74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 244
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary)
CHAPTER ................
AN ACT
Relating to DNA tests; creating new provisions; amending ORS
192.531 and sections 1, 2 and 4, chapter 697, Oregon Laws 2001;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Section 1, chapter 697, Oregon Laws 2001, as amended
by section 1, chapter 759, Oregon Laws 2005, is amended to read:
{ + Sec. 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) - } { + (1) + } 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) - } { + (2) + } 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 24 months after the effective date of this 2005 Act. - }
SECTION 2. Section 2, chapter 697, Oregon Laws 2001, as amended
by section 2, chapter 759, Oregon Laws 2005, is amended to read:
{ + Sec. 2. + } (1)(a) When a person files a motion under
section 1, chapter 697, Oregon Laws 2001, 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) - }
{ + (1) + }, chapter 697, Oregon Laws 2001, 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) - } { +
(2) + }, chapter 697, Oregon Laws 2001, 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
Enrolled Senate Bill 244 (SB 244-A) Page 1
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 DNA
testing of the specified evidence would, assuming exculpatory
results, establish the actual 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.
(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.
(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, 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, and any further proceedings resulting from
the motion.
Enrolled Senate Bill 244 (SB 244-A) Page 2
SECTION 3. Section 4, chapter 697, Oregon Laws 2001, is amended
to read:
{ + Sec. 4. + } (1) A person described in section 1 { + (1),
chapter 697, Oregon Laws 2001, + } { - (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 { + , 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),
chapter 697, Oregon Laws 2001 + } { - (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 { + , 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.
SECTION 4. { + Section 5 of this 2007 Act is added to and made
a part of ORS 192.518 to 192.526. + }
SECTION 5. { + (1) Notwithstanding ORS 192.537 (3), a health
care provider may retain genetic information of an individual
without obtaining an authorization from the individual or a
personal representative of the individual if the retention is for
treatment, payment or health care operations by the provider.
(2) Notwithstanding ORS 192.539 (1), a health care provider may
disclose genetic information of an individual without obtaining
an authorization from the individual or a personal representative
of the individual if the provider discloses the genetic
information in accordance with ORS 192.520 (3).
(3) As used in this section, 'retain genetic information ' has
the meaning given that term in ORS 192.531. + }
Enrolled Senate Bill 244 (SB 244-A) Page 3
SECTION 6. ORS 192.531 is amended to read:
192.531. As used in ORS 192.531 to 192.549:
(1) 'Anonymous research' means scientific or medical genetic
research conducted in such a manner that any DNA sample or
genetic information used in the research is unidentified.
(2) 'Blanket informed consent' means that the individual has
consented to the use of the individual's DNA sample or health
information for any future research, but has not been provided
with a description of or consented to the use of the sample in
genetic research or any specific genetic research project.
(3) 'Blood relative' means a person who is:
(a) Related by blood to an individual; and
(b) A parent, sibling, son, daughter, grandparent, grandchild,
aunt, uncle, first cousin, niece or nephew of the individual.
(4) 'Clinical' means relating to or obtained through the actual
observation, diagnosis or treatment of patients and not through
research.
(5) 'Coded' means identifiable only through the use of a system
of encryption that links a DNA sample or genetic information to
an individual or the individual's blood relative. A coded DNA
sample or genetic information is supplied by a repository to an
investigator with a system of encryption.
(6) 'Deidentified' means lacking, or having had removed, the
identifiers or system of encryption that would make it possible
for a person to link a DNA sample or genetic information to an
individual or the individual's blood relative, and neither the
investigator nor the repository can reconstruct the identity of
the individual from whom the sample or information was obtained.
Deidentified DNA samples and genetic information must meet the
standards provided in 45 C.F.R. 164.502(d) and 164.514(a) to
(c) { + , as in effect on the effective date of this 2007
Act + }.
(7) 'Disclose' means to release, publish or otherwise make
known to a third party a DNA sample or genetic information.
