As Reported by the House Criminal Justice Committee

126th General Assembly Regular Session 2005-2006

Sub. S. B. No. 262

Senators Goodman, Stivers, Clancy, Jacobson, Gardner, Padgett, Schuler, Fedor, Fingerhut, Miller, R., Dann, Kearney, Zurz, Armbruster, Carey, Coughlin, Hagan, Harris, Hottinger, Miller, D., Niehaus, Spada 

Representatives Latta, Evans, D., Gilb, Willamowski, Seitz, DeGeeter, Mason, Healy 

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A BILL

To amend sections 2901.07, 2953.21, 2953.23, 2953.71,

1

2953.72, 2953.73, 2953.74, 2953.78, 2953.80, and

2

2953.82 and to enact section 2953.84 of the

3

Revised Code to eliminate the former two-year

4

window for applications under a program for

5

post-conviction DNA testing and instead allow an

6

eligible inmate to request post-conviction DNA

7

testing at any time if specified criteria are met,

8

to provide for a court's consideration of all

9

available admissible evidence in determining

10

whether the program's applicable "outcome

11

determinative" criterion is satisfied, and to make

12

other changes related to post-conviction DNA

13

testing; to specify that the DNA specimen

14

collection procedures for felons and specified

15

misdemeanors apply regardless of when the

16

offender's conviction occurred or guilty plea was

17

entered; and to declare an emergency.

18

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2901.07, 2953.21, 2953.23, 2953.71,	19
2953.72, 2953.73, 2953.74, 2953.78, 2953.80, and 2953.82 be	20
amended and section 2953.84 of the Revised Code be enacted to read	21
as follows:	22

Sec. 2901.07.  (A) As used in this section:

23

(1) "DNA analysis" and "DNA specimen" have the same meanings	24
as in section 109.573 of the Revised Code.	25

(2) "Jail" and "community-based correctional facility" have	26
the same meanings as in section 2929.01 of the Revised Code.	27

(3) "Post-release control" has the same meaning as in section	28
2967.01 of the Revised Code.	29

(B)(1) ARegardless of when the conviction occurred or the	30
guilty plea was entered, a person who has been convicted of, is	31
convicted of, has pleaded guilty to, or pleads guilty to a felony	32
offense and who is sentenced to a prison term or to a community	33
residential sanction in a jail or community-based correctional	34
facility for that offense pursuant to section 2929.16 of the	35
Revised Code, and a person who has been convicted of, is convicted	36
of, has pleaded guilty to, or pleads guilty to a misdemeanor	37
offense listed in division (D) of this section and who is	38
sentenced to a term of imprisonment for that offense shall submit	39
to a DNA specimen collection procedure administered by the	40
director of rehabilitation and correction or the chief	41
administrative officer of the jail or other detention facility in	42
which the person is serving the term of imprisonment. If the	43
person serves the prison term in a state correctional institution,	44
the director of rehabilitation and correction shall cause the DNA	45
specimen to be collected from the person during the intake process	46
at the reception facility designated by the director. If the	47
person serves the community residential sanction or term of	48
imprisonment in a jail, a community-based correctional facility,	49
or another county, multicounty, municipal, municipal-county, or	50
multicounty-municipal detention facility, the chief administrative	51
officer of the jail, community-based correctional facility, or	52
detention facility shall cause the DNA specimen to be collected	53
from the person during the intake process at the jail,	54
community-based correctional facility, or detention facility. The	55
DNA specimen shall be collected in accordance with division (C) of	56
this section.	57

(2) IfRegardless of when the conviction occurred or the	58
guilty plea was entered, if a person has been convicted of, is	59
convicted of, has pleaded guilty to, or pleads guilty to a felony	60
offense or a misdemeanor offense listed in division (D) of this	61
section, is serving a prison term, community residential sanction,	62
or term of imprisonment for that offense, and does not provide a	63
DNA specimen pursuant to division (B)(1) of this section, prior to	64
the person's release from the prison term, community residential	65
sanction, or imprisonment, the person shall submit to, and the	66
director of rehabilitation and correction or the chief	67
administrative officer of the jail, community-based correctional	68
facility, or detention facility in which the person is serving the	69
prison term, community residential sanction, or term of	70
imprisonment shall administer, a DNA specimen collection procedure	71
at the state correctional institution, jail, community-based	72
correctional facility, or detention facility in which the person	73
is serving the prison term, community residential sanction, or	74
term of imprisonment. The DNA specimen shall be collected in	75
accordance with division (C) of this section.	76

(3)(a) IfRegardless of when the conviction occurred or the	77
guilty plea was entered, if a person has been convicted of, is	78
convicted of, has pleaded guilty to, or pleads guilty to a felony	79
offense or a misdemeanor offense listed in division (D) of this	80
section and the person is on probation, released on parole, under	81
transitional control, on community control, on post-release	82
control, or under any other type of supervised release under the	83
supervision of a probation department or the adult parole	84
authority for that offense, the person shall submit to a DNA	85
specimen collection procedure administered by the chief	86
administrative officer of the probation department or the adult	87
parole authority. The DNA specimen shall be collected in	88
accordance with division (C) of this section. If the person	89
refuses to submit to a DNA specimen collection procedure as	90
provided in this division, the person may be subject to the	91
provisions of section 2967.15 of the Revised Code.	92

(b) If thea person to whom division (B)(3)(a) of this	93
section applies is sent to jail or is returned to a jail,	94
community-based correctional facility, or state correctional	95
institution for a violation of the terms and conditions of the	96
probation, parole, transitional control, other release, or	97
post-release control, if the person was or will be serving a term	98
of imprisonment, prison term, or community residential sanction	99
for committing a felony offense or for committing a misdemeanor	100
offense listed in division (D) of this section, and if the person	101
did not provide a DNA specimen pursuant to division (B)(1), (2) or	102
(3)(a) of this section, the person shall submit to, and the	103
director of rehabilitation and correction or the chief	104
administrative officer of the jail or community-based correctional	105
facility shall administer, a DNA specimen collection procedure at	106
the jail, community-based correctional facility, or state	107
correctional institution in which the person is serving the term	108
of imprisonment, prison term, or community residential sanction.	109
The DNA specimen shall be collected from the person in accordance	110
with division (C) of this section.	111

(4) IfRegardless of when the conviction occurred or the	112
guilty plea was entered, if a person has been convicted of, is	113
convicted of, has pleaded guilty to, or pleads guilty to a felony	114
offense or a misdemeanor offense listed in division (D) of this	115
section, the person is not sentenced to a prison term, a community	116
residential sanction in a jail or community-based correctional	117
facility, a term of imprisonment, or any type of supervised	118
release under the supervision of a probation department or the	119
adult parole authority, and the person does not provide a DNA	120
specimen pursuant to division (B)(1), (2), (3)(a), or (3)(b) of	121
this section, the sentencing court shall order the person to	122
report to the county probation department immediately after	123
sentencing to submit to a DNA specimen collection procedure	124
administered by the chief administrative officer of the county	125
probation office. If the person is incarcerated at the time of	126
sentencing, the person shall submit to a DNA specimen collection	127
procedure administered by the director of rehabilitation and	128
correction or the chief administrative officer of the jail or	129
other detention facility in which the person is incarcerated. The	130
DNA specimen shall be collected in accordance with division (C) of	131
this section.	132

