2006 Code of Virginia § 19.2-270.4:1 - Storage, preservation and retention of human biological evidence in felony cases

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

A. Notwithstanding any provision of law or rule of court, upon motion of aperson convicted of a felony but not sentenced to death or his attorney ofrecord to the circuit court that entered the judgment for the offense, thecourt shall order the storage, preservation, and retention of specificallyidentified human biological evidence or representative samples collected orobtained in the case for a period of up to 15 years from the time ofconviction, unless the court determines, in its discretion, that the evidenceshould be retained for a longer period of time. Upon the filing of such amotion, the defendant may request a hearing for the limited purpose ofidentifying the human biological evidence or representative samples that areto be stored in accordance with the provisions of this section. Upon thegranting of the motion, the court shall order the clerk of the circuit courtto transfer all such evidence to the Department of Forensic Science. TheDepartment of Forensic Science shall store, preserve, and retain suchevidence. If the evidence is not within the custody of the clerk at the timethe order is entered, the court shall order the governmental entity havingcustody of the evidence to transfer such evidence to the Department ofForensic Science. Upon the entry of an order under this subsection, the courtmay upon motion or upon good cause shown, with notice to the convictedperson, his attorney of record and the attorney for the Commonwealth, modifythe original storage order, as it relates to time of storage of the evidenceor samples, for a period of time greater than or less than that specified inthe original order.

B. In the case of a person sentenced to death, the court that entered thejudgment shall, in all cases, order any human biological evidence orrepresentative samples to be transferred by the governmental entity havingcustody to the Department of Forensic Science. The Department of ForensicScience shall store, preserve, and retain such evidence until the judgment isexecuted. If the person sentenced to death has his sentence reduced, thensuch evidence shall be transferred from the Department to the originalinvestigating law-enforcement agency for storage as provided in this section.

C. Pursuant to standards and guidelines established by the Department ofForensic Science, the order shall state the method of custody, transfer andreturn of any evidence to insure and protect the Commonwealth's interest inthe integrity of the evidence. Pursuant to standards and guidelinesestablished by the Department of Forensic Science, the Department of ForensicScience, local law-enforcement agency or other custodian of the evidenceshall take all necessary steps to preserve, store, and retain the evidenceand its chain of custody for the period of time specified.

D. In any proceeding under this section, the court, upon a finding that thephysical evidence is of such a nature, size or quantity that storage,preservation or retention of all of the evidence is impractical, may orderthe storage of only representative samples of the evidence. The Department ofForensic Science shall take representative samples, cuttings or swabbings andretain them. The remaining evidence shall be handled according to 19.2-270.4 or as otherwise provided for in the Code.

E. An action under this section or the performance of any attorneyrepresenting the petitioner under this section shall not form the basis forrelief in any habeas corpus or appellate proceeding. Nothing in this sectionshall create any cause of action for damages against the Commonwealth, or anyof its political subdivisions or officers, employees or agents of theCommonwealth or its political subdivisions.

(2001, cc. 873, 874, 875; 2002, c. 832; 2005, cc. 868, 881.)