§15-2B-1. Short title.

This article may be cited as the "DNA Database and Databank Act of 1995".

§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 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-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, 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 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.

(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, 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.

(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-4. Division of public safety to establish and administer DNA identification system; inspection of laboratories.

(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 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 promulgate a legislative rule pursuant to chapter twenty-nine-a 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 twenty-nine-a of this code.

(e) The superintendent of the division of public safety shall promulgate additional legislative 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 FBI.

§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; (3) criminal casework; or (4) identification of human remains, 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 §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 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 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.

(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 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 an error be 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.

§15-2B-7. Tests to be performed on DNA sample.

The tests to be performed on each DNA sample shall analyze and type the genetic markers contained in or derived from the DNA sample in accordance with rules promulgated under this article. Any rule regarding the typing and analysis of the DNA sample shall be consistent with any specifications required by federal law.

§15-2B-8. Maintenance of DNA samples and records.

DNA records and samples shall be stored and maintained by the division in the state DNA database and databank, respectively. DNA samples, without personal identifying information, may also be stored 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 and felon facilities shall ensure that the DNA sample is collected from all persons described in section six of this article. When any person convicted of an offense described in section six is not incarcerated, 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) The Superintendent of the West Virginia State Police shall promulgate a legislative rule 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 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) The Superintendent of the West Virginia State Police shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code governing the procedures to be used in the collection of DNA 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.

(d) The agency having control, custody or supervision of persons convicted for qualifying offenses may, in consultation with and approval of the West Virginia State Police Laboratory, promulgate rules or policies specifying the time and manner of collection of the DNA samples as well as any other matter necessary to carry out its responsibilities under this article.

(e) The agency or institution having custody, control or providing supervision of persons convicted for qualifying offenses, as appropriate, is authorized to contract with third parties to provide for the collection of the DNA samples described in section six of this article.

(f) A person, convicted of a qualifying offense and not incarcerated in a facility described in subsection (a) of this section, who has been put on notice of his or her obligation to provide a DNA sample and has not submitted a court ordered DNA sample at the request of a law-enforcement agency, shall be responsible for notifying the agency designated in the court order and complying with that agency's directives for submitting a DNA sample. The person shall have thirty days from the receipt of the court order to comply unless there is a documented exception from the agency responsible for the DNA sample collection. A person refusing to comply with a court order directing that person submit a DNA sample may be considered in contempt.

(g) Any court sentencing a person convicted of a qualifying offense to probation, on or after the effective date of the amendments to this section enacted during the regular session of the Legislature in 2011, shall order, as a condition of such probation, that the convicted person report to the local sheriff's department to provide a DNA sample within thirty days.

§15-2B-10. DNA database exchange.

(a) The West Virginia State Police shall receive DNA samples, store, analyze, classify and file the DNA records consisting of all identification characteristics of DNA profiles from DNA samples submitted pursuant to the procedures for conducting DNA analysis of DNA samples.

(b) The West Virginia State Police may furnish DNA records to authorized law-enforcement and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive them, of other states within the United States and of the State of West Virginia upon proper request stating that the DNA records requested will be used solely:

(1) For law enforcement identification purposes by criminal justice agencies;

(2) In judicial proceedings, if otherwise expressly permitted by state or federal laws;

(3) If personal identifying information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes; or

(4) For the identification of unidentified human remains, missing persons and relatives of missing persons.

(c) The Superintendent of the West Virginia State Police shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code governing the methods by which any law-enforcement agency or other authorized entity may obtain information from the state DNA database consistent with this section and federal law.

(d) The West Virginia State Police may release DNA samples, without personal identifying information, to any agency or entity with which the West Virginia State Police contracts pursuant to section five of this article.

(e) The West Virginia State Police may release DNA samples for criminal defense and appeal purposes, to a defendant who is entitled to access to samples and analysis performed in connection with the case in which the defendant is charged or was convicted.

(f) Searches of the state DNA database shall be performed in accordance with state and federal law and procedures.