(C) If the DNA specimen is collected by withdrawing blood	133
from the person or a similarly invasive procedure, a physician,	134
registered nurse, licensed practical nurse, duly licensed clinical	135
laboratory technician, or other qualified medical practitioner	136
shall collect in a medically approved manner the DNA specimen	137
required to be collected pursuant to division (B) of this section.	138
If the DNA specimen is collected by swabbing for buccal cells or a	139
similarly noninvasive procedure, this section does not require	140
that the DNA specimen be collected by a qualified medical	141
practitioner of that nature. No later than fifteen days after the	142
date of the collection of the DNA specimen, the director of	143
rehabilitation and correction or the chief administrative officer	144
of the jail, community-based correctional facility, or other	145
county, multicounty, municipal, municipal-county, or	146
multicounty-municipal detention facility, in which the person is	147
serving the prison term, community residential sanction, or term	148
of imprisonment shall cause the DNA specimen to be forwarded to	149
the bureau of criminal identification and investigation in	150
accordance with procedures established by the superintendent of	151
the bureau under division (H) of section 109.573 of the Revised	152
Code. The bureau shall provide the specimen vials, mailing tubes,	153
labels, postage, and instructions needed for the collection and	154
forwarding of the DNA specimen to the bureau.	155

(D) The director of rehabilitation and correction, the chief	156
administrative officer of the jail, community-based correctional	157
facility, or other county, multicounty, municipal,	158
municipal-county, or multicounty-municipal detention facility, or	159
the chief administrative officer of a county probation department	160
or the adult parole authority shall cause a DNA specimen to be	161
collected in accordance with divisions (B) and (C) of this section	162
from a person in its custody or under its supervision who has been	163
convicted of, is convicted of, has pleaded guilty to, or pleads	164
guilty to any felony offense or to any of the following	165
misdemeanor offenses:	166

(1) A misdemeanor violation, an attempt to commit a	167
misdemeanor violation, or complicity in committing a misdemeanor	168
violation of section 2907.04 of the Revised Code;	169

(2) A misdemeanor violation of any law that arose out of the	170
same facts and circumstances and same act as did a charge against	171
the person of a violation of section 2903.01, 2903.02, 2905.01,	172
2907.02, 2907.03, 2907.04, 2907.05, or 2911.11 of the Revised Code	173
that previously was dismissed or amended or as did a charge	174
against the person of a violation of section 2907.12 of the	175
Revised Code as it existed prior to September 3, 1996, that	176
previously was dismissed or amended;	177

(3) A misdemeanor violation of section 2919.23 of the Revised	178
Code that would have been a violation of section 2905.04 of the	179
Revised Code as it existed prior to July 1, 1996, had it been	180
committed prior to that date;	181

(4) A sexually oriented offense or a child-victim oriented	182
offense, both as defined in section 2950.01 of the Revised Code,	183
that is a misdemeanor, if, in relation to that offense, the	184
offender has been adjudicated a sexual predator, child-victim	185
predator, habitual sex offender, or habitual child-victim	186
offender, all as defined in section 2950.01 of the Revised Code.	187

(E) The director of rehabilitation and correction may	188
prescribe rules in accordance with Chapter 119. of the Revised	189
Code to collect a DNA specimen, as provided in this section, from	190
an offender whose supervision is transferred from another state to	191
this state in accordance with the interstate compact for adult	192
offender supervision described in section 5149.21 of the Revised	193
Code.	194

Sec. 2953.21.  (A)(1)(a) Any person who has been convicted of	195
a criminal offense or adjudicated a delinquent child and who	196
claims that there was such a denial or infringement of the	197
person's rights as to render the judgment void or voidable under	198
the Ohio Constitution or the Constitution of the United States,	199
and any person who has been convicted of a criminal offense that	200
is a felony, who is an inmate, and for whom DNA testing that was	201
performed under sections 2953.71 to 2953.81 of the Revised Code or	202
under section 2953.82 of the Revised Code and analyzed in the	203
context of and upon consideration of all available admissible	204
evidence related to the inmate's case as described in division (D)	205
of section 2953.74 of the Revised Code provided results that	206
establish, by clear and convincing evidence, actual innocence of	207
that felony offense or, if the person was sentenced to death,	208
establish, by clear and convincing evidence, actual innocence of	209
the aggravating circumstance or circumstances the person was found	210
guilty of committing and that is or are the basis of that sentence	211
of death, may file a petition in the court that imposed sentence,	212
stating the grounds for relief relied upon, and asking the court	213
to vacate or set aside the judgment or sentence or to grant other	214
appropriate relief. The petitioner may file a supporting affidavit	215
and other documentary evidence in support of the claim for relief.	216

(b) As used in division (A)(1)(a) of this section, "actual	217
innocence" means that, had the results of the DNA testing	218
conducted under sections 2953.71 to 2953.81 of the Revised Code or	219
under section 2953.82 of the Revised Code been presented at trial,	220
and had those results been analyzed in the context of and upon	221
consideration of all available admissible evidence related to the	222
inmate's case as described in division (D) of section 2953.74 of	223
the Revised Code, no reasonable factfinder would have found the	224
petitioner guilty of the offense of which the petitioner was	225
convicted, or, if the person was sentenced to death, no reasonable	226
factfinder would have found the petitioner guilty of the	227
aggravating circumstance or circumstances the petitioner was found	228
guilty of committing and that is or are the basis of that sentence	229
of death.	230

(2) Except as otherwise provided in section 2953.23 of the	231
Revised Code, a petition under division (A)(1) of this section	232
shall be filed no later than one hundred eighty days after the	233
date on which the trial transcript is filed in the court of	234
appeals in the direct appeal of the judgment of conviction or	235
adjudication or, if the direct appeal involves a sentence of	236
death, the date on which the trial transcript is filed in the	237
supreme court. If no appeal is taken, except as otherwise provided	238
in section 2953.23 of the Revised Code, the petition shall be	239
filed no later than one hundred eighty days after the expiration	240
of the time for filing the appeal.	241

(3) In a petition filed under division (A) of this section, a	242
person who has been sentenced to death may ask the court to render	243
void or voidable the judgment with respect to the conviction of	244
aggravated murder or the specification of an aggravating	245
circumstance or the sentence of death.	246

(4) A petitioner shall state in the original or amended	247
petition filed under division (A) of this section all grounds for	248
relief claimed by the petitioner. Except as provided in section	249
2953.23 of the Revised Code, any ground for relief that is not so	250
stated in the petition is waived.	251

