A. A law-enforcement agency that receives a physical evidence recovery kit shall submit the physical evidence recovery kit to the Department for analysis within 60 days of receipt, except under the following circumstances: (i) it is an anonymous physical evidence recovery kit that shall be forwarded to the Division for storage; (ii) the physical evidence recovery kit was collected by the Office of the Chief Medical Examiner as part of a routine death investigation, and the medical examiner and the law-enforcement agency agree that analysis is not warranted; (iii) the physical evidence recovery kit is connected to an offense that occurred outside of the Commonwealth; (iv) the physical evidence recovery kit was determined by the law-enforcement agency not to be connected to a criminal offense; or (v) another law-enforcement agency has taken over responsibility for the investigation related to the physical evidence recovery kit. When a state or local law-enforcement agency located within the Commonwealth has taken over responsibility for the investigation related to the physical evidence recovery kit as provided in clause (v), unless one of the exceptions in clause (i) through (iv) also applies, the physical evidence recovery kit shall be transferred to such law-enforcement agency and such law-enforcement agency shall submit the physical evidence recovery kit to the Department within 60 days of receipt from the original receiving law-enforcement agency.

Terms Used In Virginia Code 19.2-11.8 v2

  • Anonymous physical evidence recovery kit: means a physical evidence recovery kit that is collected from a victim of sexual assault through a forensic medical examination where the victim elects, at the time of the examination, not to report the sexual assault offense to a law-enforcement agency. See Virginia Code 19.2-11.5
  • Department: means the Virginia Department of Forensic Science. See Virginia Code 19.2-11.5
  • Division: means the Division of Consolidated Laboratory Services of the Virginia Department of General Services. See Virginia Code 19.2-11.5
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Law-enforcement agency: means the state or local law-enforcement agency with the primary responsibility for investigating an alleged sexual assault offense case and includes the employees of that agency. See Virginia Code 19.2-11.5
  • Physical evidence recovery kit: means any evidence collection kit supplied by the Department to health care providers for use in collecting evidence from victims of sexual assault during forensic medical examinations or to the Office of the Chief Medical Examiner for use during death investigations to collect evidence from decedents who may be victims of sexual assault. See Virginia Code 19.2-11.5
  • State: when applied to a part of the United States, includes any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, and the United States Virgin Islands. See Virginia Code 1-245
  • Trace evidence collection kit: means any evidence collection kit supplied by the Department to health care providers for use in collecting evidence from victims of strangulation during forensic medical examinations or to the Office of the Chief Medical Examiner for use during death investigations to collect evidence from decedents who may be victims of strangulation. See Virginia Code 19.2-11.5 v2

B. Upon completion of analysis, the Department shall return the physical evidence recovery kit to the submitting law-enforcement agency. Upon receipt of the physical evidence recovery kit from the Department, the law-enforcement agency shall store the physical evidence recovery kit for a period of 10 years or until 10 years after the victim reaches the age of majority if the victim was a minor at the time of collection, whichever is longer. The law-enforcement agency shall store the physical evidence recovery kit for a period of 10 years following the receipt of a written objection to the destruction of the kit from the victim. After the mandatory retention period or any additional 10-year storage period has lapsed, the law-enforcement agency shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the physical evidence recovery kit no less than 60 days prior to the intended date of such destruction. In the absence of a response from the victim, or with the consent of the victim, the law-enforcement agency may destroy the physical evidence recovery kit or, in its discretion, may elect to retain the physical evidence recovery kit for a longer period of time.

C. For physical evidence recovery kits that meet the exceptions in clause (ii) or (iv) of subsection A or that meet the exception in clause (iii) and (v) of subsection A that are not transferred to the law-enforcement agency outside of the Commonwealth in which the offense occurred or to the law-enforcement agency that has taken over responsibility for the investigation related to the physical evidence recovery kit, the law-enforcement agency that received the physical evidence recovery kit shall store such kit for a period of 10 years or until 10 years after the victim reaches the age of majority if the victim was a minor at the time of collection, whichever is longer. After the mandatory retention period, the law-enforcement agency may destroy the physical evidence recovery kit or, in its discretion, may elect to retain the physical evidence recovery kit for a longer period of time.

D. A law-enforcement agency that receives a trace evidence collection kit may submit it to the Department for analysis in its discretion to support a prosecution.

E. The DNA profiles developed from physical evidence recovery kits or trace evidence collection kits submitted to the Department for analysis pursuant to this section shall be uploaded into any local, state, or national DNA data bank only if eligible as determined by Department procedures and in accordance with state and federal law.

2016, cc. 332, 698; 2017, c. 535; 2018, c. 398; 2022, cc. 453, 454; 2023, c. 312.

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