As Introduced

127th General Assembly Regular Session 2007-2008

S. B. No. 358

Senator Goodman 

Cosponsors: Senators Seitz, Harris, Morano, Mason, Padgett, Miller, R. 

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A BILL

To amend sections 109.573, 2953.21, 2953.23, 2953.71,

1

2953.72, 2953.73, 2953.74, 2953.75, 2953.76,

2

2953.77, 2953.78, 2953.79, 2953.81, 2953.83, and

3

2953.84, to enact sections 105.912, 109.561,

4

2933.81, 2933.82, and 2933.83, and to repeal

5

section 2953.82 of the Revised Code relative to

6

the expansion of DNA testing for certain

7

convicted felons, the elimination of the DNA

8

testing mechanism for felons who pleaded guilty or

9

no contest to the offense, the preservation and

10

accessibility of biological evidence in a

11

criminal or delinquency investigation or

12

proceeding, the improvement of eyewitness

13

identification procedures, and the electronic or

14

audio recording of custodial interrogations.

15

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

Section 1. That sections 109.573, 2953.21, 2953.23, 2953.71,	16
2953.72, 2953.73, 2953.74, 2953.75, 2953.76, 2953.77, 2953.78,	17
2953.79, 2953.81, 2953.83, and 2953.84 be amended and sections	18
105.912, 109.561, 2933.81, 2933.82, and 2933.83 of the Revised	19
Code be enacted to read as follows:	20

Sec. 105.912.  The Ohio judicial conference shall develop the	21
forms regarding custodial interrogations that are described in	22
division (F) of section 2933.81 of the Revised Code, distribute	23
the forms as specified in that division, and monitor compliance	24
with the recording requirement in division (B) of that section as	25
specified in division (F) of that section.	26

Sec. 109.561.  There is hereby established within the bureau	27
of criminal identification and investigation a preservation of	28
biological evidence task force. The task force shall consist of	29
officers and employees of the bureau. The task force shall perform	30
the duties and functions specified in division (D) of section	31
2933.82 of the Revised Code.	32

Sec. 109.573.  (A) As used in this section:

33

(1) "DNA" means human deoxyribonucleic acid.

34

(2) "DNA analysis" means a laboratory analysis of a DNA	35
specimen to identify DNA characteristics and to create a DNA	36
record.	37

(3) "DNA database" means a collection of DNA records from	38
forensic casework or from crime scenes, specimens from anonymous	39
and unidentified sources, and records collected pursuant to	40
sections 2152.74 and 2901.07 of the Revised Code and a population	41
statistics database for determining the frequency of occurrence of	42
characteristics in DNA records.	43

(4) "DNA record" means the objective result of a DNA analysis	44
of a DNA specimen, including representations of DNA fragment	45
lengths, digital images of autoradiographs, discrete allele	46
assignment numbers, and other DNA specimen characteristics that	47
aid in establishing the identity of an individual.	48

(5) "DNA specimen" includes human blood cells or	49
physiological tissues or body fluids.	50

(6) "Unidentified person database" means a collection of DNA	51
records, and, on and after May 21, 1998, of fingerprint and	52
photograph records, of unidentified human corpses, human remains,	53
or living individuals.	54

(7) "Relatives of missing persons database" means a	55
collection of DNA records of persons related by consanguinity to a	56
missing person.	57

(8) "Law enforcement agency" means a police department, the	58
office of a sheriff, the state highway patrol, a county	59
prosecuting attorney, or a federal, state, or local governmental	60
body that enforces criminal laws and that has employees who have a	61
statutory power of arrest.	62

(9) "Administration of criminal justice" means the	63
performance of detection, apprehension, detention, pretrial	64
release, post-trial release, prosecution, adjudication,	65
correctional supervision, or rehabilitation of accused persons or	66
criminal offenders. "Administration of criminal justice" also	67
includes criminal identification activities and the collection,	68
storage, and dissemination of criminal history record information.	69

(B)(1) The superintendent of the bureau of criminal	70
identification and investigation may do all of the following:	71

(a) Establish and maintain a state DNA laboratory to perform	72
DNA analyses of DNA specimens;	73

(b) Establish and maintain a DNA database;

74

(c) Establish and maintain an unidentified person database	75
to aid in the establishment of the identity of unknown human	76
corpses, human remains, or living individuals;	77

(d) Establish and maintain a relatives of missing persons	78
database for comparison with the unidentified person database to	79
aid in the establishment of the identity of unknown human corpses,	80
human remains, and living individuals.	81

(2) If the bureau of criminal identification and	82
investigation establishes and maintains a DNA laboratory and a DNA	83
database, the bureau may use or disclose information regarding DNA	84
records for the following purposes:	85

(a) The bureau may disclose information to a law enforcement	86
agency for the administration of criminal justice.	87

(b) The bureau shall disclose pursuant to a court order	88
issued under section 3111.09 of the Revised Code any information	89
necessary to determine the existence of a parent and child	90
relationship in an action brought under sections 3111.01 to	91
3111.18 of the Revised Code.	92

(c) The bureau may use or disclose information from the	93
population statistics database, for identification research and	94
protocol development, or for quality control purposes.	95

(3) If the bureau of criminal identification and	96
investigation establishes and maintains a relatives of missing	97
persons database, all of the following apply:	98

(a) If a person has disappeared and has been continuously	99
absent from the person's place of last domicile for a thirty-day	100
or longer period of time without being heard from during the	101
period, persons related by consanguinity to the missing person may	102
submit to the bureau a DNA specimen, the bureau may include the	103
DNA record of the specimen in the relatives of missing persons	104
database, and, if the bureau does not include the DNA record of	105
the specimen in the relatives of missing persons database, the	106
bureau shall retain the DNA record for future reference and	107
inclusion as appropriate in that database.	108

(b) The bureau shall not charge a fee for the submission of a	109
DNA specimen pursuant to division (B)(3)(a) of this section.	110

(c) If the DNA specimen submitted pursuant to division	111
(B)(3)(a) of this section is collected by withdrawing blood from	112
the person or a similarly invasive procedure, a physician,	113
registered nurse, licensed practical nurse, duly licensed clinical	114
laboratory technician, or other qualified medical practitioner	115
shall conduct the collection procedure for the DNA specimen	116
submitted pursuant to division (B)(3)(a) of this section and shall	117
collect the DNA specimen in a medically approved manner. If the	118
DNA specimen is collected by swabbing for buccal cells or a	119
similarly noninvasive procedure, division (B)(3)(c) of this	120
section does not require that the DNA specimen be collected by a	121
qualified medical practitioner of that nature. No later than	122
fifteen days after the date of the collection of the DNA specimen,	123
the person conducting the DNA specimen collection procedure shall	124
cause the DNA specimen to be forwarded to the bureau of criminal	125
identification and investigation in accordance with procedures	126
established by the superintendent of the bureau under division (H)	127
of this section. The bureau may provide the specimen vials,	128
mailing tubes, labels, postage, and instruction needed for the	129
collection and forwarding of the DNA specimen to the bureau.	130

(d) The superintendent, in the superintendent's discretion,	131
may compare DNA records in the relatives of missing persons	132
database with the DNA records in the unidentified person database.	133

(4) If the bureau of criminal identification and	134
investigation establishes and maintains an unidentified person	135
database and if the superintendent of the bureau identifies a	136
matching DNA record for the DNA record of a person or deceased	137
person whose DNA record is contained in the unidentified person	138
database, the superintendent shall inform the coroner who	139
submitted or the law enforcement agency that submitted the DNA	140
specimen to the bureau of the match and, if possible, of the	141
identity of the unidentified person.	142

(5) The bureau of criminal identification and investigation	143
may enter into a contract with a qualified public or private	144
laboratory to perform DNA analyses, DNA specimen maintenance,	145
preservation, and storage, DNA record keeping, and other duties	146
required of the bureau under this section. A public or private	147
laboratory under contract with the bureau shall follow quality	148
assurance and privacy requirements established by the	149
superintendent of the bureau.	150

(C) The superintendent of the bureau of criminal	151
identification and investigation shall establish procedures for	152
entering into the DNA database the DNA records submitted pursuant	153
to sections 2152.74 and 2901.07 of the Revised Code and for	154
determining an order of priority for entry of the DNA records	155
based on the types of offenses committed by the persons whose	156
records are submitted and the available resources of the bureau.	157

(D) When a DNA record is derived from a DNA specimen provided	158
pursuant to section 2152.74 or 2901.07 of the Revised Code, the	159
bureau of criminal identification and investigation shall attach	160
to the DNA record personal identification information that	161
identifies the person from whom the DNA specimen was taken. The	162
personal identification information may include the subject	163
person's fingerprints and any other information the bureau	164
determines necessary. The DNA record and personal identification	165
information attached to it shall be used only for the purpose of	166
personal identification or for a purpose specified in this	167
section.	168

(E) DNA records, DNA specimens, fingerprints, and photographs	169
that the bureau of criminal identification and investigation	170
receives pursuant to this section and sections 313.08, 2152.74,	171
and 2901.07 of the Revised Code and personal identification	172
information attached to a DNA record are not public records under	173
section 149.43 of the Revised Code.	174

(F) The bureau of criminal identification and investigation	175
may charge a reasonable fee for providing information pursuant to	176
this section to any law enforcement agency located in another	177
state.	178

(G)(1) No person who because of the person's employment or	179
official position has access to a DNA specimen, a DNA record, or	180
other information contained in the DNA database that identifies an	181
individual shall knowingly disclose that specimen, record, or	182
information to any person or agency not entitled to receive it or	183
otherwise shall misuse that specimen, record, or information.	184

(2) No person without authorization or privilege to obtain	185
information contained in the DNA database that identifies an	186
individual person shall purposely obtain that information.	187

(H) The superintendent of the bureau of criminal	188
identification and investigation shall establish procedures for	189
all of the following:	190

(1) The forwarding to the bureau of DNA specimens collected	191
pursuant to division (H) of this section and sections 313.08,	192
2152.74, and 2901.07 of the Revised Code and of fingerprints and	193
photographs collected pursuant to section 313.08 of the Revised	194
Code;	195

(2) The collection, maintenance, preservation, and analysis	196
of DNA specimens;	197

(3) The creation, maintenance, and operation of the DNA	198
database;	199

(4) The use and dissemination of information from the DNA	200
database;	201

(5) The creation, maintenance, and operation of the	202
unidentified person database;	203

(6) The use and dissemination of information from the	204
unidentified person database;	205

(7) The creation, maintenance, and operation of the relatives	206
of missing persons database;	207

(8) The use and dissemination of information from the	208
relatives of missing persons database;	209

(9) The verification of entities requesting DNA records and	210
other DNA information from the bureau and the authority of the	211
entity to receive the information;	212

(10) The operation of the bureau and responsibilities of	213
employees of the bureau with respect to the activities described	214
in this section.	215

(I) In conducting DNA analyses of DNA specimens, the state	216
DNA laboratory and any laboratory with which the bureau has	217
entered into a contract pursuant to division (B)(5) of this	218
section shall give DNA analyses of DNA specimens that relate to	219
ongoing criminal investigations or prosecutions priority over DNA	220
analyses of DNA specimens that relate to applications made	221
pursuant to section 2953.73 or 2953.82 of the Revised Code.	222

