H. B. 2858
(By Delegates Frazier, Ellem, Ellington,
Lane, Ferro, Sumner, Manypenny, Longstreth,
Skaff, Pino and Hunt)
[Introduced January 26, 2011; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-2B-6a; and to amend and reenact §15-2B-11 of said code, all relating to requiring persons arrested for a felony to submit to a DNA sample; and providing a procedure for expungement if the felony charge has been dismissed.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §15-2B-6a; and to amend and reenact §15-2B-11 of said code, all to read as follows:
ARTICLE 2B. DNA DATA.
§15-2B-6a. Collection of DNA from arrested persons.
(a) A person eighteen years of age or over who is arrested for the commission of a felony under the laws of this state or any other jurisdiction shall provide a DNA sample to be used for DNA analysis as described in this article. A sample is not required if it is determined that a sample has previously been taken, is in the possession of the administrative center, has not been expunged pursuant to section eleven of this article and is sufficient for DNA
(b) Any person acquitted of the felony or has the felony dismissed, whose DNA sample has been taken pursuant to subsection (a) of this section, may apply for expungement pursuant to section eleven of this article.
(a) Any person 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 (1) The felony 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; or (2) the felony arrest 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or profile in the state database or the inclusion of the person's DNA sample in the state databank has been dismissed, withdrawn or resulted in a not guilty verdict. The person requesting expungement, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application for expungement shall be served on the prosecuting attorney for the judicial district in which the felony conviction, dismissal, withdrawal or not guilty verdict was obtained not less than twenty days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the conviction shall be attached to an order of expungement.
(b) 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.
NOTE: The purpose of this bill is to require persons arrested for a felony to submit to a DNA sample; and providing procedures for expungement if the felony has been dismissed.
§15-2B-6a is new; therefore, it has been completely underscored.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.