Administering Entity
Virginia Department of Forensic Science (DFS)
Recent / Pending Legislation
- HB 1295 – (2026, continued to 2027) – targets algorithmic transparency, explicitly including (as ‘covered AI systems’), FGG.
Arrestees: Yes, from adults and minors (by implication). Not Booking Station Rapid Ready, probable cause/charges required
Qualifying Crimes: Violent felonies, plus violations or attempts of enumerated other offenses, including the criminal code provisions on aggravated murder; burglary; entering with intent to commit murder, rape, robbery, arson, larceny, assault and battery, or another felony; and breaking and entering with intent to commit another misdemeanor.
Time of Collection: After a probable cause determination by a magistrate or grand jury, and before release from custody. No additional sample is taken where the Department of Forensic Science sample tracking system shows one already stored in the data bank.
Expungement: Automatic – the clerk of the court notifies the Department of Forensic Science when the case is dismissed or the defendant is acquitted, provided no other qualifying arrest warrant or qualifying conviction is pending.
Statutes / Case Law
VA Code § 19.2–310.2:1. Saliva or Tissue Sample Required for DNA
Analysis After Arrest for a Violent Felony
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)
Convicted Offenders: Yes.
Qualifying Crimes: Any felony, plus these enumerated misdemeanors: Violating certain protective orders; Simple assault and battery; Stalking; Sexual battery; Infected sexual battery; 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 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
Time of Collection: Collected before release from custody. A person not sentenced to confinement provides DNA as a condition of the sentence. No additional sample is taken where the tracking system shows one already stored in the data bank.
Expungement: By written request with a certified copy of the court order showing the conviction was reversed and the case dismissed.
Statutes / Case Law
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
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).
Legislative History
1989 — Original Enactment Virginia was the first state in the nation to pass a DNA database law. The original 1989 Act applied only to persons convicted of Article 7 sex offenses (§ 18.2-61 et seq.). The “July 1, 1989” date referenced in the current text of § 19.2-310.2 is the direct trace of this act.
1990, c. 669 — Expansion to All Felons This act created §§ 19.2-310.2 through 19.2-310.6 in their original codified form and expanded the DNA collection mandate from sex offenders to all felony convictions effective July 1, 1990. This is the foundational codified act for the entire DNA data bank program. It is not available in the Virginia LIS (which only has session records back to 1994).
1993, c. 33 — Amendment An amendment to § 19.2-310.2; the text is not retrievable through the LIS.
1996, c. 952 – S 593 Both approved 1996. Reorganized the Division of Forensic Science, transferring it into Chapter 27 of Title 9 and repealing its prior location in Title 2.1. Updated § 19.2-310.2 accordingly. These are administrative restructuring bills, not expansions of collection scope.
1998, c. 280 – S 208 Approved April 8, 1998. Amended §§ 16.1-299.1 and 19.2-310.2 through 19.2-310.5, tightening procedures for withdrawal, labeling, transport, and maintenance of DNA samples. Also extended the conviction-based mandate to juveniles adjudicated for felony-equivalent offenses.
S 535 → 2002 Acts of Assembly, Chapter 753 Approved April 7, 2002. Senate bill. Created § 19.2-310.2:1 requiring saliva/tissue DNA sampling of persons arrested for violent felonies. Effective January 1, 2003.
H 2661 → 2003 Acts of Assembly, Chapter 150 Approved March 16, 2003. Added grand jury as an alternative to magistrate for probable cause determination; clarified destruction of samples when no other qualifying warrant or conviction exists; changed collection location from magistrate-designated to law-enforcement booking agency.
H 776 → 2004 Acts of Assembly, Chapter 445 Approved April 12, 2004. Expanded coverage to include attempted commission of violent felonies and attempted violations of §§ 18.2-89 through 18.2-92 (burglary offenses).
H 2216 → 2005 Acts of Assembly, Chapter 881 Enacted March 28, 2005. Large omnibus bills creating the standalone Department of Forensic Science (replacing the Division of Forensic Science under DCJS). Updated all references in § 19.2-310.2:1 from “Division” to “Department.”
H 821 → 2020 Acts of Assembly, Chapter 87 Approved March 3, 2020. Most recent amendment (text of change to be confirmed in the enrolled bill, but the statute’s current form reflects this final version).
- No program or law identified, except for use documented below:
- 2022, Rapid DNA (ANDE) has been used for reference samples (compared to crime scene)
- https://vsp.virginia.gov/sections-units-bureaus/bci/general-investigation-section/
- https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=3208&context=lawreview
No program or law identified.
No program or law identified. But, media attention: Gaps in DNA databanks have led to tragedy – HeraldNet (2009)
No program or law identified.