Virginia Felony Classes and DNA Collection Laws

Virginia sorts felonies into six classes, from Class 1 at the top to Class 6 at the bottom, with penalties running from life without parole down to one year in prison. The Commonwealth also runs one of the most aggressive DNA programs in the country: a sample is taken from anyone arrested for a violent felony or burglary, and from every person convicted of any felony, with the resulting profile uploaded to both a state data bank and the federal CODIS system. Together, Virginia felony classes and DNA collection form a single pipeline that starts at arrest and can follow a person for life.

The Six Felony Classes and Their Penalties

Virginia Code § 18.2-10 sets the punishment for each class. For Classes 1 through 4, the court must impose prison time, either alone or combined with a fine. A fine-only outcome is not available at the top four tiers.¹

Class 1: Life imprisonment with no eligibility for parole, good-conduct credits, or conditional release, plus a possible fine of up to $100,000. Virginia abolished the death penalty in 2021, so life without parole is now the ceiling.
Class 2: Twenty years to life in prison, with a possible fine of up to $100,000.
Class 3: Five to twenty years in prison, with a possible fine of up to $100,000.
Class 4: Two to ten years in prison, with a possible fine of up to $100,000.
Class 5: One to ten years in prison. The jury or judge may instead impose up to twelve months in jail, a fine of up to $2,500, or both.
Class 6: One to five years in prison, with the same discretionary alternative as Class 5: up to twelve months in jail, a fine of up to $2,500, or both.

Class 5 and Class 6 offenses are often called “wobblers” because of that sentencing choice. The lighter sanction is real, but it does not change what the conviction is. A Class 5 or Class 6 conviction remains a felony on your record whether the court chose prison or the jail-and-fine route, and every collateral consequence of a felony still attaches.¹

Unclassified Felonies

Not every felony falls into the Class 1 through Class 6 structure. Certain drug offenses and regulatory crimes carry their own sentencing ranges written into the statute that defines the offense. These are called unclassified felonies, or “Class U” felonies. The lack of a class number does not soften the conviction. A Class U felony still triggers DNA collection, firearm prohibitions, and every other obligation that follows a felony record.

When DNA Is Taken at Arrest

Virginia does not wait for a conviction in certain cases. Under § 19.2-310.2:1, every adult arrested for a violent felony or for burglary must provide a saliva or tissue sample. The statute reaches burglary offenses defined in §§ 18.2-89 through 18.2-92, capital murder under § 18.2-31, and any violent felony listed in § 19.2-297.1, a definition that pulls in murder, robbery, rape, malicious wounding, kidnapping, and carjacking, among others.²

The sample is not taken the instant handcuffs go on. Collection happens after a magistrate or grand jury confirms probable cause, and it must occur before you are released from custody. The Department of Forensic Science then develops a profile and uploads it to the state DNA data bank, where it becomes searchable against unsolved-case evidence well before any trial takes place.²

When DNA Is Taken After Conviction

A conviction triggers a separate and broader mandate. Under § 19.2-310.2, every person convicted of any felony must provide a blood, saliva, or tissue sample. This applies to every class, including unclassified felonies. The statute also sweeps in people convicted of certain misdemeanors, including assault and battery, stalking, sexual battery, trespassing, and some protective-order violations.³

If your sentence includes prison, the sample is taken before you are released. If it does not include confinement, providing the sample becomes a condition of the sentence. The obligation does not expire. If a sample was never collected or was lost from the data bank, you still have to submit one.³

Virginia charges a $53 fee for the sample, taxed as part of the court costs. Fifteen dollars goes to the locality where the sample was taken and $38 goes to the state general fund. The fee is assessed once, even if multiple samples are drawn.³

What Happens to the Sample

Once a sample reaches the Department of Forensic Science, the lab develops a profile unique to the person who gave it. The Department logs who submitted the sample, when it was received and analyzed, and confirms the seal was intact. Any leftover biological material is divided, labeled, and stored under strict protocols, and it can only be used to build anonymized statistical databases or to retest the original analysis. The finished profile goes into the state DNA data bank and is admissible in court.⁴

Virginia’s data bank does not stand alone. Profiles that meet federal quality standards are uploaded to the FBI’s Combined DNA Index System, known as CODIS, where they can be searched against evidence from every other participating state and federal agency. To participate, the Department of Forensic Science maintains a Memorandum of Understanding with the FBI Laboratory, keeps accreditation from a recognized forensic science body, and passes an external audit every two years. Where federal access rules conflict with state law, the federal rules control for any profile indexed in CODIS.⁵

