Cosponsors:
Senators Seitz, Miller, R., Stewart, Schuring, Miller, D., Kearney, Cates, Coughlin, Fedor, Gibbs, Gillmor, Harris, Husted, Niehaus, Patton, Sawyer, Schiavoni, Smith, Strahorn, Turner, Wagoner, Wilson, Morano
Representatives Amstutz, Bacon, Balderson, Batchelder, Beck, Belcher, Bolon, Boyd, Carney, Coley, Combs, Daniels, Derickson, Domenick, Driehaus, Dyer, Evans, Fende, Gardner, Garland, Garrison, Gerberry, Grossman, Hackett, Hagan, Hall, Harris, Heard, Hite, Hottinger, Koziura, Lehner, Letson, Maag, Martin, McClain, McGregor, Mecklenborg, Oelslager, Okey, Pillich, Ruhl, Sears, Snitchler, Sykes, Szollosi, Uecker, Ujvagi, Wachtmann, Wagner, Weddington
Section 1. That sections 109.573, 2901.07, 2953.21, 2953.23, | 27 |
2953.31, 2953.32, 2953.321, 2953.35, 2953.51, 2953.54, 2953.55, | 28 |
2953.71, 2953.72, 2953.73, 2953.74, 2953.75, 2953.76, 2953.77, | 29 |
2953.78, 2953.79, 2953.81, 2953.83, and 2953.84 be amended and | 30 |
sections 109.561, 2933.81, 2933.82, 2933.83, 2953.56, 2953.57, | 31 |
2953.58, 2953.59, and 2953.60 of the Revised Code be enacted to | 32 |
read as follows: | 33 |
Sec. 109.561. There is hereby established within the bureau | 34 |
of criminal identification and investigation a preservation of | 35 |
biological evidence task force. The task force shall consist of | 36 |
officers and employees of the bureau; a representative from the | 37 |
Ohio prosecutors association; a representative from the Ohio state | 38 |
coroners association; a representative from the Ohio association | 39 |
of chiefs of police; a representative from the Ohio public | 40 |
defenders office, in consultation with the Ohio innocence project; | 41 |
and a representative from the buckeye state sheriffs association. | 42 |
The task force shall perform the duties and functions specified in | 43 |
division (C) of section 2933.82 of the Revised Code. | 44 |
(9) "Administration of criminal justice" means the | 75 |
performance of detection, apprehension, detention, pretrial | 76 |
release, post-trial release, prosecution, adjudication, | 77 |
correctional supervision, or rehabilitation of accused persons or | 78 |
criminal offenders. "Administration of criminal justice" also | 79 |
includes criminal identification activities and the collection, | 80 |
storage, and dissemination of criminal history record information. | 81 |
(a) If a person has disappeared and has been continuously | 111 |
absent from the person's place of last domicile for a thirty-day | 112 |
or longer period of time without being heard from during the | 113 |
period, persons related by consanguinity to the missing person may | 114 |
submit to the bureau a DNA specimen, the bureau may include the | 115 |
DNA record of the specimen in the relatives of missing persons | 116 |
database, and, if the bureau does not include the DNA record of | 117 |
the specimen in the relatives of missing persons database, the | 118 |
bureau shall retain the DNA record for future reference and | 119 |
inclusion as appropriate in that database. | 120 |
(c) If the DNA specimen submitted pursuant to division | 123 |
(B)(3)(a) of this section is collected by withdrawing blood from | 124 |
the person or a similarly invasive procedure, a physician, | 125 |
registered nurse, licensed practical nurse, duly licensed clinical | 126 |
laboratory technician, or other qualified medical practitioner | 127 |
shall conduct the collection procedure for the DNA specimen | 128 |
submitted pursuant to division (B)(3)(a) of this section and shall | 129 |
collect the DNA specimen in a medically approved manner. If the | 130 |
DNA specimen is collected by swabbing for buccal cells or a | 131 |
similarly noninvasive procedure, division (B)(3)(c) of this | 132 |
section does not require that the DNA specimen be collected by a | 133 |
qualified medical practitioner of that nature. No later than | 134 |
fifteen days after the date of the collection of the DNA specimen, | 135 |
the person conducting the DNA specimen collection procedure shall | 136 |
cause the DNA specimen to be forwarded to the bureau of criminal | 137 |
identification and investigation in accordance with procedures | 138 |
established by the superintendent of the bureau under division (H) | 139 |
of this section. The bureau may provide the specimen vials, | 140 |
mailing tubes, labels, postage, and instruction needed for the | 141 |
collection and forwarding of the DNA specimen to the bureau. | 142 |
(D) When a DNA record is derived from a DNA specimen provided | 170 |
pursuant to section 2152.74 or 2901.07 of the Revised Code, the | 171 |
bureau of criminal identification and investigation shall attach | 172 |
to the DNA record personal identification information that | 173 |
identifies the person from whom the DNA specimen was taken. The | 174 |
personal identification information may include the subject | 175 |
person's fingerprints and any other information the bureau | 176 |
determines necessary. The DNA record and personal identification | 177 |
information attached to it shall be used only for the purpose of | 178 |
