Senate Bill No. 252
(By Senators Plymale, Wagner, Wooton, Buckalew,
Scott, Schoonover and Chafin)
[Originating in the Committee on the Judiciary;
reported February 14, 1995.]
A BILL to repeal section twenty-four-a, article two, chapter
fifteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend chapter fifteen
of said code by adding thereto a new article, designated
article two-b, relating generally to blood sampling for DNA
database and databank act of 1995; policy of DNA database;
definitions pertaining to DNA; division of public safety to
implement database; division to inspect facilities;
cooperative agreements; promulgation of administrative
rules; compatibility of state program with federal
guidelines; requirement of blood sample upon conviction of
certain crimes and for certain prisoners; tests; purpose of
tests, maintenance of records; procedures for drawing blood;
procedures for conducting blood analysis; the database
exchange; proficiency testing; disclosure of record;
expungement of DNA records; unauthorized use of databank;
confidentiality; penalties for release of information;
neglect of performance of duties; destruction of samples; and penalties for destruction of samples.
Be it enacted by the Legislature of West Virginia:
That section twenty-four-a, article two, chapter fifteen of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; and that said chapter be amended by
adding thereto a new article, designated article two-b, to read
ARTICLE 2B. DNA DATA.
§15-2B-1. Short title.
This article may be cited as the "DNA Database and Databank
Act of 1995".
It is the policy of the state to assist federal, state and
local criminal justice and law-enforcement agencies in the
identification, detection and/or exclusion of individuals who are
subjects of the investigation or prosecution of violent crimes,
sex-related crimes and other crimes against the person.
Identification, detection and exclusion is facilitated by the
analysis of biological evidence that is often left by the
perpetrator or is recovered from the crime scene or evidence
remaining on perpetrator. The analysis of biological evidence
may also be used to support development of a population
statistics database when personal identifying information is
removed; to support identification research and protocol
development of forensic DNA analysis methods for quality control
purposes and for other humanitarian purposes. It is further the
policy of this state to promote security of all inmates in the prisons and jails of this state.
As used in this article, unless another meaning is specified
or the context clearly requires otherwise, the following terms
have the meanings specified:
(a) "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.
(b) "DNA advisory board" refers to the board authorized by
the Violent Crime Control and Law-Enforcement Act of 1994.
(c) "DNA records" 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".
(d) "DNA sample" in this article means the DNA extracted
from a blood sample provided by any person convicted of offenses
covered by this article or submitted to the division laboratory
for analysis pursuant to a criminal investigation.
(e) "FBI" means the federal bureau of investigation.
(f) "State DNA database" means all identification records
included in the system administered by the West Virginia division
of public safety.
(g) "State DNA databank" means the repository of DNA samples collected under the provisions of this article.
(h) "Division" means the West Virginia division of public
safety or any public or private agency providing any service or
assistance to the division in the administration of the DNA
identification record system.
§15-2B-4. Division of public safety; inspection of laboratories.
(a) The division shall establish a DNA identification system
compatible with the procedures specified by the FBI.
(b) The division shall be the administrator of the state DNA
database and DNA identification record system.
(c) The division shall supervise all DNA forensic
laboratories in this state to insure 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
division shall further promulgate a rule pursuant to section one,
article one, chapter twenty-nine-a of the code regarding the
monitoring, inspection and prohibition on the exchange of
(d) The division shall further establish standards for
testing and quality assurance of DNA testing and the exchange of
information as a rule pursuant to section one, article one,
chapter twenty-nine-a of this code.
(e) The superintendent of the division of public safety
shall promulgate administrative rules pursuant to chapter twenty-nine-a 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 federal bureau of investigation.
§15-2B-5. Authority of superintendent to enter into cooperative
The superintendent may, in his discretion, enter into
cooperative agreements with public or private agencies or
entities to provide any service or facility associated with the
administration of the DNA database: Provided, That the
superintendent is authorized only to contract services for DNA
typing, testing and research with Marshall university.
conviction; blood sample required for certain prisoners.
§15-2B-6. Blood sample required for DNA analysis upon
(a) Any person convicted of an offense described in section
one, two, three, four, seven, nine, nine-a, 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 blood 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 blood sample to be
used for DNA analysis as described in this article.