§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 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 seeking expungement, either individually or through an attorney, may petition the court for expungement of the record. A copy of the petition for expungement shall be served on the prosecuting attorney for the judicial district in which the qualifying conviction was obtained not less than 20 days prior to the date of the hearing on the 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.

§15-2B-12. Confidentiality; unauthorized uses of DNA databank; penalties.

(a) All DNA profiles and samples submitted to the West Virginia State Police 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 $50 nor more than $500 or confined in jail for a period not to exceed one year, or both fined and confined.

(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 $50 nor more than $500 or confined in jail for a period not to exceed one year, or both fined and confined.

(d) DNA records and DNA samples submitted to the West Virginia State Police Laboratory pursuant to this article are exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code, or any other statutory provision or court opinion requiring the disclosure of public records.

(e) In case of a criminal proceeding, a request to access a person's DNA record must be made in accordance with rules for criminal discovery as provided in the West Virginia Code and the Rules of Criminal Procedure. The West Virginia State Police Laboratory is not required to provide, for criminal discovery purposes, more than the DNA profile(s) and identifying information generated as a result of the search that led to the match between the case evidence and the defendant.

§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 $50 nor more than $200 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 office.

(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 less than $50 nor more than $500 or imprisoned in the county or regional jail not to exceed one year, or both fined and imprisoned.

§15-2B-14. Right to DNA testing.

(a) A person convicted of a felony currently serving a term of imprisonment may make a written motion before the trial court that entered the judgment of conviction for performance (DNA) testing.

(b) (1) An indigent convicted person may request appointment of counsel to prepare a motion under this section by sending a written request to the court. The request must include the person's statement that he or she was not the perpetrator of the crime and that DNA testing is relevant to his or her assertion of innocence. The request must also include the person's statement as to whether he or she previously had appointed counsel under this section.

(2) If any of the information required in subdivision (1) of this section is missing from the request, the court shall return the request to the convicted person and advise him or her that the matter cannot be considered without the missing information.

(3) (A) Upon a finding of indigency, the inclusion of information required in subdivision (1) of this section, and that counsel has not previously been appointed pursuant to this subdivision, the court shall appoint counsel. Counsel shall investigate and, if appropriate, file a motion for DNA testing under this section. Counsel represents the indigent person solely for the purpose of obtaining DNA testing under this section.

(B) Upon a finding of indigency, and that counsel has been previously appointed pursuant to this subdivision, the court may, in its discretion, appoint counsel. Counsel shall investigate and, if appropriate, file a motion for DNA testing under this section. Counsel represents the person solely for the purpose of obtaining DNA testing under this section.

(4) Nothing in this section provides for a right to the appointment of counsel in a post-conviction collateral proceeding or sets a precedent for any such right. The representation provided an indigent convicted person under this article is solely for the limited purpose of filing and litigating a motion for DNA testing pursuant to this section.

(c) (1) The motion shall be verified by the convicted person under penalty of perjury and must do the following:

(A) Explain why the identity of the perpetrator was, or should

have been, a significant issue in the case.

(B) Explain, in light of all the evidence, how the requested DNA testing would raise a reasonable probability the convicted person's verdict or sentence would be more favorable if the results

of DNA testing had been available at the time of conviction.

(C) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought.

(D) Reveal the results of any DNA or other biological testing previously conducted by either the prosecution or defense, if known.

(E) State whether any motion for testing under this section has been filed previously and the results of that motion, if known.

(2) Notice of the motion shall be served on the prosecuting attorney in the county of conviction and, if known, the governmental agency or laboratory holding the evidence sought to be tested. Responses, if any, shall be filed within sixty days of the date on which the prosecuting attorney is served with the motion, unless a continuance is granted for good cause.

(d) If the court finds evidence was subject to prior DNA or other forensic testing, by either the prosecution or defense, it shall order the party at whose request the testing was conducted to provide all parties and the court with access to the laboratory reports, underlying data, and laboratory notes prepared in connection with the DNA or other biological evidence testing.