personal identification or for a purpose specified in this | 179 |
section. | 180 |
(B)(1) On and after July 1, 2011, a person who is eighteen | 268 |
years of age or older and who is arrested on or after July 1, | 269 |
2011, for a felony offense shall submit to a DNA specimen | 270 |
collection procedure administered by the head of the arresting law | 271 |
enforcement agency. The head of the arresting law enforcement | 272 |
agency shall cause the DNA specimen to be collected from the | 273 |
person during the intake process at the jail, community-based | 274 |
correctional facility, detention facility, or law enforcement | 275 |
agency office or station to which the arrested person is taken | 276 |
after the arrest. The head of the arresting law enforcement agency | 277 |
shall cause the DNA specimen to be collected in accordance with | 278 |
division (C) of this section. | 279 |
(2) Regardless of when the conviction occurred or the guilty | 280 |
plea was entered, a person who has been convicted of, is convicted | 281 |
of, has pleaded guilty to, or pleads guilty to a felony offense | 282 |
and, who is sentenced to a prison term or to a community | 283 |
residential sanction in a jail or community-based correctional | 284 |
facility for that offense pursuant to section 2929.16 of the | 285 |
Revised Code, and who does not provide a DNA specimen pursuant to | 286 |
division (B)(1) of this section, and a person who has been | 287 |
convicted of, is convicted of, has pleaded guilty to, or pleads | 288 |
guilty to a misdemeanor offense listed in division (D) of this | 289 |
section and, who is sentenced to a term of imprisonment for that | 290 |
offense, and who does not provide a DNA specimen pursuant to | 291 |
division (B)(1) of this section, shall submit to a DNA specimen | 292 |
collection procedure administered by the director of | 293 |
rehabilitation and correction or the chief administrative officer | 294 |
of the jail or other detention facility in which the person is | 295 |
serving the term of imprisonment. If the person serves the prison | 296 |
term in a state correctional institution, the director of | 297 |
rehabilitation and correction shall cause the DNA specimen to be | 298 |
collected from the person during the intake process at the | 299 |
reception facility designated by the director. If the person | 300 |
serves the community residential sanction or term of imprisonment | 301 |
in a jail, a community-based correctional facility, or another | 302 |
county, multicounty, municipal, municipal-county, or | 303 |
multicounty-municipal detention facility, the chief administrative | 304 |
officer of the jail, community-based correctional facility, or | 305 |
detention facility shall cause the DNA specimen to be collected | 306 |
from the person during the intake process at the jail, | 307 |
community-based correctional facility, or detention facility. The | 308 |
DNA specimen shall be collected in accordance with division (C) of | 309 |
this section. | 310 |
(2)(3) Regardless of when the conviction occurred or the | 311 |
guilty plea was entered, if a person has been convicted of, is | 312 |
convicted of, has pleaded guilty to, or pleads guilty to a felony | 313 |
offense or a misdemeanor offense listed in division (D) of this | 314 |
section, is serving a prison term, community residential sanction, | 315 |
or term of imprisonment for that offense, and does not provide a | 316 |
DNA specimen pursuant to division (B)(1) or (2) of this section, | 317 |
prior to the person's release from the prison term, community | 318 |
residential sanction, or imprisonment, the person shall submit to, | 319 |
and the director of rehabilitation and correction or the chief | 320 |
administrative officer of the jail, community-based correctional | 321 |
facility, or detention facility in which the person is serving the | 322 |
prison term, community residential sanction, or term of | 323 |
imprisonment shall administer, a DNA specimen collection procedure | 324 |
at the state correctional institution, jail, community-based | 325 |
correctional facility, or detention facility in which the person | 326 |
is serving the prison term, community residential sanction, or | 327 |
term of imprisonment. The DNA specimen shall be collected in | 328 |
accordance with division (C) of this section. | 329 |
(3)(4)(a) Regardless of when the conviction occurred or the | 330 |
guilty plea was entered, if a person has been convicted of, is | 331 |
convicted of, has pleaded guilty to, or pleads guilty to a felony | 332 |
offense or a misdemeanor offense listed in division (D) of this | 333 |
section and the person is on probation, released on parole, under | 334 |
transitional control, on community control, on post-release | 335 |
control, or under any other type of supervised release under the | 336 |
supervision of a probation department or the adult parole | 337 |
authority for that offense, and did not provide a DNA specimen | 338 |
pursuant to division (B)(1), (2), or (3) of this section, the | 339 |
