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Enrolled Version - Final Version House Bill 4156 History

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

COMMITTEE SUBSTITUTE

FOR

H. B. 4156

(By Delegates Webster, Brown, Mahan, R. Thompson,

Armstead, Calvert and Faircloth)


[Passed March 13, 2004; in effect ninety days from passage.]


AN ACT to amend and reenact §15-2B-3 and §15-2B-6 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §15-2B-14, all relating to DNA testing for convicts under certain circumstances.

Be it enacted by the Legislature of West Virginia:
That §15-2B-3 and §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 a new section, designated §15-2B-14, all to read as follows:
ARTICLE 2B. DNA DATA.
§15-2B-3. Definitions.
As used in this article the following terms mean:
(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 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.
(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 state police.
(f) "State DNA databank" means the repository of DNA samples collected under the provisions of this article.
(g) "Division" means the West Virginia state police.
§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 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) 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 utilized by the West Virginia state police crime lab.
(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.
§15-2B-14. Right to DNA testing.
(a) A person convicted of a felony currently serving a term of imprisonment may make a written motion before the trial court that entered the judgment of conviction for performance (DNA) testing.
(b) (1) An indigent convicted person may request appointment of counsel to prepare a motion under this section by sending a written request to the court. The request must include the person's statement that he or she was not the perpetrator of the crime and that DNA testing is relevant to his or her assertion of innocence. The request must also include the person's statement as to whether he or she previously had appointed counsel under this section.
(2) If any of the information required in subdivision (1) of this section is missing from the request, the court shall return the request to the convicted person and advise him or her that the matter cannot be considered without the missing information.
(3) (A) Upon a finding of indigency, the inclusion of information required in subdivision (1) of this section, and that counsel has not previously been appointed pursuant to this subdivision, the court shall appoint counsel. Counsel shall investigate and, if appropriate, file a motion for DNA testing under this section. Counsel represents the indigent person solely for the purpose of obtaining DNA testing under this section.
(B) Upon a finding of indigency, and that counsel has been previously appointed pursuant to this subdivision, the court may, in its discretion, appoint counsel. Counsel shall investigate and, if appropriate, file a motion for DNA testing under this section. Counsel represents the person solely for the purpose of obtaining DNA testing under this section.
(4) Nothing in this section provides for a right to the appointment of counsel in a post-conviction collateral proceeding or sets a precedent for any such right. The representation provided an indigent convicted person under this article is solely for the limited purpose of filing and litigating a motion for DNA testing pursuant to this section.
(c) (1) The motion shall be verified by the convicted person under penalty of perjury and must do the following:
(A) Explain why the identity of the perpetrator was, or should
have been, a significant issue in the case.
(B) Explain, in light of all the evidence, how the requested DNA testing would raise a reasonable probability the convicted
person's verdict or sentence would be more favorable if the results
of DNA testing had been available at the time of conviction.
(C) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought.
(D) Reveal the results of any DNA or other biological testing previously conducted by either the prosecution or defense, if known.
(E) State whether any motion for testing under this section has been filed previously and the results of that motion, if known.
(2) Notice of the motion shall be served on the prosecuting attorney in the county of conviction and, if known, the governmental agency or laboratory holding the evidence sought to be tested. Responses, if any, shall be filed within sixty days of the date on which the prosecuting attorney is served with the motion, unless a continuance is granted for good cause.
(d) If the court finds evidence was subject to prior DNA or other forensic testing, by either the prosecution or defense, it shall order the party at whose request the testing was conducted to provide all parties and the court with access to the laboratory
reports, underlying data, and laboratory notes prepared in connection with the DNA or other biological evidence testing.
(e) The court, in its discretion, may order a hearing on the
motion. The motion shall be heard by the judge who conducted the
trial or accepted the convicted person's plea, unless the presiding judge determines that judge is unavailable. Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion.
(f) The court shall grant the motion for DNA testing if it determines all of the following have been established:
(1) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;
(2) The evidence to be tested has been subject to a chain of
custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect;
(3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case;
(4) The convicted person has made a prima facie showing that the evidence sought for testing is material to the issue of the convicted person's identity as the perpetrator of or accomplice to, the crime, special circumstance, or enhancement allegation resulting in the conviction or sentence;
(5) The requested DNA testing results would raise a reasonable
probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if DNA testing results had been available at the time of conviction. The court in its discretion may consider any evidence regardless of whether it was introduced at trial;
(6) The evidence sought for testing meets either of the following conditions:
(A) The evidence was not previously tested;
(B) The evidence was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results;
(7) The testing requested employs a method generally accepted
within the relevant scientific community;
(8) The evidence or the presently desired method of testing DNA were not available to the defendant at the time of trial or a court has found ineffective assistance of counsel at the trial court level;
(9) The motion is not made solely for the purpose of delay.
(g) If the court grants the motion for DNA testing, the court
order shall identify the specific evidence to be tested and the DNA
technology to be used. Testing shall be conducted by a DNA forensic laboratory in this state.
(h) The result of any testing ordered under this section shall be fully disclosed to the person filing the motion and the prosecuting attorney. If requested by any party, the court shall order production of the underlying laboratory data and notes.
(i) If testing was requested by the state or the individual is an indigent, the cost of DNA testing shall be borne by the state.
(j) An order granting or denying a motion for DNA testing under this section is not to be appealable and is subject to review only through a petition for writ of mandamus or prohibition filed with the supreme court of appeals by the person seeking DNA testing or the prosecuting attorney. The petition shall be filed within twenty days of the court's order granting or denying the motion for DNA testing. The court shall expedite its review of a petition for writ of mandamus or prohibition filed under this subsection.
(k) DNA testing ordered by the court pursuant to this section
shall be done as soon as practicable. However, if the court finds
that a miscarriage of justice will otherwise occur and that it is
necessary in the interests of justice to give priority to the DNA
testing, the court may require the DNA laboratory to give priority to the DNA testing ordered pursuant to this section over the laboratory's other pending casework.
(l) DNA profile information from biological samples taken from a convicted person pursuant to a motion for post-conviction DNA testing is exempt from any law requiring disclosure of information to the public.
(m) Notwithstanding any other provision of law, the right to file a motion for post-conviction DNA testing provided by this section is absolute and may not be waived. This prohibition applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendre.
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