(b) All persons incarcerated in the state penitentiary or
any regional jail in this state who are incarcerated due to the
conviction of any offense listed in subsection (a) of this
section who are incarcerated on the first day of July, one thousand nine hundred ninety-five, or who are convicted of any
such offense on any day after the first day of July, one thousand
nine hundred ninety-five, shall have a blood sample drawn for
purposes of analysis and storage of the DNA.
(c) When a person who is required to submit to blood testing
as required by this section refuses to comply with any blood
testing, the state shall apply to a circuit court for an order
requiring the prisoner to permit a blood sample to be withdrawn
for the purpose of DNA typing and testing. The circuit court
shall order the prisoner to submit to blood testing in conformity
with the provisions of this article.
§15-2B-7. Tests to be performed on blood sample.
The tests to be performed on each blood sample shall analyze
and type the genetic markers contained in or derived from the DNA
sample in accordance with rules promulgated pursuant with this
chapter. Any such rule regarding the typing and analysis of the
blood sample shall be consistent with any specifications required
by federal law.
§15-2B-8. Maintenance of DNA samples and records.
The DNA record shall be stored and maintained by the
division in the state DNA database in any DNA typing, testing and
research laboratory selected by the division pursuant to section
five of this article.
§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, county jails and felon facilities shall insure that the blood is drawn from all persons described in section six
of this article. When any person convicted of an offense
described in said section is not incarcerated, the sheriff in
such county where the person is convicted shall insure that blood
is drawn from such person at the regional facility: Provided,
That blood may be drawn at a county jail or at a prison, regional
facility or local hospital unit when so ordered by the sentencing
court. The sheriff shall transport such persons who are not
incarcerated to the facility where the blood is drawn.
(b) The division shall promulgate a rule or regulation
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
may be outlined by the national centers for disease control and
prevention. No civil liability attaches to any person when the
blood was drawn according to recognized medical procedures
employing such universal precautions. No person is relieved of
liability for negligence in the drawing of blood for purposes of
(c) The division shall adopt administrative rules governing
the procedures to be used in the withdrawal of blood 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.
§15-2B-10. DNA database exchange.
(a) The division shall receive DNA samples, store, analyze,
classify and file the DNA records consisting of all
identification characteristics of DNA profiles from blood samples
submitted pursuant to the procedures for conducting DNA analysis
of blood samples.
(b) The division may furnish DNA analysis to authorized
law-enforcement and governmental agencies of the United States
and its territories, of foreign countries duly authorized to
receive the same, of other states within the United States and of
the state of West Virginia upon proper request stating that the
DNA analysis requested are necessary in the interest of and will
be used solely in the administration of official duties and
(c) The division shall adopt further administrative rules
pursuant to section one, article one, chapter twenty-nine-a of
this code governing the methods by which any law-enforcement
agencies may obtain information from the state database
consistent with this section.
(d) The division may disseminate information from any
population database for identification research, protocol
development and quality control, comprised of DNA profiles from
blood samples obtained under this article, without personal
(e) The division may release a sample to any agency or entity with whom the superintendent contracts pursuant to section
five of this article.
(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.
§15-2B-12. Confidentiality; unauthorized uses of DNA databank; penalties.
(a) All DNA profiles and samples submitted to the division
of public safety pursuant to this article shall be treated as
confidential except as provided in this article.
(b) Any person who, by virtue of employment, or official
position has possession of or access to individually identifiable
DNA information contained in the state DNA database or databank
and who willfully discloses it in any manner to any person or
agency not entitled to receive it is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than
twenty-five dollars nor more than one hundred dollars or be
imprisoned in the county or regional jails for a period of not
more than six months, or both fined and imprisoned.
(c) Any person who, without authorization, willfully obtains
individually identifiable DNA information from the state DNA
database or databank is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not less than twenty-five
dollars nor more than one hundred dollars or be imprisoned in the
country or regional jails for a period of not more than six
months, or both fined and imprisoned.
§15-2B-13. Neglect of duties; destruction of samples; penalties.
(a) Any person who neglects or refuses to do or perform any
act on his or her part to be done or performed in connection with
the operation of this article, is guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not less than twenty-five
dollars nor more than two hundred dollars or be imprisoned in the
county or regional jail for a period of not more than sixty days, or both fined and imprisoned. Further, such neglect constitutes
misfeasance in office and may subject that person to removal from
(b) Any person who willfully removes, destroys or mutilates
any of the DNA samples, records or other information acquired or
stored pursuant to this article, is guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not more than one hundred
dollars or imprisoned in the county or regional jail for not more
than six months, or both fined and imprisoned.