H. B. 3211
(By Delegate Boggs)
[Introduced January 13, 2010; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §15-2B-3, §15-2B-6, §15-2B-7, §15-2B-9,
§15-2B-10 and §15-2B-12 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto two new
sections, designated §15-2B-15 and §15-2B-16, all relating to
DNA data collection generally; providing definitions;
authorizing the West Virginia State Police to administer DNA
identification system; authorizing the West Virginia State
Police to enter into certain cooperative agreements; requiring
DNA sample be obtained upon conviction; identifying tests to
be performed on DNA samples; providing authority to maintain
samples; providing procedure for withdrawing and analyzing
samples; providing procedure for exchanging samples with
others; providing procedure for removing sample from database
by expungement; providing for destruction of samples;
providing penalties; and authorizing the West Virginia State Police to collect certain fees for DNA testing.
Be it enacted by the Legislature of West Virginia:
That §15-2B-3, §15-2B-6, §15-2B-7, §15-2B-9, §15-2B-10 and
§15-2B-12 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding
thereto two new sections, designated §15-2B-15 and §15-2B-16, all
to read as follows:
ARTICLE 2B. DNA DATA.
§15-2B-3. Definitions.
As used in this article:
the following terms mean
"CODIS" means the Federal Bureau of Investigation's Combined
DNA Index System that allows the storage and exchange of DNA
records submitted by federal, state and local forensic DNA
laboratories. The term "CODIS" includes the National DNA Index
System administered and operated by the Federal Bureau of
Investigation.
"Conviction" includes convictions by a jury or court, guilty
plea, plea of nolo contendere or a finding of not guilty by reason
of insanity or mental disease or defect. A finding of not guilty
by reason of insanity or mental disease or defect is considered a
conviction solely for purposes of this article insofar as the
finding requires a person to provide a DNA sample.
"Criminal justice agency" means an agency or institution of a
federal, state or local government, other than the office of public defender, which performs as part of its principal function,
relating to the apprehension, investigation, prosecution,
adjudication incarceration, supervision or rehabilitation of
criminal offenders.
(g) "Division" means the West Virginia State Police.
(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.
"Interim plan" means the plan utilized currently by the
Federal Bureau of Investigation for Partial Match Protocol and to
be adopted under the management rules of this article.
"Juvenile" has the same meaning as the word "child" which is
a person who has not attained the age of eighteen years or a person
who is otherwise subject to the juvenile jurisdiction of a court
pursuant to this article.
"Management rules" means the rules promulgated by the West
Virginia State Police that define all policy and procedures in the
administration of this article.
"Partial match" means that two DNA profiles, while not an
exact match, share a sufficient number of characteristics to
indicate the possibility of a biological relationship.
"Qualifying offense" means any felony offense as defined in
the penal code in any jurisdiction of the person and any offense
requiring a person to register as a sex offender under this code
or the federal law.
(f) "State DNA databank" means the repository of DNA samples
collected under the provisions of this article.
(e) "State DNA database" means all DNA identification records
included in the system administered by 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 in 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 used 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.
(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. 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.
(h) Duly authorized law enforcement and state personnel may
employ reasonable force in cases where a person refuses to provide
a DNA sample required under this article. Those personnel are not
civilly or criminally liable for the use of reasonable force.
(i) On the effective date of the amendments to this section
enacted during the regular session of the Legislature in 2009, a
person who is required to register as a sex offender in this state
and who has not already provided a DNA sample in accordance with
this article, shall provide a DNA sample as determined by the
registration agency in consultation with the West Virginia State
Police Laboratory. The registering agency is responsible for the
collection and submission of the sample under this article.
(j) If on the effective date of the amendments to this section
enacted during the regular session of the Legislature in 2009, a
juvenile is under the supervision of the state as a result of an
action which would be a qualifying crime if committed by an adult
or if a juvenile commits an act which would be a qualifying crime
if committed by an adult, and the juvenile is adjudicated
delinquent for that act, the juvenile is required to provide a DNA
sample for the sole purpose of criminal identification. The expungement requirements and procedures are as described in section
eleven of this article. A person who is convicted or adjudicated
delinquent for a qualifying offense shall provide a DNA sample as
a condition for any sentence or adjudication which disposition will
not involve a period of incarceration. The agency supervising the
person shall determine the time for collection of the DNA sample.
