RH’s DNA Testing For Violent Felonies is a Fine Line

Written by Clarke Kent

RN, thank you for your comment appearing on the post entitles “New Email on BB sparks Debate” on 1/12/15. It was well researched and educational. It is true that saliva on tissue samples are required of a violent felony as per section 19.2-310.2.1. It is also accurate that all persons arrested for commission or attempted commission of a violent felony as defined in sec 19-2-297.1 shall have their DNA taken, to determine identification characteristics specific to the person. Futhermore as you describe, “after a determination by a magistrate or a grand jury that probable cause exists for the arrest, a sample shall be taken prior to the person’s release from custody.” The Dept of Forensic Science or other entity designated by the department shall perform the analysis and store in a DNA data bank.

The fine line Justice believes lies in what is considered a violent felony. Does assault and battery reach the level for mandatory DNA surrender of DNA by the person arrested? Justice has mentioned that we believe the level for mandatory surrender of DNA must include a violent felony that reaches the level of malicious wounding. If the felony arrest does not reach that malicious wounding plateau, DNA is not mandated. It would be great if we can qualify the violent felonies for mandatory DNA. Maybe, just maybe CT, MS2, MH and LJP arrest do reach the level of violent felony with malicious wounding.

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12 Responses to RH’s DNA Testing For Violent Felonies is a Fine Line

  1. Moles says:

    I do believe they do as they want a lot of times. Since 9/11 rules changed. Depending on the crime and number of times they can ask for a sample but you have forty eight hours to give it to them after that you are saying in essence that you are not gong to do it. Then it becomes mandatory of course with LAWYERS INTERVENING whatever good that does. Depending on the circumstances they will do it for misdemeanors depending on level and number of crimes. JMO opinion but I think they should sample at birth that way people know and it is understood once it’s in the data base there would be less crime. JMO opinion again I think we should go to fingerprints to purchase all goods that way most of these petty crimes would go away like fraud and identity theft. The banks and such lose so much money everyday. But that wouldn’t happen because Virginia Beach courts and jails would then lose money what makes sense we don’t do. To deter means to take action but that’s a dream that the courts, and jails cannot afford. How much money was made last month in Virginia Beach courts in the form of fees and court costs and jail costs? Systems and programs are making HUGE profits off of people mainly making $7.25 an hr. Who are the biggest payers of that system, middle class to poor most likely. Soon everyone in Virginia Beach will be imposed a fee, pay a fine of some kind or will pay the courts for some reason. They are not worried who does a crime really just as long as someone pays the fine. Truth there is none in the courtroom even when innocent and they can prove marginally, against, you are considered guilty. Sorry about the rant but we have the means to correct behavior but we are not interested in that we would rather pay fees and make the courts rich so people that work in these jobs can stand and dictate the form of justice they want because not enough people stand up and have there voices heard. This is why Shellie’s murder has not been solved not because it’s not important, it is because no one has the time to commit to the case it makes more sense to go after crimes that make the money to house inmates in the city jail. If we lessened crime we would have to lay people and jobs off now would that make sense? We would rather pay people to sit on Social Security, welfare, food stamps and provide people free stuffs rather than to correct behavior. These are people that have degrees that know what is best for us I think we need smarter people don’t you? Shellie’s murderer will be found with LE and citizen help. There is a hero that knows who murdered Shellie and they need to come forward. Just think of all the people that would want to meet this person. Personally I would want to shake the hand that provided closure to this family and so would others. Hero’s are needed here who will it be for Shellie? People are reading this and are getting heated up in different ways because they can’t stop what people are doing and working so hard to achieve. Justice will find you the murderer you will not be able to hide forever so keep reading the blog, and hiding.

  2. inquiring mind says:

    Aggrevated Malicious Wounding, as defined by Va law. This is the charge/conviction in which describes the need for DNA testing of the offender. This malicious wounding charge is considered as severe an offense as murder. There IS a fine line between this reasoning of charge and DNA collection to the reasoning of Unlawful Wounding & Battery. While they are close in description they are far from the same, thus one by law requiring collection of DNA and the other felony being treated as severe but unintentional. By intent and unintentional I mean that one was proved or suspected to be the means to cause permanent damage and maiming by voluntarily inflicting such damage with full intent and want of the malicious and permanent wounding. The other is to be considered temporary wounding, or attempt of temporary wounding, as an after effect of provocation and proven to have not been premeditated or malicious. Then we have the lesser of the violent crimes, Assault and battery, which is a misdemeanor and resulting in less violent behavior and outcome.