(5) If the petitioner in a petition filed under division (A)	252
of this section was convicted of or pleaded guilty to a felony,	253
the petition may include a claim that the petitioner was denied	254
the equal protection of the laws in violation of the Ohio	255
Constitution or the United States Constitution because the	256
sentence imposed upon the petitioner for the felony was part of a	257
consistent pattern of disparity in sentencing by the judge who	258
imposed the sentence, with regard to the petitioner's race,	259
gender, ethnic background, or religion. If the supreme court	260
adopts a rule requiring a court of common pleas to maintain	261
information with regard to an offender's race, gender, ethnic	262
background, or religion, the supporting evidence for the petition	263
shall include, but shall not be limited to, a copy of that type of	264
information relative to the petitioner's sentence and copies of	265
that type of information relative to sentences that the same judge	266
imposed upon other persons.	267

(B) The clerk of the court in which the petition is filed	268
shall docket the petition and bring it promptly to the attention	269
of the court. The clerk of the court in which the petition is	270
filed immediately shall forward a copy of the petition to the	271
prosecuting attorney of that county.	272

(C) The court shall consider a petition that is timely filed	273
under division (A)(2) of this section even if a direct appeal of	274
the judgment is pending. Before granting a hearing on a petition	275
filed under division (A) of this section, the court shall	276
determine whether there are substantive grounds for relief. In	277
making such a determination, the court shall consider, in addition	278
to the petition, the supporting affidavits, and the documentary	279
evidence, all the files and records pertaining to the proceedings	280
against the petitioner, including, but not limited to, the	281
indictment, the court's journal entries, the journalized records	282
of the clerk of the court, and the court reporter's transcript.	283
The court reporter's transcript, if ordered and certified by the	284
court, shall be taxed as court costs. If the court dismisses the	285
petition, it shall make and file findings of fact and conclusions	286
of law with respect to such dismissal.	287

(D) Within ten days after the docketing of the petition, or	288
within any further time that the court may fix for good cause	289
shown, the prosecuting attorney shall respond by answer or motion.	290
Within twenty days from the date the issues are raised, either	291
party may move for summary judgment. The right to summary judgment	292
shall appear on the face of the record.	293

(E) Unless the petition and the files and records of the case	294
show the petitioner is not entitled to relief, the court shall	295
proceed to a prompt hearing on the issues even if a direct appeal	296
of the case is pending. If the court notifies the parties that it	297
has found grounds for granting relief, either party may request an	298
appellate court in which a direct appeal of the judgment is	299
pending to remand the pending case to the court.	300

(F) At any time before the answer or motion is filed, the	301
petitioner may amend the petition with or without leave or	302
prejudice to the proceedings. The petitioner may amend the	303
petition with leave of court at any time thereafter.	304

(G) If the court does not find grounds for granting relief,	305
it shall make and file findings of fact and conclusions of law and	306
shall enter judgment denying relief on the petition. If no direct	307
appeal of the case is pending and the court finds grounds for	308
relief or if a pending direct appeal of the case has been remanded	309
to the court pursuant to a request made pursuant to division (E)	310
of this section and the court finds grounds for granting relief,	311
it shall make and file findings of fact and conclusions of law and	312
shall enter a judgment that vacates and sets aside the judgment in	313
question, and, in the case of a petitioner who is a prisoner in	314
custody, shall discharge or resentence the petitioner or grant a	315
new trial as the court determines appropriate. The court also may	316
make supplementary orders to the relief granted, concerning such	317
matters as rearraignment, retrial, custody, and bail. If the trial	318
court's order granting the petition is reversed on appeal and if	319
the direct appeal of the case has been remanded from an appellate	320
court pursuant to a request under division (E) of this section,	321
the appellate court reversing the order granting the petition	322
shall notify the appellate court in which the direct appeal of the	323
case was pending at the time of the remand of the reversal and	324
remand of the trial court's order. Upon the reversal and remand of	325
the trial court's order granting the petition, regardless of	326
whether notice is sent or received, the direct appeal of the case	327
that was remanded is reinstated.	328

(H) Upon the filing of a petition pursuant to division (A) of	329
this section by a person sentenced to death, only the supreme	330
court may stay execution of the sentence of death.	331

(I)(1) If a person sentenced to death intends to file a	332
petition under this section, the court shall appoint counsel to	333
represent the person upon a finding that the person is indigent	334
and that the person either accepts the appointment of counsel or	335
is unable to make a competent decision whether to accept or reject	336
the appointment of counsel. The court may decline to appoint	337
counsel for the person only upon a finding, after a hearing if	338
necessary, that the person rejects the appointment of counsel and	339
understands the legal consequences of that decision or upon a	340
finding that the person is not indigent.	341

(2) The court shall not appoint as counsel under division	342
(I)(1) of this section an attorney who represented the petitioner	343
at trial in the case to which the petition relates unless the	344
person and the attorney expressly request the appointment. The	345
court shall appoint as counsel under division (I)(1) of this	346
section only an attorney who is certified under Rule 20 of the	347
Rules of Superintendence for the Courts of Ohio to represent	348
indigent defendants charged with or convicted of an offense for	349
which the death penalty can be or has been imposed. The	350
ineffectiveness or incompetence of counsel during proceedings	351
under this section does not constitute grounds for relief in a	352
proceeding under this section, in an appeal of any action under	353
this section, or in an application to reopen a direct appeal.	354

(3) Division (I) of this section does not preclude attorneys	355
who represent the state of Ohio from invoking the provisions of 28	356
U.S.C. 154 with respect to capital cases that were pending in	357
federal habeas corpus proceedings prior to the effective date of	358
this amendmentJuly 1, 1996, insofar as the petitioners in those	359
cases were represented in proceedings under this section by one or	360
more counsel appointed by the court under this section or section	361
120.06, 120.16, 120.26, or 120.33 of the Revised Code and those	362
appointed counsel meet the requirements of division (I)(2) of this	363
section.	364

(J) Subject to the appeal of a sentence for a felony that is	365
authorized by section 2953.08 of the Revised Code, the remedy set	366
forth in this section is the exclusive remedy by which a person	367
may bring a collateral challenge to the validity of a conviction	368
or sentence in a criminal case or to the validity of an	369
adjudication of a child as a delinquent child for the commission	370
of an act that would be a criminal offense if committed by an	371
adult or the validity of a related order of disposition.	372

Sec. 2953.23.  (A) Whether a hearing is or is not held on a	373
petition filed pursuant to section 2953.21 of the Revised Code, a	374
court may not entertain a petition filed after the expiration of	375
the period prescribed in division (A) of that section or a second	376
petition or successive petitions for similar relief on behalf of a	377
petitioner unless division (A)(1) or (2) of this section applies:	378

(1) Both of the following apply:

379

(a) Either the petitioner shows that the petitioner was	380
unavoidably prevented from discovery of the facts upon which the	381
petitioner must rely to present the claim for relief, or,	382
subsequent to the period prescribed in division (A)(2) of section	383
2953.21 of the Revised Code or to the filing of an earlier	384
petition, the United States Supreme Court recognized a new federal	385
or state right that applies retroactively to persons in the	386
petitioner's situation, and the petition asserts a claim based on	387
that right.	388

(b) The petitioner shows by clear and convincing evidence	389
that, but for constitutional error at trial, no reasonable	390
factfinder would have found the petitioner guilty of the offense	391
of which the petitioner was convicted or, if the claim challenges	392
a sentence of death that, but for constitutional error at the	393
sentencing hearing, no reasonable factfinder would have found the	394
petitioner eligible for the death sentence.	395

