H. B. 2867
(By Delegates Sumner, Howell, Smith, O’Neal,
Sobonya, C. Miller, L. Phillips,
Hall and Frazier)
[Introduced January 26, 2011; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §15-2B-6 and §15-2B-11 of the Code of West Virginia, 1931, as amended, all relating to DNA testing of persons arrested for certain offenses, storing of DNA samples from sexual assault victims and expungement of samples absent a conviction.
Be it enacted by the Legislature of West Virginia:
That §15-2B-6 and §15-2B-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2B. DNA DATA.
§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 arrested for a violation of section one, four, seven, nine or nine-a, article two, chapter sixty-one of this code when that the offense constitutes a felony or arrested for violations found in section ten, ten-a, ten-b, twelve, fourteen or fourteen-a, article two, chapter sixty-one of this code or arrested for violations found in section twelve, article eight, of said chapter sixty-one when that the offense constitutes a felony, shall provide a DNA sample to be used jail or detention facility personnel upon booking for DNA analysis as described in this article. Further, any person convicted of any arrested for an offense described in article eight-b or eight-d, of said chapter sixty-one of this code shall provide a DNA sample to be used jail or detention facility personnel upon booking for DNA analysis as described in this article.
(b) Any person presently incarcerated in a state correctional facility or a jail in this state after arrest or conviction of any offense listed in subsection (a) of this section shall provide a DNA sample to be used for purposes of for DNA analysis as described in this article.
(c) Any person convicted of arrested for a violation of section five or thirteen, article two, chapter sixty-one of this code or section one, two, three, four, five, seven, eleven or twelve, article two, chapter sixty-one when that the offense constitutes a felony or subsection (a), section thirteen, article three, of said chapter section chapter sixty-one of this code or section three, four, five or ten, article three-e, of said chapter sixty-one or section three, article four, of said chapter sixty-one, shall provide a DNA sample to be used jail or detention facility personnel upon booking for DNA analysis as described in this article.
(d) Any person convicted of arrested for 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 chapter sixty-one shall provide a DNA sample to be used jail or detention facility personnel upon booking 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 a person convicted of a felony offense under the provisions of this code article 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 if 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) No part of the genetic information that is authorized to be collected pursuant to this article may be used for any purpose other than to establish the identity of the individual. identity. The biological sample obtained to conduct the identity test not necessary to conduct a present or future identity test shall be destroyed following the performance of the initial identity test analysis.
(i) Samples from biological material collected pursuant to a medical examination of a sexual assault victim shall be submitted to the state’s designated DNA typing, testing and research laboratory for DNA testing. Records derived from DNA testing that qualify for insertion into CODIS, the Federal Bureau of Investigation’s National DNA Index System for storage and exchange of DNA records submitted by forensic DNA laboratory, shall be submitted by the laboratory to the state databank.
(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 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, in the case of persons whose arrest led to the inclusion of the same, that the arrest has either:
(1) Resulted in a felony charge that has been resolved by a dismissal, nolle prosequi, successful completion of a preprosecution diversion program or a conditional discharge, misdemeanor conviction or acquittal; or
(2) Not resulted in a felony charge within one year of arrest. (b) 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 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) (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.
NOTE: The purpose of this bill is to require DNA testing for individuals arrested for certain offenses, to provide for storage of DNA samples from sexual assault victims and to provide for expungement of DNA samples from persons not convicted of an offense.
Strike-throughs indicate language that would be stricken from the present law and underscoring indicates new language that would be added.