    Aggrevated Malicious Wounding and Unlawful wounding and Battery are felonies as a result of the wounding or intent of wounds. Assault and Battery and Domestic Violence are misdemeanors of the touch, simply the act of simply assaulting and inflicting harm without the intent of maiming or actual physical wounding. Basically, if one is to punch someone 1-3 times or so with such force it draws blood and then stopping or is pulled away it would be assault. If one was to hit and only cause organ wounding or bruising of the skin it is considered assault. Inflicting such damage as to draw blood intently and deliver multiple blows while showing restraint or being restrained before serious or permanent damage has been caused, also being a result of provocation, is considered Unlawful wounding (class 6 felony). This is typically lasting the same small amount of time as a midemeanor assult or being equivalent to the same purpose of a misdemeanor assault but inflicting more damage and taking more violent approach. Malicious wounding is that of no restraint, inability to view wounding as a means to an end, and generally using a weapon of any sort. The severe wounding is the goal of malice, unlike the other assault types where aggression is the result. Bare fists can be considered as a weapon IF the amount of blows go beyond the result of aggression and are intended to cause such severe and likely permanent damage, maiming, or death. It is least likely a fist to be considered malicious unless it can be found the intent was to kill or inflict altering of the body.

    Shellie would be a good example of intent to cause malicious wounding resulting in murder. A weapon was used, the blow count was high enough to prove intent of maiming and not aggression. Restraint was lacking by unwillingness to stop the beating before further damage was caused.

    CT, MS2, and so forth have not been charged with malicious wounding due to the facts that fists were used, not enough damage has been caused, and they were stopped by another or showed restraint of their own. In my opinion, one probably could not cause malicious wounding without a weapon due to lack of strength while the other can cause it with strictly fists but has been unable for knowledge of DNA collection becoming evident and a repeat of Shellie. One of them cannot control their need to cause bodily harm while the other is simply aggressive and cannot control his temper. However, the cause for such charging has not been met thus not requiring a DNA sample.

    • inquiring mind says:

      § 18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.
      If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
      (Code 1950, § 18.1-65; 1960, c. 358; 1975, cc. 14, 15.)

    • inquiring mind says:

      Offenses requiring a DNA sample upon arrest
      (effective 1/1/03)

      Violent Felonies
      18.2-18 Principal in the second degree or accessory before the fact to any violent felony (use the appropriate code section below)
      18.2-22 Conspiracy to commit any violent felony (use the appropriate code section below)
      18.2-31 Capital murder
      18.2-32 First and second degree murder
      18.2-32.1 Murder of a pregnant woman
      18.2-33 Felony murder
      18.2-35 Voluntary manslaughter
      18.2-40 Lynching by mob
      18.2-41 Unlawful or malicious wounding by mob
      18.2-47 Abduction and kidnapping
      18.2-48 Abduction with intent to extort money or for immoral purpose
      18.2-48.1 Abduction by a prisoner
      18.2-49 Threatening, attempting or assisting in abduction
      18.2-49.1 Withholding child out of state in violation of custody or visitation order
      18.2-51 Malicious wounding or malicious bodily injury
      18.2-51.1 Malicious wounding or malicious bodily injury to a law enforcement officer or firefighter
      18.2-51.2 Aggravated malicious wounding or aggravated malicious bodily injury
      18.2-52 Malicious bodily injury by means of a caustic substance
      18.2-52.1 Possession of infectious biological substances or radiological agents
      18.2-54.1 Administering or attempting to administer poison with intent to kill or injure another person
      18.2-54.2 Adulterating food, drink, drugs, cosmetics, etc. with intent to kill or injure
      18.2-58 Robbery
      18.2-58.1 Carjacking
      18.2-61 Rape
      18.2-63 Carnal knowledge of a child between 13 and 15 years of age
      18.2-64.1 Carnal knowledge of certain minors
      18.2-64.2 Carnal knowledge of an inmate, parolee, probationer, detainee or pre or posttrial offender
      18.2-67.1 Forcible sodomy
      18.2-67.2 Object sexual penetration
      18.2-67.2:1 Marital sexual assault
      18.2-67.3 Aggravated sexual battery
      18.2-67.4:1 Infected sexual battery
      18.2-67.5 Attempted rape, attempted forcible sodomy, attempted object sexual penetration, or attempted aggravated sexual battery
      18.2-67.5:1 Third offense sexual battery (18.2-67.4), attempted sexual battery (18.2-67.5(C)), consensual intercourse with a child (18.2-371), or indecent exposure (18.2-387) in a ten year period
      18.2-77 Arson of an occupied structure
      18.2-79 Burning or destroying of occupied meeting house, etc.
      Burglaries
      18.2-89 Burglary
      18.2-90 Entering dwelling house, etc. with intent to commit murder, rape or robbery
      18.2-91 Entering dwelling house, etc. with intent to commit larceny, assault & battery or other felony