(2) The petitioner was convicted of a felony, the petitioner	396
is an inmate for whom DNA testing was performed under sections	397
2953.71 to 2953.81 of the Revised Code or under section 2953.82 of	398
the Revised Code and analyzed in the context of and upon	399
consideration of all available admissible evidence related to the	400
inmate's case as described in division (D) of section 2953.74 of	401
the Revised Code, and the results of the DNA testing establish, by	402
clear and convincing evidence, actual innocence of that felony	403
offense or, if the person was sentenced to death, establish, by	404
clear and convincing evidence, actual innocence of the aggravating	405
circumstance or circumstances the person was found guilty of	406
committing and that is or are the basis of that sentence of death.	407

As used in this division, "actual innocence" has the same	408
meaning as in division (A)(1)(b) of section 2953.21 of the Revised	409
Code.	410

(B) An order awarding or denying relief sought in a petition	411
filed pursuant to section 2953.21 of the Revised Code is a final	412
judgment and may be appealed pursuant to Chapter 2953. of the	413
Revised Code.	414

Sec. 2953.71. As used in sections 2953.71 to 2953.83 of the	415
Revised Code:	416

(A) "Application" or "application for DNA testing" means a	417
request through postconviction relief for the state to do DNA	418
testing on biological material from whichever of the following is	419
applicable:	420

(1) The case in which the inmate was convicted of the offense	421
for which the inmate is an eligible inmate and is requesting the	422
DNA testing under sections 2953.71 to 2953.81 of the Revised Code;	423

(2) The case in which the inmate pleaded guilty or no contest	424
to the offense for which the inmate is requesting the DNA testing	425
under section 2953.82 of the Revised Code.	426

(B) "Biological material" means any product of a human body	427
containing DNA.	428

(C) "Chain of custody" means a record or other evidence that	429
tracks a subject sample of biological material from the time the	430
biological material was first obtained until the time it currently	431
exists in its place of storage and, in relation to a DNA sample, a	432
record or other evidence that tracks the DNA sample from the time	433
it was first obtained until it currently exists in its place of	434
storage. For purposes of this division, examples of when	435
biological material or a DNA sample is first obtained include, but	436
are not limited to, obtaining the material or sample at the scene	437
of a crime, from a victim, from an inmate, or in any other manner	438
or time as is appropriate in the facts and circumstances present.	439

(D) "Custodial agency" means the group or entity that has the	440
responsibility to maintain biological material in question.	441

(E) "Custodian" means the person who is the primary	442
representative of a custodial agency.	443

(F) "Eligible inmate" means an inmate who is eligible under	444
division (C) of section 2953.72 of the Revised Code to request DNA	445
testing to be conducted under sections 2953.71 to 2953.81 of the	446
Revised Code.	447

(G) "Exclusion" or "exclusion result" means a result of DNA	448
testing that scientifically precludes or forecloses the subject	449
inmate as a contributor of biological material recovered from the	450
crime scene or victim in question, in relation to the offense for	451
which the inmate is an eligible inmate and for which the sentence	452
of death or prison term was imposed upon the inmate or, regarding	453
a request for DNA testing made under section 2953.82 of the	454
Revised Code, in relation to the offense for which the inmate made	455
the request and for which the sentence of death or prison term was	456
imposed upon the inmate.	457

(H) "Extracting personnel" means medically approved personnel	458
who are employed to physically obtain an inmate DNA specimen for	459
purposes of DNA testing under sections 2953.71 to 2953.81 or	460
section 2953.82 of the Revised Code.	461

(I) "Inclusion" or "inclusion result" means a result of DNA	462
testing that scientifically cannot exclude, or that holds	463
accountable, the subject inmate as a contributor of biological	464
material recovered from the crime scene or victim in question, in	465
relation to the offense for which the inmate is an eligible inmate	466
and for which the sentence of death or prison term was imposed	467
upon the inmate or, regarding a request for DNA testing made under	468
section 2953.82 of the Revised Code, in relation to the offense	469
for which the inmate made the request and for which the sentence	470
of death or prison term was imposed upon the inmate.	471

(J) "Inconclusive" or "inconclusive result" means a result of	472
DNA testing that is rendered when a scientifically appropriate and	473
definitive DNA analysis or result, or both, cannot be determined.	474

(K) "Inmate" means an inmate in a prison who was sentenced by	475
a court, or by a jury and a court, of this state.	476

(L) "Outcome determinative" means that had the results of DNA	477
testing of the subject inmate been presented at the trial of the	478
subject inmate requesting DNA testing and been found relevant and	479
admissible with respect to the felony offense for which the inmate	480
is an eligible inmate and is requesting the DNA testing or for	481
which the inmate is requesting the DNA testing under section	482
2953.82 of the Revised Code, and had those results been analyzed	483
in the context of and upon consideration of all available	484
admissible evidence related to the inmate's case as described in	485
division (D) of section 2953.74 of the Revised Code, there is a	486
strong probability that no reasonable factfinder would have found	487
the inmate guilty of that offense or, if the inmate was sentenced	488
to death relative to that offense, would have found the inmate	489
guilty of the aggravating circumstance or circumstances the inmate	490
was found guilty of committing and that is or are the basis of	491
that sentence of death.	492

(M) "Parent sample" means the biological material first	493
obtained from a crime scene or a victim of an offense for which an	494
inmate is an eligible inmate or for which the inmate is requesting	495
the DNA testing under section 2953.82 of the Revised Code, and	496
from which a sample will be presently taken to do a DNA comparison	497
to the DNA of the subject inmate under sections 2953.71 to 2953.81	498
or section 2953.82 of the Revised Code.	499

(N) "Prison" has the same meaning as in section 2929.01 of	500
the Revised Code.	501

(O) "Prosecuting attorney" means the prosecuting attorney	502
who, or whose office, prosecuted the case in which the subject	503
inmate was convicted of the offense for which the inmate is an	504
eligible inmate and is requesting the DNA testing or for which the	505
inmate is requesting the DNA testing under section 2953.82 of the	506
Revised Code.	507

(P) "Prosecuting authority" means the prosecuting attorney or	508
the attorney general.	509

(Q) "Reasonable diligence" means a degree of diligence that	510
is comparable to the diligence a reasonable person would employ in	511
searching for information regarding an important matter in the	512
person's own life.	513

(R) "Testing authority" means a laboratory at which DNA	514
testing will be conducted under sections 2953.71 to 2953.81 or	515
section 2953.82 of the Revised Code.	516

Sec. 2953.72. (A) Any eligible inmate who wishes to request	517
DNA testing under sections 2953.71 to 2953.81 of the Revised Code	518
shall submit an application for the testing to the court of common	519
pleas specified in section 2953.73 of the Revised Code, on a form	520
prescribed by the attorney general for this purpose. The eligible	521
inmate shall submit the application within the period of time, and	522
in accordance with the procedures, set forth in section 2953.73 of	523
the Revised Code. The eligible inmate shall specify on the	524
application the offense or offenses for which the inmate is an	525
eligible inmate and is requesting the DNA testing. Along with the	526
application, the eligible inmate shall submit an acknowledgment	527
that is on a form prescribed by the attorney general for this	528
purpose and that is signed by the inmate. The acknowledgment shall	529
set forth all of the following:	530

