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2023 SESSION
23101673DBe 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 biological evidence in felony cases.
A. Notwithstanding
any provision of law or rule of court, upon motion of a person convicted of a
felony or his attorney of record to the circuit court that entered the judgment
for the offense, the court For
the purposes of this section, "biological evidence" means (i)
the contents of a physical evidence
recovery kit as defined in § 19.2-11.5 or (ii) any item, or
representative sample taken from an item,
collected as a part of a criminal investigation that contains blood,
bones, fingernail scrapings, hair, saliva, semen, skin tissue, teeth, or other
bodily fluids.
B. Any
governmental entity that possesses any biological evidence
shall order
ensure the storage, preservation, and retention of specifically identified human such biological evidence or
representative samples collected or obtained in the case
during the course of a criminal investigation of a felony case
for a
such period of up to 15 years from
the time of that the defendant remains incarcerated or under
any registration or supervision requirement in connection with the felony
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 or until the
expiration of the statute of limitations for the alleged offense has lapsed in such
case where a felony remains unsolved or no
charges have been filed. The
biological evidence shall be preserved in a condition that is suitable for
deoxyribonucleic acid (DNA) testing and analysis,
and such evidence shall be made available for DNA testing under §
19.2-327.1.
C. 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 Department of
Forensic Science. The court shall order
the Department of Forensic Science to submit an inventory of the biological
evidence that has been preserved in connection with the defendant's case, a
copy of which shall be provided to the defendant.
The Department 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 Department 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. D. Pursuant to standards and
guidelines established by the Department 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 Department of Forensic Science, the Department 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. When a government entity cannot
locate biological evidence that
it is required to preserve under subsection B, the chief evidence
custodian of such entity shall submit an affidavit, under penalty of perjury,
that describes the biological evidence that cannot be located and details the
efforts made to locate such evidence.
C. E. In any proceeding under this
section, the court, upon a finding that the physical
biological 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 Department 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.
F. If the court finds that the biological evidence has not been preserved in accordance with the provisions of this section, the court may order such remedy as the court determines appropriate, including (i) granting a new trial; (ii) dismissing the charges; (iii) reducing the sentence; (iv) vacating the defendant's conviction; or (v) entering a finding that a presumption exists that the evidence would have been exculpatory to the defendant because the evidence has not been preserved in accordance with this section.
D. G. 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.