person shall submit to a DNA specimen collection procedure | 340 |
administered by the chief administrative officer of the probation | 341 |
department or the adult parole authority. The DNA specimen shall | 342 |
be collected in accordance with division (C) of this section. If | 343 |
the person refuses to submit to a DNA specimen collection | 344 |
procedure as provided in this division, the person may be subject | 345 |
to the provisions of section 2967.15 of the Revised Code. | 346 |
(b) If a person to whom division (B)(3)(4)(a) of this section | 347 |
applies is sent to jail or is returned to a jail, community-based | 348 |
correctional facility, or state correctional institution for a | 349 |
violation of the terms and conditions of the probation, parole, | 350 |
transitional control, other release, or post-release control, if | 351 |
the person was or will be serving a term of imprisonment, prison | 352 |
term, or community residential sanction for committing a felony | 353 |
offense or for committing a misdemeanor offense listed in division | 354 |
(D) of this section, and if the person did not provide a DNA | 355 |
specimen pursuant to division (B)(1), (2), (3), or (3)(4)(a) of | 356 |
this section, the person shall submit to, and the director of | 357 |
rehabilitation and correction or the chief administrative officer | 358 |
of the jail or community-based correctional facility shall | 359 |
administer, a DNA specimen collection procedure at the jail, | 360 |
community-based correctional facility, or state correctional | 361 |
institution in which the person is serving the term of | 362 |
imprisonment, prison term, or community residential sanction. The | 363 |
DNA specimen shall be collected from the person in accordance with | 364 |
division (C) of this section. | 365 |
(4)(5) Regardless of when the conviction occurred or the | 366 |
guilty plea was entered, if a person has been convicted of, is | 367 |
convicted of, has pleaded guilty to, or pleads guilty to a felony | 368 |
offense or a misdemeanor offense listed in division (D) of this | 369 |
section, the person is not sentenced to a prison term, a community | 370 |
residential sanction in a jail or community-based correctional | 371 |
facility, a term of imprisonment, or any type of supervised | 372 |
release under the supervision of a probation department or the | 373 |
adult parole authority, and the person does not provide a DNA | 374 |
specimen pursuant to division (B)(1), (2), (3), (4)(a), or | 375 |
(3)(4)(b) of this section, the sentencing court shall order the | 376 |
person to report to the county probation department immediately | 377 |
after sentencing to submit to a DNA specimen collection procedure | 378 |
administered by the chief administrative officer of the county | 379 |
probation office. If the person is incarcerated at the time of | 380 |
sentencing, the person shall submit to a DNA specimen collection | 381 |
procedure administered by the director of rehabilitation and | 382 |
correction or the chief administrative officer of the jail or | 383 |
other detention facility in which the person is incarcerated. The | 384 |
DNA specimen shall be collected in accordance with division (C) of | 385 |
this section. | 386 |
(C) If the DNA specimen is collected by withdrawing blood | 387 |
from the person or a similarly invasive procedure, a physician, | 388 |
registered nurse, licensed practical nurse, duly licensed clinical | 389 |
laboratory technician, or other qualified medical practitioner | 390 |
shall collect in a medically approved manner the DNA specimen | 391 |
required to be collected pursuant to division (B) of this section. | 392 |
If the DNA specimen is collected by swabbing for buccal cells or a | 393 |
similarly noninvasive procedure, this section does not require | 394 |
that the DNA specimen be collected by a qualified medical | 395 |
practitioner of that nature. No later than fifteen days after the | 396 |
date of the collection of the DNA specimen, the head of the | 397 |
arresting law enforcement agency regarding a DNA specimen taken | 398 |
pursuant to division (B)(1) of this section, the director of | 399 |
rehabilitation and correction or the chief administrative officer | 400 |
of the jail, community-based correctional facility, or other | 401 |
county, multicounty, municipal, municipal-county, or | 402 |
multicounty-municipal detention facility, in which the person is | 403 |
serving the prison term, community residential sanction, or term | 404 |
of imprisonment regarding a DNA specimen taken pursuant to | 405 |
division (B)(2), (3), or (4)(b) of this section, the chief | 406 |
administrative officer of the probation department or the adult | 407 |
parole authority regarding a DNA specimen taken pursuant to | 408 |
division (B)(4)(a) of this section, or the chief administrative | 409 |
officer of the county probation office, the director of | 410 |
rehabilitation and correction, or the chief administrative officer | 411 |
of the jail or other detention facility in which the person is | 412 |