(1) That sections 2953.71 to 2953.81 of the Revised Code	531
contemplate applications for DNA testing of eligible inmates at a	532
stage of a prosecution or case after the inmate has been sentenced	533
to a prison term or a sentence of death, that any exclusion or	534
inclusion result of DNA testing rendered pursuant to those	535
sections may be used by a party in any proceeding as described in	536
section 2953.81 of the Revised Code, and that all requests for any	537
DNA testing made at trial will continue to be handled by the	538
prosecuting attorney in the case;	539

(2) That the process of conducting postconviction DNA testing	540
for an eligible inmate under sections 2953.71 to 2953.81 of the	541
Revised Code begins when the inmate submits an application under	542
section 2953.73 of the Revised Code and the acknowledgment	543
described in this section;	544

(3) That the eligible inmate must submit the application and	545
acknowledgment to the court of common pleas that heard the case in	546
which the inmate was convicted of the offense for which the inmate	547
is an eligible offender and is requesting the DNA testing;	548

(4) That the state has established a set of criteria set	549
forth in section 2953.74 of the Revised Code by which eligible	550
inmate applications for DNA testing will be screened and that a	551
judge of a court of common pleas upon receipt of a properly filed	552
application and accompanying acknowledgment will apply those	553
criteria to determine whether to accept or reject the application;	554

(5) That the results of DNA testing conducted under sections	555
2953.71 to 2953.81 of the Revised Code will be provided as	556
described in section 2953.81 of the Revised Code to all parties in	557
the postconviction proceedings and will be reported to various	558
courts;	559

(6) That, if DNA testing is conducted with respect to an	560
inmate under sections 2953.71 to 2953.81 of the Revised Code, the	561
state will not offer the inmate a retest if an inclusion result is	562
achieved relative to the testing and that, if the state were to	563
offer a retest after an inclusion result, the policy would create	564
an atmosphere in which endless testing could occur and in which	565
postconviction proceedings could be stalled for many years;	566

(7) That, if the court rejects an eligible inmate's	567
application for DNA testing because the inmate does not satisfy	568
the acceptance criteria described in division (A)(4) of this	569
section, the court will not accept or consider subsequent	570
applications;	571

(8) That the acknowledgment memorializes the provisions of	572
sections 2953.71 to 2953.81 of the Revised Code with respect to	573
the application of postconviction DNA testing to inmates, that	574
those provisions do not give any inmate any additional	575
constitutional right that the inmate did not already have prior to	576
the effective date of those provisions, that the court has no duty	577
or obligation to provide postconviction DNA testing to inmates,	578
that the court of common pleas has the sole discretion subject to	579
an appeal as described in this division to determine whether an	580
inmate is an eligible inmate and whether an eligible inmate's	581
application for DNA testing satisfies the acceptance criteria	582
described in division (A)(4) of this section and whether the	583
application should be accepted or rejected, that if the court of	584
common pleas rejects an eligible inmate's application, the inmate	585
may seek leave of the supreme court to appeal the rejection to	586
that court if the inmate was sentenced to death for the offense	587
for which the inmate is requesting the DNA testing and, if the	588
inmate was not sentenced to death for that offense, may appeal the	589
rejection to the court of appeals, and that no determination	590
otherwise made by the court of common pleas in the exercise of its	591
discretion regarding the eligibility of an inmate or regarding	592
postconviction DNA testing under those provisions is reviewable by	593
or appealable to any court;	594

(9) That the manner in which sections 2953.71 to 2953.81 of	595
the Revised Code with respect to the offering of postconviction	596
DNA testing to inmates are carried out does not confer any	597
constitutional right upon any inmate, that the state has	598
established guidelines and procedures relative to those provisions	599
to ensure that they are carried out with both justice and	600
efficiency in mind, and that an inmate who participates in any	601
phase of the mechanism contained in those provisions, including,	602
but not limited to, applying for DNA testing and being rejected,	603
having an application for DNA testing accepted and not receiving	604
the test, or having DNA testing conducted and receiving	605
unfavorable results, does not gain as a result of the	606
participation any constitutional right to challenge, or, except as	607
provided in division (A)(8) of this section, any right to any	608
review or appeal of, the manner in which those provisions are	609
carried out;	610

(10) That the most basic aspect of sections 2953.71 to	611
2953.81 of the Revised Code is that, in order for DNA testing to	612
occur, there must be an inmate sample against which other evidence	613
may be compared, that, if an eligible inmate's application is	614
accepted but the inmate subsequently refuses to submit to the	615
collection of the sample of biological material from the inmate or	616
hinders the state from obtaining a sample of biological material	617
from the inmate, the goal of those provisions will be frustrated,	618
and that an inmate's refusal or hindrance shall cause the court to	619
rescind its prior acceptance of the application for DNA testing	620
for the inmate and deny the application;	621

(11) That, if the inmate is an inmate who pleaded guilty or	622
no contest to a felony offense and who is using the application	623
and acknowledgment to request DNA testing under section 2953.82 of	624
the Revised Code, all references in the acknowledgment to an	625
"eligible inmate" are considered to be references to, and apply	626
to, the inmate and all references in the acknowledgment to	627
"sections 2953.71 to 2953.81 of the Revised Code" are considered	628
to be references to "section 2953.82 of the Revised Code"."	629

(B) The attorney general shall prescribe a form to be used to	630
make an application for DNA testing under division (A) of this	631
section and section 2953.73 of the Revised Code and a form to be	632
used to provide the acknowledgment described in division (A) of	633
this section. The forms shall include all information described in	634
division (A) of this section, spaces for an inmate to insert all	635
information necessary to complete the forms, including, but not	636
limited to, specifying the offense or offenses for which the	637
inmate is an eligible inmate and is requesting the DNA testing or	638
for which the inmate is requesting the DNA testing under section	639
2953.82 of the Revised Code, and any other information or material	640
the attorney general determines is necessary or relevant. The	641
forms also shall be used to make an application requesting DNA	642
testing under section 2953.82 of the Revised Code, and the	643
attorney general shall ensure that they are sufficient for that	644
type of use, and that they include all information and spaces	645
necessary for that type of use. The attorney general shall	646
distribute copies of the prescribed forms to the department of	647
rehabilitation and correction, the department shall ensure that	648
each prison in which inmates are housed has a supply of copies of	649
the forms, and the department shall ensure that copies of the	650
forms are provided free of charge to any inmate who requests them.	651

(C)(1) An inmate is eligible to request DNA testing to be	652
conducted under sections 2953.71 to 2953.81 of the Revised Code	653
only if all of the following apply:	654

(a) The offense for which the inmate claims to be an eligible	655
inmate is a felony that was committed prior to the effective date	656
of this section, and the inmate was convicted by a judge or jury	657
of that offense.	658