Sec. 2933.81. (A) As used in this section:

223

(1) "Custodial interrogation" means any interrogation	224
involving a law enforcement officer's questioning that is	225
reasonably likely to elicit incriminating responses and in which a	226
reasonable person in the subject's position would consider self to	227
be in custody, beginning when a person should have been advised of	228
the person's right to counsel and right to remain silent and of	229
the fact that anything the person says could be used against the	230
person, as specified by the United States supreme court in Miranda	231
v. Arizona (1966), 384 U.S. 436, and subsequent decisions, and	232
ending when the questioning has completely finished.	233

(2) "Detention facility" has the same meaning as in section	234
2921.01 of the Revised Code.	235

(3) "Electronic recording" or "electronically recorded" means	236
an audio and visual recording that is an authentic, accurate,	237
unaltered record of a custodial interrogation.	238

(4) "Local correctional facility" has the same meaning as in	239
section 2903.13 of the Revised Code.	240

(5) "Place of detention" means a jail, police or sheriff's	241
station, holding cell, state correctional institution, local	242
correctional facility, detention facility, department of youth	243
services facility, or other place where persons are questioned in	244
connection with criminal charges or delinquent child allegations	245
or proceedings.	246

(6) "State correctional institution" has the same meaning as	247
in section 2967.01 of the Revised Code.	248

(7) "Statement" means an oral, written, sign language, or	249
nonverbal communication.	250

(B)(1) Except as otherwise provided in division (B)(2) of	251
this section, all statements made by a person during a custodial	252
interrogation shall be electronically recorded.	253

(2) If any part of a custodial interrogation of a person	254
necessarily takes place outside of a place of detention and it is	255
not possible to electronically record the statements made by the	256
person during that part of the interrogation, all statements made	257
by the person during that part of the interrogation shall be	258
recorded in an audio recording that is an authentic, accurate,	259
unaltered record of that part of the interrogation.	260

(3) During a custodial interrogation in a place of detention,	261
the camera used in making the electronic recording shall be	262
simultaneously focused upon both the interrogator and the person	263
being interrogated.	264

(C) In any criminal or delinquent child action or proceeding	265
brought against a person, if any party to the action or proceeding	266
seeks the admission as evidence of any statement made by the	267
person during a custodial interrogation that is not electronically	268
recorded or recorded as authorized by division (B)(2) of this	269
section or the admission of any statement made thereafter by the	270
person during the same custodial interrogation or a subsequent	271
custodial interrogation, including but not limited to any	272
statement made thereafter that is electronically recorded or	273
recorded as authorized by division (B)(2) of this section, and if	274
the statement otherwise is admissible in the action or proceeding	275
under the Rules of Evidence, the court in its discretion may admit	276
the statement as evidence or may exclude the statement from	277
admission as evidence. If the court indicates that it intends to	278
admit the statement as evidence, any party to the action or	279
proceeding may object and file or make a motion to exclude the	280
statement. If a party objects and makes or files a motion to	281
exclude the statement, the court shall rule on the motion in	282
accordance with the Rules of Evidence.	283

(D) Regardless of whether the statement was electronically	284
recorded or recorded as authorized by division (B)(2) of this	285
section, any statement of a person made in a custodial	286
interrogation may be admitted into evidence in a criminal or	287
delinquent child proceeding brought against the person if all of	288
the following apply:	289

(1) The statement is admissible under the Rules of Evidence.

290

(2) The statement is proven by clear and convincing evidence	291
to have been made by the person voluntarily.	292

(3) The statement is reliable.

293

(4) The court finds that the custodial interrogation occurred	294
before a grand jury or court.	295

(E) In any criminal or delinquent child proceeding that is	296
tried before a jury, complete transcripts of all custodial	297
interrogations shall be made available to the jurors upon motion	298
by the prosecution or defense. Actual audio or video playback of	299
interrogation shall be presented to the jurors only upon a	300
judicial determination of need.	301

(F) The Ohio judicial conference, pursuant to section 105.912	302
of the Revised Code, shall develop forms to survey custodial	303
interrogations electronically recorded or recorded as authorized	304
by division (B)(2) of this section and outcomes and identify any	305
patterns of noncompliance with the provisions of this section. The	306
conference shall provide copies of the forms to all courts of	307
common pleas, municipal courts, county courts, prosecuting	308
attorneys, city directors of law, village solicitors, and other	309
chief legal officers of a municipal corporation. The conference	310
shall monitor compliance with the recording requirement set forth	311
in division (B) of this section through the submission of the	312
forms developed under this division. The trial judge and the	313
prosecutor shall complete and submit these forms for all of the	314
following cases:	315

(1) Each case in which any custodial interrogation was	316
recorded and was introduced as evidence in a criminal case or	317
delinquent child case;	318

(2) Each case in which any custodial interrogation was	319
conducted and not recorded but nonetheless was introduced as	320
evidence in a criminal case or delinquent child case;	321

(3) Each case in which any custodial interrogation was	322
recorded and a plea of guilty to any felony charge was entered and	323
accepted by the court or in which an admission of a delinquent	324
child charge that would be a felony if committed by an adult was	325
entered and accepted by the juvenile court;	326

(4) Each case in which any custodial interrogation was	327
conducted and not recorded and a plea of guilty to any felony	328
charge was entered and accepted by the court or in which an	329
admission of a delinquent child charge that would be a felony if	330
committed by an adult was entered and accepted by the juvenile	331
court.	332

(G)(1) Law enforcement personnel shall clearly identify and	333
catalogue every electronic recording of a custodial interrogation	334
and every recording of a part of a custodial interrogation	335
recorded as authorized by division (B)(2) of this section.	336

(2) If a criminal or delinquent child proceeding is brought	337
against a person who was the subject of a custodial interrogation	338
that was electronically recorded or who was the subject of a part	339
of a custodial interrogation that was recorded as authorized by	340
division (B)(2) of this section, law enforcement personnel shall	341
preserve the recording until the later of when all appeals,	342
post-conviction relief proceedings, and habeas corpus proceedings	343
are final and concluded or the expiration of the period of time	344
within which such appeals and proceedings must be brought.	345

(3) Upon motion by the defendant in a criminal proceeding or	346
the alleged delinquent child in a delinquent child proceeding, the	347
court may order that a copy of an electronic recording of a	348
custodial interrogation of the person or of a recording of a part	349
of a custodial interrogation of the person recorded as authorized	350
by division (B)(2) of this section be preserved for any period	351
beyond the expiration of all appeals, post-conviction relief	352
proceedings, and habeas corpus proceedings.	353

(4) If no criminal or delinquent child proceeding is brought	354
against a person who was the subject of a custodial interrogation	355
that was electronically recorded or who was the subject of a part	356
of a custodial interrogation that was recorded as authorized by	357
division (B)(2) of this section, law enforcement personnel shall	358
preserve the related recording until all applicable state and	359
federal statutes of limitations bar prosecution of the person for	360
any offense or violation based on or related to any conduct	361
discussed in the custodial interrogation.	362

Sec. 2933.82.  (A) As used in this section:

363

(1)(a) "Biological evidence" means any of the following:

364

(i) The contents of a sexual assault examination kit;

365

(ii) Any item that contains blood, semen, hair, saliva, skin	366
tissue, fingernail scrapings, bone, bodily fluids, or any other	367
identifiable biological material that was collected as part of a	368
criminal investigation or delinquent child investigation or that	369
reasonably may be used to incriminate or exculpate any person for	370
an offense or delinquent act.	371

(b) The definition of "biological evidence" set forth in	372
division (A)(1)(a) of this section applies whether the material in	373
question is catalogued separately, such as on a slide or swab or	374
in a test tube, or is present on other evidence, including, but	375
not limited to, clothing, ligatures, bedding or other household	376
material, drinking cups or containers, or cigarettes;	377

(2) "Biological material" has the same meaning as in section	378
2953.71 of the Revised Code.	379

(3) "DNA" has the same meaning as in section 109.573 of the	380
Revised Code.	381

(4) "Profile" means a unique identifier of an individual,	382
derived from DNA.	383

(5) "Prosecutor" has the same meaning as in section 2935.01	384
of the Revised Code.	385

(6) "Governmental evidence-retention entity" means all of the	386
following:	387

(a) Any law enforcement agency, prosecutor's office, court,	388
public hospital, crime laboratory, or other governmental or public	389
entity or individual within this state that is charged with the	390
collection, storage, or retrieval of biological evidence;	391

(b) Any official or employee of any entity or individual	392
described in division (A)(6)(a) of this section.	393

(B)(1) Each governmental evidence-retention entity that	394
secures any biological evidence in relation to an investigation or	395
prosecution of a criminal offense or delinquent act shall secure	396
the biological evidence for whichever of the following periods of	397
time is applicable:	398

(a) For the period of time that the offense or act remains	399
unsolved;	400

(b) If any person is convicted of or pleads guilty to the	401
offense, or is adjudicated a delinquent child for committing the	402
delinquent act, for the period of time that the person remains	403
incarcerated, in a department of youth services institution or	404
other juvenile facility, under a community control sanction for	405
that offense, under any order of disposition for that act, on	406
probation or parole for that offense, under judicial release or	407
supervised release for that act, under post-release control for	408
that offense, involved in civil litigation in connection with that	409
offense or act, or subject to registration and other duties	410
imposed for that offense or act under sections 2950.04, 2950.041,	411
2950.05, and 2950.06 of the Revised Code.	412

(2) This section applies to evidence that was in the	413
possession of any governmental evidence-retention entity during	414
the investigation and prosecution of a criminal case or delinquent	415
child case and that, at the time the person is convicted of or	416
pleads guilty to the offense or is adjudicated a delinquent child	417
for the delinquent act, was likely to contain biological material.	418

(3) If a person is convicted of or pleads guilty to an	419
offense or is adjudicated a delinquent child for the delinquent	420
act and if one or more additional co-defendants of that person are	421
convicted of or plead guilty to the same offense or are	422
adjudicated delinquent children for the same delinquent act, both	423
of the following apply:	424

(a) If a governmental evidence-retention entity possesses	425
biological evidence related to the offense or act, the	426
governmental evidence-retention entity shall not destroy the	427
biological evidence if any of those additional co-defendants	428
remain in custody, incarcerated, in a department of youth services	429
institution or other juvenile facility, under a community control	430
sanction for that offense, under any order of disposition for that	431
act, on probation or parole for that offense, under judicial	432
release or supervised release for that act, under post-release	433
control for that offense, involved in civil litigation in	434
connection with that offense or act, or subject to registration	435
and other duties imposed for that offense or act under sections	436
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code.	437

(b) The governmental evidence-retention entity referred to in	438
division (B)(3)(a) of this section shall preserve the biological	439
evidence related to the offense for the period of time during	440
which any of those additional co-defendants remain in custody,	441
incarcerated, in an institution or facility, under a community	442
control sanction, under an order of disposition, on probation or	443
parole, under judicial release or supervised release, under	444
post-release control, involved in civil litigation, or subject to	445
registration and other duties under sections 2950.04, 2950.041,	446
2950.05, and 2950.06 of the Revised Code, as described in division	447
(B)(3)(a) of this section.	448

