78B-9-301 (Effective 01/01/11) - Postconviction testing of DNA -- Petition -- Sufficient allegations -- Notification of victim.
78B-9-301 (Effective 01/01/11). Postconviction testing of DNA -- Petition --Sufficient allegations -- Notification of victim.
(1) As used in this part:
(a) "DNA" means deoxyribonucleic acid.
(b) "Factually innocent" has the same definition as in Section 78B-9-402.
(2) A person convicted of a felony offense may at any time file a petition forpostconviction DNA testing in the trial court that entered the judgment of conviction if theperson asserts factual innocence under oath and the petition alleges:
(a) evidence has been obtained regarding the person's case which is still in existence andis in a condition that allows DNA testing to be conducted;
(b) the chain of custody is sufficient to establish that the evidence has not been altered inany material aspect;
(c) the person identifies the specific evidence to be tested and states a theory of defense,not inconsistent with theories previously asserted at trial, that the requested DNA testing wouldsupport;
(d) the evidence was not previously subjected to DNA testing, or if the evidence wastested previously, the evidence was not subjected to the testing that is now requested, and thenew testing may resolve an issue not resolved by the prior testing;
(e) the proposed DNA testing is generally accepted as valid in the scientific field or isotherwise admissible under Utah law;
(f) the evidence that is the subject of the request for testing has the potential to producenew, noncumulative evidence that will establish the person's factual innocence; and
(g) the person is aware of the consequences of filing the petition, including:
(i) those specified in Sections 78B-9-302 and 78B-9-304; and
(ii) that the person is waiving any statute of limitations in all jurisdictions as to anyfelony offense the person has committed which is identified through DNA database comparison.
(3) The petition under Subsection (2) shall comply with Rule 65C, Utah Rules of CivilProcedure, including providing the underlying criminal case number.
(4) The court may not order DNA testing in cases in which DNA testing was available atthe time of trial and the person did not request DNA testing or present DNA evidence for tacticalreasons.
(5) After a petition is filed under this section, prosecutors, law enforcement officers, andcrime laboratory personnel have a duty to cooperate in preserving evidence and in determiningthe sufficiency of the chain of custody of the evidence which may be subject to DNA testing.
(6) (a) A person who files a petition under this section shall serve notice upon the officeof the prosecutor who obtained the conviction, and upon the Utah attorney general. The attorneygeneral shall, within 30 days after receipt of service of a copy of the petition, or within anyadditional period of time the court allows, answer or otherwise respond to all proceedingsinitiated under this part.
(b) After the attorney general is given an opportunity to respond to a petition forpostconviction DNA testing, the court shall order DNA testing if it finds by a preponderance ofthe evidence that all criteria of Subsection (2) have been met.
(7) (a) If the court grants the petition for testing, the DNA test shall be performed by theUtah State Crime Laboratory within the Criminal Investigations and Technical Services Divisioncreated in Section 53-10-103, unless the person establishes that the state crime laboratory has a
conflict of interest or does not have the capability to perform the necessary testing.
(b) If the court orders that the testing be conducted by any laboratory other than the statecrime laboratory, the court shall require that the testing be performed:
(i) under reasonable conditions designed to protect the state's interests in the integrity ofthe evidence; and
(ii) according to accepted scientific standards and procedures.
(8) (a) DNA testing under this section shall be paid for from funds appropriated to theDepartment of Public Safety under Subsection 53-10-407(4)(d)(ii) from the DNA SpecimenRestricted Account created in Section 53-10-407 if:
(i) the court ordered the DNA testing under this section;
(ii) the Utah State Crime Laboratory within the Criminal Investigations and TechnicalServices Division has a conflict of interest or does not have the capability to perform thenecessary testing; and
(iii) the petitioner who has filed for postconviction DNA testing under Section78B-9-201 is serving a sentence of imprisonment and is indigent.
(b) Under this Subsection (8), costs of DNA testing include those necessary to transportthe evidence, prepare samples for analysis, analyze the evidence, and prepare reports of findings.
(9) If the person is serving a sentence of imprisonment and is indigent, the state shall payfor the costs of the testing under this part, but if the result is not favorable to the person the courtmay order the person to reimburse the state for the costs of the testing, pursuant to the provisionsof Subsections 78B-9-302(4) and 78B-9-304(1)(b).
(10) Any victim of the crime regarding which the person petitions for DNA testing, whohas elected to receive notice under Section 77-38-3 shall be notified by the state's attorney of anyhearing regarding the petition and testing, even though the hearing is a civil proceeding.
Amended by Chapter 405, 2010 General Session