TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS
FORENSIC SCIENCE BOARD
Final Regulation
REGISTRAR'S NOTICE: The Forensic Science Board is claiming an exemption from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that are necessary to conform to changes in Virginia statutory law or the appropriation act where no agency discretion is involved. The board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.
Title of Regulation: 6VAC40-40. Regulations for the Implementation of the Law Permitting DNA Analysis Upon Arrest for All Violent Felonies and Certain Burglaries (amending 6VAC40-40-10, 6VAC40-40-30, 6VAC40-40-40, 6VAC40-40-50).
Statutory Authority: § 9.1-1110 of the Code of Virginia.
Effective Date: November 9, 2022.
Agency Contact: Amy Jenkins, Department Counsel, Department of Forensic Science, 700 North 5th Street, Richmond, VA 23219, telephone (804) 786-6848, FAX (804) 786-6857, or email amy.jenkins@dfs.virginia.gov.
Background: Regulations for the Implementation of the Law Permitting DNA Analysis Upon Arrest for All Violent Felonies and Certain Burglaries (6VAC40-40) outlines the requirements that a law-enforcement agency must follow to determine if a DNA sample is required under § 19.2-310.2:1 of the Code of Virginia for an individual arrested for a qualifying arrest for a violent felony or certain burglary offenses. Virginia law prohibits the taking of an additional sample if a DNA sample is already in the data bank for the arrestee. Previously, the booking agency would check the Local Inmate Data System (LIDS), which was developed by the State Compensation Board and accessible through the State Compensation Board's website. The Compensation Board created the LIDS DNA sample tracking system in 2003, which provided an effective solution at the time; however, the access control structure for the LIDS DNA system was outdated. The Department of Forensic Science (DFS) has developed a DNA data bank sample tracking system that captures real-time data on individuals included in the data bank. This new DNA sample tracking system is now utilized by law-enforcement agencies in lieu of LIDS. The DFS DNA sample tracking system also has a pre-log feature that allows for the electronic entry of information about the sample into the system at the time of collection. This creates efficiencies as the information will be pre-populated into the system at DFS when the sample is received and scanned by data bank staff. The new DFS DNA sample tracking system meets Virginia Information Technologies Agency (VITA) security standards while improving efficiency for both DFS and users in the field who access the system. The new system is web-based and will be accessible to user agencies, including law-enforcement agencies, the Department of Corrections, the Department of Juvenile Justice, and the courts, at no cost.
Summary:
Pursuant to Chapters 41 and 42 of the 2022 Acts of Assembly, the amendments replace references to the LIDS with the DNA data bank sample tracking system.
6VAC40-40-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:
"Arrestee" means a person arrested for a qualifying offense under § 19.2-310.2:1 of the Code of Virginia.
"Buccal sample" means a sample taken by swabbing the cheek inside an arrestee's mouth.
"Buccal sample kit" means a kit specified by the department for the collection of buccal cell samples.
"CCRE" means the Central Criminal Records Exchange operated by the Virginia State Police.
"Clerk" means the clerk of court of any general district, juvenile and domestic relations or circuit court in the Commonwealth, and includes deputy clerks.
"Data bank" means the database of DNA profiles from biological samples maintained by the department for convicted felons offenders and arrestees.
"Department" means the Department of Forensic Science.
"DNA" means deoxyribonucleic acid.
"DNA analysis" means analysis conducted on saliva or tissue samples to obtain a genetic profile of identification characteristics.
"DNA data bank sample tracking system" means an application that can be queried to determine whether an arrestee has a sample in the data bank.
"DNA sample" means a biological sample taken for DNA analysis.
"DNA sample tracking application" means an application that can be queried to determine whether an arrestee has a sample in the data bank.
"Document control number" means the number that is pre-printed on the fingerprint card (CCRE arrest forms SP179 and SP180) or assigned by Live-Scan.
"LIDS" means the Local Inmate Data System administered by the State Compensation Board.
"Qualifying offense" means an offense requiring a saliva or tissue sample to be taken upon arrest as described in § 19.2-310.2:1 of the Code of Virginia.
6VAC40-40-30. Qualifying offense warrants.
All warrants for qualifying offenses shall contain the following language: "Take buccal sample if LIDS DNA data bank sample tracking system shows no DNA sample in Data Bank."
Part III
DNA Data Bank Sample Tracking Application System
6VAC40-40-40. Use of LIDS DNA data bank sample tracking system.
An Internet accessible DNA data bank sample tracking application system developed by the State Compensation Board through LIDS department shall be accessible through the State Compensation Board's website at www.scb.virginia.gov. Access to the DNA sample tracking application shall be located under the website's "Restricted Access" section used to determine if a DNA sample already exists in the data bank. User identifications and passwords Access to the system shall be assigned granted by the department to all law-enforcement user agencies responsible for taking saliva or tissue samples from arrestees.
6VAC40-40-50. Screening for duplicates.
Prior to taking the saliva or tissue sample, the LIDS DNA data bank sample tracking application, or any such other DNA sample tracking application approved by the department and permitted by the Code of Virginia, system shall be queried to determine if there is a DNA sample already in the data bank for the arrestee. If the DNA data bank sample tracking application system indicates that a sample previously has been taken from the arrestee already exists in the data bank, no additional sample shall be taken. If the DNA data bank sample tracking application system indicates no sample has been taken from the arrestee, a saliva or tissue sample shall be taken in accordance with the procedures outlined in this chapter.
VA.R. Doc. No. R23-7296; Filed September 14, 2022