(4) A governmental evidence-retention entity that possesses	449
biological evidence shall retain the biological evidence in the	450
amount and manner sufficient to develop a DNA profile from the	451
biological material contained in or included on the evidence.	452

(5) Upon written request by the defendant in any criminal	453
case or the alleged delinquent child in any delinquent child case,	454
a governmental evidence-retention entity that possesses biological	455
evidence shall prepare an inventory of the biological evidence	456
that has been preserved in connection with the defendant's	457
criminal case or the alleged delinquent child's delinquent child	458
case.	459

(6) A governmental evidence-retention entity that possesses	460
biological evidence that includes biological material may destroy	461
the evidence before the expiration of the applicable period of	462
time specified in division (B)(1) of this section if all of the	463
following apply:	464

(a) No other provision of federal or state law requires the	465
state to preserve the evidence.	466

(b) The governmental evidence-retention entity, by certified	467
mail, return receipt requested, provides notice of intent to	468
destroy the evidence to all of the following:	469

(i) All persons who remain in custody, incarcerated, in a	470
department of youth services institution or other juvenile	471
facility, under a community control sanction, under any order of	472
disposition, on probation or parole, under judicial release or	473
supervised release, under post-release control, involved in civil	474
litigation, or subject to registration and other duties imposed	475
for that offense or act under sections 2950.04, 2950.041, 2950.05,	476
and 2950.06 of the Revised Code as a result of a criminal	477
conviction, delinquency adjudication, or commitment related to the	478
evidence in question;	479

(ii) The attorney of record for each person who is in custody	480
in any circumstance described in division (B)(6)(b)(i) of this	481
section;	482

(iii) The state public defender;

483

(iv) The prosecutor of record in the case that resulted in	484
the custody of the person in custody in any circumstance described	485
in division (B)(6)(b)(i) of this section;	486

(v) The attorney general.

487

(c) No person who is notified under division (B)(6)(b) of	488
this section does either of the following within one year after	489
the date on which the person receives the notice:	490

(i) Files a motion for testing of evidence under sections	491
2953.71 to 2953.81 or section 2953.82 of the Revised Code;	492

(ii) Submits a written request for retention of evidence to	493
the governmental evidence-retention entity that provided notice of	494
its intent to destroy evidence under division (B)(6)(b) of this	495
section.	496

(7) If, after providing notice under division (B)(6)(b) of	497
this section of its intent to destroy evidence, a governmental	498
evidence-retention entity receives a written request for retention	499
of the evidence from any person to whom the notice is provided,	500
the governmental evidence-retention entity shall retain the	501
evidence while the person referred to in division (B)(6)(b)(i) of	502
this section remains in custody, incarcerated, in a department of	503
youth services institution or other juvenile facility, under a	504
community control sanction, under any order of disposition, on	505
probation or parole, under judicial release or supervised release,	506
under post-release control, involved in civil litigation, or	507
subject to registration and other duties imposed for that offense	508
or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of	509
the Revised Code as a result of a criminal conviction, delinquency	510
adjudication, or commitment related to the evidence in question.	511

(8) A governmental evidence-retention entity shall not be	512
required to preserve physical evidence pursuant to this section	513
that is of such a size, bulk, or physical character as to render	514
retention impracticable. When retention of physical evidence that	515
otherwise would be required to be retained pursuant to this	516
section is impracticable as described in this division, the	517
governmental evidence-retention entity that otherwise would be	518
required to retain the physical evidence shall remove and preserve	519
portions of the material evidence likely to contain biological	520
evidence related to the offense, in a quantity sufficient to	521
permit future DNA testing before returning or disposing of that	522
physical evidence.	523

(C)(1) No person shall destroy biological evidence in	524
violation of any provision of this section.	525

(2) Whoever violates division (C)(1) of this section is	526
guilty of a misdemeanor of the first degree.	527

(D)(1) The preservation of biological evidence task force	528
established within the bureau of criminal identification and	529
investigation under section 109.561 of the Revised Code shall	530
establish a system regarding the proper preservation of biological	531
evidence in this state. In establishing the system, the task force	532
shall do all of the following:	533

(a) Devise standards regarding the proper collection,	534
retention, and cataloguing of biological evidence for ongoing	535
investigations and prosecutions;	536

(b) Recommend practices, protocols, models, and resources for	537
the cataloguing and accessibility of preserved biological evidence	538
already in the possession of governmental evidence-retention	539
entities.	540

(2) In consultation with the preservation of biological	541
evidence task force described in division (D)(1) of this section,	542
the division of criminal justice services of the department of	543
public safety shall administer and conduct training programs for	544
law enforcement officers and other relevant employees who are	545
charged with preserving and cataloguing biological evidence	546
regarding the methods and procedures referenced in this section.	547

Sec. 2933.83.  (A) As used in this section:

548

(1) "Administrator" means the person conducting a photo	549
lineup or live lineup.	550

(2) "Blind" means the administrator does not know the	551
identity of the suspect.	552

(3) "Blinded" means the administrator may know who the	553
suspect is, but does not know which lineup member is being viewed	554
by the eyewitness.	555

(4) "Eyewitness" means a person who observes another person	556
at or near the scene of an offense.	557

(5) "Filler" means either a person or a photograph of a	558
person who is not suspected of an offense and is included in an	559
identification procedure.	560

(6) "Live lineup" means an identification procedure in which	561
a group of persons, including the suspected perpetrator of an	562
offense and other persons not suspected of the offense, is	563
displayed to an eyewitness for the purpose of determining whether	564
the eyewitness identifies the suspect as the perpetrator of the	565
offense.	566

(7) "Photo lineup" means an identification procedure in which	567
an array of photographs, including a photograph of the suspected	568
perpetrator of an offense and additional photographs of other	569
persons not suspected of the offense, is displayed to an	570
eyewitness for the purpose of determining whether the eyewitness	571
identifies the suspect as the perpetrator of the offense.	572

(8) "Perpetrator" means the person who committed the offense.

573

(9) "Suspect" means the person believed by law enforcement to	574
be the possible perpetrator of the offense.	575

(B) Prior to conducting any live lineup or photo lineup on or	576
after the effective date of this section, any law enforcement	577
agency or criminal justice entity in this state that conducts live	578
lineups or photo lineups shall adopt specific procedures for	579
conducting the lineups. The procedures, at a minimum, shall impose	580
the following requirements:	581

(1) Unless impracticable, a blind or blinded administrator	582
shall conduct the live lineup or photo lineup.	583

(2) When it is impracticable for a blind administrator to	584
conduct the live lineup or photo lineup, the administrator shall	585
state in writing the reason for that impracticability.	586

(3) When it is impracticable for either a blind or blinded	587
administrator to conduct the live lineup or photo lineup, the	588
administrator shall state in writing the reason for that	589
impracticability.	590

(4) Unless impracticable, a video record of the live lineup	591
or photo lineup shall be made that includes all of the following	592
information:	593

(a) All identification and nonidentification results obtained	594
during the lineup, signed by the eyewitnesses, including the	595
eyewitnesses' confidence statements;	596

(b) The names of all persons present at the lineup;

597

(c) The date and time of the lineup;

598

(d) Any eyewitness identification of one or more fillers in	599
the lineup;	600

(e) The names of the lineup members and other relevant	601
identifying information, and the sources of all photographs or	602
persons used in the lineup;	603

(5) If a video record of the live lineup or photo lineup is	604
impracticable, the administrator conducting the lineup shall	605
document reason for that impracticability, and, unless	606
impracticable, an audio record of the live lineup or photo lineup	607
shall be made. The audio record shall include all of the	608
information specified in divisions (B)(4)(a) to (e) of this	609
section, and it shall be supplemented by all of the photographs	610
used in a photo lineup or photographs of all of the individuals	611
used in a live lineup, whichever is applicable;	612

(6) If both a video and audio record of the live lineup or	613
photo lineup are impracticable, the administrator conducting the	614
lineup shall document in writing the reason for that	615
impracticability, and a written record of the lineup shall be made	616
that includes all of the information specified in divisions	617
(B)(4)(a) to (e) of this section and that is supplemented by all	618
of the photographs used in a photo lineup or photographs of all of	619
the individuals used in a live lineup, whichever is applicable.	620

(C) For any photo lineup or live lineup that is administered	621
on or after the effective date of this section, all of the	622
following apply:	623

(1) Evidence of a failure to comply with any of the	624
provisions of this section or with any procedure for conducting	625
lineups that has been adopted by a law enforcement agency or	626
criminal justice agency pursuant to division (B) of this section	627
and that conforms to any provision of divisions (B)(1) to (6) of	628
this section shall be considered by trial courts in adjudicating	629
motions to suppress eyewitness identification resulting from or	630
related to the lineup.	631

(2) Evidence of a failure to comply with any of the	632
provisions of this section or with any procedure for conducting	633
lineups that has been adopted by a law enforcement agency or	634
criminal justice agency pursuant to division (B) of this section	635
and that conforms to any provision of divisions (B)(1) to (6) of	636
this section shall be admissible in support of any claim of	637
eyewitness misidentification resulting from or related to the	638
lineup as long as that evidence otherwise is admissible.	639

(3) When evidence of a failure to comply with any of the	640
provisions of this section, or with any procedure for conducting	641
lineups that has been adopted by a law enforcement agency or	642
criminal justice agency pursuant to division (B) of this section	643
and that conforms to any provision of divisions (B)(1) to (6) of	644
this section, is presented at trial, the jury shall be instructed	645
that it may consider credible evidence of noncompliance in	646
determining the reliability of any eyewitness identification	647
resulting from or related to the lineup.	648

(D)(1) As used in division (D) of this section, "showup"	649
means an identification procedure in which an eyewitness is	650
presented with a single suspect for the purpose of determining	651
whether the eyewitness identifies that individual as the	652
perpetrator of the offense.	653

(2) The supreme court may adopt rules prescribing specific	654
procedures to be followed for the administration by law	655
enforcement agencies and criminal justice entities in this state	656
of photo lineups, live lineups, and showups. Any rules adopted by	657
the supreme court as described in this division shall be	658
consistent with the requirements of divisions (B) and (C) of this	659
section but may prescribe procedures for other aspects of the	660
administration of such lineups and showups as determined	661
appropriate by the court. If the supreme court adopts rules of the	662
type described in this division, on and after the date on which	663
the rules take effect, law enforcement agencies and criminal	664
justice entities in this state shall comply with the rules in	665
conducting live lineups, photo lineups, and showups.	666

(3) The supreme court may adopt rules prescribing a	667
cautionary jury charge about eyewitness identification procedures	668
and the accuracy of eyewitness identification. If the supreme	669
court adopts rules of the type described in this division, on and	670
after the date on which the rules take effect, the jury charge	671
shall be used in the courts of this state in the manner specified	672
by the supreme court in the rules.	673