incarcerated regarding a DNA specimen taken pursuant to division | 413 |
(B)(5) of this section, whichever is applicable, shall cause the | 414 |
DNA specimen to be forwarded to the bureau of criminal | 415 |
identification and investigation in accordance with procedures | 416 |
established by the superintendent of the bureau under division (H) | 417 |
of section 109.573 of the Revised Code. The bureau shall provide | 418 |
the specimen vials, mailing tubes, labels, postage, and | 419 |
instructions needed for the collection and forwarding of the DNA | 420 |
specimen to the bureau. | 421 |
(D) The director of rehabilitation and correction, the chief | 422 |
administrative officer of the jail, community-based correctional | 423 |
facility, or other county, multicounty, municipal, | 424 |
municipal-county, or multicounty-municipal detention facility, or | 425 |
the chief administrative officer of a county probation department | 426 |
or the adult parole authority shall cause a DNA specimen to be | 427 |
collected in accordance with divisions (B) and (C) of this section | 428 |
from a person in its custody or under its supervisionDNA specimen | 429 |
collection duty set forth in division (B)(1) of this section | 430 |
applies to any person who is eighteen years of age or older and | 431 |
who is arrested on or after July 1, 2011, for any felony offense. | 432 |
The DNA specimen collection duties set forth in divisions (B)(2), | 433 |
(3), (4)(a), (4)(b), and (5) of this section apply to any person | 434 |
who has been convicted of, is convicted of, has pleaded guilty to, | 435 |
or pleads guilty to any felony offense or any of the following | 436 |
misdemeanor offenses: | 437 |
(2) A misdemeanor violation of any law that arose out of the | 441 |
same facts and circumstances and same act as did a charge against | 442 |
the person of a violation of section 2903.01, 2903.02, 2905.01, | 443 |
2907.02, 2907.03, 2907.04, 2907.05, or 2911.11 of the Revised Code | 444 |
that previously was dismissed or amended or as did a charge | 445 |
against the person of a violation of section 2907.12 of the | 446 |
Revised Code as it existed prior to September 3, 1996, that | 447 |
previously was dismissed or amended; | 448 |
(1) "Custodial interrogation" means any interrogation | 466 |
involving a law enforcement officer's questioning that is | 467 |
reasonably likely to elicit incriminating responses and in which a | 468 |
reasonable person in the subject's position would consider self to | 469 |
be in custody, beginning when a person should have been advised of | 470 |
the person's right to counsel and right to remain silent and of | 471 |
the fact that anything the person says could be used against the | 472 |
person, as specified by the United States supreme court in Miranda | 473 |
v. Arizona (1966), 384 U.S. 436, and subsequent decisions, and | 474 |
ending when the questioning has completely finished. | 475 |
(B) All statements made by a person who is the suspect of a | 497 |
violation of or possible violation of section 2903.01, 2903.02, or | 498 |
2903.03, a violation of section 2903.04 or 2903.06 that is a | 499 |
felony of the first or second degree, a violation of section | 500 |
2907.02 or 2907.03, or an attempt to commit a violation of section | 501 |
2907.02 of the Revised Code during a custodial interrogation in a | 502 |
place of detention are presumed to be voluntary if the statements | 503 |
made by the person are electronically recorded. The person making | 504 |
the statements during the electronic recording of the custodial | 505 |
interrogation has the burden of proving that the statements made | 506 |
during the custodial interrogation were not voluntary. There shall | 507 |
be no penalty against the law enforcement agency that employs a | 508 |
law enforcement officer if the law enforcement officer fails to | 509 |
electronically record as required by this division a custodial | 510 |
interrogation. A law enforcement officer's failure to | 511 |
electronically record a custodial interrogation does not create a | 512 |
private cause of action against that law enforcement officer. | 513 |
(B)(1) Each governmental evidence-retention entity that | 570 |
secures any biological evidence in relation to an investigation or | 571 |
prosecution of a criminal offense or delinquent act that is a | 572 |
violation of section 2903.01, 2903.02, or 2903.03, a violation of | 573 |
section 2903.04 or 2903.06 that is a felony of the first or second | 574 |
degree, a violation of section 2907.02 or 2907.03 or division | 575 |
(A)(4) or (B) of section 2907.05 of the Revised Code, or an | 576 |
attempt to commit a violation of section 2907.02 of the Revised | 577 |
Code shall secure the biological evidence for whichever of the | 578 |
following periods of time is applicable: | 579 |
(c) If any person is convicted of or pleads guilty to the | 590 |
offense, or is adjudicated a delinquent child for committing the | 591 |
delinquent act, for the earlier of the following: (i) the | 592 |
