71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
SA to SB 667
 
LC 1332/SB 667-2
 
                      SENATE AMENDMENTS TO
                         SENATE BILL 667
 
                    By COMMITTEE ON JUDICIARY
 
                              May 1
 
  On page 1 of the printed bill, line 2, after 'procedure '
insert a period and delete the rest of the line.
  Delete lines 4 through 31 and delete page 2 and insert:
  '  { +  SECTION 1. + }  { + (1) A person may file a motion
requesting the performance of DNA (deoxyribonucleic acid) testing
on specific evidence if the person:
  ' (a) Is incarcerated in a Department of Corrections
institution as the result of a conviction for aggravated murder
or a person felony as defined in the rules of the Oregon Criminal
Justice Commission; or
  ' (b) Is not in custody but has been convicted of aggravated
murder, murder or a sex crime as defined in ORS 181.594.
  ' (2) A motion requesting the performance of DNA testing under
this section must be filed no later than 48 months after the
effective date of this 2001 Act. + }
  '  { +  SECTION 2. + }  { + (1)(a) When a person files a motion
under section 1 of this 2001 Act requesting the performance of
DNA (deoxyribonucleic acid) testing on specified evidence, the
motion must be supported by an affidavit. The affidavit must:
  ' (A)(i) For a person described in section 1 (1)(a) of this
2001 Act, contain a statement that the person is innocent of the
offense for which the person was convicted or of the conduct
underlying any mandatory sentence enhancement; or
  ' (ii) For a person described in section 1 (1)(b) of this 2001
Act, contain a statement that the person is innocent of the
offense for which the person was convicted;
  ' (B) Identify the specific evidence to be tested and a theory
of defense that the DNA testing would support. The specific
evidence must have been secured in connection with the
prosecution, including the investigation, that resulted in the
conviction of the person; and
  ' (C) Include the results of any previous DNA test of the
evidence if a previous DNA test was conducted by either the
prosecution or the defense.
  ' (b) The person must present a prima facie showing that:
  ' (A) The identity of the perpetrator was at issue in the trial
that resulted in the conviction of the person or, if the person
was documented as having mental retardation prior to the time the
crime was committed, should have been at issue in the trial that
resulted in the conviction of the person; and
  ' (B) DNA testing of the specified evidence would, assuming
exculpatory results, establish the actual innocence of the person
of:
  ' (i) The offense for which the person was convicted; or
  ' (ii) Conduct, if the exoneration of the person of the conduct
would result in a mandatory reduction in the person's sentence.
  ' (2) The court shall order the DNA testing requested in a
motion under subsection (1) of this section if the court finds
that:
 
