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Can DNA evidence be expunged in Virginia?

When it comes to violent crimes, a person in Virginia may be convicted based, at least in part, on DNA evidence. Other times, investigators will collect DNA evidence from a crime site, with the intent of locating or charging the alleged perpetrator. However, DNA evidence is not infallible, and sometimes a person will be charged or convicted of a crime they did not commit based on the wrong DNA evidence. When this happens, what will happen to the DNA evidence, and how will it affect the accused?

DNA evidence is often stored in local, state or federal data banks. Under Virginia Code §19.2-11.10, if it is determined in writing from a Commonwealth lawyer or a law-enforcement agency that DNA stored in a data bank does not have a connection to the criminal offense at issue, the DNA evidence will be expunged — that is, removed — from the DNA data bank. DNA evidence will also be expunged from the applicable DNA data bank if it is shown that the DNA does not match that of the putative perpetrator.

That being said, expungement of DNA evidence from a DNA data bank does not invalidate a detention, arrest or conviction of an individual based on a DNA data bank match if it is shown that the DNA was obtained and kept in the data bank in good faith. A person seeking to expunge their criminal record entirely must do so under the requirements found in Virginia Code §19.2-392.2.

If prosecutors or law enforcement officials determine that the DNA evidence being used does not match that of the accused, the DNA evidence may be removed from any and all DNA data banks. While doing so will not necessarily automatically exonerate the accused, it can be made part of the accused’s criminal defense strategy.

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