(k) When this state accepts a person from another state under
any interstate compact, or under any other reciprocal agreement
with any county, state or federal agency or any other provision of
law whether or not the person is confined or released, the
acceptance is conditional on the person providing a DNA sample if
the person was convicted of an offense in any other jurisdiction
which would be considered a qualifying offense as defined in
section six if committed in this state, or if the person was
convicted of an equivalent offense in any other jurisdiction. The
person shall provide the DNA sample in accordance with the rules of
the custodial institution or supervising agency.
(l) 1f a person convicted or adjudicated of a qualifying
offense is released without giving a DNA sample due to an oversight
or error or because of the person's transfer from another
jurisdiction, the person shall give a DNA sample for inclusion in
the state DNA database after being notified by the West Virginia
State Police Laboratory.
§15-2B-7. Tests to be performed on blood sample.
The tests to be performed on each
blood DNA sample shall
analyze and type the genetic markers contained in or derived from
the DNA sample in accordance with rules promulgated under this
article. Any such rule regarding the typing and analysis of the
blood DNA sample shall be consistent with any specifications
required by federal law.
§15-2B-9. Procedures for withdrawal of blood sample for DNA
analysis and for conducting analysis.
(a) Upon incarceration, the Division of Corrections, regional
jails,
county jails and felon facilities shall ensure that the
blood DNA sample is
drawn collected from all persons described in
section six of this article. When any person convicted of an
offense described in said section is not incarcerated, the sheriff
in
such the county where the person is convicted shall ensure that
blood DNA sample is
drawn collected from
such the person at the
regional facility:
Provided, That blood may be drawn at a
county
jail or at a prison, regional facility or local hospital unit when
so ordered by the sentencing court. The sheriff shall transport
such the persons who are not incarcerated to the facility where the
blood DNA sample is
drawn collected.
(b) The Superintendent of the
division West Virginia State
Police shall promulgate a legislative rule pursuant to chapter
twenty-nine-a of this code establishing which persons may withdraw
blood and further establishing procedures to withdraw blood. At a minimum, these procedures shall require that when blood is
withdrawn for the purpose of DNA identification testing, a
previously unused and sterile needle and sterile vessel shall be
used, the withdrawal shall otherwise be in strict accord with
accepted medical practices and in accordance with any recognized
medical procedures employing universal precautions as may be
outlined by the national centers for disease control and
prevention. No civil liability attaches to any person when the
blood was drawn according to recognized medical procedures
employing
such the universal precautions. No person is relieved of
liability for negligence in the drawing of blood for purposes of
DNA testing.
(c) The Superintendent of the
division West Virginia State
Police shall promulgate legislative rules pursuant to chapter
twenty-nine-a of this code governing the procedures to be used in
the
withdrawal of blood collection of DNA samples, submission,
identification, analysis and storage of DNA samples and typing
results of DNA samples submitted under this article which shall be
compatible with recognized federal standards.
(d) The agency having control, custody or supervision of
persons convicted or adjudicated delinquent for qualifying offenses
may, in consultation with and approval of the West Virginia State
Police Laboratory promulgate rules specifying the time and manner
of collection of the DNA samples as well as any other matter necessary to carry out its responsibilities under this article.
(e) The agency or institution having custody or control of the
agency providing supervision of persons convicted or adjudicated
delinquent for qualifying offenses, as appropriate, is authorized
to contract with third parties to provide for the collection of the
DNA samples described in section six of this article.
§15-2B-10. DNA database exchange.
(a) The
division West Virginia State Police shall receive DNA
samples, store, analyze, classify and file the DNA records
consisting of all identification characteristics of DNA profiles
from blood samples submitted pursuant to the procedures for
conducting DNA analysis of blood samples.
