H. B. 4485
(By Delegates, Webster, Brown, Manchin, Moore,
Hutchins, Palumbo, Reynolds, Wysong, Doyle,
Ellem and Fleischauer)
[Introduced February 11, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §15-2B-15; and to
amend and reenact §57-5-11 of said code, all relating to a
requirement to retain any biological material that is secured
in the investigation or prosecution of a criminal case for the
period that a defendant remains incarcerated in connection
with that case; and establishing criminal penalties.
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-15; and that
§57-5-11 of said code be amended and reenacted, all to read as
follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2B. DNA DATA.
§15-2B-15. Preservation of biological evidence; definitions;
application; penalties.
(a) The appropriate governmental entity, including, but not
limited to, any investigating law-enforcement agency, the clerk of the circuit court or the prosecuting attorney shall preserve any
biological evidence that was secured in the investigation or
prosecution of any criminal case for the period that the defendant
remains incarcerated in connection with that case.
(b) For purposes of this section, the term "biological
evidence" means:
(1) A sexual assault forensic examination kit; or
(2) Any physical evidence that is reasonably likely to contain
semen, blood, saliva, hair, skin tissue or other identified
biological material.
(c) Subsection (a) of this section does not apply if:
(1) A court has denied a request or motion for DNA testing of
the biological evidence by the defendant under section fourteen of
this article, and no appeal is pending;
(2) The criminal defendant knowingly and voluntarily waived
the right to request DNA testing of the biological material in a
court proceeding;
(3) After a conviction becomes final and the defendant has
exhausted all opportunities for appeal of the conviction, the
defendant is notified by the appropriate governmental entity that
the biological evidence may be destroyed and the defendant does not
file a motion under section fourteen of this article, within one
hundred eighty days of receipt of the notice;
(4)(A) The evidence must be returned to its rightful owner, or
if it is of such a size, bulk or physical character as to render
retention impracticable; and
(B) The appropriate governmental entity takes reasonable
measures to remove and preserve portions of the material evidence
sufficient to permit future DNA testing; or
(5) The biological evidence has already been subjected to DNA
testing under section fourteen of this article, and the results
included the defendant as the source of the evidence.
(d) The appropriate governmental entity has the discretion to
determine how the biological evidence is retained pursuant to this
section, if the evidence is retained in a condition suitable for
DNA testing and analysis.
(e) Nothing in this section preempts or supersedes any court
order, or other provision of law that may require evidence,
including biological evidence, to be preserved.
(f) Whoever knowingly and intentionally destroys, alters or
tampers with biological evidence that is required to be preserved
under this section with the intent to prevent that evidence from
being subjected to DNA testing or prevents the production or use of
that evidence in a court proceeding, is guilty of a felony and,
upon conviction thereof, shall be punished by imprisonment in a
state correctional facility for not less than one year nor more
than five years, or by a fine of not less than five hundred dollars
nor more than five thousand dollars, or by both fine and
imprisonment.
(g) Nothing in this section provides a basis for relief in any
state habeas corpus proceeding.
CHAPTER 57. EVIDENCE AND WITNESSES.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§57-5-11. Disposal of exhibits or articles offered in evidence;
disposal of property in hands of law-enforcement
officials.
Except as otherwise provided in section fifteen, article
two-b, chapter fifteen of this code, any circuit court in this
state, or the judge thereof of the court in vacation, may in its
discretion by order entered of record dispose of by return to the
owner, thereof or by destruction, sale or otherwise, any exhibit or
article introduced or offered in evidence at the hearing, or upon
the trial, of any matter or case before such the court or judge,
and remaining in the custody or control of such the court for a
period of thirty days after the expiration of the time within which
an appeal may be taken from any final order or judgment in such the
matter or case, if no appeal is taken, therefrom or thirty days,
after any final order or judgment of an appellate court, if such an
appeal is taken: therein Provided, That if the ownership of such
the exhibit or article be is known, the owner shall be notified and
such the exhibit or article shall be returned to him if he the
owner if the owner so desires.
Any sale directed hereunder under this section shall be made
upon such notice and terms and by such the officer or other person
as the court or judge shall direct directs. The proceeds of any
such the sale shall be applied to the reasonable costs and expenses
of such the sale as the court or judge shall allow allows and the
remainder thereof the proceeds shall be paid into the State Treasury.
The provisions of this section shall do not apply or extend to
the county commission of any county; nor shall may any property or
article be disposed of hereunder under this section contrary to any
other statute which expressly provides a different disposition.
NOTE: The purpose of this bill is to require the preservation
of biological evidence found in connection with a criminal case so
that the evidence is available for DNA testing. It also
establishes criminal penalties for violations.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.