Sec. 2953.21.  (A)(1)(a) Any person who has been convicted of	674
a criminal offense or adjudicated a delinquent child and who	675
claims that there was such a denial or infringement of the	676
person's rights as to render the judgment void or voidable under	677
the Ohio Constitution or the Constitution of the United States,	678
and any person who has been convicted of a criminal offense that	679
is a felony,and who is an inmate, andoffender for whom DNA	680
testing that was performed under sections 2953.71 to 2953.81 of	681
the Revised Code or under former section 2953.82 of the Revised	682
Code and analyzed in the context of and upon consideration of all	683
available admissible evidence related to the inmate'sperson's	684
case as described in division (D) of section 2953.74 of the	685
Revised Code provided results that establish, by clear and	686
convincing evidence, actual innocence of that felony offense or,	687
if the person was sentenced to death, establish, by clear and	688
convincing evidence, actual innocence of the aggravating	689
circumstance or circumstances the person was found guilty of	690
committing and that is or are the basis of that sentence of	691
death, may file a petition in the court that imposed sentence,	692
stating the grounds for relief relied upon, and asking the court	693
to vacate or set aside the judgment or sentence or to grant other	694
appropriate relief. The petitioner may file a supporting	695
affidavit and other documentary evidence in support of the claim	696
for relief.	697

(b) As used in division (A)(1)(a) of this section, "actual	698
innocence" means that, had the results of the DNA testing	699
conducted under sections 2953.71 to 2953.81 of the Revised Code or	700
under former section 2953.82 of the Revised Code been presented at	701
trial, and had those results been analyzed in the context of and	702
upon consideration of all available admissible evidence related	703
to the inmate'sperson's case as described in division (D) of	704
section 2953.74 of the Revised Code, no reasonable factfinder	705
would have found the petitioner guilty of the offense of which	706
the petitioner was convicted, or, if the person was sentenced to	707
death, no reasonable factfinder would have found the petitioner	708
guilty of the aggravating circumstance or circumstances the	709
petitioner was found guilty of committing and that is or are the	710
basis of that sentence of death.	711

(c) As used in divisions (A)(1)(a) and (b) of this section,	712
"former section 2953.82 of the Revised Code" means section 2953.82	713
of the Revised Code as it existed prior to the effective date of	714
this amendment.	715

(2) Except as otherwise provided in section 2953.23 of the	716
Revised Code, a petition under division (A)(1) of this section	717
shall be filed no later than one hundred eighty days after the	718
date on which the trial transcript is filed in the court of	719
appeals in the direct appeal of the judgment of conviction or	720
adjudication or, if the direct appeal involves a sentence of	721
death, the date on which the trial transcript is filed in the	722
supreme court. If no appeal is taken, except as otherwise provided	723
in section 2953.23 of the Revised Code, the petition shall be	724
filed no later than one hundred eighty days after the expiration	725
of the time for filing the appeal.	726

(3) In a petition filed under division (A) of this section, a	727
person who has been sentenced to death may ask the court to render	728
void or voidable the judgment with respect to the conviction of	729
aggravated murder or the specification of an aggravating	730
circumstance or the sentence of death.	731

(4) A petitioner shall state in the original or amended	732
petition filed under division (A) of this section all grounds for	733
relief claimed by the petitioner. Except as provided in section	734
2953.23 of the Revised Code, any ground for relief that is not so	735
stated in the petition is waived.	736

(5) If the petitioner in a petition filed under division (A)	737
of this section was convicted of or pleaded guilty to a felony,	738
the petition may include a claim that the petitioner was denied	739
the equal protection of the laws in violation of the Ohio	740
Constitution or the United States Constitution because the	741
sentence imposed upon the petitioner for the felony was part of a	742
consistent pattern of disparity in sentencing by the judge who	743
imposed the sentence, with regard to the petitioner's race,	744
gender, ethnic background, or religion. If the supreme court	745
adopts a rule requiring a court of common pleas to maintain	746
information with regard to an offender's race, gender, ethnic	747
background, or religion, the supporting evidence for the petition	748
shall include, but shall not be limited to, a copy of that type of	749
information relative to the petitioner's sentence and copies of	750
that type of information relative to sentences that the same judge	751
imposed upon other persons.	752

(B) The clerk of the court in which the petition is filed	753
shall docket the petition and bring it promptly to the attention	754
of the court. The clerk of the court in which the petition is	755
filed immediately shall forward a copy of the petition to the	756
prosecuting attorney of that county.	757

(C) The court shall consider a petition that is timely filed	758
under division (A)(2) of this section even if a direct appeal of	759
the judgment is pending. Before granting a hearing on a petition	760
filed under division (A) of this section, the court shall	761
determine whether there are substantive grounds for relief. In	762
making such a determination, the court shall consider, in addition	763
to the petition, the supporting affidavits, and the documentary	764
evidence, all the files and records pertaining to the proceedings	765
against the petitioner, including, but not limited to, the	766
indictment, the court's journal entries, the journalized records	767
of the clerk of the court, and the court reporter's transcript.	768
The court reporter's transcript, if ordered and certified by the	769
court, shall be taxed as court costs. If the court dismisses the	770
petition, it shall make and file findings of fact and conclusions	771
of law with respect to such dismissal.	772

(D) Within ten days after the docketing of the petition, or	773
within any further time that the court may fix for good cause	774
shown, the prosecuting attorney shall respond by answer or motion.	775
Within twenty days from the date the issues are raised, either	776
party may move for summary judgment. The right to summary judgment	777
shall appear on the face of the record.	778

(E) Unless the petition and the files and records of the case	779
show the petitioner is not entitled to relief, the court shall	780
proceed to a prompt hearing on the issues even if a direct appeal	781
of the case is pending. If the court notifies the parties that it	782
has found grounds for granting relief, either party may request an	783
appellate court in which a direct appeal of the judgment is	784
pending to remand the pending case to the court.	785

(F) At any time before the answer or motion is filed, the	786
petitioner may amend the petition with or without leave or	787
prejudice to the proceedings. The petitioner may amend the	788
petition with leave of court at any time thereafter.	789

(G) If the court does not find grounds for granting relief,	790
it shall make and file findings of fact and conclusions of law and	791
shall enter judgment denying relief on the petition. If no direct	792
appeal of the case is pending and the court finds grounds for	793
relief or if a pending direct appeal of the case has been remanded	794
to the court pursuant to a request made pursuant to division (E)	795
of this section and the court finds grounds for granting relief,	796
it shall make and file findings of fact and conclusions of law and	797
shall enter a judgment that vacates and sets aside the judgment in	798
question, and, in the case of a petitioner who is a prisoner in	799
custody, shall discharge or resentence the petitioner or grant a	800
new trial as the court determines appropriate. The court also may	801
make supplementary orders to the relief granted, concerning such	802
matters as rearraignment, retrial, custody, and bail. If the trial	803
court's order granting the petition is reversed on appeal and if	804
the direct appeal of the case has been remanded from an appellate	805
court pursuant to a request under division (E) of this section,	806
the appellate court reversing the order granting the petition	807
shall notify the appellate court in which the direct appeal of the	808
case was pending at the time of the remand of the reversal and	809
remand of the trial court's order. Upon the reversal and remand of	810
the trial court's order granting the petition, regardless of	811
whether notice is sent or received, the direct appeal of the case	812
that was remanded is reinstated.	813

(H) Upon the filing of a petition pursuant to division (A) of	814
this section by a person sentenced to death, only the supreme	815
court may stay execution of the sentence of death.	816

(I)(1) If a person sentenced to death intends to file a	817
petition under this section, the court shall appoint counsel to	818
represent the person upon a finding that the person is indigent	819
and that the person either accepts the appointment of counsel or	820
is unable to make a competent decision whether to accept or reject	821
the appointment of counsel. The court may decline to appoint	822
counsel for the person only upon a finding, after a hearing if	823
necessary, that the person rejects the appointment of counsel and	824
understands the legal consequences of that decision or upon a	825
finding that the person is not indigent.	826

(2) The court shall not appoint as counsel under division	827
(I)(1) of this section an attorney who represented the petitioner	828
at trial in the case to which the petition relates unless the	829
person and the attorney expressly request the appointment. The	830
court shall appoint as counsel under division (I)(1) of this	831
section only an attorney who is certified under Rule 20 of the	832
Rules of Superintendence for the Courts of Ohio to represent	833
indigent defendants charged with or convicted of an offense for	834
which the death penalty can be or has been imposed. The	835
ineffectiveness or incompetence of counsel during proceedings	836
under this section does not constitute grounds for relief in a	837
proceeding under this section, in an appeal of any action under	838
this section, or in an application to reopen a direct appeal.	839

(3) Division (I) of this section does not preclude attorneys	840
who represent the state of Ohio from invoking the provisions of 28	841
U.S.C. 154 with respect to capital cases that were pending in	842
federal habeas corpus proceedings prior to July 1, 1996, insofar	843
as the petitioners in those cases were represented in proceedings	844
under this section by one or more counsel appointed by the court	845
under this section or section 120.06, 120.16, 120.26, or 120.33 of	846
the Revised Code and those appointed counsel meet the requirements	847
of division (I)(2) of this section.	848

(J) Subject to the appeal of a sentence for a felony that is	849
authorized by section 2953.08 of the Revised Code, the remedy set	850
forth in this section is the exclusive remedy by which a person	851
may bring a collateral challenge to the validity of a conviction	852
or sentence in a criminal case or to the validity of an	853
adjudication of a child as a delinquent child for the commission	854
of an act that would be a criminal offense if committed by an	855
adult or the validity of a related order of disposition.	856

Sec. 2953.23.  (A) Whether a hearing is or is not held on a	857
petition filed pursuant to section 2953.21 of the Revised Code, a	858
court may not entertain a petition filed after the expiration of	859
the period prescribed in division (A) of that section or a second	860
petition or successive petitions for similar relief on behalf of a	861
petitioner unless division (A)(1) or (2) of this section applies:	862

(1) Both of the following apply:

863

(a) Either the petitioner shows that the petitioner was	864
unavoidably prevented from discovery of the facts upon which the	865
petitioner must rely to present the claim for relief, or,	866
subsequent to the period prescribed in division (A)(2) of section	867
2953.21 of the Revised Code or to the filing of an earlier	868
petition, the United States Supreme Court recognized a new federal	869
or state right that applies retroactively to persons in the	870
petitioner's situation, and the petition asserts a claim based on	871
that right.	872

(b) The petitioner shows by clear and convincing evidence	873
that, but for constitutional error at trial, no reasonable	874
factfinder would have found the petitioner guilty of the offense	875
of which the petitioner was convicted or, if the claim challenges	876
a sentence of death that, but for constitutional error at the	877
sentencing hearing, no reasonable factfinder would have found the	878
petitioner eligible for the death sentence.	879

(2) The petitioner was convicted of a felony, the petitioner	880
is an inmateoffender for whom DNA testing was performed under	881
sections 2953.71 to 2953.81 of the Revised Code or under former	882
section 2953.82 of the Revised Code and analyzed in the context	883
of and upon consideration of all available admissible evidence	884
related to the inmate's case as described in division (D) of	885
section 2953.74 of the Revised Code, and the results of the DNA	886
testing establish, by clear and convincing evidence, actual	887
innocence of that felony offense or, if the person was sentenced	888
to death, establish, by clear and convincing evidence, actual	889
innocence of the aggravating circumstance or circumstances the	890
person was found guilty of committing and that is or are the	891
basis of that sentence of death.	892

