Senate Bill No. 235
(By Senator Kessler)
____________
[Introduced February 12, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
____________
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
requiring the appropriate governmental entity to retain any
biological material that is secured in the investigation or
prosecution of a criminal case for the period of time that a
defendant remains incarcerated in connection with that case.
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.
(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 of time 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 the provisions of
section fourteen of this article, and no appeal is pending;
(2) The defendant knowingly and voluntarily waived the right
to request DNA testing of the biological material, in a court
proceeding after the date of the enactment of the provisions of
section fourteen of this article;
(3) After a conviction becomes final and the defendant has
exhausted all opportunities for direct review of the conviction,
the defendant is notified by the appropriate governmental authority
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; and
(4) (A) The evidence must be returned to its rightfu1 owner,
or is of a size, bulk or physical character as to render retention
impracticable;
(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:
Provided, That the evidence is retained in a condition
suitable for DNA testing and analysis.
(e) Nothing in this section preempts or supercedes any court
order, or any provision of another statute, that may require
evidence, including biological evidence, to be preserved.
(f) Any person who 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 fined not less than $500 nor more than $5,000 or imprisoned in a state
correctional facility not less than one year nor more than five
years, or both fined and imprisoned.
(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 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
appeal is taken therein:
Provided, That if the ownership of
such
the exhibit or article be known, the owner shall be notified and
such the exhibit or article shall be returned to him
or her if he
or she so desires.
Any sale directed hereunder shall be made upon such notice and
terms and by
such an officer or other person as the court or judge
shall direct. The proceeds of any
such sale shall be applied to
the reasonable costs and expenses of
such the sale as the court or
judge shall allow, and the remainder thereof shall be paid into the
State Treasury.
The provisions of this section shall not apply or extend to
the county commission of any county; nor shall any property or
article be disposed of hereunder contrary to any other statute
which expressly provides a different disposition.
NOTE: The purpose of this bill is to preserve any biological
evidence in connection with a criminal case so that the evidence is
available for DNA testing when a convicted felon makes a written
motion for DNA testing on the basis that the felon was not the
perpetrator of the crime as provided under the DNA testing
provisions of §15-2B-14 of this code. The bill also provides a
felony penalty for willful and intentional violations.
§15-2B-15 is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.