ORS 138.692¹
Motion for DNA testing
  • declaration
  • court order
  • costs

(1) After a person files a petition under ORS 138.690 (Commencement of DNA testing proceedings), the person may file a motion requesting the performance of DNA testing on evidence. The motion must be supported by:

(a) A declaration by the person made under penalty of perjury that the person is innocent of the offense for which the person was convicted; and

(b) A statement that:

(A) Identifies the evidence to be tested with as much specificity as is reasonably practicable. The evidence must have been secured in connection with the prosecution, including the investigation, that resulted in the conviction of the person;

(B) Includes the results of any previous DNA test of the evidence if a previous DNA test was conducted by either the prosecution or the defense;

(C)(i) The identity of the individual who committed the crime or conduct was at issue in the underlying prosecution; or

(ii) No crime occurred; and

(D) Explains, in light of all the evidence, how there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution:

(i) The person would not have been prosecuted or convicted of the offense; or

(ii) There would have been a more favorable outcome to the underlying prosecution.

(2) Concurrently with the filing of a motion under this section, the person shall serve the district attorney with:

(a) A copy of any prior sworn testimony by the person concerning the underlying prosecution, including but not limited to affidavits, declarations, depositions and any testimony from the person in a prior post-conviction relief action challenging the conviction; or

(b) A document affirming that there are no prior sworn statements.

(3) A person may file a motion under this section notwithstanding the fact that the person pleaded guilty or no contest to the underlying conviction or, before or after conviction, made a confession or admission.

(4) Upon being served as described in subsection (2) of this section, the state shall answer the motion requesting the performance of DNA testing and may refute the basis for the motion.

(5) Upon the motion of a party or the court’s own motion, the court may allow the testimony of witnesses if the testimony will assist the court in making its determination to grant or deny the motion requesting the performance of DNA testing. The court may not allow testimony from the victim of the offense without the consent of the victim.

(6) The court shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that:

(a) Unless the parties stipulate otherwise, the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been altered in any material aspect;

(b) The motion is made for the purpose of demonstrating the innocence of the person of the offense and not to delay the execution of the sentence or administration of justice;

(c)(A) The identity of the individual who committed the crime or conduct was at issue in the underlying prosecution; or

(B) If the person alleges that no crime occurred, the testing could not have been obtained during the criminal proceedings with the exercise of reasonable diligence; and

(d) In light of all the evidence, there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution, the person would not have been prosecuted or convicted of the offense.

(7) The court may order the DNA testing requested in a motion under subsection (1) of this section if the court finds that:

(a) Unless the parties stipulate otherwise, the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been altered in any material aspect;

(b) The motion is made for the purpose of demonstrating the innocence of the person of the offense and not to delay the execution of the sentence or administration of justice;

(c)(A) The identity of the individual who committed the crime or conduct was at issue in the underlying prosecution; or

(B) If the person alleges that no crime occurred, the testing could not have been obtained during the criminal proceedings with the exercise of reasonable diligence; and

(d) In light of all the evidence, there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution, there would have been a more favorable outcome to the underlying prosecution.

(8) 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.

(9)(a) If a motion is granted under this section, the district attorney shall notify the victim if the name and address of the victim are known to the district attorney.

(b) The district attorney may notify the victim of the results of DNA testing ordered under this section.

(10) Unless both parties agree or the court finds compelling circumstances 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.

(11) A party seeking entry into the National DNA Index System or State DNA Index System of any unknown DNA profile generated through DNA testing ordered under this section shall comply with ORS 138.700 (Entry of unidentified profile into DNA databases).

(12) The costs of DNA testing 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 ORS 138.694 (Appointed counsel).

(13) The laboratory conducting the DNA test shall provide access to the results of the test and to any other written materials related to the testing, including reports, underlying data, notes and protocols, to the person filing the motion and to the state.

(14) 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 this section, 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 this section and any further proceedings resulting from the motion.

(15) The court shall make written findings when issuing an order under this section. [2001 c.697 §2; 2005 c.759 §2; 2007 c.800 §2; 2015 c.564 §2; 2019 c.368 §4]

Note: See note under 138.688 (Definitions).

Notes of Decisions

Where defendant, convicted of sex abuse, did not es­tab­lish logical rela­tionship between presumed exculpatory DNA testing results of certain physical evidence and theory of de­fense in context of underlying trial pro­ceed­ings, and did not explain relevance of evidence, defendant failed to make prima facie showing of actual innocence and trial court properly denied mo­tion for post-con­vic­­tion DNA test. State v. Romero, 274 Or App 590, 360 P3d 1275 (2015), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 138—Conviction Relief, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors138.­html (2019) (last ac­cessed May 16, 2020).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 138, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano138.­html (2019) (last ac­cessed May 16, 2020).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.
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