expiration of the latest of the following periods of time that | 593 |
apply to the person: the period of time that the person is | 594 |
incarcerated, is in a department of youth services institution or | 595 |
other juvenile facility, is under a community control sanction for | 596 |
that offense, is under any order of disposition for that act, is | 597 |
on probation or parole for that offense, is under judicial release | 598 |
or supervised release for that act, is under post-release control | 599 |
for that offense, is involved in civil litigation in connection | 600 |
with that offense or act, or is subject to registration and other | 601 |
duties imposed for that offense or act under sections 2950.04, | 602 |
2950.041, 2950.05, and 2950.06 of the Revised Code or (ii) thirty | 603 |
years. If after the period of thirty years the person remains | 604 |
incarcerated, then the governmental evidence-retention entity | 605 |
shall secure the biological evidence until the person is released | 606 |
from incarceration or dies. | 607 |
(2) This section applies to evidence likely to contain | 608 |
biological material that was in the possession of any governmental | 609 |
evidence-retention entity during the investigation and prosecution | 610 |
of a criminal case or delinquent child case involving a violation | 611 |
of section 2903.01, 2903.02, or 2903.03, a violation of section | 612 |
2903.04 or 2903.06 that is a felony of the first or second degree, | 613 |
a violation of section 2907.02 or 2907.03 or of division (A)(4) or | 614 |
(B) of section 2907.05 of the Revised Code, or an attempt to | 615 |
commit a violation of section 2907.02 of the Revised Code. | 616 |
(4) Upon written request by the defendant in a criminal case | 621 |
or the alleged delinquent child in a delinquent child case | 622 |
involving a violation of section 2903.01, 2903.02, or 2903.03, a | 623 |
violation of section 2903.04 or 2903.06 that is a felony of the | 624 |
first or second degree, a violation of section 2907.02 or 2907.03 | 625 |
or of division (A)(4) or (B) of section 2907.05 of the Revised | 626 |
Code, or an attempt to commit a violation of section 2907.02 of | 627 |
the Revised Code, a governmental evidence-retention entity that | 628 |
possesses biological evidence shall prepare an inventory of the | 629 |
biological evidence that has been preserved in connection with the | 630 |
defendant's criminal case or the alleged delinquent child's | 631 |
delinquent child case. | 632 |
(i) All persons who remain in custody, incarcerated, in a | 644 |
department of youth services institution or other juvenile | 645 |
facility, under a community control sanction, under any order of | 646 |
disposition, on probation or parole, under judicial release or | 647 |
supervised release, under post-release control, involved in civil | 648 |
litigation, or subject to registration and other duties imposed | 649 |
for that offense or act under sections 2950.04, 2950.041, 2950.05, | 650 |
and 2950.06 of the Revised Code as a result of a criminal | 651 |
conviction, delinquency adjudication, or commitment related to the | 652 |
evidence in question; | 653 |
(6) Except as otherwise provided in division (B)(7) of this | 671 |
section, if, after providing notice under division (B)(5)(b) of | 672 |
this section of its intent to destroy evidence, a governmental | 673 |
evidence-retention entity receives a written request for retention | 674 |
of the evidence from any person to whom the notice is provided, | 675 |
the governmental evidence-retention entity shall retain the | 676 |
evidence while the person referred to in division (B)(5)(b)(i) of | 677 |
this section remains in custody, incarcerated, in a department of | 678 |
youth services institution or other juvenile facility, under a | 679 |
community control sanction, under any order of disposition, on | 680 |
probation or parole, under judicial release or supervised release, | 681 |
under post-release control, involved in civil litigation, or | 682 |
subject to registration and other duties imposed for that offense | 683 |
or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of | 684 |
the Revised Code as a result of a criminal conviction, delinquency | 685 |
adjudication, or commitment related to the evidence in question. | 686 |
(7) A governmental evidence-retention entity that possesses | 687 |
biological evidence that includes biological material may destroy | 688 |
the evidence five years after a person pleads guilty or no contest | 689 |
to a violation of section 2903.01, 2903.02, or 2903.03, a | 690 |
violation of 2903.04 or 2903.06 that is a felony of the first or | 691 |
second degree, a violation of section 2907.02, 2907.03, division | 692 |
(A)(4) or (B) of section 2907.05, or an attempt to commit a | 693 |
violation of section 2907.02 of the Revised Code and all appeals | 694 |
have been exhausted unless, upon a motion to the court by the | 695 |
person who pleaded guilty or no contest or the person's attorney | 696 |
and notice to those persons described in division (B)(5)(b) of | 697 |