As used in this division, "actual innocence" has the same	893
meaning as in division (A)(1)(b) of section 2953.21 of the Revised	894
Code, and "former section 2953.82 of the Revised Code" has the	895
same meaning as in division (A)(1)(c) of section 2953.21 of the	896
Revised Code.	897

(B) An order awarding or denying relief sought in a petition	898
filed pursuant to section 2953.21 of the Revised Code is a final	899
judgment and may be appealed pursuant to Chapter 2953. of the	900
Revised Code.	901

Sec. 2953.71. As used in sections 2953.71 to 2953.83 of the	902
Revised Code:	903

(A) "Application" or "application for DNA testing" means a	904
request through postconviction relief for the state to do DNA	905
testing on biological material from whichever of the following is	906
applicable:	907

(1) The case in which the inmateoffender was convicted of	908
the offense for which the inmate is an eligible inmateoffender	909
and is requesting the DNA testing under sections 2953.71 to	910
2953.81 of the Revised Code;	911

(2) The case in which the inmate pleaded guilty or no	912
contest to the offense for which the inmate is requesting the DNA	913
testing under section 2953.82 of the Revised Code.	914

(B) "Biological material" means any product of a human body	915
containing DNA.	916

(C) "Chain of custody" means a record or other evidence that	917
tracks a subject sample of biological material from the time the	918
biological material was first obtained until the time it currently	919
exists in its place of storage and, in relation to a DNA sample, a	920
record or other evidence that tracks the DNA sample from the time	921
it was first obtained until it currently exists in its place of	922
storage. For purposes of this division, examples of when	923
biological material or a DNA sample is first obtained include, but	924
are not limited to, obtaining the material or sample at the scene	925
of a crime, from a victim, from an inmateoffender, or in any	926
other manner or time as is appropriate in the facts and	927
circumstances present.	928

(D) "Custodial agency" means the group or entity that has the	929
responsibility to maintain biological material in question.	930

(E) "Custodian" means the person who is the primary	931
representative of a custodial agency.	932

(F) "Eligible inmateoffender" means an inmateoffender who	933
is eligible under division (C) of section 2953.72 of the Revised	934
Code to request DNA testing to be conducted under sections 2953.71	935
to 2953.81 of the Revised Code.	936

(G) "Exclusion" or "exclusion result" means a result of DNA	937
testing that scientifically precludes or forecloses the subject	938
inmateoffender as a contributor of biological material recovered	939
from the crime scene or victim in question, in relation to the	940
offense for which the inmateoffender is an eligible inmate	941
offender and for which the sentence of death or prison term was	942
imposed upon the inmate or, regarding a request for DNA testing	943
made under section 2953.82 of the Revised Code, in relation to	944
the offense for which the inmate made the request and for which	945
the sentence of death or prison term was imposed upon the inmate	946
offender.	947

(H) "Extracting personnel" means medically approved personnel	948
who are employed to physically obtain an inmateoffender's DNA	949
specimen for purposes of DNA testing under sections 2953.71 to	950
2953.81 or section 2953.82 of the Revised Code.	951

(I) "Inclusion" or "inclusion result" means a result of DNA	952
testing that scientifically cannot exclude, or that holds	953
accountable, the subject inmateoffender as a contributor of	954
biological material recovered from the crime scene or victim in	955
question, in relation to the offense for which the inmateoffender	956
is an eligible inmateoffender and for which the sentence of death	957
or prison term was imposed upon the inmate or, regarding a	958
request for DNA testing made under section 2953.82 of the Revised	959
Code, in relation to the offense for which the inmate made the	960
request and for which the sentence of death or prison term was	961
imposed upon the inmateoffender.	962

(J) "Inconclusive" or "inconclusive result" means a result of	963
DNA testing that is rendered when a scientifically appropriate and	964
definitive DNA analysis or result, or both, cannot be determined.	965

(K) "InmateOffender" means an inmate in a prisona criminal	966
offender who was sentenced by a court, or by a jury and a court,	967
of this state.	968

(L) "Outcome determinative" means that had the results of DNA	969
testing of the subject inmateoffender been presented at the trial	970
of the subject inmateoffender requesting DNA testing and been	971
found relevant and admissible with respect to the felony offense	972
for which the inmateoffender is an eligible inmateoffender and	973
is requesting the DNA testing or for which the inmateis	974
requesting the DNA testing under section 2953.82 of the Revised	975
Code, and had those results been analyzed in the context of and	976
upon consideration of all available admissible evidence related to	977
the inmate'soffender's case as described in division (D) of	978
section 2953.74 of the Revised Code, there is a strong probability	979
that no reasonable factfinder would have found the inmateoffender	980
guilty of that offense or, if the inmateoffender was sentenced to	981
death relative to that offense, would have found the inmate	982
offender guilty of the aggravating circumstance or circumstances	983
the inmateoffender was found guilty of committing and that is or	984
are the basis of that sentence of death.	985

(M) "Parent sample" means the biological material first	986
obtained from a crime scene or a victim of an offense for which an	987
inmateoffender is an eligible inmate or for which the inmate is	988
requesting the DNA testing under section 2953.82 of the Revised	989
Codeoffender, and from which a sample will be presently taken to	990
do a DNA comparison to the DNA of the subject inmateoffender	991
under sections 2953.71 to 2953.81 or section 2953.82 of the	992
Revised Code.	993

(N) "Prison" hasand "community control sanction" have the	994
same meaningmeanings as in section 2929.01 of the Revised Code.	995

(O) "Prosecuting attorney" means the prosecuting attorney	996
who, or whose office, prosecuted the case in which the subject	997
inmateoffender was convicted of the offense for which the inmate	998
offender is an eligible inmateoffender and is requesting the DNA	999
testing or for which the inmate is requesting the DNA testing	1000
under section 2953.82 of the Revised Code.	1001

(P) "Prosecuting authority" means the prosecuting attorney or	1002
the attorney general.	1003

(Q) "Reasonable diligence" means a degree of diligence that	1004
is comparable to the diligence a reasonable person would employ in	1005
searching for information regarding an important matter in the	1006
person's own life.	1007

(R) "Testing authority" means a laboratory at which DNA	1008
testing will be conducted under sections 2953.71 to 2953.81 or	1009
section 2953.82 of the Revised Code.	1010

(S) "Parole" and "post-release control" have the same	1011
meanings as in section 2967.01 of the Revised Code.	1012

(T) "Sexually oriented offense" and "child-victim oriented	1013
offense" have the same meanings as in section 2950.01 of the	1014
Revised Code.	1015

Sec. 2953.72. (A) Any eligible inmateoffender who wishes to	1016
request DNA testing under sections 2953.71 to 2953.81 of the	1017
Revised Code shall submit an application for the testing to the	1018
court of common pleas specified in section 2953.73 of the Revised	1019
Code, on a form prescribed by the attorney general for this	1020
purpose. The eligible inmateoffender shall submit the application	1021
in accordance with the procedures set forth in section 2953.73 of	1022
the Revised Code. The eligible inmateoffender shall specify on	1023
the application the offense or offenses for which the inmate	1024
offender is an eligible inmateoffender and is requesting the DNA	1025
testing. Along with the application, the eligible inmateoffender	1026
shall submit an acknowledgment that is on a form prescribed by the	1027
attorney general for this purpose and that is signed by the inmate	1028
offender. The acknowledgment shall set forth all of the following:	1029

(1) That sections 2953.71 to 2953.81 of the Revised Code	1030
contemplate applications for DNA testing of eligible inmates	1031
offenders at a stage of a prosecution or case after the inmate	1032
offenders has been sentenced to a prison term or a sentence of	1033
death, that any exclusion or inclusion result of DNA testing	1034
rendered pursuant to those sections may be used by a party in any	1035
proceeding as described in section 2953.81 of the Revised Code,	1036
and that all requests for any DNA testing made at trial will	1037
continue to be handled by the prosecuting attorney in the case;	1038

(2) That the process of conducting postconviction DNA testing	1039
for an eligible inmateoffender under sections 2953.71 to 2953.81	1040
of the Revised Code begins when the inmateoffender submits an	1041
application under section 2953.73 of the Revised Code and the	1042
acknowledgment described in this section;	1043

(3) That the eligible inmateoffender must submit the	1044
application and acknowledgment to the court of common pleas that	1045
heard the case in which the inmateoffender was convicted of the	1046
offense for which the inmateoffender is an eligible offender and	1047
is requesting the DNA testing;	1048

(4) That the state has established a set of criteria set	1049
forth in section 2953.74 of the Revised Code by which eligible	1050
inmateoffender applications for DNA testing will be screened and	1051
that a judge of a court of common pleas upon receipt of a properly	1052
filed application and accompanying acknowledgment will apply those	1053
criteria to determine whether to accept or reject the application;	1054

(5) That the results of DNA testing conducted under sections	1055
2953.71 to 2953.81 of the Revised Code will be provided as	1056
described in section 2953.81 of the Revised Code to all parties in	1057
the postconviction proceedings and will be reported to various	1058
courts;	1059

(6) That, if DNA testing is conducted with respect to an	1060
inmateoffender under sections 2953.71 to 2953.81 of the Revised	1061
Code, the state will not offer the inmateoffender a retest if an	1062
inclusion result is achieved relative to the testing and that, if	1063
the state were to offer a retest after an inclusion result, the	1064
policy would create an atmosphere in which endless testing could	1065
occur and in which postconviction proceedings could be stalled for	1066
many years;	1067

(7) That, if the court rejects an eligible inmate's	1068
offender's application for DNA testing because the inmateoffender	1069
does not satisfy the acceptance criteria described in division	1070
(A)(4) of this section, the court will not accept or consider	1071
subsequent applications;	1072

(8) That the acknowledgment memorializes the provisions of	1073
sections 2953.71 to 2953.81 of the Revised Code with respect to	1074
the application of postconviction DNA testing to inmates	1075
offenders, that those provisions do not give any inmateoffender	1076
any additional constitutional right that the inmateoffender did	1077
not already have, that the court has no duty or obligation to	1078
provide postconviction DNA testing to inmatesoffenders, that the	1079
court of common pleas has the sole discretion subject to an appeal	1080
as described in this division to determine whether an inmate	1081
offender is an eligible inmateoffender and whether an eligible	1082
inmate'soffender's application for DNA testing satisfies the	1083
acceptance criteria described in division (A)(4) of this section	1084
and whether the application should be accepted or rejected, that	1085
if the court of common pleas rejects an eligible inmate's	1086
offender's application, the inmateoffender may seek leave of the	1087
supreme court to appeal the rejection to that court if the inmate	1088
offender was sentenced to death for the offense for which the	1089
inmateoffender is requesting the DNA testing and, if the inmate	1090
offender was not sentenced to death for that offense, may appeal	1091
the rejection to the court of appeals, and that no determination	1092
otherwise made by the court of common pleas in the exercise of its	1093
discretion regarding the eligibility of an inmateoffender or	1094
regarding postconviction DNA testing under those provisions is	1095
reviewable by or appealable to any court;	1096

