Lawfully Owed DNA
Virginia
Last Updated: April 2023
| Arrest | Answer |
Does the law require a DNA sample to be collected from an individual when they are arrested for a crime? |
Yes, from adults and minors (by implication). |
What crimes require collection of a DNA sample at arrest? |
Violent felonies, or a violation or attempt of numerated other offenses, including the criminal code provisions related to: aggravated murder; burglary; entering with intent to commit murder, rape, robbery, arson, larceny, assault and battery, or other felony; breaking and entering with intent to commit other misdemeanor. |
Does the law mandate when the DNA sample must be collected after arrest? |
After a probable cause determination by a magistrate or grand jury and prior to release from custody. If a sample of the person is stored in the DNA data bank as indicated by the Department of Forensic Science sample tracking system, no additional sample shall be taken. |
What agency collects the arrest DNA sample? |
Law enforcement agency responsible for arrest booking in the jurisdiction. |
What agency manages the analysis and preservation in the DNA database? |
Department of Forensic Science |
Can the arrest DNA sample be expunged? |
Automatic – clerk of the court notifies Dept. of Forensic Science if case dismissed or defendant is acquitted, provided no other pending qualifying warrant for arrest or qualifying felony conviction. |
Statutes |
VA Code § 19.2–310.2:1. Saliva or Tissue Sample Required for DNA Analysis After Arrest for a Violent Felony Case Law: Johnson v. Commonwealth, 529 S. E. 2d 769, 779–80 (Va. 2000) (“The DNA statutes do not deny a criminal defendant any constitutional rights” including the Fourth, Fifth, and Eighth Amendments) |
| Conviction | Answer |
Does the law require a DNA sample to be collected from the defendant when they are convicted of a crime? |
Yes |
What convictions require collection of a DNA sample? |
For persons convicted on or after July 1, 1990: Felonies or enumerated misdemeanors: Violating certain protective orders; Simple assault and battery; Stalking; Sexual battery; Infected sexual battery without intent to transmit; Sexual abuse of a child under 15 years of age; Attempted sexual battery; Unauthorized use of animal, aircraft, vehicle or boat; Trespass after having been forbidden to do so; Entering property of another for purpose of damaging it; Penetration of mouth of child with lascivious intent; Peeping or spying; Indecent exposure; Obscene sexual display; Resisting arrest (or similar local ordinance) For persons who were incarcerated on July 1, 1989: Felony sexual assault For juveniles at least 14 years old at time of offense: felony convictions or adjudication as delinquent based on an act that would be a felony if committed by an adult |
Does the law require DNA collection when a defendant is found not guilty by reason of insanity/mental defect/illness? |
Not specifically required. |
Does the law mandate when the DNA sample must be collected after conviction? |
Taken prior to release from custody. If not sentenced to a term of confinement, must provide DNA as a condition of the sentence. If a sample of the person is stored in the DNA data bank as indicated by the Department of Forensic Science sample tracking system, no additional sample shall be taken. |
What agency collects the DNA sample after conviction? |
State Police or Department of Corrections, Parole or Probation; Department of Juvenile Justice |
What agency manages the analysis and preservation in the DNA database? |
Department of Forensic Science |
Can the conviction DNA sample be expunged? |
Written request with certified copy of court order showing that conviction was reversed and case dismissed |
Statutes |
VA code § 19.2–310.2. Blood, Saliva, or Tissue Sample Required for DNA Analysis upon Conviction of Certain Crimes; Fee § 19.2–310.7. Expungement when DNA Taken for a Conviction § 16.1-299.1. Sample required for DNA analysis upon conviction or adjudication of felony
Case Law: Johnson v. Commonwealth, 529 S. E. 2d 769 779-80 (Va. 2000) (“The DNA statutes do not deny a criminal defendant any constitutional rights” including the Fourth, Fifth and Eigth Amendments). |