this section requesting that the evidence not be destroyed, the | 698 |
court finds good cause as to why that evidence must be retained. | 699 |
(8) A governmental evidence-retention entity shall not be | 700 |
required to preserve physical evidence pursuant to this section | 701 |
that is of such a size, bulk, or physical character as to render | 702 |
retention impracticable. When retention of physical evidence that | 703 |
otherwise would be required to be retained pursuant to this | 704 |
section is impracticable as described in this division, the | 705 |
governmental evidence-retention entity that otherwise would be | 706 |
required to retain the physical evidence shall remove and preserve | 707 |
portions of the material evidence likely to contain biological | 708 |
evidence related to the offense, in a quantity sufficient to | 709 |
permit future DNA testing before returning or disposing of that | 710 |
physical evidence. | 711 |
(e) The administrator provides instructions to the eyewitness | 768 |
as to the lineup procedure and informs the eyewitness that a | 769 |
photograph of the alleged perpetrator of the offense may or may | 770 |
not be included in the photographs the eyewitness is about to see | 771 |
and that the administrator does not know which, if any, of the | 772 |
folders contains the photograph of the alleged perpetrator. The | 773 |
administrator also shall instruct the eyewitness that the | 774 |
administrator does not want to view any of the photographs and | 775 |
will not view any of the photographs and that the eyewitness may | 776 |
not show the administrator any of the photographs. The | 777 |
administrator shall inform the eyewitness that if the eyewitness | 778 |
identifies a photograph as being the person the eyewitness saw the | 779 |
eyewitness shall identify the photograph only by the number of the | 780 |
photograph's corresponding folder. | 781 |
(h) The administrator documents and records the results of | 798 |
the procedure described in divisions (A)(6)(a) to (f) of this | 799 |
section before the eyewitness views each of the folders a second | 800 |
time and before the administrator views any photograph that the | 801 |
eyewitness identifies as being of the person the eyewitness saw. | 802 |
The documentation and record includes the date, time, and location | 803 |
of the lineup procedure; the name of the administrator; the names | 804 |
of all of the individuals present during the lineup; the number of | 805 |
photographs shown to the eyewitness; copies of each photograph | 806 |
shown to the eyewitness; the order in which the folders were | 807 |
presented to the witness; the source of each photograph that was | 808 |
used in the procedure; a statement of the eyewitness's confidence | 809 |
in the eyewitness's own words as to the certainty of the | 810 |
eyewitness's identification of the photographs as being of the | 811 |
person the eyewitness saw that is taken immediately upon the | 812 |
reaction of the eyewitness to viewing the photograph; and any | 813 |
additional information the administrator considers pertinent to | 814 |
the lineup procedure. If the eyewitness views each of the folders | 815 |
a second time, the administrator shall document and record the | 816 |
statement of the eyewitness's confidence in the eyewitness's own | 817 |
words as to the certainty of the eyewitness's identification of a | 818 |
photograph as being of the person the eyewitness saw and document | 819 |
that the identification was made during a second viewing of each | 820 |
of the folders by the eyewitness. | 821 |
(3) When evidence of a failure to comply with any of the | 894 |
provisions of this section, or with any procedure for conducting | 895 |
lineups that has been adopted by a law enforcement agency or | 896 |
criminal justice agency pursuant to division (B) of this section | 897 |
and that conforms to any provision of divisions (B)(1) to (5) of | 898 |
this section, is presented at trial, the jury shall be instructed | 899 |
that it may consider credible evidence of noncompliance in | 900 |
determining the reliability of any eyewitness identification | 901 |
resulting from or related to the lineup. | 902 |
Sec. 2953.21. (A)(1)(a) Any person who has been convicted of | 910 |
a criminal offense or adjudicated a delinquent child and who | 911 |
claims that there was such a denial or infringement of the | 912 |
person's rights as to render the judgment void or voidable under | 913 |
the Ohio Constitution or the Constitution of the United States, | 914 |
and any person who has been convicted of a criminal offense that | 915 |
is a felony,and who is an inmate, andoffender for whom DNA | 916 |
testing that was performed under sections 2953.71 to 2953.81 of | 917 |
the Revised Code or under former section 2953.82 of the Revised | 918 |
Code and analyzed in the context of and upon consideration of all | 919 |
available admissible evidence related to the inmate'sperson's | 920 |
case as described in division (D) of section 2953.74 of the | 921 |