  3. RN says:

    Great work Inquiring Minds. so the charges that anyone has for A&B does not fall under any of those conditions listed above.
    Again awesome work and thanks for posting it for all to read for themselves

  4. Moles says:

    For Reading Pleasure——Supreme Court DNA Ruling’s Effect in VA
    Posted: Jun 19, 2013 6:04 PM EDT
    Updated: Jul 03, 2013 6:43 PM EDT
    The Supreme Court’s recent ruling that expands permission for police to take DNA swabs following an arrest is affecting state laws across the country.

    Before the Maryland v. King ruling, Virginia law already permitted police to take DNA tests from those arrested for serious offenses. The ruling effectively expanded that to all arrests. Now, law enforcement and legal experts are weighing in about what will happen in Virginia.

    “A third of Americans have been arrested for something,” said Brandon Garrett, a UVA law professor.

    Right now, the law in Virginia requires DNA testing for people arrested for serious offenses. But a few weeks ago, the Supreme Court upheld a broader standard, one that allows DNA testing when arrests are made even for relatively minor offenses.

    Garrett has commented in national publications about the ruling: “We now have opened the gates to a nearly universal DNA databank in this country where people’s DNA can be stored indefinitely and searched against any unsolved crime in the country.”

    Albemarle County Sheriff Chip Harding has been instrumental in developing Virginia’s DNA database. Nicknamed “the DNA dude,” Harding helped get felon DNA processed, and as a result the crime-solving rate in Virginia drastically improved. Now, he is advocating for change in Virginia law.

    “I’m advocating with those that are running for office and some elected officials now to consider legislation to expand taking DNA from convicted misdemeanors in Virginia,” said Albemarle County Sheriff Chip Harding.

    So people not only arrested for felonies, but convicted of criminal misdemeanors could also be tested under Harding’s proposal. He says serial killers and rapists would have been caught earlier if this proposal was already in place.

    But legal experts say it’s the federal government – more than Virginia – that has a stake in DNA testing.

    “The FBI is building a huge computer base of DNA virtually of every American citizen so if you want to look into the future all of us will have some kind of DNA sample on file,” said John Whitehead, president of the Rutherford Institute.

    Harding says neither today’s law nor his proposed changed law would permit DNA testing for minor infractions. So, for right now, no DNA testing for arrests or convictions of minor traffic violations, trespassing or disorderly conduct. But experts say even this is subject to change by the Supreme Court’s decision.
    They have started!!!!!!!!

    • inquiring mind says:

      No, they have not started in Va. Perhaps you felt you read this correctly or have done “enough” research. This is a “proposed” bill. Which means it is merely a suggestion as of now and has not yet passed or possibly heard. The actual bill has not even been submitted until January 8, 2015. Yes, you see that correctly, this month of this new year. It was only a thought in this state until this year. The bill is expected to be heard January 28th in the Virginia House Court of Justice Committee. There are a lot of concerns and doubts surrounding this bill, which will cover more violent felonies and including violent misdemeanors and some possible major traffic violations. It is also a question of arrest or conviction being required for collection of DNA in the expansion.

      IF passed and accepted promptly, we may not see this in effect in Virginia until possibly 2016, if not later. The major issue with the expansion of included charges/convictions allowing DNA collection are that they will NOT include past arrests and/or convictions due to constitutional rights and privacy acts. This means if you have priors no official can or will be able to simply ask for your DNA just because your past charges meet new criteria. Since 1990 Va has collected over 200,000 samples of DNA from offenders meeting the criteria I posted earlier. IF this bill passes and eventually becomes a law, Shellie’s killer(s) still may not end up in the database. Why? They will need to commit, yet another, crime to finally meet collection standards. These guys are stupid yet smart. They have managed to not get caught on a lot of what they do that would require testing and have managed to find some sort of restraint to avoid meeting DNA collection status. Having family members as their consulting attorney on this murder has taught them a lot and what not to do.

