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2005 SESSION

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055418756
SENATE BILL NO. 808 Offered January 12, 2005 Prefiled January 7, 2005 A BILL to amend and reenact § 19.2-270.4:1 of the Code of Virginia, relating to storage, preservation and retention of human biological evidence in felony cases. ---------- Patron-- Marsh ---------- Referred to Committee for Courts of Justice ----------

Be it enacted by the General Assembly of Virginia:

1.  That § 19.2-270.4:1 of the Code of Virginia is amended and reenacted as follows:

§ 19.2-270.4:1. Storage, preservation and retention of human biological evidence in felony cases.

A. Notwithstanding any provision of law or rule of court, upon motion of a person convicted of a felony but not sentenced to death or his attorney of record to the circuit court that entered the judgment for the offense, the court shall order the storage, preservation, and retention of specifically identified human biological evidence or representative samples collected or obtained in the case for a period of up to fifteen 15 years from the time of conviction, unless the court determines, in its discretion, that the evidence should be retained for a longer period of time. Upon the filing of such a motion, the defendant may request a hearing for the limited purpose of identifying the human biological evidence or representative samples that are to be stored in accordance with the provisions of this section. Upon the granting of the motion, the court shall order the clerk of the circuit court to transfer all such evidence to the Division of Forensic Science. The Division of Forensic Science shall store, preserve, and retain such evidence. If the evidence is not within the custody of the clerk at the time the order is entered, the court shall order the governmental entity having custody of the evidence to transfer such evidence to the Division of Forensic Science. Upon the entry of an order under this subsection, the court may upon motion or upon good cause shown, with notice to the convicted person, his attorney of record and the attorney for the Commonwealth, modify the original storage order, as it relates to time of storage of the evidence or samples, for a period of time greater than or less than that specified in the original order.

B. In the case of a person sentenced to death, the court that entered the judgment shall, in all cases, order any human biological evidence or representative samples to be transferred by the governmental entity having custody to the Division of Forensic Science. The Division of Forensic Science shall store, preserve, and retain such evidence until the judgment is executed. If the person sentenced to death has his sentence reduced, then such evidence shall be transferred from the Division to the original investigating law-enforcement agency for storage as provided in this section.

C. Notwithstanding the procedures for the entry of orders pursuant to subsections A and B for persons convicted of felonies or sentenced to death, and irrespective of whether such an order has been entered or not in a particular case, the Division of Forensic Science shall: (i) store, preserve and retain any and all such biological evidence that exists in its care, custody, possession, or control on July 1, 2005, and shall in no way destroy, waste, or otherwise dispose of such evidence and (ii) develop an inventory or index of all such biological evidence that exists in its care, custody, possession, or control, including a brief description of the nature of such evidence, the case to which such evidence relates, and the physical location of such evidence.

D. Pursuant to standards and guidelines established by the Division of Forensic Science, the order shall state the method of custody, transfer and return of any evidence to insure and protect the Commonwealth's interest in the integrity of the evidence. Pursuant to standards and guidelines established by the Division of Forensic Science, the Division of Forensic Science, local law-enforcement agency or other custodian of the evidence shall take all necessary steps to preserve, store, and retain the evidence and its chain of custody for the period of time specified.

DE. In any proceeding under this section, the court, upon a finding that the physical evidence is of such a nature, size or quantity that storage, preservation or retention of all of the evidence is impractical, may order the storage of only representative samples of the evidence. The Division of Forensic Science shall take representative samples, cuttings or swabbings and retain them. The remaining evidence shall be handled according to § 19.2-270.4 or as otherwise provided for in the Code.

EF. An action under this section or the performance of any attorney representing the petitioner under this section shall not form the basis for relief in any habeas corpus or appellate proceeding. Nothing in this section shall create any cause of action for damages against the Commonwealth, or any of its political subdivisions or officers, employees or agents of the Commonwealth or its political subdivisions.