Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
         Committee Substitute for Senate Bill 556
 By Senators Oliverio, Deeds, Hunt, Rucker, Takubo,
     Tarr, Trump, Weld, Plymale, and Maroney [Originating in the Committee on the Judiciary;
          reported on February 14, 2024]
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  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
         of the Code of West Virginia, 1931, as amended, all relating to deoxyribonucleic acid that is
         maintained for law-enforcement purposes in West Virginia; providing updates for the policy
         of maintaining deoxyribonucleic acid; defining terms; requiring deoxyribonucleic acid
         collection from all persons convicted of felonies and certain misdemeanors; requiring
         deoxyribonucleic collection from all persons charged by indictment, or information of any
         felony offense after a grand jury has returned an indictment, or prosecution by indictment
         has been waived; adding qualifying offense of domestic battery; specifying testing
         methods; authorizing emergency, and requiring, legislative rules; specifying expungement
        in certain circumstances; and providing failure to expunge or reasonably delay
        expungement will not invalidate an identification, warrant, 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.
         (a) 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. DNA records are an important identification tool that can be used to confirm
  and verify information provided by fingerprints, and to identify additional information on potential
  criminal activity not available through other means. DNA technology further aids the criminal
  justice system inasmuch as it may assist persons mistakenly accused of crimes and exonerate
  persons wrongfully convicted of crimes. In furtherance of such assistance, the Legislature finds:
         (b) That the analysis of DNA contained in biological evidence that may be recovered from a
 crime scene facilitates such identification, detection, and exclusion;
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         (c) 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
         (d) That requiring individuals who have been indicted by a grand jury for certain offenses,
 who have filed a waiver of indictment for certain offenses, and individuals who have been
 convicted of a felony offense or other certain offenses to submit to convicted of certain crimes to
 provide a 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.
         (e) 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-3. Definitions.
          As used in this article:
          (1) "CODIS" means the Federal Bureau of Investigation’s Combined DNA Index System
  that allows the storage and exchange of DNA records submitted by federal, state, and local
  forensic DNA laboratories. The term "CODIS" includes the National DNA Index System
  administered and operated by the Federal Bureau of Investigation.
          (2) "Conviction" includes convictions by a jury or court, guilty plea, or plea of nolo
  contendere.
          (3) "Criminal justice agency" means an agency or institution of a federal, state, or local
  government, other than the office of public defender, which performs as part of its principal
 function the apprehension, investigation, prosecution, adjudication, incarceration imprisonment,
 supervision, or rehabilitation of criminal offenders. The Forensic Analysis Laboratory of the
 Marshall University Forensic Science Center is hereby designated by the Legislature and the
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 State Police to be a criminal justice agency for purposes of the laboratory's participation in the
 West Virginia DNA Database with its access limited to the missing persons, relatives of missing
 persons, and unidentified human remains databases as part of work performed for the National
 Missing and Unidentified Persons System.
        (4) "Division" means the West Virginia State Police.
        (5) "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.
        “DNA analysis” means a laboratory analysis of a DNA specimen to identify DNA
 characteristics and to create a DNA record.
        (6) "DNA record" 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".
        (7) "DNA sample" means a tissue, fluid, or other bodily sample, or cells collected through a
 buccal swab, also known as a buccal smear, that is collected from the inside of a person's cheek
 and is suitable for testing, provided pursuant to this article or submitted to the division laboratory
 for analysis pursuant to a criminal investigation.
        (8) "FBI" means the Federal Bureau of Investigation.
        (9) "Interim plan" means the plan used currently by the Federal Bureau of Investigation for
 Partial Match Protocol and to be adopted under the management rules of this article.
        (10) "Management Rules" means the rules promulgated by the West Virginia State Police
 that define all policy and procedures in the administration of this article.
        (11) "Partial match" means that two DNA profiles, while not an exact match, share a
 sufficient number of characteristics to indicate the possibility of a biological relationship.
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         (12) "Qualifying offense" means any felony offense as described in §15-2B-6 of this code
 or any offense requiring a person to register as a sex offender under this code or the federal law.
