§ 5561 - Petition for postconviction DNA testing
§ 5561. Petition for postconviction DNA testing
(a) A person convicted of a qualifying crime may at any time file a petition requesting forensic DNA testing of any evidence which may contain biological evidence that was obtained during the investigation or prosecution of the crime. The petition shall:
(1) specifically identify the crime for which the petitioner asserts that he or she is innocent and the evidence which the petitioner seeks to have subjected to DNA testing;
(2) contain the petitioner's certification, under oath, that the petitioner did not commit the crime for which he or she was convicted;
(3) contain the petitioner's certification, under oath, that the petition is true and accurate; and
(4) allege facts showing that DNA testing may be material to the petitioner's claim of innocence.
(b) As used in this section:
(1) "Biological evidence" means:
(A) a sexual assault forensic examination kit; or
(B) semen, blood, saliva, hair, skin tissue, or other identified biological material.
(2) "Person convicted of a qualifying crime" means a person convicted of:
(A) one of the following crimes as defined in this title:
(1) arson causing death, § 501;
(2) assault and robbery with a dangerous weapon, § 608(b);
(3) assault and robbery causing bodily injury, § 608(c);
(4) aggravated assault, § 1024;
(5) murder, § 2301;
(6) manslaughter, § 2304;
(7) aggravated murder, § 2311;
(8) kidnapping, § 2405;
(9) unlawful restraint, §§ 2406 and 2407;
(10) maiming, § 2701;
(11) sexual assault, § 3252;
(12) aggravated sexual assault, § 3253;
(13) burglary into an occupied dwelling, § 1201(c); or
(14) lewd and lascivious conduct with a child, § 2602.
(B) any felony not listed in subdivision (b)(1) of this section, if the petition is filed within 30 months after the conviction becomes final, the person presents specific facts demonstrating that DNA evidence will provide substantial evidence of the person's innocence, and the court finds that the interests of justice would be served by permitting the petition.
(c)(1) The petition shall be filed in the superior court of the county where the conviction was imposed, and shall not be heard by a judge who presided over the trial, sentencing, or any motion hearing related to evidence to be admitted at the trial.
(2)(A) Unless subdivision (B) of this subdivision (2) applies, the petitioner shall provide copies of the petition to the attorney general and to the state's attorney in the district where the conviction was obtained.
(B) If the petitioner is not represented by counsel, the court shall provide copies of the petition to the attorney general and to the state's attorney in the district where the conviction was obtained.
(3) Within 30 days after it receives the petition, the state shall agree to perform the requested DNA testing in a timely manner or file a response to the petition. The petitioner may file a reply to the state's response only within 30 days after the response is filed.
(4) The court shall schedule a hearing on the petition within 90 days after the state's response is filed unless the state notifies the court that it has agreed to provide the testing in a timely manner or the court dismisses the petition pursuant to subsection (d) of this section.
(5) Time limits under this subsection may be extended for good cause shown or by consent of the parties.
(d) The court shall dismiss the petition without a hearing if it determines that:
(1) the petition, response, reply if any, files, and records conclusively establish that the petitioner is entitled to no relief; or
(2) the petition was not made to demonstrate innocence or the appropriateness of a lesser sentence and will unreasonably delay the execution of sentence or administration of justice.
(e) No person shall file a petition requesting forensic DNA testing pursuant to this chapter if the person's conviction resulted from a plea agreement until after July 1, 2008. (Added 2007, No. 60, § 1.)