72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 3282
House Bill 3365
Sponsored by COMMITTEE ON JUDICIARY
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 as
introduced.
Modifies provisions relating to post-conviction motions
requesting deoxyribonucleic acid testing.
A BILL FOR AN ACT
Relating to deoxyribonucleic acid testing; amending sections 2
and 4, chapter 697, Oregon Laws 2001.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Section 2, chapter 697, Oregon Laws 2001, is amended
to read:
{ + Sec. 2. + } (1)(a) When a person files a motion under
section 1 { + , chapter 697, Oregon Laws 2001, + } { - 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) { + , chapter
697, Oregon Laws 2001 + } { - 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) { + , chapter
697, Oregon Laws 2001 + } { - 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) - } { + (A) + } The offense for which the person
was convicted; or
{ - (ii) - } { + (B) + } 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 { + , chapter 697, Oregon Laws 2001 + } { - 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 { + ,
chapter 697, Oregon Laws 2001 + } { - 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 { + , chapter 697, Oregon Laws
2001, + } { - of this 2001 Act - } and any further proceedings
resulting from the motion.
SECTION 2. Section 4, chapter 697, Oregon Laws 2001, is amended
to read:
{ + Sec. 4. + } (1) A person described in section 1
(1)(a) { + , chapter 697, Oregon Laws 2001, + } { - 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 { + , chapter 697,
Oregon Laws 2001 + } { - 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) { + ,
chapter 697, Oregon Laws 2001 + } { - 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; { + and + }
{ - (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) - } { + (C) + } 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 { + , chapter 697, Oregon Laws 2001 + } { - 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.
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