COMMITTEE SUBSTITUTE
FOR
H. B. 4156
(By Delegates Webster, Brown, Mahan, R. Thompson,
Armstead, Calvert and Faircloth)
(Originating in the Committee on the Judiciary)
[February 16, 2004]
A BILL 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 have the
meanings specified 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 the DNA extracted from a blood sample
a tissue, fluid or other bodily sample, suitable for testing,
provided by any an person individual convicted of a felony offenses
covered by this article offense under the West Virginia code 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 division
of public safety state police.
(f) "State DNA data-bank" means the repository of DNA samples
collected under the provisions of this article.
(g) "Division" means the West Virginia division of public
safety 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, two, three, 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) All persons presently incarcerated for a felony offense in
a state correctional facility or any a county or regional jail in
this state who are incarcerated due to the conviction of any
offense listed in subsection (a) of this section who are
incarcerated On the first day of July, one thousand nine hundred
ninety-five, or who are convicted of any such offense on or after
the first day of July, one thousand nine hundred ninety-five, shall
have a DNA sample drawn for purposes of analysis and storage of the
DNA.
(c) Any person convicted after the first day of July, two
thousand, 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 after the first day of July, two
thousand two, 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) For the purposes of this section, the term "DNA sample"
means a tissue, fluid or other bodily sample of an individual on
which a DNA analysis can be done. 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 who is required to provide a DNA sample as
required by this section refuses to comply with any DNA testing,
the state shall apply to a circuit court for an order requiring the
person to provide a DNA sample. to be withdrawn for the purpose of
DNA typing and testing. 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:
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 paragraph (1) 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 paragraph (1), 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 whether or not 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 petition for writ of mandamus or prohibition
filed 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.
Petitions for writ of mandamus or prohibition shall be filed in the
supreme court. The court shall expedite its review of a petition
for writ of mandamus or prohibition filed under this subdivision.
(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 DNA laboratory shall be required 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 shall 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.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
