Introduced Version
Senate Bill 312 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 312
(By Senators Kessler, Fanning, Minard, Caldwell, Jenkins,
Ross, White, Deem, Weeks and Oliverio)
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[Introduced January 29, 2004; referred to the Committee on the
Judiciary.]
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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 sample required for DNA analysis upon
conviction; definitions; requiring DNA samples for certain
prisoners; and providing for the standards and procedures for
a right to DNA testing for certain imprisoned felons.
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:
(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 of an individual on which
a DNA analysis can be done provided by any person individual
convicted of offenses covered by 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 division
of public safety.
(f) "State DNA databank" means the repository of DNA samples collected under the provisions of this article.
(g) "Division" means the West Virginia division of public
safety.
§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 incarcerated in a state correctional facility or
any 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. 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, for the sole purpose
of criminal identification, where not otherwise mandated, require
any person convicted of an offense which constitutes a felony
violation of the provisions of this code, including, but not
limited to, those specifically enumerated by this section, to
provide a DNA sample to be used for DNA analysis as described in
this article. Provided That, the convicted person from whom the
DNA sample is being sought is under the supervision of the Criminal
Justice System at the time the request for the sample is made.
Provided Further, That the West Virginia State Police shall not
increase in expenditures in order to collect, process, or test DNA
samples in excess of their existing two thousand and four budget
year percentage allotted for these purposes, without further
approval of the legislature. For the purposes of this article,
"criminal justice System" shall mean those persons who are :
incarcerated in prison or in the regional jail system, on parole,
on probation, sentenced to home confinement, sentenced to community
corrections program, or work release.
§15-2B-14. Right to DNA testing.
(a) A person who was convicted of a felony and is currently
serving a term of imprisonment may make a written motion before the
trial court that entered the judgment of conviction in his or her
case, for performance of forensic deoxyribonucleic acid (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 shall 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 also shall include the person's statement
as to whether he or she previously has had counsel appointed 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 that the person is indigent, he or she
has included the information required in paragraph (1), and counsel
has not previously been appointed pursuant to this subdivision, the
court shall appoint counsel to investigate and, if appropriate, to
file a motion for DNA testing under this section and to represent
the person solely for the purpose of obtaining DNA testing under
this section.
(B) Upon a finding that the person is indigent, and counsel
previously has been appointed pursuant to this subdivision, the court may, in its discretion, appoint counsel to investigate and,
if appropriate, to file a motion for DNA testing under this section
and to represent the person solely for the purpose of obtaining DNA
testing under this section.
(4) Nothing in this section shall be construed to provide for
a right to the appointment of counsel in a postconviction
collateral proceeding, or to set a precedent for any such right, in
any context other than the representation being provided an
indigent convicted person 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 shall do all of 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 that 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
that was conducted previously by either the prosecution or defense,
if known.
(E) State whether any motion for testing under this section
previously has been filed 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 subjected to DNA or other
forensic testing previously 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 of guilty or
nolocontendre, 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 to be tested 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 that
resulted 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 the
results of DNA testing 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 to be tested meets either of the
following conditions:
(A) The evidence was not tested previously.
(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
the 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. The 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) The cost of DNA testing ordered under this section shall
be borne by the state or the applicant, as the court may order in
the interests of justice, if it is shown that the applicant is not
indigent and possesses the ability to pay. However, the cost of
any additional testing to be conducted by the prosecuting attorney
shall not be borne by the convicted person.
(j) An order granting or denying a motion for DNA testing
under this section shall not be appealable, and shall be 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 after the
court's order granting or denying the motion for DNA testing. The
petition for writ of mandate or prohibition shall be filed in the
supreme court. The court shall expedite its review of a petition
for writ of mandate 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 postconviction 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 postconviction 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.
NOTE: The purpose of this bill is to provide the West Virginia
State Police the ability to define and draw DNA samples from
convicted felons for the purpose of maintaining a DNA database.
Additionally,
this bill is to
provides a right to DNA testing for imprisoned felons and requiring certain physical evidence be
preserved.
This bill was recommended for introduction and passage by the
Joint Standing Committee on the Judiciary
.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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