(e) The court, in its discretion, may order a hearing on the

motion. The motion shall be heard by the judge who conducted the

trial or accepted the convicted person's plea, unless the presiding judge determines that judge is unavailable. Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion.

(f) The court shall grant the motion for DNA testing if it determines all of the following have been established:

(1) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;

(2) The evidence to be tested has been subject to a chain of

custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect;

(3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case;

(4) The convicted person has made a prima facie showing that the evidence sought for testing is material to the issue of the convicted person's identity as the perpetrator of or accomplice to, the crime, special circumstance, or enhancement allegation resulting in the conviction or sentence;

(5) The requested DNA testing results would raise a reasonable

probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if DNA testing results had been available at the time of conviction. The court in its discretion may consider any evidence regardless of whether it was introduced at trial;

(6) The evidence sought for testing meets either of the following conditions:

(A) The evidence was not previously tested;

(B) The evidence was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results;

(7) The testing requested employs a method generally accepted

within the relevant scientific community;

(8) The evidence or the presently desired method of testing DNA were not available to the defendant at the time of trial or a court has found ineffective assistance of counsel at the trial court level;

(9) The motion is not made solely for the purpose of delay.

(g) If the court grants the motion for DNA testing, the court

order shall identify the specific evidence to be tested and the DNA

technology to be used. Testing shall be conducted by a DNA forensic laboratory in this state.

(h) The result of any testing ordered under this section shall be fully disclosed to the person filing the motion and the prosecuting attorney. If requested by any party, the court shall order production of the underlying laboratory data and notes.

(i) If testing was requested by the state or the individual is an indigent, the cost of DNA testing shall be borne by the state.

(j) An order granting or denying a motion for DNA testing under this section is not to be appealable and is subject to review only through a petition for writ of mandamus or prohibition filed with the Supreme Court of Appeals by the person seeking DNA testing or the prosecuting attorney. The petition shall be filed within twenty days of the court's order granting or denying the motion for DNA testing. The court shall expedite its review of a petition for writ of mandamus or prohibition filed under this subsection.

(k) DNA testing ordered by the court pursuant to this section

shall be done as soon as practicable. However, if the court finds

that a miscarriage of justice will otherwise occur and that it is

necessary in the interests of justice to give priority to the DNA

testing, the court may require the DNA laboratory to give priority to the DNA testing ordered pursuant to this section over the laboratory's other pending casework.

(l) DNA profile information from biological samples taken from a convicted person pursuant to a motion for post-conviction DNA testing is exempt from any law requiring disclosure of information to the public.

(m) Notwithstanding any other provision of law, the right to file a motion for post-conviction DNA testing provided by this section is absolute and may not be waived. This prohibition applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendre.

§15-2B-15. Collection of fees to cover the cost of DNA profile entry into the DNA database and DNA databank; cost of collecting and analyzing DNA sample.

For persons convicted after July 1, 2011, a mandatory fee of $150, which is in addition to any other costs imposed pursuant to statutory authority, shall automatically be assessed on any person convicted of, or adjudicated delinquent for, a qualifying offense, unless the court finds that undue hardship would result. This fee shall be collected by the sentencing court or the agency responsible for the collection of the DNA sample and remitted to the State Treasury on or before the tenth of every month. Notwithstanding any other provision of this code to the contrary, all moneys collected as a result of this fee shall be deposited in a special account within the State Treasury to be known as the "West Virginia State Police DNA Database Account" to be administered by the Superintendent of the West Virginia State Police. Expenditures from the fund are authorized from collections for purposes associated with the processing of DNA samples for the DNA database.

§15-2B-16. Partial matches and the DNA database.

The division may use the data in the DNA database for partial match analysis for criminal investigations of murder, kidnapping and first and second degree sexual assault, as defined in this code, where all investigated leads have been exhausted. The division shall follow the standards and procedures defined in the Interim Plan when replying to requests for partial match information from criminal justice agencies from within or outside the state until such time as the division promulgates management rules.