DNA evidence has become routine in criminal investigations in Virginia and other states. However, DNA evidence is not infallible and can sometimes lead to wrongful accusations.
If you have been arrested and DNA evidence has been collected against you, you may worry about its impact on your future. Fortunately, an experienced Virginia criminal defense attorney may be able to assist you in having DNA evidence expunged from the DNA database.
Why Would You Want Your DNA Evidence Expunged?
Having your DNA evidence stored in the Virginia DNA database would give the police access to your DNA and allow them to see if DNA evidence collected at a crime scene could be matched to yours. Especially if you were wrongly accused of a criminal offense, you would not want to give law enforcement officers free access to your DNA.
When Can DNA Evidence Be Expunged in Virginia?
DNA evidence is collected in many criminal investigations. The police are required to obtain a DNA sample when a person is arrested for a violent crime or is convicted of a felony or some misdemeanors in Virginia. However, you may be able to get DNA evidence expunged in certain circumstances. These can include:
- No connection between DNA and the crime. If you can show that the DNA evidence collected does not establish a connection between you and the crime in question, you may be eligible to have your DNA evidence expunged. This can be demonstrated through a lack of match or other evidence that disproves the DNA link.
- Innocent and received a pardon. If you have been wrongfully found guilty of a crime and subsequently received a pardon, you may be able to have your DNA evidence expunged. A pardon is a governmental act of forgiveness by the Governor of Virginia.
- Conviction reversed. If your conviction has been reversed on appeal or through other legal means, you may get your DNA evidence expunged. This can include cases where new evidence comes to light or errors in the legal process are discovered, leading to a reversal of the conviction.
How Can You Get DNA Removed From the Virginia DNA Database?
The process of getting DNA evidence removed from the database in Virginia can vary depending on the circumstances. Ways to get your DNA expunged include:
- Automatic removal. Under Virginia Code §19.2-310.2:1, the Clerk of the Court must notify the Department of Forensic Science of the outcome of any violent felony criminal case. If the criminal charges against you are dismissed, or you are acquitted of the crime, the DNA evidence collected should be automatically removed from the database unless there is an outstanding warrant or criminal charges against you.
- Request by you or the government. If your DNA evidence is not associated with the crime at issue or is not the DNA of the perpetrator of the crime, your DNA can be removed from the database if the prosecutor or your criminal defense attorney notifies the Department of Forensic Science of this in writing. Virginia Code §19.2-11.10 requires the Department to destroy your DNA evidence in this situation.
- Request by you. You can request that your DNA evidence be expunged under Virginia Code §19.2-310.7 if your conviction is reversed and the criminal case against you is dismissed. Your request is much more likely to be granted if a knowledgeable criminal defense lawyer represents you.