(b) The inmate was sentenced to a prison term or sentence of	659
death for the felony described in division (C)(1)(a) of this	660
section and, on the effective date of this section, is in prison	661
serving that prison term or under that sentence of death.	662

(c) On the date on which the application is filed, the inmate	663
has at least one year remaining on the prison term described in	664
division (C)(1)(b) of this section, or the inmate is in prison	665
under a sentence of death as described in that division.	666

(2) An inmate is not an eligible inmate under division (C)(1)	667
of this section regarding any offense to which the inmate pleaded	668
guilty or no contest.	669

Sec. 2953.73. (A) An eligible inmate who wishes to request	670
DNA testing to be conducted under sections 2953.71 to 2953.81 of	671
the Revised Code shall submit an application for DNA testing on a	672
form prescribed by the attorney general for this purpose and shall	673
submit the form to the court of common pleas that sentenced the	674
inmate for the offense for which the inmate is an eligible inmate	675
and is requesting DNA testing. The eligible inmate shall submit	676
the application to that court of common pleas not later than two	677
years after October 29, 2003. No court of common pleas shall	678
accept an application under this section after the expiration of	679
the period of time specified in this division.	680

(B) If an eligible inmate submits an application for DNA	681
testing under division (A) of this section, upon the submission of	682
the application, all of the following apply:	683

(1) The eligible inmate shall serve a copy of the application	684
on the prosecuting attorney and the attorney general.	685

(2) The application shall be assigned to the judge of that	686
court of common pleas who was the trial judge in the case in which	687
the eligible inmate was convicted of the offense for which the	688
inmate is requesting DNA testing, or, if that judge no longer is a	689
judge of that court, it shall be assigned according to court	690
rules. The judge to whom the application is assigned shall decide	691
the application. The application shall become part of the file in	692
the case.	693

(C) If an eligible inmate submits an application for DNA	694
testing under division (A) of this section, regardless of whether	695
the inmate has commenced any federal habeas corpus proceeding	696
relative to the case in which the inmate was convicted of the	697
offense for which the inmate is an eligible inmate and is	698
requesting DNA testing, any response to the application by the	699
prosecuting attorney or the attorney general shall be filed not	700
later than forty-five days after the date on which the eligible	701
inmate submits the application. The prosecuting attorney or the	702
attorney general, or both, may, but are not required to, file a	703
response to the application. If the prosecuting attorney or the	704
attorney general files a response under this division, the	705
prosecuting attorney or attorney general, whoever filed the	706
response, shall serve a copy of the response on the eligible	707
inmate.	708

(D) If an eligible inmate submits an application for DNA	709
testing under division (A) of this section, the court shall make	710
the determination as to whether the application should be accepted	711
or rejected. The court shall expedite its review of the	712
application. The court shall make the determination in accordance	713
with the criteria and procedures set forth in sections 2953.74 to	714
2953.81 of the Revised Code and, in making the determination,	715
shall consider the application, the supporting affidavits, and the	716
documentary evidence and, in addition to those materials, shall	717
consider all the files and records pertaining to the proceedings	718
against the applicant, including, but not limited to, the	719
indictment, the court's journal entries, the journalized records	720
of the clerk of the court, and the court reporter's transcript and	721
all responses to the application filed under division (C) of this	722
section by a prosecuting attorney or the attorney general, unless	723
the application and the files and records show the applicant is	724
not entitled to DNA testing, in which case the application may be	725
denied. The court is not required to conduct an evidentiary	726
hearing in conducting its review of, and in making its	727
determination as to whether to accept or reject, the application.	728
Upon making its determination, the court shall enter a judgment	729
and order that either accepts or rejects the application and that	730
includes within the judgment and order the reasons for the	731
acceptance or rejection as applied to the criteria and procedures	732
set forth in sections 2953.71 to 2953.81 of the Revised Code. The	733
court shall send a copy of the judgment and order to the eligible	734
inmate who filed it, the prosecuting attorney, and the attorney	735
general.	736

(E) A judgment and order of a court entered under division	737
(D) of this section is appealable only as provided in this	738
division. If an eligible inmate submits an application for DNA	739
testing under section 2953.73 of the Revised Code and the court of	740
common pleas rejects the application under division (D) of this	741
section, one of the following applies:	742

(1) If the inmate was sentenced to death for the offense for	743
which the inmate claims to be an eligible inmate and is requesting	744
DNA testing, the inmate may seek leave of the supreme court to	745
appeal the rejection to the supreme court. Courts of appeals do	746
not have jurisdiction to review any rejection if the inmate was	747
sentenced to death for the offense for which the inmate claims to	748
be an eligible inmate and is requesting DNA testing.	749

(2) If the inmate was not sentenced to death for the offense	750
for which the inmate claims to be an eligible inmate and is	751
requesting DNA testing, the rejection is a final appealable order,	752
and the inmate may appeal it to the court of appeals of the	753
district in which is located that court of common pleas.	754

(F) Notwithstanding any provision of law regarding fees and	755
costs, no filing fee shall be required of, and no court costs	756
shall be assessed against, an eligible offender who is indigent	757
and who submits an application under this section.	758

(G) If a court rejects an eligible inmate's application for	759
DNA testing under division (D) of this section, unless the	760
rejection is overturned on appeal, no court shall require the	761
state to administer a DNA test under sections 2953.71 to 2953.81	762
of the Revised Code on the eligible inmate.	763

Sec. 2953.74. (A) If an eligible inmate submits an	764
application for DNA testing under section 2953.73 of the Revised	765
Code and a prior definitive DNA test has been conducted regarding	766
the same biological evidence that the inmate seeks to have tested,	767
the court shall reject the inmate's application. If an eligible	768
inmate files an application for DNA testing and a prior	769
inconclusive DNA test has been conducted regarding the same	770
biological evidence that the inmate seeks to have tested, the	771
court shall review the application and has the discretion, on a	772
case-by-case basis, to either accept or reject the application.	773
The court may direct a testing authority to provide the court with	774
information that the court may use in determining whether prior	775
DNA test results were definitive or inconclusive and whether to	776
accept or reject an application in relation to which there were	777
prior inconclusive DNA test results.	778

(B) If an eligible inmate submits an application for DNA	779
testing under section 2953.73 of the Revised Code, the court may	780
accept the application only if one of the following applies:	781

(1) The inmate did not have a DNA test taken at the trial	782
stage in the case in which the inmate was convicted of the offense	783
for which the inmate is an eligible inmate and is requesting the	784
DNA testing regarding the same biological evidence that the inmate	785
seeks to have tested, the inmate shows that DNA exclusion when	786
analyzed in the context of and upon consideration of all available	787
admissible evidence related to the subject inmate's case as	788
described in division (D) of this section would have been outcome	789
determinative at that trial stage in that case, and, at the time	790
of the trial stage in that case, DNA testing was not generally	791
accepted, the results of DNA testing were not generally admissible	792
in evidence, or DNA testing was not yet available.	793