      I have no doubt MS2 will indeed end up having to give a sample SHOULD this bill pass into a law. This will be a great victory as I am also sure it will be a great match! However, should the bill pass with modifications (altering the specific charges or requiring conviction prior to collection) some of the conspirators or co-murderers may not be “strong” enough to meet criteria for collection…… their hits and punches being comparable to those of a 1 year old. I imagine as greedy as this state is, and as cautious as it is about it’s image, the cost of DNA collection for every offender (arrest or conviction) will be considered a loss to the state and in turn shut down and returned as nay. Yes! This will be a great law if ever made reality. It will clear up too many cases of so many kinds by offenders who have not been repeats of the same crime but repeats of the system in general. This law could also be a great devastation to cases and convictions being that anyone can leave their DNA anywhere and at any time causing it to be entered into evidence on a certain case and leading to wrongful arrests and possible convictions. For example, one of us goes to pick up our child at a daycare or babysitter. Our child, an infant, puts their hand into our mouth like infants sometimes do, they then touch the sitter’s face when saying good bye. Sitter is later murdered in the parking lot or at home, or raped or what have you. DNA is collected off of the face as fluids are seen. Saliva is a good sample of DNA and often attributed to guilt or suspicion. Boyfriends and husbands are often in this position due to bodily fluids including saliva. If your DNA is entered in the database or already is, it will hit and your story better be upheld by video footage of said child taking your saliva and placing it on the sitter. Also, the hope of proper DNA collection from the victim must be taken into account otherwise the CA has reasonable doubt and cannot proceed. Not all investigators and medical examiners are so thourough as to mark and be exact of specific locations of evidence found. Here is an example of that: saliva is found on the neck or face. It is generally stated the part of body and if being more meticulous it would state a side (left or right). It would need to be clearly stated exactly where on the neck or face and as detailed as it can be to dispell any doubt that it may or may not be 1-10 different people who have their samples on a victim. The saliva being found 3/4″ to the left of the right side of mouth and 1/8″ upward at a 70° angle toward the ear as opposed to nose. Why is this important? Because a child can leave Mom’s DNA, or sister can give a good bye kiss and leave DNA, attacker can sneeze spit or cough maybe worse and leave DNA. At this point there are atleast 3 suspects who’s DNA has qualified them as suspects in the case and verification of placement is needed to rule out and include evidence to the contrary.

      Police work, forensics, etc. is not as easy as taking some spit and arresting someone. The need to place that exact DNA on a person or object and in exactly the needed spot without further evidence stating a valid reason the DNA was there is extreme and well thought of and serves to benefit many of us. My DNA is in my bank and for good reason. Should that bank be robbed I will be covered by video surveillance showing where I left my DNA and why, excluding me as a suspect.

      This bill is one of millions every day showing interest in many state and national courts. Less than 5% of bills entered rarely pass. Another issue with this proposed bill that has yet to see a judge, the state is not the only level of law enforcement and in need of DNA. Federal law has a great need for DNA and has a database of it’s own. The FBI would need to have access to all state level DNA collections. Dept. of Homeland will need access. Other states need access. It is true other states are collecting at different less severe levels of crimes, however, if proper research is done you will see the need for collection is at a higher demand due to crime rates and population. Also, these other states are not asking to collect at such low levels and/or are not collecting prior to conviction at certain levels to prevent an overload and needed to sift thru years of data search to make a match. Virginia and the crime rate are far from inner city and poverty level crime resulting in higher severe violent rates. This is a quiet, rich, and petty suburb. The entire state. Richmond is our largest city with a crime rate lower than that of a smaller suburb.

      Let us not forget that a constitutional right to privacy and invasive search and seizure still stand and is a hurdle needing to be jumped at a very cautious rate. Properly adding a new law MUST be in a way that does not violate the U.S. Constitution. All citizens and residents, even incarcerated, have rights and are entitled to them. If at any moment the govt. denies anyone the right given them by the Constitution it poses a great hearing in the U.S. Supreme Court with a lawsuit and major reprocutions should it be found a person’s rights were violated or denied in any state, matter, or capacity.

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