(9) That the manner in which sections 2953.71 to 2953.81 of	1097
the Revised Code with respect to the offering of postconviction	1098
DNA testing to inmatesoffenders are carried out does not confer	1099
any constitutional right upon any inmateoffender, that the state	1100
has established guidelines and procedures relative to those	1101
provisions to ensure that they are carried out with both justice	1102
and efficiency in mind, and that an inmateoffender who	1103
participates in any phase of the mechanism contained in those	1104
provisions, including, but not limited to, applying for DNA	1105
testing and being rejected, having an application for DNA testing	1106
accepted and not receiving the test, or having DNA testing	1107
conducted and receiving unfavorable results, does not gain as a	1108
result of the participation any constitutional right to challenge,	1109
or, except as provided in division (A)(8) of this section, any	1110
right to any review or appeal of, the manner in which those	1111
provisions are carried out;	1112

(10) That the most basic aspect of sections 2953.71 to	1113
2953.81 of the Revised Code is that, in order for DNA testing to	1114
occur, there must be an inmateoffender sample against which other	1115
evidence may be compared, that, if an eligible inmate'soffender's	1116
application is accepted but the inmateoffender subsequently	1117
refuses to submit to the collection of the sample of biological	1118
material from the inmateoffender or hinders the state from	1119
obtaining a sample of biological material from the inmate	1120
offender, the goal of those provisions will be frustrated, and	1121
that an inmate'soffender's refusal or hindrance shall cause the	1122
court to rescind its prior acceptance of the application for DNA	1123
testing for the inmateoffender and deny the application;	1124

(11) That, if the inmate is an inmate who pleaded guilty or	1125
no contest to a felony offense and who is using the application	1126
and acknowledgment to request DNA testing under section 2953.82	1127
of the Revised Code, all references in the acknowledgment to an	1128
"eligible inmate" are considered to be references to, and apply	1129
to, the inmate and all references in the acknowledgment to	1130
"sections 2953.71 to 2953.81 of the Revised Code" are considered	1131
to be references to "section 2953.82 of the Revised Code."	1132

(B) The attorney general shall prescribe a form to be used to	1133
make an application for DNA testing under division (A) of this	1134
section and section 2953.73 of the Revised Code and a form to be	1135
used to provide the acknowledgment described in division (A) of	1136
this section. The forms shall include all information described in	1137
division (A) of this section, spaces for an inmateoffender to	1138
insert all information necessary to complete the forms, including,	1139
but not limited to, specifying the offense or offenses for which	1140
the inmateoffender is an eligible inmateoffender and is	1141
requesting the DNA testing or for which the inmate is requesting	1142
the DNA testing under section 2953.82 of the Revised Code, and	1143
any other information or material the attorney general determines	1144
is necessary or relevant. The forms also shall be used to make an	1145
application requesting DNA testing under section 2953.82 of the	1146
Revised Code, and the attorney general shall ensure that they are	1147
sufficient for that type of use, and that they include all	1148
information and spaces necessary for that type of use. The	1149
attorney general shall distribute copies of the prescribed forms	1150
to the department of rehabilitation and correction, the	1151
department shall ensure that each prison in which inmates	1152
offenders are housed has a supply of copies of the forms, and the	1153
department shall ensure that copies of the forms are provided free	1154
of charge to any inmateoffender who requests them.	1155

(C)(1) An inmateoffender is eligible to request DNA testing	1156
to be conducted under sections 2953.71 to 2953.81 of the Revised	1157
Code only if all of the following apply:	1158

(a) The offense for which the inmateoffender claims to be an	1159
eligible inmateoffender is a felony, and the inmateoffender was	1160
convicted by a judge or jury of that offense.	1161

(b) One of the following applies:

1162

(i) The inmateoffender was sentenced to a prison term or	1163
sentence of death for the felony described in division (C)(1)(a)	1164
of this section, and the offender is in prison serving that prison	1165
term or under that sentence of death, has been paroled or is on	1166
probation regarding that felony, is under post-release control	1167
regarding that felony, or has been released from that prison term	1168
and is under a community control sanction regarding that felony.	1169

(ii) The offender was not sentenced to a prison term or	1170
sentence of death for the felony described in division (C)(1)(a)	1171
of this section, but was sentenced to a community control sanction	1172
for that felony and is under that community control sanction.	1173

(iii) The felony described in division (C)(1)(a) of this	1174
section was a sexually oriented offense or child-victim oriented	1175
offense, and the offender has a duty to comply with sections	1176
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code	1177
relative to that felony.	1178

(c) On the date on which the application is filed, the inmate	1179
has at least one year remaining on the prison term described in	1180
division (C)(1)(b) of this section, or the inmate is in prison	1181
under a sentence of death as described in that division.	1182

(2) An inmateoffender is not an eligible inmateoffender	1183
under division (C)(1) of this section regarding any offense to	1184
which the inmateoffender pleaded guilty or no contest.	1185

(3) An offender is not an eligible offender under division	1186
(C)(1) of this section regarding any offense if the offender dies	1187
prior to submitting an application for DNA testing related to that	1188
offense under section 2953.73 of the Revised Code.	1189

Sec. 2953.73. (A) An eligible inmateoffender who wishes to	1190
request DNA testing to be conducted under sections 2953.71 to	1191
2953.81 of the Revised Code shall submit an application for DNA	1192
testing on a form prescribed by the attorney general for this	1193
purpose and shall submit the form to the court of common pleas	1194
that sentenced the inmateoffender for the offense for which the	1195
inmateoffender is an eligible inmateoffender and is requesting	1196
DNA testing.	1197

(B) If an eligible inmateoffender submits an application for	1198
DNA testing under division (A) of this section, upon the	1199
submission of the application, all of the following apply:	1200

(1) The eligible inmateoffender shall serve a copy of the	1201
application on the prosecuting attorney and the attorney general.	1202

(2) The application shall be assigned to the judge of that	1203
court of common pleas who was the trial judge in the case in which	1204
the eligible inmateoffender was convicted of the offense for	1205
which the inmateoffender is requesting DNA testing, or, if that	1206
judge no longer is a judge of that court, it shall be assigned	1207
according to court rules. The judge to whom the application is	1208
assigned shall decide the application. The application shall	1209
become part of the file in the case.	1210

(C) If an eligible inmateoffender submits an application for	1211
DNA testing under division (A) of this section, regardless of	1212
whether the inmateoffender has commenced any federal habeas	1213
corpus proceeding relative to the case in which the inmate	1214
offender was convicted of the offense for which the inmate	1215
offender is an eligible inmateoffender and is requesting DNA	1216
testing, any response to the application by the prosecuting	1217
attorney or the attorney general shall be filed not later than	1218
forty-five days after the date on which the eligible inmate	1219
offender submits the application. The prosecuting attorney or the	1220
attorney general, or both, may, but are not required to, file a	1221
response to the application. If the prosecuting attorney or the	1222
attorney general files a response under this division, the	1223
prosecuting attorney or attorney general, whoever filed the	1224
response, shall serve a copy of the response on the eligible	1225
inmateoffender.	1226

(D) If an eligible inmateoffender submits an application for	1227
DNA testing under division (A) of this section, the court shall	1228
make the determination as to whether the application should be	1229
accepted or rejected. The court shall expedite its review of the	1230
application. The court shall make the determination in accordance	1231
with the criteria and procedures set forth in sections 2953.74 to	1232
2953.81 of the Revised Code and, in making the determination,	1233
shall consider the application, the supporting affidavits, and the	1234
documentary evidence and, in addition to those materials, shall	1235
consider all the files and records pertaining to the proceedings	1236
against the applicant, including, but not limited to, the	1237
indictment, the court's journal entries, the journalized records	1238
of the clerk of the court, and the court reporter's transcript and	1239
all responses to the application filed under division (C) of this	1240
section by a prosecuting attorney or the attorney general, unless	1241
the application and the files and records show the applicant is	1242
not entitled to DNA testing, in which case the application may be	1243
denied. The court is not required to conduct an evidentiary	1244
hearing in conducting its review of, and in making its	1245
determination as to whether to accept or reject, the application.	1246
Upon making its determination, the court shall enter a judgment	1247
and order that either accepts or rejects the application and that	1248
includes within the judgment and order the reasons for the	1249
acceptance or rejection as applied to the criteria and procedures	1250
set forth in sections 2953.71 to 2953.81 of the Revised Code. The	1251
court shall send a copy of the judgment and order to the eligible	1252
inmateoffender who filed it, the prosecuting attorney, and the	1253
attorney general.	1254

(E) A judgment and order of a court entered under division	1255
(D) of this section is appealable only as provided in this	1256
division. If an eligible inmateoffender submits an application	1257
for DNA testing under section 2953.73 of the Revised Code and the	1258
court of common pleas rejects the application under division (D)	1259
of this section, one of the following applies:	1260

(1) If the inmateoffender was sentenced to death for the	1261
offense for which the inmateoffender claims to be an eligible	1262
inmateoffender and is requesting DNA testing, the inmateoffender	1263
may seek leave of the supreme court to appeal the rejection to the	1264
supreme court. Courts of appeals do not have jurisdiction to	1265
review any rejection if the inmateoffender was sentenced to death	1266
for the offense for which the inmateoffender claims to be an	1267
eligible inmateoffender and is requesting DNA testing.	1268

(2) If the inmateoffender was not sentenced to death for the	1269
offense for which the inmateoffender claims to be an eligible	1270
inmateoffender and is requesting DNA testing, the rejection is a	1271
final appealable order, and the inmateoffender may appeal it to	1272
the court of appeals of the district in which is located that	1273
court of common pleas.	1274

(F) Notwithstanding any provision of law regarding fees and	1275
costs, no filing fee shall be required of, and no court costs	1276
shall be assessed against, an eligible offender who is indigent	1277
and who submits an application under this section.	1278

(G) If a court rejects an eligible inmate'soffender's	1279
application for DNA testing under division (D) of this section,	1280
unless the rejection is overturned on appeal, no court shall	1281
require the state to administer a DNA test under sections 2953.71	1282
to 2953.81 of the Revised Code on the eligible inmateoffender.	1283

Sec. 2953.74. (A) If an eligible inmateoffender submits an	1284
application for DNA testing under section 2953.73 of the Revised	1285
Code and a prior definitive DNA test has been conducted regarding	1286
the same biological evidence that the inmateoffender seeks to	1287
have tested, the court shall reject the inmate'soffender's	1288
application. If an eligible inmateoffender files an application	1289
for DNA testing and a prior inconclusive DNA test has been	1290
conducted regarding the same biological evidence that the inmate	1291
offender seeks to have tested, the court shall review the	1292
application and has the discretion, on a case-by-case basis, to	1293
either accept or reject the application. The court may direct a	1294
testing authority to provide the court with information that the	1295
court may use in determining whether prior DNA test results were	1296
definitive or inconclusive and whether to accept or reject an	1297
application in relation to which there were prior inconclusive DNA	1298
test results.	1299

