H. B. 4415
(By Delegates White(By Request), Marcum, Moore,
Eldridge, R. Phillips, Tomblin and Campbell)
[Introduced February 5, 2014; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §15-2B-2 §15-2B-3, §15-2B-5, §15-2B-6, §15-2B-9, §15-2B-10 and §15-2B-11 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §15-2B-11a, all relating to the collection of DNA samples from individuals arrested on a felony charge for inclusion in the DNA Databank.
Be it enacted by the Legislature of West Virginia:
That §15-2B-2, §15-2B-3, §15-2B-5, §15-2B-6, §15-2B-9, §15-2B-10 and §15-2B-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and to amend said code by adding thereto a new section, designated §15-2B-11a, all to read as follows:
ARTICLE 2B. DNA DATA.
It is the policy of this state to assist federal, state and local criminal justice and law-enforcement agencies in the identification, detection and exclusion of individuals who are subjects of the investigation or prosecution of violent crimes, sex-related crimes and other crimes against the person. DNA records are an important identification tool that can be use to confirm/verify information provided by fingerprints. In furtherance of such assistance, the Legislature finds:
That the analysis of DNA contained in biological evidence that may be recovered from a crime scene facilitates such identification, detection and exclusion;
That the comparison of DNA data recovered from a crime scene with existing DNA records maintained in a central DNA database further facilitates such identification, detection and exclusion; and
That requiring individuals arrested or convicted of certain crimes to provide a blood sample for DNA analysis with the resulting DNA records maintained in a central DNA database will likewise further facilitate the aforementioned confirmation, identification, detection and exclusion and may serve to discourage recidivism.
Therefore, the Legislature finds that assisting federal, state and local criminal justice and law-enforcement agencies through the use and development of DNA analysis is of the utmost importance and urgency in this state and that a DNA identification system shall be established as described in this article.
As used in this article:
(1) "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.
(2) "Conviction" includes convictions by a jury or court, guilty plea, or plea of nolo contendere.
(3) "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.
(4) "Division" means the West Virginia State Police.”
(5) "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.
(6) "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".
(7) "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.
(8) "FBI" means the Federal Bureau of Investigation.
(9) "Interim plan" means the plan used currently by the Federal Bureau of Investigation for Partial Match Protocol and to be adopted under the management rules of this article.
(10) "Management rules" means the rules promulgated by the West Virginia State Police that define all policy and procedures in the administration of this article.
(11) "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.
(l2) "Qualifying offense" means any felony offense as described in section six of this article or any offense requiring a person to register as a sex offender under this code or the federal law. For the purpose of this article, a person found not guilty of a qualifying offense by reason of insanity or mental disease or defect shall be required to provide a DNA sample in accordance with this article.
(13) "Registering Agency" means the West Virginia State Police.
(14) "State DNA database" means all DNA identification records included in the system administered by the West Virginia State Police.
(15) "State DNA databank" means the repository of DNA samples collected under the provisions of this article.
(16) “Arrestee” means any individual arrested for a felony offense as defined in the West Virginia Code.
(17) “Arresting authority” means the law-enforcement officer who arrests the individual or an authorized representative of the agency responsible for the arrest.
§15-2B-5. Authority of division to enter into cooperative agreements.
The division may enter into cooperative agreements with public or private agencies or entities to provide a service or facility associated with the administration of the DNA database and databank. In the event the division enters into any agreements for the purposes of (1) testing of arrestee/offender samples for CODIS; (2) criminal paternity cases; or (3) identification of human remains for the Office of Chief Medical Examiner using nuclear DNA technology, the division is authorized to only enter into such agreements with the Marshall University Forensic Science Center.
§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 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 used by the West Virginia State Police Crime Lab. The DNA sample will be collected using a postage paid DNA collection kit provided by the West Virginia State Police.
(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) On the effective date of the amendments to this section enacted during the regular session of the Legislature in 2011, any person 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.
(i) 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 transferred person must submit 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. If the transferred person has already submitted a DNA sample that can be found in the national database, the accepting agency is not required to draw a second DNA sample.