(2) The inmate had a DNA test taken at the trial stage in the	794
case in which the inmate was convicted of the offense for which	795
the inmate is an eligible inmate and is requesting the DNA testing	796
regarding the same biological evidence that the inmate seeks to	797
have tested, the test was not a prior definitive DNA test that is	798
subject to division (A) of this section, and the inmate shows that	799
DNA exclusion when analyzed in the context of and upon	800
consideration of all available admissible evidence related to the	801
subject inmate's case as described in division (D) of this section	802
would have been outcome determinative at the trial stage in that	803
case.	804

(C) If an eligible inmate submits an application for DNA	805
testing under section 2953.73 of the Revised Code, the court may	806
accept the application only if all of the following apply:	807

(1) The court determines pursuant to section 2953.75 of the	808
Revised Code that biological material was collected from the crime	809
scene or the victim of the offense for which the inmate is an	810
eligible inmate and is requesting the DNA testing and that the	811
parent sample of that biological material against which a sample	812
from the inmate can be compared still exists at that point in	813
time.	814

(2) The testing authority determines all of the following	815
pursuant to section 2953.76 of the Revised Code regarding the	816
parent sample of the biological material described in division	817
(C)(1) of this section:	818

(a) The parent sample of the biological material so collected	819
contains scientifically sufficient material to extract a test	820
sample.	821

(b) The parent sample of the biological material so collected	822
is not so minute or fragile as to risk destruction of the parent	823
sample by the extraction described in division (D)(C)(2)(a) of	824
this section; provided that the court may determine in its	825
discretion, on a case-by-case basis, that, even if the parent	826
sample of the biological material so collected is so minute or	827
fragile as to risk destruction of the parent sample by the	828
extraction, the application should not be rejected solely on the	829
basis of that risk.	830

(c) The parent sample of the biological material so collected	831
has not degraded or been contaminated to the extent that it has	832
become scientifically unsuitable for testing, and the parent	833
sample otherwise has been preserved, and remains, in a condition	834
that is scientifically suitable for testing.	835

(3) The court determines that, at the trial stage in the case	836
in which the inmate was convicted of the offense for which the	837
inmate is an eligible inmate and is requesting the DNA testing,	838
the identity of the person who committed the offense was an issue.	839

(4) The court determines that one or more of the defense	840
theories asserted by the inmate at the trial stage in the case	841
described in division (C)(3) of this section or in a retrial of	842
that case in a court of this state was of such a nature that, if	843
DNA testing is conducted and an exclusion result is obtained, the	844
exclusion result will be outcome determinative.	845

(5) The court determines that, if DNA testing is conducted	846
and an exclusion result is obtained, the results of the testing	847
will be outcome determinative regarding that inmate.	848

(6) The court determines pursuant to section 2953.76 of the	849
Revised Code from the chain of custody of the parent sample of the	850
biological material to be tested and of any test sample extracted	851
from the parent sample, and from the totality of circumstances	852
involved, that the parent sample and the extracted test sample are	853
the same sample as collected and that there is no reason to	854
believe that they have been out of state custody or have been	855
tampered with or contaminated since they were collected.	856

(D) If an eligible inmate submits an application for DNA	857
testing under section 2953.73 of the Revised Code, the court, in	858
determining whether the "outcome determinative" criterion	859
described in divisions (B)(1) and (2) of this section has been	860
satisfied, shall consider all available admissible evidence	861
related to the subject inmate's case.	862

(E) If an eligible inmate submits an application for DNA	863
testing under section 2953.73 of the Revised Code and the court	864
accepts the application, the eligible inmate may request the court	865
to order, or the court on its own initiative may order, the bureau	866
of criminal identification and investigation to compare the	867
results of DNA testing of biological material from an unidentified	868
person other than the inmate that was obtained from the crime	869
scene or from a victim of the offense for which the inmate has	870
been approved for DNA testing to the combined DNA index system	871
maintained by the federal bureau of investigation.	872

If the bureau, upon comparing the test results to the	873
combined DNA index system, determines the identity of the person	874
who is the contributor of the biological material, the bureau	875
shall provide that information to the court that accepted the	876
application, the inmate, and the prosecuting attorney. The inmate	877
or the state may use the information for any lawful purpose.	878

If the bureau, upon comparing the test results to the	879
combined DNA index system, is unable to determine the identity of	880
the person who is the contributor of the biological material, the	881
bureau may compare the test results to other previously obtained	882
and acceptable DNA test results of any person whose identity is	883
known other than the eligible inmate. If the bureau, upon	884
comparing the test results to the DNA test results of any person	885
whose identity is known, determines that the person whose identity	886
is known is the contributor of the biological material, the bureau	887
shall provide that information to the court that accepted the	888
application, the inmate, and the prosecuting attorney. The inmate	889
or the state may use the information for any lawful purpose.	890

Sec. 2953.78.  (A) If an eligible inmate submits an	891
application for DNA testing under section 2953.73 of the Revised	892
Code and if the application is accepted and DNA testing is to be	893
performed, the court shall select the testing authority to be used	894
for the testing. A court shall not select or use a testing	895
authority for DNA testing unless the attorney general approves or	896
designates the testing authority pursuant to division (C) of this	897
section and unless the testing authority satisfies the criteria	898
set forth in section 2953.80 of the Revised Code.	899

(B) If a court selects a testing authority pursuant to	900
division (A) of this section and the eligible inmate for whom the	901
test is to be performed objects to the use of the selected testing	902
authority, the court shall rescind its prior acceptance of the	903
application for DNA testing for the inmate and deny the	904
application. An objection as described in this division, and the	905
resulting rescission and denial, do not preclude a court from	906
accepting in the court's discretion, a subsequent application by	907
the same eligible inmate requesting DNA testing.	908

(C) The attorney general shall approve or designate testing	909
authorities that may be selected and used to conduct DNA testing,	910
shall prepare a list of the approved or designated testing	911
authorities, and shall provide copies of the list to all courts of	912
common pleas. The attorney general shall update the list as	913
appropriate to reflect changes in the approved or designated	914
testing authorities and shall provide copies of the updated list	915
to all courts of common pleas. The attorney general shall not	916
approve or designate a testing authority under this division	917
unless the testing authority satisfies the criteria set forth in	918
section 2953.80 of the Revised Code. A testing authority that is	919
equipped to handle advanced DNA testing may be approved or	920
designated under this division, provided it satisfies the criteria	921
set forth in that section.	922

(D) The attorney general's approval or designation of testing	923
authorities under division (C) of this section, and the selection	924
and use of any approved or designated testing authority, do not	925
afford an inmate any right to subsequently challenge the approval,	926
designation, selection, or use, and an inmate may not appeal to	927
any court the approval, designation, selection, or use of a	928
testing authority.	929

Sec. 2953.80.  (A) The attorney general shall not approve or	930
designate a testing authority for conducting DNA testing under	931
section 2953.78 of the Revised Code, and a court shall not select	932
or use a testing authority for DNA testing under that section,	933
unless the testing authority satisfies all of the following	934
criteria:	935

(1) It is in compliance with nationally accepted quality	936
assurance standards for forensic DNA testing or advanced DNA	937
testing, as published in the quality assurance standards for	938
forensic DNA testing laboratories issued by the director of the	939
federal bureau of investigation.	940

