71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1332
B-Engrossed
Senate Bill 667
Ordered by the House June 1
Including Senate Amendments dated May 1 and House Amendments
dated
June 1
Sponsored by Senator DERFLER; Senators BROWN, TROW, YIH,
Representatives V WALKER, WIRTH (at the request of Bill Winner)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Allows person convicted of certain crimes to file motion for
DNA testing. Establishes procedures for filing motion. Requires
motion to be filed within 48 months of effective date of Act.
Specifies uses for completed test results.
A BILL FOR AN ACT
Relating to criminal procedure.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) A person may file in the circuit court in
which the judgment of conviction was entered 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 in the circuit court 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:
(i) Was at issue in the trial that resulted in the conviction
of the person; or
(ii) 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 or plea agreement 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 of the offense or of
the conduct 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;
(5) Determine whether DNA evidence is being appropriately
retained; and
(6) Determine whether any problems have arisen related to chain
of custody of evidence if the evidence has not been retained by a
city, a county, the state or the court. + }
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