WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Introduced House Bill 4627
By Delegate Foster [Introduced ; Referred to the Committee on]
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1 A BILL to amend and reenact §15-2B-2, §15-2B-3, §15-2B-5, §15-2B-6, §15-2B-9, and §15-2B-11
2 of the Code of West Virginia, 1931, as amended, all relating to DNA that is maintained for
3 law-enforcement purposes in West Virginia; providing updates for the policy of maintaining
4 DNA; requiring DNA testing of all persons convicted of felonies and certain misdemeanors;
5 updating definitions; adding language to further define and include qualified arrestees in
6 the state DNA database; requiring testing of qualified arrestees on intake; specifying
7 testing methods; authorizing emergency and requiring legislative rules; specifying
8 expungement for qualified arrestees in certain circumstances; and providing failure to
9 expunge or reasonable delay in expungement will not invalidate an identification, warrant,
10 probable cause to arrest or arrest based upon a database match.
Be it enacted by the Legislature of West Virginia:
ARTICLE 2B. DNA DATA.
§15-2B-2. Policy.
1 It is the policy of this state to assist federal, state, and local criminal justice and law-
2 enforcement agencies in the identification, detection, and exclusion of individuals who are
3 subjects of the investigation or prosecution of violent crimes, sex-related crimes, and other crimes
4 against the person. DNA records are an important identification tool that can be used to confirm
5 and verify information provided by fingerprints, and to identify additional information on potential
6 criminal activity not available through other means. In furtherance of such assistance, the
7 Legislature finds:
8 That the analysis of DNA contained in biological evidence that may be recovered from a
9 crime scene facilitates such identification, detection, and exclusion;
10 That the comparison of DNA data recovered from a crime scene with existing DNA records
11 maintained in a central DNA database further facilitates such identification, detection, and
12 exclusion; and
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13 That requiring individuals convicted of arrested for certain crimes designated offenses and
14 convicted of a felony offense to provide a sample for submit to DNA analysis with the resulting
15 eligible DNA records maintained in a central DNA database will likewise further facilitate the
16 aforementioned identification, detection, and exclusion and may serve to discourage recidivism.
17 Therefore, the Legislature finds that assisting federal, state, and local criminal justice and
18 law-enforcement agencies through the use and development of DNA analysis is of the utmost
19 importance and urgency in this state and that a DNA identification system shall be established as
20 described in this article.
§15-2B-3. Definitions.
1 As used in this article:
2 "Arresting authority" means the law-enforcement officer who arrests the individual or an
3 authorized representative of the agency responsible for the arrest.
4 (1) "CODIS" means the Federal Bureau of Investigation’s Combined DNA Index System
5 that allows the storage and exchange of DNA records submitted by federal, state, and local
6 forensic DNA laboratories. The term "CODIS" includes the National DNA Index System
7 administered and operated by the Federal Bureau of Investigation.
8 (2) "Conviction" includes convictions by a jury or court, guilty plea, or plea of nolo
9 contendere.
10 (3) "Criminal justice agency" means an agency or institution of a federal, state, or local
11 government, other than the office of public defender, which performs as part of its principal
12 function the apprehension, investigation, prosecution, adjudication, incarceration imprisonment,
13 supervision, or rehabilitation of criminal offenders. The Forensic Analysis Laboratory of the
14 Marshall University Forensic Science Center is hereby designated by the Legislature and the
15 State Police to be a criminal justice agency for purposes of the laboratory's participation in the
16 West Virginia DNA Database with its access limited to the missing persons, relatives of missing
17 persons, and unidentified human remains databases as part of work performed for the National
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18 Missing and Unidentified Persons System.
19 (4) "Division" means the West Virginia State Police.
20 (5) "DNA" means deoxyribonucleic acid. DNA is located in the nucleus of cells and
21 provides an individual’s personal genetic blueprint. DNA encodes genetic information that is the
22 basis of human heredity relationships and forensic identification.
23 (6) "DNA record" means DNA identification information stored in any state DNA database
24 pursuant to this article. The DNA record is the result obtained from DNA typing tests. The DNA
25 record is comprised of the characteristics of a DNA sample which are of value in establishing the
26 identity of individuals. The results of all DNA identification tests on an individual’s DNA sample are
27 also included as a "DNA record".
28 (7) "DNA sample" means a tissue, fluid, or other bodily sample, or cells collected through a
29 buccal swab, also known as a buccal smear, that is collected from the inside of a person's cheek
30 and is suitable for testing, provided pursuant to this article or submitted to the division laboratory
31 for analysis pursuant to a criminal investigation.
