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SB167 SUB1 Senate Bill 167 History

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WEST virginia legislature

2017 regular session

Committee Substitute

for

Senate Bill 167

By Senators Woelfel and Ojeda

[Originating in the Committee on the Judiciary; reported on March 24, 2017]

A BILL to amend and reenact §15-2B-2, §15-2B-5, §15-2B-6 and §15-2B-11 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §15-9B-4, all relating to DNA testing generally; allowing the West Virginia State Police Forensic Laboratory to use qualified outside entities for DNA testing; clarifying that the State Police shall attempt to contract with the Marshall University Forensic Science Center for certain DNA testing when outsourcing such testing; granting legislative and emergency rule-making authority to the Sexual Assault Forensic Examination Commission; directing the commission to promulgate time frames for sample submission, sample testing and reporting of DNA testing results; expanding types of testing the State Police Forensic Laboratory may outsource; authorizing law-enforcement and correctional officers to use reasonable force to obtain DNA samples; creating presumption that DNA samples taken by law-enforcement and corrections personnel are obtained in good faith; exempting law-enforcement and correctional officers from civil and criminal liability; directing that erroneously obtained DBA sample to be removed from database and samples destroyed;  and clarifying that judicial expungement proceeding proceed by petition.

Be it enacted by the Legislature of West Virginia:


That §15-2B-2, §15-2B-5, §15-2B-6 and §15-2B-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §15-9B-4, all to read as follows:

ARTICLE 2B. DNA DATA.

§15-2B-2. Policy.


It is the policy of this state to assist federal, state and local criminal justice and law-enforcement agencies in the identification, detection and exclusion of individuals who are subjects of the investigation or prosecution of violent crimes, sex-related crimes and other crimes against the person. In furtherance of such assistance, the Legislature finds:

That the analysis of DNA contained in biological evidence that may be recovered from a crime scene facilitates such identification, detection and exclusion;

That the comparison of DNA data recovered from a crime scene with existing DNA records maintained in a central DNA database further facilitates such identification, detection and exclusion; and

That requiring individuals convicted of certain crimes to provide a blood sample for DNA analysis with the resulting eligible DNA records maintained in a central DNA database will likewise further facilitate the aforementioned identification, detection and exclusion and may serve to discourage recidivism.

Therefore, the Legislature finds that assisting federal, state and local criminal justice and law-enforcement agencies through the use and development of DNA analysis is of the utmost importance and urgency in this state and that a DNA identification system shall be established as described in this article.

§15-2B-5. Authority of division to enter into cooperative agreements.


The division may enter into cooperative agreements with public or private agencies or entities to provide a service or facility associated with the administration of the DNA database and databank. In the event the division enters into any agreements for the purposes of: (1) Testing of offender samples for CODIS; (2) criminal paternity cases; or (3) criminal casework; or (4) identification of human remains, for the Office of Chief Medical Examiner using nuclear DNA technology, the division is authorized to only enter into such agreements with it shall first attempt to contract with the Marshall University Forensic Science Center for such service or services.

§15‑2B‑6. DNA sample required for DNA analysis upon conviction; DNA sample required for certain prisoners.


(a) Any person convicted of an offense described in section one, four, seven, nine, nine‑a (when that offense constitutes a felony), 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 DNA 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 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 subsection (a) of 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 section five or thirteen, article two, chapter sixty‑one of this code, section one, two, three, four, five, seven, eleven, twelve (when that offense constitutes a felony) or subsection (a), section thirteen, article three of said chapter, section three, four, five or ten, article three‑e of said chapter or section three, article four of said chapter, 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 article four, chapter sixty‑a of this code; or of an attempt to commit a violation of section one or section fourteen‑a, article two, chapter sixty‑one of this code; or an attempt to commit a violation of article eight‑b of said chapter 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 section six 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, regional jail authority personnel and corrections personnel may employ reasonable force in cases where an individual refuses to provide a DNA sample required under this article and no such employee shall be civilly or criminally liable for the use of such reasonable force in the collection of the required DNA sample.

(l) A DNA sample obtained in good faith shall be considered to have been obtained in accordance with the requirements of this article and its use in accordance with this chapter is authorized. Once an error is determined to have occurred that caused a person’s DNA to be submitted improperly, the DNA record will 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 are not 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.

§15-2B-11. Expungement.


(a) Any person convicted of a qualifying offense 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 qualifying 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 seeking expungement, either individually or through an attorney, may apply to petition the court for expungement of the record. A copy of the application petition for expungement shall be served on the prosecuting attorney for the judicial district in which the felony qualifying conviction was obtained not less than twenty days prior to the date of the hearing on the application petition. 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.

ARTICLE 9B. SEXUAL ASSAULT EXAMINATION NETWORK.

§15-9B-4. Submission, testing and retention of sexual assault forensic examination kits.


(a) The Sexual Assault Forensic Examination Commission created by section one of this article shall establish a subgroup of persons with subject matter expertise to establish best-practice protocols for the submission, retention and disposition of sexual assault forensic examination kits collected by health care providers. The commission shall promulgate rules for legislative approval, in accordance with article three, chapter twenty-nine-a of this code, detailing best-practice protocols. Upon approval of the legislative rules, local sexual assault forensic examination boards shall follow said rules.

(b) Rules promulgated pursuant to subsection (a) of this section shall include:

(1)  Time frames for submission of sexual assault forensic examination kits in the possession of law enforcement;

(2) Protocols for storage of DNA samples and sexual assault forensic examination kits.

(c) The commission may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code in order to implement this section: Provided, That no emergency rule may permit the destruction of any DNA evidence.

 

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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