Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
        Committee Substitute for Senate Bill 765
  BY SENATORS TAKUBO, DEEDS, PLYMALE, WOELFEL,
             MARONEY, AND WOODRUM
   [Originating in the Committee on the Judiciary;
          reported on February 21, 2024]
     CS for SB 765
  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 designating the Forensic Analysis Laboratory of the Marshall
         University Forensic Science Center as the back-up provider to manage the
         deoxyribonucleic acid databank and database in the event of a statewide declared, public
         emergency, or natural disaster; designating Forensic Analysis Laboratory of the Marshall
         University Forensic Science Center as an additional site for the analysis of the
         deoxyribonucleic acid samples from unidentified human remains; providing Forensic
         Analysis Laboratory of the Marshall University Forensic Science Center access to certain
         databases; and requiring the Chief Medical Examiner, or his or her designee, to collect
        specified samples for inclusion into the state deoxyribonucleic acid databank and
        specifying access to those samples.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 2B. DNA DATA.
     §15-2B-4. Division of public safety to establish and administer DNA identification system;
            inspection of laboratories; designation of back up facility in the event of natural disaster or statewide declared emergency.
         (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 a 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
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     CS for SB 765
 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.
     §15-2B-6. DNA sample required for DNA analysis upon conviction; DNA sample required for certain prisoners; DNA sample required by Chief Medical Examiner.
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             (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 shall 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.
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        (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 obtain 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 The person may request a copy of the court order requiring the sample
 prior to the collection of the DNA sample.
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        (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
 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) 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.
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Statutes affected: 
Introduced Version: 15-2B-4, 15-2B-6
Committee Substitute: 15-2B-4, 15-2B-6