2017 ORS 138.692¹
Affidavit
  • order
  • costs

(1)(a) When a person files a motion under ORS 138.690 (Motion) requesting the performance of DNA (deoxyribonucleic acid) testing on evidence, the motion must be supported by an affidavit. The affidavit must:

(A) Contain a statement that the person is innocent of the offense for which the person was convicted;

(B) Identify the evidence to be tested with as much specificity as is reasonably practicable and a theory of defense that the DNA testing would support. The 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) Consistent with the statement of innocence described in paragraph (a)(A) of this subsection, the person must present a prima facie showing that DNA testing of the evidence would, assuming exculpatory results, lead to a finding that the person is actually innocent of the offense for which the person was convicted.

(2) The state shall answer the motion requesting the performance of DNA testing and may refute the basis for the motion.

(3) 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.

(4) 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 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 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; and

(d) There is a reasonable possibility, assuming exculpatory results, that the testing would lead to a finding that the person is actually innocent of the offense for which the person was convicted.

(5) 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.

(6) 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.

(7) 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 ORS 138.694 (Appointed counsel).

(8) The laboratory conducting the DNA test shall provide a copy of the results of the test to the person filing the motion and to the state.

(9) 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 ORS 138.690 (Motion), 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 ORS 138.690 (Motion) and any further proceedings resulting from the motion.

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

Note: See note under 138.690 (Motion).

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 (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 138, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano138.­html (2017) (last ac­cessed Mar. 30, 2018).
 
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.