(j) If a person convicted 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 of this obligation. Any such person may request a copy of the court order requiring the sample prior to the collection of the DNA sample.
(k) Duly authorized law enforcement and corrections personnel may employ reasonable force in cases where an individual refuses to provide a DNA sample required under this article, and no such employee shall be civilly or criminally liable for the use of such reasonable force in the collection of the required DNA sample.
(l) A DNA sample obtained in good faith shall be deemed to have been obtained in accordance with the requirements of this article and its use in accordance with this chapter is authorized. Once an error is determined to have occurred, the DNA record will be removed from CODIS and the DNA sample destroyed unless the individual has another qualifying offense(s).
(m) Persons authorized to collect DNA samples shall not be civilly or criminally liable for the collection of a DNA sample pursuant to this article if they perform these duties in good faith and in a reasonable manner according to generally accepted medical or other professional practices.
§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 and felon facilities shall ensure that the DNA sample is collected from all persons described in section six of this article. When any person convicted of an offense described in section six is not incarcerated, the sheriff in the county where the person is convicted shall ensure that the DNA sample is collected from the person: Provided, That a DNA sample may be collected at a prison, regional facility or local hospital unit when so ordered by the sentencing court or other location determined by the sheriff.
(b) The Superintendent of the 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 outlined by the Centers for Disease Control and Prevention. No civil liability attaches to any person when the blood was drawn according to recognized medical procedures employing 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 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 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 for qualifying offenses may, in consultation with and approval of the West Virginia State Police Laboratory, promulgate rules or policies 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, control or providing supervision of persons arrested for a felony offense or convicted 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.
(f) A person, convicted of a qualifying offense and not incarcerated in a facility described in subsection (a) of this section, who has been put on notice of his or her obligation to provide a DNA sample and has not submitted a court ordered DNA sample at the request of a law-enforcement agency, shall be responsible for notifying the agency designated in the court order and complying with that agency's directives for submitting a DNA sample. The person shall have thirty days from the receipt of the court order to comply unless there is a documented exception from the agency responsible for the DNA sample collection. A person refusing to comply with a court order directing that person to submit a DNA sample may be considered in contempt.
(g) Any court sentencing a person convicted of a qualifying offense to probation, on or after the effective date of the amendments to this section enacted during the regular session of the Legislature in 2011, shall order, as a condition of such probation, that the convicted person report to the local sheriff’s department to provide a DNA sample within thirty days.
§15-2B-10. DNA database exchange; severability.
(a) The 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 DNA samples submitted pursuant to the procedures for conducting DNA analysis of DNA samples.
(b) The 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 them, 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;
(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 West Virginia State Police shall promulgate 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 West Virginia State Police may release DNA samples, without personal identifying information, to any agency or entity with which the 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) The provisions of this article shall be liberally construed and shall be held to be in addition to, and not in substitution for or a limitation on the provisions of any other law. If any provision or part of this article is held unconstitutional or otherwise invalid, the remainder of this article shall not be affected.
(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. 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) 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.
(c) Any identification, warrant, probable cause to arrest or arrest based upon a database match is not invalidated due to a failure to expunge or a reasonable delay in expunging records.
§15-2B-11a. Expungement for arrestees.
A person whose DNA record has been included in the State DNA database in accordance with this article may request expungement on the grounds that the arrest on which the authority for including the persons’ DNA record or DNA profile was based has resulted in the charge being dismissed or has resulted in acquittal or no charge was filed within the statute of limitations for the offense.
Upon receipt of a written request for expungement and any other information necessary to ascertain the validity of the request, the division shall expunge the DNA records and identifiable information in the database pertaining to the arrestee sample of the person and destroy the arrestee DNA sample from the person, unless the division determines that the person has otherwise become obligated to submit a DNA sample.
Any identification, warrant, probable cause to arrest or arrest based upon a database match is not invalidated due to a failure to expunge or a reasonable delay in expunging records.
NOTE: The purpose of this bill is to allow law enforcement to obtain DNA samples from suspects at the time of arrest.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.