By FRED CONNORS - Senior Staff Writer , The Intelligencer / Wheeling News-Register

CHARLESTON - Controversial legislation that is gaining traction in statehouses across the country has found its way to Charleston.

House Bill 2858 calls for mandatory pre-trial collection of DNA samples from anyone arrested for a felony but not yet convicted. The bill provides for an expungement procedure if the felony charge is dismissed or in the event of an acquittal. Current West Virginia law mandates DNA collection only upon conviction.

"Katie's Law," also known as the Katie Sepich Enhanced DNA Collection Act of 2010, prompted the national movement. It is a federal statute providing financial incentives to states implementing enhanced DNA collection processes for felony arrests.

Delegate John R. Frazier, D-Mercer, introduced the bill in West Virginia.

"It is a way for the state to build a larger DNA database," he said. "It is not very invasive and it will help police in their investigations."

Delegate Michael Ferro, D-Marshall, a co-sponsor of HB 2858 said, "It increases the state database and adds to law enforcement's ability to investigate and prosecute serial criminals, and to prevent future crimes."

Both lawmakers are on the House Judiciary Committee where the proposal currently resides. Frazier said the bill is a carry-over from last year and he is not sure if it will clear committee and make it to the floor during this legislative session. According to the Legislature's rules, the bill must clear House Judiciary today or it will be done for the session.

While proponents view the measure as being tough on crime, opponents see it as an invasion of civil rights.

Ohio County Prosecutor Scott Smith favors DNA sampling of those arrested for felonies but believes it should be limited to alleged violent offenders.

"I would limit it to those who are arrested for certain felonies such as violent crimes, sexual assault and burglary," he said. "People who engage in those types of crimes are more likely to be involved in other criminal activities; and it is more likely that a statute that is limited in its scope can pass constitutional tests. A statute limited to those crimes is targeting people who may be serial killers, serial rapists and pedophiles and is not simply targeting all persons arrested for a felony."

Smith said if lawmakers are considering the bill, they should include increasing funding for DNA testing.

"We already have a backlog in DNA processing and this will increase the burden," he said.

Joseph Giacalone, a retired detective sergeant and former commanding officer of the Bronx Cold Case Squad in New York City, said the legislation "is a huge win for law enforcement and cold case detectives. Expanding the database provides them with the opportunity to close even more cases and apprehend suspects faster. It prevents further victimization and exonerates the innocent. Since most cases are pleaded out to lower charges, offenders often skirt the DNA sample measure because their felony gets reduced to a misdemeanor."

Ohio Attorney General Mike DeWine noted a similar bill was signed into law last year in Ohio.

DeWine said, "132 cold case crimes now have a prime suspect through a DNA match made possible only because of (Ohio) Senate Bill 77 requiring DNA collection on all felony arrestees. With seven months of data, we now see how SB 77 is helping us identify more bad guys who just might have gotten away with their crimes had it not been for the new law."

Some Wheeling criminal defense attorneys take issue with HB 2858.

"I find it appalling that the government can get a DNA sample based upon an accusation," said attorney Robert McCoid.

He said collection of DNA upon arrest constitutes an invasion of privacy that is subject to analysis under the Fourth Amendment, which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.

"This is Orwellian and reeks of '1984,'" McCoid said.

McCoid also finds fault in the DNA expungement process if charges are dropped.

"It says a person may apply for expungement; and that pre-supposes that it can be denied," he said. "And, when you consider filing fees, court costs and attorney fees, it could cost a person up to $1,000 for something he didn't do."

The expungement process is not included for defendants who cannot afford a private attorney. Shane Welling, chief defender for the First Judicial Circuit Public Defenders Corp., said "expungement is a civil matter and is not something we do."

"My concern is that we are going to have people getting arrested for no other reason than to get their DNA in a database," said attorney Martin Sheehan. "The government just wants data."

He said the U.S. Supreme Court has ruled that law enforcement has a right to document observable characteristics such as height, weight and eye color, and to ask for a person's name, address, age and date of birth without violating his Miranda rights.

"DNA sampling upon arrest raises an issue of how much of an intrusion law enforcement is allowed to make into your body," Sheehan said. "Everybody has a right to be left alone. This is an erosion of civil liberties not consistent with the Constitution."

While 26 states and the federal government have enacted similar statutes, the laws are not uniform among the states. Several require a probable cause hearing before DNA samples can be loaded into a database, some pertain to arrest for any felony and others apply to only violent offenses. States laws also vary on whether juvenile arrestees must submit.

According to the National Institute of Justice, all states with laws allowing DNA sampling upon arrest provide a way to expunge profiles if an arrest does not result in a conviction. Nine states automatically expunge a DNA profile if there is no conviction. Others require the person to request expungement.

NIJ also reports the legislation has raised concerns that crime laboratories may be unable to manage an influx of samples from a new source.

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Bill Calls for DNA Sampling Upon Arrest