(B) If an eligible inmateoffender submits an application for	1300
DNA testing under section 2953.73 of the Revised Code, the court	1301
may accept the application only if one of the following applies:	1302

(1) The inmateoffender did not have a DNA test taken at the	1303
trial stage in the case in which the inmateoffender was convicted	1304
of the offense for which the inmateoffender is an eligible inmate	1305
offender and is requesting the DNA testing regarding the same	1306
biological evidence that the inmateoffender seeks to have tested,	1307
the inmateoffender shows that DNA exclusion when analyzed in the	1308
context of and upon consideration of all available admissible	1309
evidence related to the subject inmate'soffender's case as	1310
described in division (D) of this section would have been outcome	1311
determinative at that trial stage in that case, and, at the time	1312
of the trial stage in that case, DNA testing was not generally	1313
accepted, the results of DNA testing were not generally admissible	1314
in evidence, or DNA testing was not yet available.	1315

(2) The inmateoffender had a DNA test taken at the trial	1316
stage in the case in which the inmateoffender was convicted of	1317
the offense for which the inmateoffender is an eligible inmate	1318
offender and is requesting the DNA testing regarding the same	1319
biological evidence that the inmateoffender seeks to have	1320
tested, the test was not a prior definitive DNA test that is	1321
subject to division (A) of this section, and the inmateoffender	1322
shows that DNA exclusion when analyzed in the context of and upon	1323
consideration of all available admissible evidence related to the	1324
subject inmate'soffender's case as described in division (D) of	1325
this section would have been outcome determinative at the trial	1326
stage in that case.	1327

(C) If an eligible inmateoffender submits an application for	1328
DNA testing under section 2953.73 of the Revised Code, the court	1329
may accept the application only if all of the following apply:	1330

(1) The court determines pursuant to section 2953.75 of the	1331
Revised Code that biological material was collected from the crime	1332
scene or the victim of the offense for which the inmateoffender	1333
is an eligible inmateoffender and is requesting the DNA testing	1334
and that the parent sample of that biological material against	1335
which a sample from the inmateoffender can be compared still	1336
exists at that point in time.	1337

(2) The testing authority determines all of the following	1338
pursuant to section 2953.76 of the Revised Code regarding the	1339
parent sample of the biological material described in division	1340
(C)(1) of this section:	1341

(a) The parent sample of the biological material so collected	1342
contains scientifically sufficient material to extract a test	1343
sample.	1344

(b) The parent sample of the biological material so collected	1345
is not so minute or fragile as to risk destruction of the parent	1346
sample by the extraction described in division (C)(2)(a) of this	1347
section; provided that the court may determine in its discretion,	1348
on a case-by-case basis, that, even if the parent sample of the	1349
biological material so collected is so minute or fragile as to	1350
risk destruction of the parent sample by the extraction, the	1351
application should not be rejected solely on the basis of that	1352
risk.	1353

(c) The parent sample of the biological material so collected	1354
has not degraded or been contaminated to the extent that it has	1355
become scientifically unsuitable for testing, and the parent	1356
sample otherwise has been preserved, and remains, in a condition	1357
that is scientifically suitable for testing.	1358

(3) The court determines that, at the trial stage in the case	1359
in which the inmateoffender was convicted of the offense for	1360
which the inmateoffender is an eligible inmateoffender and is	1361
requesting the DNA testing, the identity of the person who	1362
committed the offense was an issue.	1363

(4) The court determines that one or more of the defense	1364
theories asserted by the inmateoffender at the trial stage in the	1365
case described in division (C)(3) of this section or in a retrial	1366
of that case in a court of this state was of such a nature that,	1367
if DNA testing is conducted and an exclusion result is obtained,	1368
the exclusion result will be outcome determinative.	1369

(5) The court determines that, if DNA testing is conducted	1370
and an exclusion result is obtained, the results of the testing	1371
will be outcome determinative regarding that inmateoffender.	1372

(6) The court determines pursuant to section 2953.76 of the	1373
Revised Code from the chain of custody of the parent sample of the	1374
biological material to be tested and of any test sample extracted	1375
from the parent sample, and from the totality of circumstances	1376
involved, that the parent sample and the extracted test sample are	1377
the same sample as collected and that there is no reason to	1378
believe that they have been out of state custody or have been	1379
tampered with or contaminated since they were collected.	1380

(D) If an eligible inmateoffender submits an application for	1381
DNA testing under section 2953.73 of the Revised Code, the court,	1382
in determining whether the "outcome determinative" criterion	1383
described in divisions (B)(1) and (2) of this section has been	1384
satisfied, shall consider all available admissible evidence	1385
related to the subject inmate'soffender's case.	1386

(E) If an eligible inmateoffender submits an application for	1387
DNA testing under section 2953.73 of the Revised Code and the	1388
court accepts the application, the eligible inmateoffender may	1389
request the court to order, or the court on its own initiative may	1390
order, the bureau of criminal identification and investigation to	1391
compare the results of DNA testing of biological material from an	1392
unidentified person other than the inmateoffender that was	1393
obtained from the crime scene or from a victim of the offense for	1394
which the inmateoffender has been approved for DNA testing to the	1395
combined DNA index system maintained by the federal bureau of	1396
investigation.	1397

If the bureau, upon comparing the test results to the	1398
combined DNA index system, determines the identity of the person	1399
who is the contributor of the biological material, the bureau	1400
shall provide that information to the court that accepted the	1401
application, the inmateoffender, and the prosecuting attorney.	1402
The inmateoffender or the state may use the information for any	1403
lawful purpose.	1404

If the bureau, upon comparing the test results to the	1405
combined DNA index system, is unable to determine the identity of	1406
the person who is the contributor of the biological material, the	1407
bureau may compare the test results to other previously obtained	1408
and acceptable DNA test results of any person whose identity is	1409
known other than the eligible inmateoffender. If the bureau, upon	1410
comparing the test results to the DNA test results of any person	1411
whose identity is known, determines that the person whose identity	1412
is known is the contributor of the biological material, the bureau	1413
shall provide that information to the court that accepted the	1414
application, the inmateoffender, and the prosecuting attorney.	1415
The inmateoffender or the state may use the information for any	1416
lawful purpose.	1417

Sec. 2953.75. (A) If an eligible inmateoffender submits an	1418
application for DNA testing under section 2953.73 of the Revised	1419
Code, the court shall require the prosecuting attorney to use	1420
reasonable diligence to determine whether biological material was	1421
collected from the crime scene or victim of the offense for which	1422
the inmateoffender is an eligible inmateoffender and is	1423
requesting the DNA testing against which a sample from the inmate	1424
offender can be compared and whether the parent sample of that	1425
biological material still exists at that point in time. In using	1426
reasonable diligence to make those determinations, the prosecuting	1427
attorney shall rely upon all relevant sources, including, but not	1428
limited to, all of the following:	1429

(1) All prosecuting authorities in the case in which the	1430
inmateoffender was convicted of the offense for which the inmate	1431
offender is an eligible inmateoffender and is requesting the DNA	1432
testing and in the appeals of, and postconviction proceedings	1433
related to, that case;	1434

(2) All law enforcement authorities involved in the	1435
investigation of the offense for which the inmateoffender is an	1436
eligible offender and is requesting the DNA testing;	1437

(3) All custodial agencies involved at any time with the	1438
biological material in question;	1439

(4) The custodian of all custodial agencies described in	1440
division (A)(3) of this section;	1441

(5) All crime laboratories involved at any time with the	1442
biological material in question;	1443

(6) All other reasonable sources.

1444

(B) The prosecuting attorney shall prepare a report that	1445
contains the prosecuting attorney's determinations made under	1446
division (A) of this section and shall file a copy of the report	1447
with the court and provide a copy to the eligible inmateoffender	1448
and the attorney general.	1449

Sec. 2953.76. If an eligible inmateoffender submits an	1450
application for DNA testing under section 2953.73 of the Revised	1451
Code, the court shall require the prosecuting attorney to consult	1452
with the testing authority and to prepare findings regarding the	1453
quantity and quality of the parent sample of the biological	1454
material collected from the crime scene or victim of the offense	1455
for which the inmateoffender is an eligible inmateoffender and	1456
is requesting the DNA testing and that is to be tested, and of the	1457
chain of custody and reliability regarding that parent sample, as	1458
follows:	1459

(A) The testing authority shall determine whether there is a	1460
scientifically sufficient quantity of the parent sample to test	1461
and whether the parent sample is so minute or fragile that there	1462
is a substantial risk that the parent sample could be destroyed in	1463
testing. The testing authority may determine that there is not a	1464
sufficient quantity to test in order to preserve the state's	1465
ability to present in the future the original evidence presented	1466
at trial, if another trial is required. Upon making its	1467
determination under this division, the testing authority shall	1468
prepare a written document that contains its determination and the	1469
reasoning and rationale for that determination and shall provide a	1470
copy to the court, the eligible inmateoffender, the prosecuting	1471
attorney, and the attorney general. The court may determine in its	1472
discretion, on a case-by-case basis, that, even if the parent	1473
sample of the biological material so collected is so minute or	1474
fragile as to risk destruction of the parent sample by the	1475
extraction, the application should not be rejected solely on the	1476
basis of that risk.	1477

(B) The testing authority shall determine whether the parent	1478
sample has degraded or been contaminated to the extent that it has	1479
become scientifically unsuitable for testing and whether the	1480
parent sample otherwise has been preserved, and remains, in a	1481
condition that is suitable for testing. Upon making its	1482
determination under this division, the testing authority shall	1483
prepare a written document that contains its determination and the	1484
reasoning and rationale for that determination and shall provide a	1485
copy to the court, the eligible inmateoffender, the prosecuting	1486
attorney, and the attorney general.	1487

(C) The court shall determine, from the chain of custody of	1488
the parent sample of the biological material to be tested and of	1489
any test sample extracted from the parent sample and from the	1490
totality of circumstances involved, whether the parent sample and	1491
the extracted test sample are the same sample as collected and	1492
whether there is any reason to believe that they have been out of	1493
state custody or have been tampered with or contaminated since	1494
they were collected. Upon making its determination under this	1495
division, the court shall prepare and retain a written document	1496
that contains its determination and the reasoning and rationale	1497
for that determination.	1498

Sec. 2953.77.  (A) If an eligible inmateoffender submits an	1499
application for DNA testing under section 2953.73 of the Revised	1500
Code and if the application is accepted and DNA testing is to be	1501
performed, the court shall require that the chain of custody	1502
remain intact and that all of the applicable following precautions	1503
are satisfied to ensure that the parent sample of the biological	1504
material collected from the crime scene or the victim of the	1505
offense for which the inmateoffender is an eligible inmate	1506
offender and requested the DNA testing, and the test sample of the	1507
parent sample that is extracted and actually is to be tested, are	1508
not contaminated during transport or the testing process:	1509

(1) The court shall require that the chain of custody be	1510
maintained and documented relative to the parent sample and the	1511
test sample actually to be tested between the time they are	1512
removed from their place of storage or the time of their	1513
extraction to the time at which the DNA testing will be performed.	1514