(2) It undergoes an annual internal or external audit for	941
quality assurance in conformity with the standards identified in	942
division (A)(1) of this section.	943

(3) At least once in the preceding two-year period, and at	944
least once each two-year period thereafter, it undergoes an	945
external audit for quality assurance in conformity with the	946
standards identified in division (A)(1) of this section.	947

(B) As used in division (A) of this section:

948

(1) "External audit" means a quality assurance review of a	949
testing authority that is conducted by a forensic DNA testing	950
agency outside of, and not affiliated with, the testing authority.	951

(2) "Internal audit" means an internal review of a testing	952
authority that is conducted by the testing authority itself.	953

Sec. 2953.82.  (A) An inmate who pleaded guilty or no contest	954
to a felony offense that was committed prior to October 29, 2003	955
may request DNA testing under this section regarding that offense	956
if all of the following apply:	957

(1) The inmate was sentenced to a prison term or sentence of	958
death for that felony and, on October 29, 2003, is in prison	959
serving that prison term or under that sentence of death.	960

(2) On the date on which the inmate files the application	961
requesting the testing with the court as described in division (B)	962
of this section, the inmate has at least one year remaining on the	963
prison term described in division (A)(1) of this section, or the	964
inmate is in prison under a sentence of death as described in that	965
division.	966

(B) An inmate who pleaded guilty or no contest to a felony	967
offense that was committed prior to October 29, 2003, who	968
satisfies the criteria set forth in division (A) of this section,	969
and who wishes to request DNA testing under this section shall	970
submit, in accordance with this division, an application for the	971
testing to the court of common pleas and. Upon submitting the	972
application to the court, the inmate shall serve a copy on the	973
prosecuting attorney. The inmate shall specify on the application	974
the offense or offenses for which the inmate is requesting the DNA	975
testing under this section. Along with the application, the inmate	976
shall submit an acknowledgment that is signed by the inmate. The	977
application and acknowledgment required under this division shall	978
be the same application and acknowledgment as are used by eligible	979
inmates who request DNA testing under sections 2953.71 to 2953.81	980
of the Revised Code.	981

The inmate shall file the application with the court of	982
common pleas not later than two years after October 29, 2003. Upon	983
filing the application, the inmate shall serve a copy on the	984
prosecuting attorney.	985

(C) Within forty-five days after the filing of an application	986
for DNA testing under division (B) of this section, the	987
prosecuting attorney shall file a statement with the court that	988
indicates whether the prosecuting attorney agrees or disagrees	989
that the inmate should be permitted to obtain DNA testing under	990
this section. If the prosecuting attorney agrees that the inmate	991
should be permitted to obtain DNA testing under this section, all	992
of the following apply:	993

(1) The application and the written statement shall be	994
considered for all purposes as if they were an application for DNA	995
testing filed under section 2953.73 of the Revised Code that the	996
court accepted, and the court, the prosecuting attorney, the	997
attorney general, the inmate, law enforcement personnel, and all	998
other involved persons shall proceed regarding DNA testing for the	999
inmate pursuant to sections 2953.77 to 2953.81 of the Revised	1000
Code, in the same manner as if the inmate was an eligible inmate	1001
for whom an application for DNA testing had been accepted.	1002

(2) Upon completion of the DNA testing, section 2953.81 of	1003
the Revised Code applies.	1004

(D) If the prosecuting attorney disagrees that the inmate	1005
should be permitted to obtain DNA testing under this section, the	1006
prosecuting attorney's disagreement is final and is not appealable	1007
by any person to any court, and no court shall have authority,	1008
without agreement of the prosecuting attorney, to order DNA	1009
testing regarding that inmate and the offense or offenses for	1010
which the inmate requested DNA testing in the application.	1011

(E) If the prosecuting attorney fails to file a statement of	1012
agreement or disagreement within the time provided in division (C)	1013
of this section, the court may order the prosecuting attorney to	1014
file a statement of that nature within fifteen days of the date of	1015
the order.	1016

Sec. 2953.84.  The provisions of sections 2953.71 to 2953.82	1017
of the Revised Code by which an inmate may obtain postconviction	1018
DNA testing are not the exclusive means by which an inmate may	1019
obtain postconviction DNA testing, and the provisions of those	1020
sections do not limit or affect any other means by which an inmate	1021
may obtain postconviction DNA testing.	1022

Section 2. That existing sections 2901.07, 2953.21, 2953.23,	1023
2953.71, 2953.72, 2953.73, 2953.74, 2953.78, 2953.80, and 2953.82	1024
of the Revised Code are hereby repealed.	1025

Section 3. (A) The General Assembly hereby declares that its	1026
purpose in amending section 2901.07 of the Revised Code in	1027
Sections 1 and 2 of this act is to reaffirm that it is the General	1028
Assembly's intent that, under that section as it existed prior to	1029
the effective date of this act, a person who is in any of the	1030
categories of offenders described in division (B)(1), (2), (3), or	1031
(4) of that section in relation to a conviction of or plea of	1032
guilty to a felony offense or a misdemeanor offense listed in	1033
division (D) of that section is subject to the DNA specimen	1034
collection provisions of divisions (B) and (C) of that section	1035
regardless of when the conviction of or plea of guilty to the	1036
felony offense or the misdemeanor offense occurs or is entered.	1037

(B) The General Assembly declares that it believes that the	1038
amendments to section 2901.07 of the Revised Code made in Sections	1039
1 and 2 of this act are not substantive in nature and merely	1040
clarify that divisions (B)(1), (2), (3), and (4) and (C) of that	1041
section operate as described in division (A) of this Section, and	1042
that the amendments to section 2901.07 of the Revised Code made in	1043
Sections 1 and 2 of this act thus are remedial in nature. The	1044
General Assembly declares that it intends that the clarifying,	1045
remedial amendments to section 2901.07 of the Revised Code made in	1046
Sections 1 and 2 of this act apply to all convicted offenders	1047
described in division (A) of this Section, regardless of when they	1048
were convicted of or pleaded guilty to the felony or the specified	1049
misdemeanor or are convicted of or plead guilty to the felony or	1050
the specified misdemeanor.	1051

(C) In compliance with the Ohio Supreme Court decision in Van	1052
Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, and with	1053
section 1.48 of the Revised Code, the General Assembly expressly	1054
states its intent that the amendments to section 2901.07 of the	1055
Revised Code made in Sections 1 and 2 of this act shall apply	1056
retrospectively.	1057

Section 4. This act is hereby declared to be an emergency	1058
measure necessary for the immediate preservation of the public	1059
peace, health, and safety. The reason for such necessity is that	1060
the amendments made in Sections 1 and 2 of this act to section	1061
2901.07 of the Revised Code are crucially needed to protect the	1062
residents of this state from the consequences that might result if	1063
crimes go unsolved because the DNA specimen collection provisions	1064
of that section are not applied to all persons who have been	1065
convicted of or pleaded guilty to a felony offense or a	1066
misdemeanor offense listed in division (D) of that section and are	1067
in any of the categories of offenders described in division	1068
(B)(1), (2), (3), or (4) of that section. Therefore, this act	1069
shall go into immediate effect.	1070