(b) The
division West Virginia State Police may furnish DNA
records to authorized law-enforcement and governmental agencies of
the United States and its territories, of foreign countries duly
authorized to receive the same, of other states within the United
States and of the State of West Virginia upon proper request
stating that the DNA records requested will be used solely:
(1) For law-enforcement identification purposes by criminal
justice agencies;
(2) In judicial proceedings, if otherwise expressly permitted
by state or federal laws;
or
(3) If personal identifying information is removed, for a
population statistics database, for identification research and protocol development purposes, or for quality control purposes;
or
(4) For the identification of unidentified human remains,
missing persons and relatives of missing persons.
(c) The Superintendent of the
division West Virginia State
Police shall promulgate
further legislative rules pursuant to
chapter twenty-nine-a of this code governing the methods by which
any law-enforcement agency or other authorized entity may obtain
information from the state DNA database consistent with this
section and federal law.
(d) The
division West Virginia State Police may release DNA
samples, without personal identifying information, to any agency or
entity with which the
division West Virginia State Police contracts
pursuant to section five of this article.
(e) The West Virginia State Police may release DNA samples for
criminal defense and appeal purposes, to a defendant who is
entitled to access to samples and analysis performed in connection
with the case in which the defendant is charged or was convicted.
(f) Searches of the state DNA database shall be performed in
accordance with state and federal law and procedures.
(g) If a DNA match is developed and it is later determined
that the person's DNA sample was collected under this law by
mistake, the West Virginia State Police may upon completion of the
confirmation process still release the identification information
to the investigation agency. The detention arrest or conviction of an individual based on this match should not be invalidated.
§15-2B-12. Confidentiality; unauthorized uses of DNA databank;
penalties.
(a) All DNA profiles and samples submitted to the
division of
public safety West Virginia State Police pursuant to this article
shall be treated as confidential except as provided in this
article.
(b) Any person who, by virtue of employment or official
position has possession of or access to individually identifiable
DNA information contained in the state DNA database or databank and
who willfully discloses it in any manner to any person or agency
not entitled to receive it is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $50 nor more than
$500 or
be imprisoned in the county or regional jails confined in
jail for a period not to exceed one year, or both fined and
imprisoned confined.
(c) Any person who, without authorization, willfully obtains
individually identifiable DNA information from the state DNA
database or databank is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $50 nor more than
$500 or
be imprisoned in the county or regional jails confined in
jail for a period not to exceed one year, or both fined and
imprisoned confined.
(d) DNA records and DNA samples submitted to the West Virginia State Police Laboratory pursuant to this article are exempt from
disclosure under the provisions of article one, chapter
twenty-nine-b of this code, or any other statutory provision or
court opinion requiring the disclosure of public records.
(e) In case of a criminal proceeding, a request to access a
person's DNA record must be made in accordance with rules for
criminal discovery as provided in the West Virginia Code and the
Rules of Criminal Procedure. The West Virginia State Police
Laboratory is not required to provide the state DNA database for
criminal discovery purposes.
§15-2B-15. Collection of fees to cover the cost of DNA profile
entry into the DNA database and DNA databank; cost
of collecting and analyzing DNA sample.
Unless the court finds that undue hardship would result, a
mandatory fee of $150, which is in addition to any other costs
imposed pursuant to statutory authority, shall automatically be
assessed on any person convicted of, or adjudicated delinquent for,
a qualifying offense. Notwithstanding any other provision of this
code, amounts collected as a result of this fee shall be
transferred to a special revenue account within the West Virginia
State Police entitled the West Virginia State Police DNA Database
Account. Funds deposited are only available for expenditures for
purposes associated with the processing of DNA samples for the DNA
database.
§15-2B-16. Partial matches and the DNA database.
In cases limited to murder, kidnapping and first and second
degree sexual assault, as defined in this code, where all
investigated leads have been exhausted and under the guidance of
the management rules the partial match analysis may be used as an
investigative tool. The same standards and procedures defined in
the management rules and in this section apply to requests for
partial match information from criminal justice agencies from
outside the state.
NOTE: The purpose of this bill is to update the terminology of
collection of DNA samples and to create a fund to collect fees for
the DNA database.
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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