32 (8) "FBI" means the Federal Bureau of Investigation.
33 (9) "Interim plan" means the plan used currently by the Federal Bureau of Investigation for
34 Partial Match Protocol and to be adopted under the management rules of this article.
35 (10) "Management rules" means the rules promulgated by the West Virginia State Police
36 that define all policy and procedures in the administration of this article.
37 (11) "Partial match" means that two DNA profiles, while not an exact match, share a
38 sufficient number of characteristics to indicate the possibility of a biological relationship.
39 "Qualified arrestee" means any individual arrested for a felony crime of violence against
40 the person, burglary, or a felony offense where the victim was a minor child, as those terms are
41 defined in §61-3-11 and §62-12-13 of this code.
42 "Qualified offender" means any person convicted of a felony or a qualifying misdemeanor
43 as designated in §15-2B-6 of this code.
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44 (12) "Qualifying offense" means any felony offense as described in §15-2B-6 of this code
45 or any offense requiring a person to register as a sex offender under this code or the federal law.
46 For the purpose of this article, a person found not guilty of a qualifying offense by reason of
47 insanity or mental disease or defect shall be required to provide a DNA sample in accordance with
48 this article.
49 (13) "Registering agency" means the West Virginia State Police.
50 (14) "State DNA database" means all DNA identification records included in the system
51 administered by the West Virginia State Police.
52 (15) "State DNA databank" means the repository of DNA samples collected under the
53 provisions of this article.
§15-2B-5. Authority of division to enter into cooperative agreements.
1 The division State Police may enter into cooperative agreements with public or private
2 agencies or entities to provide a service or facility associated with the administration of the DNA
3 database and databank. In the event The division State Police enters into any agreements for the
4 purposes of: (1) Testing of qualified arrestee or qualified offender samples for CODIS; (2) criminal
5 paternity cases; (3) criminal casework; or (4) identification of human remains, it shall first attempt
6 to contract with the Marshall University Forensic Science Center for such the service or services.
§15-2B-6. DNA sample required for DNA analysis upon a felony conviction; DNA sample required for certain prisoners arrestees.
1 (a) A qualified arrestee 18 years of age or older, taken into custody by an arresting
2 authority for a felony crime of violence against the person, burglary, or a felony offense where the
3 victim was a minor child, as those terms are defined in §61-3-11 and §62-12-13 of this code, shall
4 submit to a DNA sample collection at the direction of the arresting authority. The DNA sample may
5 be used only for DNA analysis as authorized by this article.
6 (a) (b) Any Every person convicted of an offense described in §61-2-1, §61-2-4, §61-2-7,
7 §61-2-9, §61-2-9a (when that offense constitutes a felony), §61-2-10, §61-2-10a, §61-2-10b, §61-
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8 2-12, §61-2-14, or §61-2-14a of this code, or §61-8-12 of this code (when that offense constitutes a
9 felony), a felony offense shall provide a DNA sample to be used for DNA analysis as described in
10 authorized by this article. Further, any person convicted of any offense described in §61-8B-1 et
11 seq. of this code or §61-8D-1 et seq. of this code shall provide a DNA sample to be used for DNA
12 analysis as authorized by this article.
13 (b) (c) Any person presently incarcerated imprisoned in a state correctional facility or in jail
14 in this state after conviction of any offense listed in this section a felony shall provide a DNA
15 sample to be used for purposes of DNA analysis as described in authorized by this article.
16 (c) (d) Any person convicted of a violation of §61-2-5 or §61-2-13 of this code, §61-3-1,
17 §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
18 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
19 §61-4-3 of this code shall provide a DNA sample to be used for DNA analysis as described in
20 authorized by this article.
21 (d) (e) Any person convicted of an offense which constitutes a felony violation of the
22 provisions of §60A-4-401 et seq. of this code; or of an attempt to commit a violation of §61-2-1 or
23 §61-2-14a of this code; or an attempt to commit a violation of any offense in §61-8B-1 et seq. of
24 this code shall provide a DNA sample to be used for DNA analysis as described in authorized by
25 this article.
26 (e) (f) The method of taking the DNA sample is subject to the testing methods used by the
27 approval of the West Virginia State Police Crime Lab. The DNA sample will be collected using a
28 postage paid DNA collection kit provided by the West Virginia State Police.