 For the purpose of this article, a person found not guilty of a qualifying offense by reason of
 insanity or mental disease or defect shall be required to provide a DNA sample in accordance with
 this article.
         (13) "Registering agency" means the West Virginia State Police.
         (14) "State DNA database" means all DNA identification records included in the system
 administered by the West Virginia State Police.
         (15) "State DNA databank" means the repository of DNA samples collected under the
 provisions of this article.
     §15-2B-5.       Authority of   division to       enter into cooperative agreements.
          The division West Virginia State Police 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 When the division West Virginia State Police enters
  into any agreements for the purposes of: (1) Testing of offender samples for CODIS; (2) criminal
  paternity cases; (3) criminal casework; or (4) identification of human remains, it shall first attempt
  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 conviction of a felony or other certain offenses conviction; DNA sample required for certain prisoners after indictment or                            information.
          (a) A DNA sample shall be provided by a defendant who is 18 years of age or older in the
  following instances:
          (1) after a grand jury has returned a true bill of indictment of a felony offense or any of the
  offenses enumerated in subsections (b), (d), and (e) of this section;
          (2) after a defendant has filed a waiver of indictment with a circuit court for a felony offense
  of any of the offenses enumerated in subsections (b), (d), and (e) of this section; or
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             (3) upon conviction of a felony offense or any of the offenses enumerated in subsections
  (b), (d), and (e) of this section.
             Any DNA sample collected may be used only for DNA analysis as authorized by this article.
            (a) (b) 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 authorized by this
 article.
            (b) (c) Any person presently incarcerated imprisoned in a state correctional facility or in jail
 in this state after conviction of any offense listed in this section a felony offense shall provide a
 DNA sample to be used for purposes of DNA analysis as described in authorized by this article.
            (c) (d) Any person convicted of a violation of §61-2-5 or §61-2-13 §61-2-28 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 authorized by this article.
            (d) (e) 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 any offense in §61-8B-1 et seq. of
 this code shall provide a DNA sample to be used for DNA analysis as described in authorized by
 this article.
            (e) (f) The method of taking the DNA sample is subject to the testing methods used by the
 approval of 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.
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        (f) (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) (h) 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 state correctional facilities,
 the regional jail system, parole, probation, home confinement, a community corrections program,
 and work release.
        (h) (i) 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) (j) 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
 shall 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.
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        (j) (k) 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 The person may request a copy of the court order requiring the sample prior
 to the collection of the DNA sample.
        (k) (l) 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) (m) 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 If an error be is 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) (n) Persons authorized to collect DNA samples shall may 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.
     §15-2B-9. Procedures for withdrawal of blood collection of a sample for DNA analysis and for conducting analysis.
         (a) The Superintendent of the West Virginia State Police may promulgate an emergency
  rule and shall propose a legislative rule pursuant to §29A-3-1 et seq. of this code establishing the
  procedure that an arresting authority shall use to obtain a DNA sample.
         (a) (b) Upon incarceration, the Division of Corrections, regional jails, and felon facilities
  shall ensure that the DNA sample is collected from all persons described in §15-2B-6 of this code.
  When any person convicted of an offense described §15-2B-6 of this code is not incarcerated
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  imprisoned, the sheriff in the county where the person is convicted shall ensure that the DNA
  sample is collected from the person: Provided, That a DNA sample may be collected at a prison,
  regional facility, or local hospital unit when so ordered by the sentencing court or other location
 determined by the sheriff.
            (b) (c) The Superintendent of the West Virginia State Police shall promulgate a legislative
 rule pursuant to §29A-3-1 et seq. 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 outlined by the Centers for Disease Control and
 Prevention. No civil liability attaches to any person when the blood was drawn according to
 recognized medical procedures employing the universal precautions. No person is relieved of
 liability for negligence in the drawing of blood for purposes of DNA testing.
            (c) (d) The Superintendent of the West Virginia State Police shall promulgate legislative
 rules propose rules for legislative approval pursuant to §29A-3-1 et seq. of this code governing the
 procedures to be used in the collection of DNA samples, su