(8) 'DNA' means deoxyribonucleic acid.
(9) 'DNA sample' means any human biological specimen that is
obtained or retained for the purpose of extracting and analyzing
DNA to perform a genetic test. 'DNA sample' includes DNA
extracted from the specimen.
(10) 'Genetic characteristic' includes a gene, chromosome or
alteration thereof that may be tested to determine the existence
or risk of a disease, disorder, trait, propensity or syndrome, or
to identify an individual or a blood relative. ' Genetic
characteristic' does not include family history or a genetically
transmitted characteristic whose existence or identity is
determined other than through a genetic test.
(11) 'Genetic information' means information about an
individual or the individual's blood relatives obtained from a
genetic test.
(12) 'Genetic privacy statutes' means ORS 192.531 to 192.549,
659A.303 and 746.135 and the provisions of ORS 659A.300 relating
to genetic testing.
(13) 'Genetic research' means research using DNA samples,
genetic testing or genetic information.
(14) 'Genetic test' means a test for determining the presence
or absence of genetic characteristics in an individual or the
individual's blood relatives, including tests of nucleic acids
such as DNA, RNA and mitochondrial DNA, chromosomes or proteins
in order to diagnose or determine a genetic characteristic.
Enrolled Senate Bill 244 (SB 244-A) Page 4
(15) 'Health care provider' has the meaning given that term in
ORS 192.519.
(16) 'Identifiable' means capable of being linked to the
individual or a blood relative of the individual from whom the
DNA sample or genetic information was obtained.
(17) 'Identified' means having an identifier that links, or
that could readily allow the recipient to link, a DNA sample or
genetic information directly to the individual or a blood
relative of the individual from whom the sample or information
was obtained.
(18) 'Identifier' means data elements that directly link a DNA
sample or genetic information to the individual or a blood
relative of the individual from whom the sample or information
was obtained. Identifiers include, but are not limited to, names,
telephone numbers, electronic mail addresses, Social Security
numbers, driver license numbers and fingerprints.
(19) 'Individually identifiable health information' has the
meaning given that term in ORS 192.519.
(20) 'Obtain genetic information' means performing or getting
the results of a genetic test.
(21) 'Person' has the meaning given in ORS 433.045.
(22) 'Research' means a systematic investigation, including
research development, testing and evaluation, designed to develop
or contribute to generalized knowledge.
(23) 'Retain a DNA sample' means the act of storing the DNA
sample.
(24) 'Retain genetic information' means making a record of the
genetic information.
(25) 'Unidentified' means deidentified or not identifiable.
SECTION 7. { + Section 8 of this 2007 Act is added to and made
a part of ORS 746.600 to 746.690. + }
SECTION 8. { + (1) Notwithstanding ORS 192.537 (3), a health
insurer may retain genetic information of an individual without
obtaining an authorization from the individual or a personal
representative of the individual if the retention is for
treatment, payment or health care operations by the insurer.
(2) Notwithstanding ORS 192.539 (1), a health insurer may
disclose genetic information of an individual without obtaining
an authorization from the individual or a personal representative
of the individual if the insurer discloses the genetic
information in accordance with ORS 746.607 (3).
(3) As used in this section, 'retain genetic information ' has
the meaning given that term in ORS 192.531.
(4) As used in this section, 'health care operations' does not
include underwriting activities.
(5) Nothing in this section shall be construed to interfere
with or limit the requirements of ORS 746.135. + }
SECTION 9. { + Sections 5 and 8 of this 2007 Act apply to
genetic information obtained before, on or after the effective
date of this 2007 Act. + }
SECTION 10. { + This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2007 Act takes effect on
its passage. + }
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Enrolled Senate Bill 244 (SB 244-A) Page 5
Passed by Senate March 12, 2007
Repassed by Senate June 18, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 5, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 244 (SB 244-A) Page 6
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 244 (SB 244-A) Page 7