29 (f) (g) When a person required to provide a DNA sample pursuant to this section refuses to
30 comply, the state shall apply to a circuit court for an order requiring the person to provide a DNA
31 sample. Upon a finding of failure to comply, the circuit court shall order the person to submit to
32 DNA testing in conformity with the provisions of this article.
33 (g) (h) The West Virginia State Police may, where not otherwise mandated, require any
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34 person convicted of a felony offense under the provisions of this code to provide a DNA sample to
35 be used for the sole purpose of criminal identification of the convicted person who provided the
36 sample: Provided, That the person is under the supervision of the criminal justice system at the
37 time the request for the sample is made. Supervision includes prison state correctional facilities,
38 the regional jail system, parole, probation, home confinement, a community corrections program,
39 and work release.
40 (h) (i) On the effective date of the amendments to this section enacted during the regular
41 session of the Legislature in 2011, any person required to register as a sex offender in this state
42 and who has not already provided a DNA sample in accordance with this article shall provide a
43 DNA sample as determined by the registration agency in consultation with the West Virginia State
44 Police Laboratory. The registering agency is responsible for the collection and submission of the
45 sample under this article.
46 (i) (j) When this state accepts a person from another state under any interstate compact, or
47 under any other reciprocal agreement with any county, state, or federal agency or any other
48 provision of law whether or not the person is confined or released, the transferred person must
49 submit a DNA sample, if the person was convicted of an offense in any other jurisdiction which
50 would be considered a qualifying offense as defined in this section if committed in this state, or if
51 the person was convicted of an equivalent offense in any other jurisdiction. The person shall
52 provide the DNA sample in accordance with the rules of the custodial institution or supervising
53 agency. If the transferred person has already submitted a DNA sample that can be found in the
54 national database, the accepting agency is not required to draw a second DNA sample.
55 (j) (k) If a person convicted of a qualifying offense is released without giving a DNA sample
56 due to an oversight or error or because of the person’s transfer from another jurisdiction, the
57 person shall give a DNA sample for inclusion in the state DNA database after being notified of this
58 obligation. Any such person may request a copy of the court order requiring the sample prior to the
59 collection of the DNA sample.
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60 (k) (l) Duly authorized law-enforcement employees, Regional Jail Authority employees,
61 and Division of Corrections employees may use reasonable force in cases where an individual
62 refuses to provide a DNA sample required under this article, and the employees are not civilly or
63 criminally liable for the use of reasonable force in the collection of the required DNA sample.
64 (l) (m) A DNA sample obtained in accordance with the requirements of this article and its
65 use in accordance with this chapter shall be considered to have been obtained in good faith.
66 Should If an error be is determined to have occurred which caused a person's DNA to be obtained
67 or submitted improperly, the DNA record shall be removed from CODIS and the DNA sample
68 destroyed unless the individual has another qualifying offense or offenses.
69 (m) (n) Persons authorized to collect DNA samples shall may not be civilly or criminally
70 liable for the collection of a DNA sample pursuant to this article if they perform these duties in good
71 faith and in a reasonable manner according to generally accepted medical or other professional
72 practices.
§15-2B-9. Procedures for withdrawal of blood collection of a sample for DNA analysis and for conducting analysis.
1 (a) The Superintendent of the West Virginia State Police may promulgate an emergency
2 rule and shall propose a legislative rule pursuant to §29A-3-1 et seq. of this code establishing the
3 procedure that an arresting authority shall use to obtain a DNA sample from a qualified arrestee.
4 (a) (b) Upon incarceration, the Division of Corrections, regional jails and felon facilities
5 shall ensure that the DNA sample is collected from all persons described in §15-2B-6 of this code.
6 When any person convicted of an offense described §15-2B-6 of this code is not incarcerated
7 imprisoned, the sheriff in the county where the person is convicted shall ensure that the DNA
8 sample is collected from the person: Provided, That a DNA sample may be collected at a prison,
9 regional facility or local hospital unit when so ordered by the sentencing court or other location
10 determined by the sheriff.
11 (b) (c) The Superintendent of the West Virginia State Police shall promulgate a legislative
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12 rule pursuant to §29A-3-1 et seq. of this code establishing which persons may withdraw blood and
13 further establishing procedures to withdraw blood. At a minimum, these procedures shall require
14 that when blood is withdrawn for the purpose of DNA identification testing, a previously unused
15 and sterile needle and sterile vessel shall be used, the withdrawal shall otherwise be in strict
16 accord with accepted medical practices and in accordance with any recognized medical
17 procedures employing universal precautions as outlined by the Centers for Disease Control and
18 Prevention. No civil liability attaches to any person when the blood was drawn according to
19 recognized medical procedures employing the universal precautions. No person is relieved of
20 liability for negligence in the drawing of blood for purposes of DNA testing collect a sample for DNA
21 analysis.
22 (c) (d) The Superintendent of the West Virginia State Police shall promulgate legislative
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