the Marshall University Forensic Science Center for such service or services.
§15-2B-6. DNA sample required for DNA analysis upon conviction; DNA sample required for certain prisoners.
(a) Any qualified arrestee who is 18 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.
(a) (b) Any person convicted of an offense
described in §61-2-1, §61-2-4, §61-2-7, §61-2-9, §61-2-9a (when that offense
constitutes a felony), §61-2-10, §61-2-10a, §61-2-10b, §61-2-12, §61-2-14, or
§61-2-14a of this code, or §61-8-12 of this code (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 §61-8B-1 et seq. of
this code or §61-8D-1 et seq. 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 imprisoned
in a state correctional facility or in jail in this state after conviction of
any offense listed in 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 §61-2-5 or §61-2-13 of this code,
§61-3-1, §61-3-2, §61-3-3, §61-3-4, §61-3-5, §61-3-7, §61-3-11, §61-3-12 (when
that offense constitutes a felony), or §61-3-13(a) of this code, §61-3E-3,
§61-3E-4, §61-3E-5, or §61-3E-10 of this code, or §61-4-3 of this code
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 §60A-4-401 et seq. of this code; or of an attempt to commit a
violation of §61-2-1 or §61-2-14a of this code; or an attempt to commit a
violation of §61-8B-1 et seq. 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) (h) 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) (i) 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) (j) 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
this section 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) (k) 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) (l) Duly authorized law-enforcement employees,
Regional Jail Authority employees, and Division of Corrections employees may
use reasonable force in cases where an individual refuses to provide a DNA
sample required under this article, and the employees are not civilly or
criminally liable for the use of reasonable force in the collection of the
required DNA sample.
(l) (m) A DNA sample obtained in accordance with
the requirements of this article and its use in accordance with this chapter
shall be considered to have been obtained in good faith. Should an error be
determined to have occurred which caused a person’s DNA to be obtained or
submitted improperly, the DNA record shall be removed from CODIS and the DNA
sample destroyed unless the individual has another qualifying offense or
offenses.
(m) (n) Persons authorized to collect DNA samples
shall not be 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 29A 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
imprisoned, 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 29A 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 29A 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 imprisoned 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 30 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 30 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 qualifying 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 seeking expungement, either
individually or through an attorney, may petition the court for expungement of
the record. A copy of the petition for expungement shall be served on the
prosecuting attorney for the judicial district in which the qualifying
conviction was obtained not less than 20 days prior to the date of the hearing
on the petition. 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.
NOTE: The purpose of this bill is to modify sections of the code relating to the maintenance of DNA for law-enforcement purposes. The bill provides updates for the policy of maintaining DNA. The bill updates definitions. The bill adds language to further define and include qualified arrestees. The bill updates where DNA may be stored. The bill promulgates rules. Finally, the bill further defines expungement.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.