Revised Code provided results that establish, by clear and | 922 |
convincing evidence, actual innocence of that felony offense or, | 923 |
if the person was sentenced to death, establish, by clear and | 924 |
convincing evidence, actual innocence of the aggravating | 925 |
circumstance or circumstances the person was found guilty of | 926 |
committing and that is or are the basis of that sentence of death, | 927 |
may file a petition in the court that imposed sentence, stating | 928 |
the grounds for relief relied upon, and asking the court to vacate | 929 |
or set aside the judgment or sentence or to grant other | 930 |
appropriate relief. The petitioner may file a supporting affidavit | 931 |
and other documentary evidence in support of the claim for relief. | 932 |
(b) As used in division (A)(1)(a) of this section, "actual | 933 |
innocence" means that, had the results of the DNA testing | 934 |
conducted under sections 2953.71 to 2953.81 of the Revised Code or | 935 |
under former section 2953.82 of the Revised Code been presented at | 936 |
trial, and had those results been analyzed in the context of and | 937 |
upon consideration of all available admissible evidence related to | 938 |
the
inmate'sperson's case as described in division (D) of | 939 |
section 2953.74 of the Revised Code, no reasonable factfinder | 940 |
would have found the petitioner guilty of the offense of which the | 941 |
petitioner was convicted, or, if the person was sentenced to | 942 |
death, no reasonable factfinder would have found the petitioner | 943 |
guilty of the aggravating circumstance or circumstances the | 944 |
petitioner was found guilty of committing and that is or are the | 945 |
basis of that sentence of death. | 946 |
(2) Except as otherwise provided in section 2953.23 of the | 951 |
Revised Code, a petition under division (A)(1) of this section | 952 |
shall be filed no later than one hundred eighty days after the | 953 |
date on which the trial transcript is filed in the court of | 954 |
appeals in the direct appeal of the judgment of conviction or | 955 |
adjudication or, if the direct appeal involves a sentence of | 956 |
death, the date on which the trial transcript is filed in the | 957 |
supreme court. If no appeal is taken, except as otherwise provided | 958 |
in section 2953.23 of the Revised Code, the petition shall be | 959 |
filed no later than one hundred eighty days after the expiration | 960 |
of the time for filing the appeal. | 961 |
(5) If the petitioner in a petition filed under division (A) | 972 |
of this section was convicted of or pleaded guilty to a felony, | 973 |
the petition may include a claim that the petitioner was denied | 974 |
the equal protection of the laws in violation of the Ohio | 975 |
Constitution or the United States Constitution because the | 976 |
sentence imposed upon the petitioner for the felony was part of a | 977 |
consistent pattern of disparity in sentencing by the judge who | 978 |
imposed the sentence, with regard to the petitioner's race, | 979 |
gender, ethnic background, or religion. If the supreme court | 980 |
adopts a rule requiring a court of common pleas to maintain | 981 |
information with regard to an offender's race, gender, ethnic | 982 |
background, or religion, the supporting evidence for the petition | 983 |
shall include, but shall not be limited to, a copy of that type of | 984 |
information relative to the petitioner's sentence and copies of | 985 |
that type of information relative to sentences that the same judge | 986 |
imposed upon other persons. | 987 |
(C) The court shall consider a petition that is timely filed | 993 |
under division (A)(2) of this section even if a direct appeal of | 994 |
the judgment is pending. Before granting a hearing on a petition | 995 |
filed under division (A) of this section, the court shall | 996 |
determine whether there are substantive grounds for relief. In | 997 |
making such a determination, the court shall consider, in addition | 998 |
to the petition, the supporting affidavits, and the documentary | 999 |
evidence, all the files and records pertaining to the proceedings | 1000 |
against the petitioner, including, but not limited to, the | 1001 |
indictment, the court's journal entries, the journalized records | 1002 |
of the clerk of the court, and the court reporter's transcript. | 1003 |
The court reporter's transcript, if ordered and certified by the | 1004 |
court, shall be taxed as court costs. If the court dismisses the | 1005 |
petition, it shall make and file findings of fact and conclusions | 1006 |
of law with respect to such dismissal. | 1007 |
(G) If the court does not find grounds for granting relief, | 1025 |
it shall make and file findings of fact and conclusions of law and | 1026 |
shall enter judgment denying relief on the petition. If no direct | 1027 |
appeal of the case is pending and the court finds grounds for | 1028 |
relief or if a pending direct appeal of the case has been remanded | 1029 |
to the court pursuant to a request made pursuant to division (E) | 1030 |