Getting a DNA Profile Removed

Removal from the Virginia data bank is possible but narrow. Under § 19.2-310.7, effective July 1, 2026, a person whose profile was added after a conviction may request expungement only if the conviction has been reversed and the case dismissed. The request requires a written petition and a certified copy of the court order reversing and dismissing the conviction. Once those documents reach the Department of Forensic Science, it purges the records and destroys the stored samples tied to that person.⁶

One limit matters a great deal. If your DNA has to stay in the data bank for any other reason, such as a separate conviction, a sex-offender registration requirement, or an arrest-stage collection on another case, the Department will not remove the profile even when one underlying conviction is overturned. Sealing your criminal record under Virginia’s record-sealing statutes also does not entitle you to DNA expungement. The profile stays.⁶

At the federal level, CODIS-participating labs follow their own expungement rules under the DNA Identification Act. For arrestee profiles, the lab removes a profile on receipt of a certified court order showing the charge was dismissed, resulted in acquittal, or that no charges were filed within the applicable time. For convicted-offender profiles, removal requires a certified order showing the conviction was overturned.⁵

Why Pre-Conviction Collection Is Allowed

Collecting DNA before a conviction raises obvious Fourth Amendment questions. The U.S. Supreme Court addressed them in Maryland v. King (2013), ruling that taking a cheek swab from someone arrested for a serious offense is a legitimate booking procedure, comparable to fingerprinting or photographing, and reasonable under the Fourth Amendment. The majority emphasized that the intrusion is minimal, the analysis is limited to noncoding DNA regions that reveal no medical or genetic trait information, and the government has a substantial interest in accurately identifying arrestees. Virginia’s requirement of a probable-cause determination before the sample is taken tracks the framework the Court approved.⁷

Other Consequences of a Felony Conviction

DNA collection is only one of the lasting consequences a Virginia felony brings.

Firearm Prohibition

Federal law bars anyone convicted of a crime punishable by more than one year in prison from possessing, receiving, shipping, or transporting firearms or ammunition. Every Virginia felony class from 1 through 6 carries a potential prison sentence over one year, so any felony conviction triggers the federal ban. The prohibition applies whether or not the judge actually imposed prison time. A person under indictment for such a crime also cannot lawfully receive firearms.⁸

Voting Rights

A Virginia felony conviction removes your right to vote. Unlike states that restore voting rights automatically after a sentence is complete, Virginia’s Constitution gives the Governor sole discretion over restoration. You become eligible to apply once you are no longer incarcerated. The Secretary of the Commonwealth reviews each application, verifies records with multiple state agencies, and forwards qualifying requests to the Governor. If approved, you receive a personalized restoration order. Firearm rights are not part of this process and require a separate petition.⁹

Public Housing

Federal law does not broadly bar people with felony records from public housing or Housing Choice Voucher programs. Only two groups face a mandatory federal ban: people convicted of manufacturing methamphetamine on federally assisted housing premises, and sex offenders with a lifetime registration requirement. Outside those categories, local Public Housing Agencies set their own screening policies with broad discretion. A felony conviction alone does not automatically disqualify you, but individual housing authorities may treat it as grounds for denial depending on the offense, how recently it occurred, and local policy.¹⁰

1
Virginia Code Commission. Virginia Code Title 18.2 – Article 3, Classification of Criminal Offenses and Punishment Therefor
2
Virginia Code Commission. Virginia Code 19.2-310.2:1 – Saliva or Tissue Sample Required for DNA Analysis Upon Arrest for Certain Offenses
3
Virginia Code Commission. Virginia Code Title 19.2 – Article 1.1, DNA Analysis and Data Bank
4
Virginia Code Commission. Virginia Code 19.2-310.4 – Procedures for Conducting DNA Analysis
5
Federal Bureau of Investigation. CODIS and NDIS Fact Sheet
6
Virginia Code Commission. Virginia Code Title 19.2 – Article 1.1, DNA Analysis and Data Bank – Section 19.2-310.7
7
Justia. Maryland v. King, 569 U.S. 435 (2013)
8
Bureau of Alcohol, Tobacco, Firearms and Explosives. Identify Prohibited Persons
9
Secretary of the Commonwealth of Virginia. Restoration of Rights Process
10
HUD Exchange. Are Applicants With Felonies Banned From Public Housing or Any Other Housing Funded by HUD