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2015 SESSION
15103489DBe it enacted by the General Assembly of Virginia:
1. That §§ 16.1-299.1, 19.2-310.2, and 19.2-310.7 of the Code of Virginia are amended and reenacted as follows:
§ 16.1-299.1. Sample required for DNA analysis upon conviction or adjudication of felony or certain misdemeanors.
A juvenile convicted of a felony; a violation of §
18.2-67.4, subsection C of § 18.2-67.5, or § 18.2-130; or a
misdemeanor offense punishable by confinement under § 16.1-253.2, Title 18.2,
except under § 18.2-119 or Article 2 (§ 18.2-415) of Chapter 9 of Title 18.2, Title
19.2, § 20-61, or any similar ordinance of any county,
city, or town who is committed to the
Department of Juvenile Justice or adjudicated
delinquent on the basis of an act which that would be a felony; a violation of §
18.2-67.4, subsection C of § 18.2-67.5, or § 18.2-130; or a misdemeanor offense
punishable by confinement under § 16.1-253.2, Title 18.2, except under §
18.2-119 or Article 2 (§ 18.2-415) of Chapter 9 of Title 18.2, Title 19.2, §
20-61, or any similar ordinance of any county, city, or town who is committed
to the Department of Juvenile Justice if committed by an
adult shall have a sample of his blood, saliva,
or tissue taken for DNA analysis,
provided the juvenile was 14 years of age or older at the time of the
commission of the offense.
The provisions of Article 1.1 (§ 19.2-310.2 et seq.) of Chapter 18 of Title 19.2 shall apply to all persons and all DNA samples taken as required by this section, mutatis mutandis.
The Department of Juvenile Justice shall verify that a DNA sample required to be taken has been received by the Department of Forensic Science. In any case where a DNA sample has not been received, the Department of Juvenile Justice shall notify the court and the court shall require the person to submit a sample for DNA analysis.
§ 19.2-310.2. Blood, saliva, or tissue sample required for DNA analysis upon conviction of certain crimes; fee.
A. Every person convicted of a felony on or after July 1, 1990, every person convicted of a felony offense under
Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 who was incarcerated on
July 1, 1989, and
every person convicted of a
violation of (i) § 18.2-67.4, (ii) § 18.2-67.4:2, (iii) subsection C of §
18.2-67.5, (iv) § 18.2-130, or (v) § 18.2-370.6, and
every person convicted of a misdemeanor offense
punishable by confinement under § 16.1-253.2,
Title 18.2, except under § 18.2-119 or
Article 2 (§ 18.2-415) of Chapter 9 of Title 18.2, this
title, § 20-61, or any similar
ordinance of any county, city, or town who is sentenced to a
term of incarceration, regardless of whether
such sentence is suspended in whole or in part, shall have
a sample of his blood, saliva, or
tissue taken for DNA (deoxyribonucleic acid) analysis to determine
identification characteristics specific to the person. If a sample has been
previously taken from the person as indicated by the Local Inmate Data System
(LIDS), no additional sample shall be taken. The Department of Forensic Science
shall provide to LIDS the most current information submitted to the DNA data
bank on a weekly basis and shall remove from LIDS and the data bank persons no
longer eligible to be in the data bank. A fee of $25 shall be charged for the
withdrawal of this sample. The fee shall be taxed as part of the costs of the
criminal case resulting in the conviction and one-half of the fee shall be paid
into the general fund of the locality where the sample was taken and one-half
of the fee shall be paid into the general fund of the state treasury. This fee
shall only be taxed one time regardless of the number of samples taken. The
assessment provided for herein shall be in addition to any other fees
prescribed by law. The analysis shall be performed by the Department of
Forensic Science or other entity designated by the Department. The
identification characteristics of the profile resulting from the DNA analysis
shall be stored and maintained by the Department in a DNA data bank and shall
be made available only as provided in § 19.2-310.5.
B. After July 1, 1990, the blood, saliva,
or tissue sample shall be taken prior to release from custody. Notwithstanding
the provisions of § 53.1-159, any person convicted of a
felony an offense listed in
subsection A who is in custody after July 1, 1990, shall
provide a blood, saliva, or
tissue sample prior to his release. Every person so convicted after July 1,
1990, who is not sentenced to a term of confinement shall provide a blood,
saliva, or tissue sample as a
condition of such sentence. A person required under this section to submit a
sample for DNA analysis is not relieved from this requirement regardless of
whether no blood, saliva, or tissue sample has been taken from the person or,
if a sample has been taken, whether the sample or the results from the analysis
of a sample cannot be found in the DNA data bank maintained by the Department
of Forensic Science.
C. Nothing in this section shall prevent the Department of Forensic Science from including the identification characteristics of an individual's DNA profile in the DNA data bank as ordered by a circuit court pursuant to a lawful plea agreement.
D. A collection or placement of a sample for DNA analysis that was taken or retained in good faith does not invalidate the sample's use in the data bank pursuant to the provisions of this article. The detention, arrest, or conviction of a person based upon a data bank match or data bank information is not invalidated if it is determined that the sample was obtained, placed, or retained in the data bank in good faith, or if the conviction or juvenile adjudication that resulted in the collection of the DNA sample was subsequently vacated or otherwise altered in any future proceeding, including but not limited to post-trial or post-fact-finding motions, appeals, or collateral attacks.
E. The Virginia Department of Corrections and the Department of Forensic Science shall, on a quarterly basis, compare databases of offenders under the custody or supervision of the Department of Corrections with the DNA data bank of the Department of Forensic Science. The Virginia Department of Corrections shall require a DNA sample of those offenders under its custody or supervision if they are not identified in the DNA data bank.
F. Each community-based probation services agency established pursuant to § 9.1-174 shall determine by reviewing the Local Inmate Data System upon intake and again prior to discharge whether a blood, saliva, or tissue sample has been taken for DNA analysis for each offender required to submit a sample pursuant to this section and, if no sample has been taken, require an offender to submit a sample for DNA analysis.
G. The sheriff or regional jailer shall determine by reviewing the Local Inmate Data System upon intake and again prior to release whether a blood, saliva, or tissue sample has been taken for DNA analysis for each offender required to submit a sample pursuant to this section and, if no sample has been taken, require an offender to submit a sample for DNA analysis.
§ 19.2-310.7. Expungement when DNA taken for a conviction.
A person whose DNA profile has been included in the data bank
pursuant to § 19.2-310.2 may request expungement on the grounds that the felony conviction on which the
authority for including his DNA profile was based has been reversed and the
case dismissed. The Department of Forensic Science shall purge all records and
identifiable information in the data bank pertaining to the person and destroy
all samples from the person upon receipt of (i) a written request for
expungement pursuant to this section and (ii) a certified copy of the court
order reversing and dismissing the conviction.
2. That the provisions of this act shall apply only to persons convicted or adjudicated delinquent on or after July 1, 2015.