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WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced
Senate Bill 765
By Senators Takubo, Deeds, Plymale, Woelfel, Maroney, and Woodrum
[Introduced February 13, 2024; referred
to the Committee on the Judiciary]
A BILL to amend and reenact §15-2B-4 and §15-2B-6 of the Code of West Virginia, 1931, as amended, all relating to the collection of deoxyribonucleic acid data; declaring the policy regarding deoxyribonucleic acid collection; designating a back-up provider to manage the deoxyribonucleic acid databank and database in the event of a statewide declared, public emergency, or natural disaster; and requiring the Chief Medical Examiner, or his or her designee to collect specified samples for inclusion into the state deoxyribonucleic acid databank.
Be it enacted by the Legislature of West Virginia:
(a) The division shall establish a DNA identification system consisting of a state DNA database and a state DNA databank compatible with the procedures specified by the FBI.
(b) The division shall be the administrator of the state DNA databank and database and the DNA identification system.
(c) The division shall supervise all DNA forensic laboratories in this state to ensure that such laboratories are acting in compliance with applicable provisions of state and federal law. The division may inspect or monitor such facilities and may prohibit any such laboratory from participating in the exchange of information when the division finds that the facility has not acted in conformity with state and federal laws. The superintendent of the division shall further promulgate a legislative rule pursuant to chapter 29A of this code regarding the monitoring, inspection and prohibition on the exchange of information.
(d) The superintendent of the division shall further establish standards for testing and quality assurance of DNA testing and the exchange of information through the promulgation of a legislative rule pursuant to chapter 29A of this code.
(e) The superintendent of the division of public safety shall promulgate additional legislative rules pursuant to chapter 29A of this code necessary to establish and administer the DNA database and databank consistent with the requirements of state and federal law and consistent with the systems employed by the FBI.
(f) The Forensic Analysis Laboratory of the Marshall University Forensic Science Center is hereby designated as a backup site for the division's DNA databank and database to function in the event of a natural disaster or statewide declared emergency which renders the division unable to function. In the event that the Forensic Analysis Laboratory of the Marshall University Forensic Science Center is required to operate under this article it shall have all the same powers to administer the State DNA Databank and the State DNA database as the division while the natural disaster or statewide declared public emergency is in effect, or until the division regains operational status, with the exclusion of promulgating legislative rules.
(g) The Forensic Analysis Laboratory of the Marshall University Forensic Science Center shall be designated as an additional site for analyzing DNA samples taken from unidentified human remains that have been submitted by the Chief Medical Examiner or the division to the State DNA Databank for the purpose of identification. The Forensic Analysis Laboratory of the Marshall University Forensic Science Center shall have access to the missing persons, relatives of missing persons, and unidentified human remains databases as part of work to be performed for the National Missing and Unidentified Persons System.
(a) Any person convicted of an offense described in §61-2-1, §61-2-4, §61-2-7, §61-2-9, §61-2-9a (when that offense constitutes a felony), §61-2-10, §61-2-10a, §61-2-10b, §61-2-12, §61-2-14, or §61-2-14a of this code, or §61-8-12 of this code (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 §61-8B-1 et seq. of this code or §61-8D-1 et seq. of this code 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 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 §61-2-5 or §61-2-13 of this code, §61-3-1, §61-3-2, §61-3-3, §61-3-4, §61-3-5, §61-3-7, §61-3-11, §61-3-12 (when that offense constitutes a felony), or §61-3-13(a) of this code, §61-3E-3, §61-3E-4, §61-3E-5, or §61-3E-10 of this code, or §61-4-3 of this code 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 §60A-4-401 et seq. of this code; or of an attempt to commit a violation of §61-2-1 or §61-2-14a of this code; or an attempt to commit a violation of §61-8B-1 et seq. of this code 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 this section 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 employees, Regional Jail Authority employees, and Division of Corrections employees may use reasonable force in cases where an individual refuses to provide a DNA sample required under this article, and the employees are not civilly or criminally liable for the use of reasonable force in the collection of the required DNA sample.
(l) A DNA sample obtained in accordance with the requirements of this article and its use in accordance with this chapter shall be considered to have been obtained in good faith. Should an error be determined to have occurred which caused a person's DNA to be obtained or submitted improperly, the DNA record shall be removed from CODIS and the DNA sample destroyed unless the individual has another qualifying offense or offenses.
(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.
(n) The Chief Medical Examiner, or his or her designee, shall collect for inclusion into the State DNA Databank a blood sample, bone sample, oral sample, or tissue sample from crime scene evidence or from unidentified human remains which information shall also reside in the DNA database. The DNA samples collected from unidentified human remains shall be fully accessible by the division and the Forensic Analysis Laboratory of the Marshall University Forensic Science Center.
NOTE: The purpose of this bill is to designate the Forensic Analysis Laboratory of the Marshall University Forensic Science Center as a backup site for the division’s DNA databank and database to function in the event of a natural disaster or statewide declared emergency which renders the division unable to function. The bill also requires the Chief Medical Examiner to collect samples for inclusion into the DNA Databank from crimes scene or from unidentified human remains which shall reside in the DNA databank.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
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