Senate Bill No. 320
(By Senators Kessler (Acting President), Plymale and Hall)
[Introduced January 27, 2011; referred to the Committee on Government Organization; and then 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 requiring certain governmental entities and circuit courts to retain and preserve biological material for possible DNA testing that is gathered in the investigation or prosecution of a criminal case for the period of time 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.
(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 a 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 so long as it 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 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. If an appeal is taken, items remaining in the possession of the court may be disposed of by order, sale, destruction, return to owner or otherwise, thirty days after a final order or judgment of an appellate court. Provided, That If the ownership of such exhibit or article be is known, the owner shall be notified and such 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 officer or other person as the court or judge shall direct. directs. 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 allows and the remainder thereof shall be is 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 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 require certain governmental entities and circuit courts to retain and preserve biological material for possible DNA testing that is gathered in the investigation or prosecution of a criminal case for the period of time that a defendant remains incarcerated in connection with that case. 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.