Pursuant to Virginia Code § 9.1-1104, “[i]n any case in which an attorney of record for a person accused of violation of any criminal law of the Commonwealth, or the accused, may desire a scientific investigation, he shall, by motion filed before the court in which the charge is pending, certify that in good faith he believes that a scientific investigation may be relevant to the criminal charge.” Should the Court grant the motion, the Court can order that the scientific analysis be performed by DFS or the Division of Consolidated Laboratory Services. Please note that these are two separate state entities. Information regarding the Division of Consolidated Laboratory Services can be found here.
The Department can perform any laboratory analysis that is within its scope of accreditation. Please consider these factors regarding the Department’s ability to successfully comply with the Court’s Order:
Is the evidence in the custody of a law enforcement agency?
The order should designate a law enforcement agency to properly package, transport, and submit the evidence to the Department.
Has any analysis already been performed on the item of evidence?
Once certain analyses have been conducted on an item of evidence, the Department may not recommend further analyses be conducted. For example, the Department’s procedures require that an item of evidence be examined first for DNA before it is the subject of any other forensic examination. If drug evidence has already been examined by the Controlled Substances Section, the Department will not recommend a DNA examination be conducted because the item of evidence has not been handled in a fashion to preserve potential DNA evidence and has been potentially compromised.
Is the requested scientific analysis within the Department’s scope of accreditation?
The Department may not conduct a scientific investigation that is beyond its accreditation scope or for which it does not have a validated procedure. Please feel free to contact the Department to determine whether it is able to conduct the requested scientific investigation before having the Court enter such an order.
Are any known standards required to be submitted with the evidence for the particular analysis requested?
For DNA examinations, the Department must have any necessary reference DNA sample(s) submitted for comparisons. Under current National DNA Index System (NDIS) procedures, the Department may not utilize Data Bank samples as reference samples for comparisons. Appropriate suspect sample(s) and any required elimination samples must be submitted for the completion of the examination.
Please note that the Department will move to have a Court reconsider any order that requires the Department to upload and search a developed DNA profile against the Data Bank that is not eligible for upload and searching under the NDIS Operational Procedures Manual. Failure of the Department to follow the NDIS guidelines could result in a matched profile being removed from the national database and cause the Department to violate its Memorandum of Understanding that permits its participation in the Combined DNA Index System (CODIS).
Does the order provide for the transfer and return of evidence to the Department by the law enforcement agency?
Without an order to do so (and being provided a copy of that order), the local law enforcement agency will not be aware of the need to transfer the evidence to DFS. Model orders are available to assist you with the appropriate language.
If there are any concerns with the order issued by a court and the Department’s ability to comply, Department Counsel will discuss those concerns with the requesting attorney. If unable to reach an agreement regarding the order, Department Counsel will notify the court of the Department’s concerns, and the Office of the Attorney General may file a motion with the court to reconsider the order.
The Department conducts the required scientific analysis pursuant to the court’s order on an expedited basis upon receipt of the evidence. Once completed, the results of the analysis (the Department’s Certificate of Analysis) are returned to the clerk of court so that the court is advised that the Department has complied with its order. A copy of the Certificate of Analysis will be provided to the defense attorney or the defendant if acting pro se. If the order so indicates, the Commonwealth’s Attorney has endorsed the order, or the Commonwealth’s Attorney has subsequently requested a copy of the results pursuant to Virginia Code § 9.1-1104, a copy will be provided to the Commonwealth’s Attorney. Law enforcement is notified, once the testing is completed, that the evidence is available for return to the submitting agency.