(2) The court, the testing authority, and the law enforcement	1515
and prosecutorial personnel involved in the process, or any	1516
combination of those entities and persons, shall coordinate the	1517
transport of the parent sample and the test sample actually to be	1518
tested between their place of storage and the place where the DNA	1519
testing will be performed, and the court and testing authority	1520
shall document the transport procedures so used.	1521

(3) The testing authority shall determine and document the	1522
custodian of the parent sample and the test sample actually to be	1523
tested after they are in the possession of the testing authority.	1524

(4) The testing authority shall maintain and preserve the	1525
parent sample and the test sample actually to be tested after they	1526
are in the possession of the testing authority and shall document	1527
the maintenance and preservation procedures used.	1528

(5) After the DNA testing, the court, the testing authority,	1529
and the original custodial agency of the parent sample, or any	1530
combination of those entities, shall coordinate the return of the	1531
remaining parent sample back to its place of storage with the	1532
original custodial agency or to any other place determined in	1533
accordance with this division and section 2953.81 of the Revised	1534
Code. The court shall determine, in consultation with the testing	1535
authority, the custodial agency to maintain any newly created,	1536
extracted, or collected DNA material resulting from the testing.	1537
The court and testing authority shall document the return	1538
procedures for original materials and for any newly created,	1539
extracted, or collected DNA material resulting from the testing,	1540
and also the custodial agency to which those materials should be	1541
taken.	1542

(B) A court or testing authority shall provide the	1543
documentation required under division (A) of this section in	1544
writing and shall maintain that documentation.	1545

Sec. 2953.78.  (A) If an eligible inmateoffender submits an	1546
application for DNA testing under section 2953.73 of the Revised	1547
Code and if the application is accepted and DNA testing is to be	1548
performed, the court shall select the testing authority to be used	1549
for the testing. A court shall not select or use a testing	1550
authority for DNA testing unless the attorney general approves or	1551
designates the testing authority pursuant to division (C) of this	1552
section and unless the testing authority satisfies the criteria	1553
set forth in section 2953.80 of the Revised Code.	1554

(B) If a court selects a testing authority pursuant to	1555
division (A) of this section and the eligible inmateoffender for	1556
whom the test is to be performed objects to the use of the	1557
selected testing authority, the court shall rescind its prior	1558
acceptance of the application for DNA testing for the inmate	1559
offender and deny the application. An objection as described in	1560
this division, and the resulting rescission and denial, do not	1561
preclude a court from accepting in the court's discretion, a	1562
subsequent application by the same eligible inmateoffender	1563
requesting DNA testing.	1564

(C) The attorney general shall approve or designate testing	1565
authorities that may be selected and used to conduct DNA testing,	1566
shall prepare a list of the approved or designated testing	1567
authorities, and shall provide copies of the list to all courts of	1568
common pleas. The attorney general shall update the list as	1569
appropriate to reflect changes in the approved or designated	1570
testing authorities and shall provide copies of the updated list	1571
to all courts of common pleas. The attorney general shall not	1572
approve or designate a testing authority under this division	1573
unless the testing authority satisfies the criteria set forth in	1574
section 2953.80 of the Revised Code. A testing authority that is	1575
equipped to handle advanced DNA testing may be approved or	1576
designated under this division, provided it satisfies the criteria	1577
set forth in that section.	1578

(D) The attorney general's approval or designation of testing	1579
authorities under division (C) of this section, and the selection	1580
and use of any approved or designated testing authority, do not	1581
afford an inmateoffender any right to subsequently challenge the	1582
approval, designation, selection, or use, and an inmateoffender	1583
may not appeal to any court the approval, designation, selection,	1584
or use of a testing authority.	1585

Sec. 2953.79.  (A) If an eligible inmateoffender submits an	1586
application for DNA testing under section 2953.73 of the Revised	1587
Code and if the application is accepted and DNA testing is to be	1588
performed, a sample of biological material shall be obtained from	1589
the inmateoffender in accordance with this section, to be	1590
compared with the parent sample of biological material collected	1591
from the crime scene or the victim of the offense for which the	1592
inmateoffender is an eligible inmateoffender and requested the	1593
DNA testing. The inmate'soffender's filing of the application	1594
constitutes the inmate'soffender's consent to the obtaining of	1595
the sample of biological material from the inmateoffender. The	1596
testing authority shall obtain the sample of biological material	1597
from the inmateoffender in accordance with medically accepted	1598
procedures.	1599

(B) If DNA testing is to be performed for an inmateoffender	1600
as described in division (A) of this section, the court shall	1601
require the state to coordinate with the department of	1602
rehabilitation and correction or the other state agency or entity	1603
of local government with custody of the offender, whichever is	1604
applicable, as to the time and place at which the sample of	1605
biological material will be obtained from the inmateoffender. The	1606
If the offender is in prison or is in custody in another facility	1607
at the time the DNA testing is to be performed, the sample of	1608
biological material shall be obtained from the inmateoffender at	1609
the facility in which the inmateoffender is housed, and the	1610
department of rehabilitation and correction or the other state	1611
agency or entity of local government with custody of the offender,	1612
whichever is applicable, shall make the inmateoffender available	1613
at the specified time. The court shall require the state to	1614
provide notice to the inmateoffender and to the inmate's	1615
offender's counsel of the date on which, and the time and place at	1616
which, the sample will be so obtained.	1617

The court also shall require the state to coordinate with the	1618
testing authority regarding the obtaining of the sample from the	1619
inmateoffender.	1620

(C)(1) If DNA testing is to be performed for an inmate	1621
offender as described in division (A) of this section, and the	1622
inmateoffender refuses to submit to the collection of the sample	1623
of biological material from the inmateoffender or hinders the	1624
state from obtaining a sample of biological material from the	1625
inmateoffender, the court shall rescind its prior acceptance of	1626
the application for DNA testing for the inmateoffender and deny	1627
the application.	1628

(2) For purposes of division (C)(1) of this section:

1629

(a) An inmate'soffender's "refusal to submit to the	1630
collection of a sample of biological material from the inmate	1631
offender" includes, but is not limited to, the inmate'soffender's	1632
rejection of the physical manner in which a sample of the inmate's	1633
offender's biological material is to be taken.	1634

(b) An inmate'soffender's "hindrance of the state in	1635
obtaining a sample of biological material from the inmate	1636
offender" includes, but is not limited to, the inmateoffender	1637
being physically or verbally uncooperative or antagonistic in the	1638
taking of a sample of the inmate'soffender's biological material.	1639

(D) The extracting personnel shall make the determination as	1640
to whether an eligible inmateoffender for whom DNA testing is to	1641
be performed is refusing to submit to the collection of a sample	1642
of biological material from the inmateoffender or is hindering	1643
the state from obtaining a sample of biological material from the	1644
inmateoffender at the time and date of the scheduled collection	1645
of the sample. If the extracting personnel determine that an	1646
inmateoffender is refusing to submit to the collection of a	1647
sample or is hindering the state from obtaining a sample, the	1648
extracting personnel shall document in writing the conditions that	1649
constitute the refusal or hindrance, maintain the documentation,	1650
and notify the court of the inmate'soffender's refusal or	1651
hindrance.	1652

Sec. 2953.81. If an eligible offender submits an application	1653
for DNA testing under section 2953.73 of the Revised Code and if	1654
DNA testing is performed based on that application, upon	1655
completion of the testing, all of the following apply:	1656

(A) The court or a designee of the court shall require the	1657
state to maintain the results of the testing and to maintain and	1658
preserve both the parent sample of the biological material used	1659
and the inmateoffender sample of the biological material used.	1660
The testing authority may be designated as the person to maintain	1661
the results of the testing or to maintain and preserve some or all	1662
of the samples, or both. The results of the testing remain state's	1663
evidence. The samples shall be preserved during the entire period	1664
of time for which the inmateoffender is imprisoned or confined	1665
relative to the prison term or sentence of death in question and,	1666
if that prison term expires or the inmate is executed under that	1667
sentence of death, is on parole or probation relative to that	1668
sentence, is under post-release control or a community control	1669
sanction relative to that sentence, or has a duty to comply with	1670
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised	1671
Code relative to that sentence. Additionally, if the prison term	1672
or confinement under the sentence in question expires, if the	1673
sentence in question is a sentence of death and the offender is	1674
executed, or if the parole or probation period, the period of	1675
post-release control, the community control sanction, or the duty	1676
to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of	1677
the Revised Code under the sentence in question ends, the samples	1678
shall be preserved for a reasonable period of time of not less	1679
than twenty-four months after the term or confinement expires or,	1680
the inmateoffender is executed, or the parole or probation	1681
period, the period of post-release control, the community control	1682
sanction, or the duty to comply with sections 2950.04, 2950.041,	1683
2950.05, and 2950.06 of the Revised Code ends, whichever is	1684
applicable. The court shall determine the period of time that is	1685
reasonable for purposes of this division, provided that the period	1686
shall not be less than twenty-four months after the term or	1687
confinement expires or, the inmateoffender is executed, or the	1688
parole or probation period, the period of post-release control,	1689
the community control sanction, or the duty to comply with	1690
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised	1691
Code ends, whichever is applicable.	1692

(B) The results of the testing are a public record.

1693

(C) The court or the testing authority shall provide a copy	1694
of the results of the testing to the prosecuting attorney, the	1695
attorney general, and the subject inmateoffender.	1696

(D) If the postconviction proceeding in question is pending	1697
at that time in a court of this state, the court of common pleas	1698
that decided the DNA application or the testing authority shall	1699
provide a copy of the results of the testing to any court of this	1700
state, and, if it is pending in a federal court, the court of	1701
common pleas that decided the DNA application or the testing	1702
authority shall provide a copy of the results of the testing to	1703
that federal court.	1704

(E) The testing authority shall provide a copy of the results	1705
of the testing to the court of common pleas that decided the DNA	1706
application.	1707

(F) The inmateoffender or the state may enter the results of	1708
the testing into any proceeding.	1709

Sec. 2953.83.  In any court proceeding under sections 2953.71	1710
to 2953.822953.81 of the Revised Code, the Rules of Criminal	1711
Procedure apply, except to the extent that sections 2953.71 to	1712
2953.822953.81 of the Revised Code provide a different procedure	1713
or to the extent that the Rules would by their nature be clearly	1714
inapplicable.	1715

Sec. 2953.84.  The provisions of sections 2953.71 to 2953.82	1716
2953.81 of the Revised Code by which an inmateoffender may	1717
obtain postconviction DNA testing are not the exclusive means by	1718
which an inmateoffender may obtain postconviction DNA testing,	1719
and the provisions of those sections do not limit or affect any	1720
other means by which an inmateoffender may obtain postconviction	1721
DNA testing.	1722

Section 2. That existing sections 109.573, 2953.21, 2953.23,	1723
2953.71, 2953.72, 2953.73, 2953.74, 2953.75, 2953.76, 2953.77,	1724
2953.78, 2953.79, 2953.81, 2953.83, and 2953.84 and section	1725
2953.82 of the Revised Code are hereby repealed.	1726