Chapter 40. Regulations for the Implementation of the Law Permitting DNA Analysis Upon Arrest for All Violent Felonies and Certain Burglaries
Part I
Definitions and General Provisions
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 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.
"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.
"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.
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-10 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-10, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; Volume 39, Issue 4, eff. November 9, 2022.
6VAC40-40-20. Substantial compliance.
These regulations and the procedures set forth herein relating to the taking, handling and identification of saliva or tissue samples, and the completion or filing of any form or record prescribed by these regulations, are procedural in nature and not substantive. Substantial compliance therewith shall be deemed sufficient.
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-20 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-20, Virginia Register Volume 22, Issue 10, eff. February 22, 2006.
Part II
Qualifying Offense Warrants
6VAC40-40-30. Qualifying offense warrants.
All warrants for qualifying offenses shall contain the following language: "Take buccal sample if DNA data bank sample tracking system shows no DNA sample in Data Bank."
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-30 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-30, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; Volume 39, Issue 4, eff. November 9, 2022.
Part III
DNA Data Bank Sample Tracking System
6VAC40-40-40. Use of DNA data bank sample tracking system.
An Internet accessible DNA data bank sample tracking system developed by the department shall be used to determine if a DNA sample already exists in the data bank. Access to the system shall be granted by the department to all user agencies responsible for taking saliva or tissue samples from arrestees.
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-40 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-40, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; Volume 29, Issue 19, eff. June 20, 2013; Volume 39, Issue 4, eff. November 9, 2022.
6VAC40-40-50. Screening for duplicates.
Prior to taking the saliva or tissue sample, the DNA data bank sample tracking 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 system indicates that a sample already exists in the data bank, no additional sample shall be taken. If the DNA data bank sample tracking 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.
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-50 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-50, Virginia Register Volume 22, Issue 10, eff. February 22, 2006; Volume 39, Issue 4, eff. November 9, 2022.
Part IV
Procedures for Taking Saliva or Tissue Sample
6VAC40-40-60. Collection of samples.
The samples shall be collected during booking by the sheriff's office, police department or regional jail responsible for booking upon arrest.
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-60 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-60, Virginia Register Volume 22, Issue 10, eff. February 22, 2006.
6VAC40-40-70. Buccal sample kits.
Saliva and tissue samples shall be collected using buccal sample kits specified and distributed by the department. Each buccal sample kit shall contain a submission form, at least one buccal sample collection device and instructions on the procedure for using the device. These instructions shall be followed when collecting the buccal samples.
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-70 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-70, Virginia Register Volume 22, Issue 10, eff. February 22, 2006.
6VAC40-40-80. When buccal sample kits are unavailable.
In circumstances where a buccal sample kit is unavailable, the department may accept samples collected without using the buccal sample collection devices contained in the buccal sample kits. These samples shall be collected through the use of sterile swabs and satisfy the sealing and labeling requirements of 6VAC40-40-90.
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-80 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-80, Virginia Register Volume 22, Issue 10, eff. February 22, 2006.
6VAC40-40-90. Sealing and labeling samples.
All saliva and tissue samples collected shall be placed in sealed, tamper-resistant containers. Samples shall be submitted with the following identifying information: the arrestee's name, social security number, date of birth, race and gender; the name of the person collecting the samples; the date and place of collection; information identifying the arresting or accompanying officer; the qualifying offense; and the document control number (DCN).
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-90 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-90, Virginia Register Volume 22, Issue 10, eff. February 22, 2006.
6VAC40-40-100. Transportation of samples to the department.
Samples shall be transported to the department in sealed containers not more than 15 days following collection. A copy of the arrest warrant or capias shall be included with the sample when it is transported to the department. Samples may be hand delivered or mailed to the department.
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-100 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-100, Virginia Register Volume 22, Issue 10, eff. February 22, 2006.
Part V
Notification of Final Disposition
6VAC40-40-110. Notification of final disposition.
Timely submission of the final disposition of a qualifying offense to CCRE by the clerk shall satisfy the requirement that the clerk notify the department of final disposition of the criminal proceedings under § 19.2-310.2:1 of the Code of Virginia.
Statutory Authority
§ 9.1-1110 of the Code of Virginia.
Historical Notes
Formerly 6VAC20-210-110 derived from Virginia Register Volume 20, Issue 23, eff. August 26, 2004; amended and renumbered as 6VAC40-40-110, Virginia Register Volume 22, Issue 10, eff. February 22, 2006.