  ' (a) The requirements of subsection (1) of this section have
been met;
  ' (b) Unless the parties stipulate otherwise, the evidence to
be tested is in the possession of a city, county, state or the
court and has been subject to a chain of custody sufficient to
establish that the evidence has not been altered in any material
aspect;
  ' (c) The motion is made in a timely manner and for the purpose
of demonstrating the innocence of the person and not to delay the
execution of the sentence or administration of justice; and
  ' (d) There is a reasonable possibility that the testing will
produce exculpatory evidence that would establish the innocence
of the person of:
  ' (A) The offense for which the person was convicted; or
  ' (B) Conduct, if the exoneration of the person of the conduct
would result in a mandatory reduction in the person's sentence.
  ' (3) In granting a motion under this section, the court may
impose reasonable conditions designed to protect the interests of
the state in the integrity of the evidence and the testing
process.
  ' (4) Unless both parties agree otherwise, the court shall
order the Department of State Police to conduct the DNA testing.
The court may order a second test upon a showing that the state
police failed to follow appropriate DNA protocols and that
failure reasonably affected the accuracy of the DNA test.
  ' (5) The costs of DNA tests ordered under this section must be
paid by:
  ' (a) The person making the motion for DNA testing if the
person is not incarcerated or, if the person is incarcerated, if
the person is financially able to pay; or
  ' (b) The state if counsel at state expense has been appointed
under section 4 of this 2001 Act.
  ' (6) The results of a DNA test ordered under this section must
be disclosed to the person filing the motion and to the state.
  ' (7) Notwithstanding the fact that an appeal of the conviction
or a petition for post-conviction relief in the underlying case
is pending at the time a motion is filed under section 1 of this
2001 Act, the circuit court shall consider the motion. If the
court grants the motion, the court shall notify the court
considering the appeal or post-conviction petition of that fact.
When a court receives notice under this subsection, the court
shall stay the appeal or post-conviction proceedings pending the
outcome of the motion filed under section 1 of this 2001 Act and
any further proceedings resulting from the motion. + }
  '  { +  SECTION 3. + }  { + (1) If DNA (deoxyribonucleic acid)
testing ordered under section 2 of this 2001 Act produces
inconclusive evidence or evidence that is unfavorable to the
person requesting the testing:
  ' (a) The court shall forward the results to the State Board of
Parole and Post-Prison Supervision; and
  ' (b) The Department of State Police shall compare the evidence
to DNA evidence from unsolved crimes in the Combined DNA Index
System.
  ' (2) If DNA testing ordered under section 2 of this 2001 Act
produces exculpatory evidence, the person who requested the
testing may file in the court that ordered the testing a motion
for a new trial based on newly discovered evidence.
Notwithstanding the time limit established in ORS 136.535 (1), a
person may file a motion under this subsection at any time during
the 60-day period that begins on the date the person receives the
test results.
  ' (3) Upon receipt of a motion filed under subsection (2) of
this section and notwithstanding the time limits in ORS 136.535
(1) and (3), the court shall hear the motion as provided in ORS
136.535. + }
 
  '  { +  SECTION 4. + }  { + (1) A person described in section 1
(1)(a) of this 2001 Act may file a petition in the circuit court
in which the judgment of conviction was entered requesting the
appointment of counsel at state expense to assist the person in
determining whether to file a motion under section 1 of this 2001
Act. The petition must be accompanied by:
  ' (a) A completed affidavit of eligibility for appointment of
counsel at state expense; and
  ' (b) An affidavit stating that:
  ' (A) The person meets the criteria in section 1 (1)(a) of this
2001 Act;
  ' (B) The person is innocent of the charge for which the person
was convicted or of the conduct that resulted in a mandatory
sentence enhancement;
  ' (C) The identity of the perpetrator of the crime or conduct
was at issue in the original prosecution or, if the person was
documented as having mental retardation prior to the time the
crime was committed, should have been at issue; and
  ' (D) The person is without sufficient funds and assets, as
shown by the affidavit required by paragraph (a) of this
subsection, to hire an attorney to represent the person in
determining whether to file a motion under section 1 of this 2001
Act.
  ' (2) The court shall grant a petition filed under this section
if:
  ' (a) The petitioner complies with the requirements of
subsection (1) of this section; and
  ' (b) It appears to the court that the petitioner is
financially unable to employ suitable counsel possessing skills
and experience commensurate with the nature and complexity of the
matter.
  ' (3) When a court grants a petition under this section, the
court shall appoint the attorney originally appointed to
represent the petitioner in the action that resulted in the
conviction unless the attorney is unavailable.
  ' (4) An attorney appointed under this section:
  ' (a) If other than counsel provided pursuant to ORS 151.460,
is entitled to compensation and expenses as provided in ORS
135.055; or
  ' (b) If counsel provided pursuant to ORS 151.460, is entitled
to expenses as provided in ORS 135.055. + }
  '  { +  SECTION 5. + }  { + The President of the Senate and the
Speaker of the House of Representatives shall direct the
appropriate interim committee to:
  ' (1) Evaluate how sections 1 to 4 of this 2001 Act are being
utilized and whether the goals of sections 1 to 4 of this 2001
Act are being achieved;
  ' (2) Evaluate changes in technology regarding DNA
(deoxyribonucleic acid) evidence and testing;
  ' (3) Determine whether the 48-month time limit for filing
motions should be extended;
  ' (4) Determine whether mentally ill persons are being
inappropriately denied access to DNA testing; and
  ' (5) Determine whether DNA evidence is being appropriately
retained. + } ' .
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