of this section and the court finds grounds for granting relief, | 1031 |
it shall make and file findings of fact and conclusions of law and | 1032 |
shall enter a judgment that vacates and sets aside the judgment in | 1033 |
question, and, in the case of a petitioner who is a prisoner in | 1034 |
custody, shall discharge or resentence the petitioner or grant a | 1035 |
new trial as the court determines appropriate. The court also may | 1036 |
make supplementary orders to the relief granted, concerning such | 1037 |
matters as rearraignment, retrial, custody, and bail. If the trial | 1038 |
court's order granting the petition is reversed on appeal and if | 1039 |
the direct appeal of the case has been remanded from an appellate | 1040 |
court pursuant to a request under division (E) of this section, | 1041 |
the appellate court reversing the order granting the petition | 1042 |
shall notify the appellate court in which the direct appeal of the | 1043 |
case was pending at the time of the remand of the reversal and | 1044 |
remand of the trial court's order. Upon the reversal and remand of | 1045 |
the trial court's order granting the petition, regardless of | 1046 |
whether notice is sent or received, the direct appeal of the case | 1047 |
that was remanded is reinstated. | 1048 |
(I)(1) If a person sentenced to death intends to file a | 1052 |
petition under this section, the court shall appoint counsel to | 1053 |
represent the person upon a finding that the person is indigent | 1054 |
and that the person either accepts the appointment of counsel or | 1055 |
is unable to make a competent decision whether to accept or reject | 1056 |
the appointment of counsel. The court may decline to appoint | 1057 |
counsel for the person only upon a finding, after a hearing if | 1058 |
necessary, that the person rejects the appointment of counsel and | 1059 |
understands the legal consequences of that decision or upon a | 1060 |
finding that the person is not indigent. | 1061 |
(2) The court shall not appoint as counsel under division | 1062 |
(I)(1) of this section an attorney who represented the petitioner | 1063 |
at trial in the case to which the petition relates unless the | 1064 |
person and the attorney expressly request the appointment. The | 1065 |
court shall appoint as counsel under division (I)(1) of this | 1066 |
section only an attorney who is certified under Rule 20 of the | 1067 |
Rules of Superintendence for the Courts of Ohio to represent | 1068 |
indigent defendants charged with or convicted of an offense for | 1069 |
which the death penalty can be or has been imposed. The | 1070 |
ineffectiveness or incompetence of counsel during proceedings | 1071 |
under this section does not constitute grounds for relief in a | 1072 |
proceeding under this section, in an appeal of any action under | 1073 |
this section, or in an application to reopen a direct appeal. | 1074 |
(3) Division (I) of this section does not preclude attorneys | 1075 |
who represent the state of Ohio from invoking the provisions of 28 | 1076 |
U.S.C. 154 with respect to capital cases that were pending in | 1077 |
federal habeas corpus proceedings prior to July 1, 1996, insofar | 1078 |
as the petitioners in those cases were represented in proceedings | 1079 |
under this section by one or more counsel appointed by the court | 1080 |
under this section or section 120.06, 120.16, 120.26, or 120.33 of | 1081 |
the Revised Code and those appointed counsel meet the requirements | 1082 |
of division (I)(2) of this section. | 1083 |
(2) The petitioner was convicted of a felony, the petitioner | 1115 |
is an inmateoffender for whom DNA testing was performed under | 1116 |
sections 2953.71 to 2953.81 of the Revised Code or under former | 1117 |
section 2953.82 of the Revised Code and analyzed in the context of | 1118 |
and upon consideration of all available admissible evidence | 1119 |
related to the inmate's case as described in division (D) of | 1120 |
section 2953.74 of the Revised Code, and the results of the DNA | 1121 |
testing establish, by clear and convincing evidence, actual | 1122 |
innocence of that felony offense or, if the person was sentenced | 1123 |
to death, establish, by clear and convincing evidence, actual | 1124 |
innocence of the aggravating circumstance or circumstances the | 1125 |
person was found guilty of committing and that is or are the basis | 1126 |
of that sentence of death. | 1127 |
(A) "First offender" means anyone who has been convicted of | 1139 |
an offense in this state or any other jurisdiction and who | 1140 |
previously or subsequently has not been convicted of the same or a | 1141 |
different offense in this state or any other jurisdiction. When | 1142 |
two or more convictions result from or are connected with the same | 1143 |
act or result from offenses committed at the same time, they shall | 1144 |
be counted as one conviction. When two or three convictions result | 1145 |
from the same indictment, information, or complaint, from the same | 1146 |
plea of guilty, or from the same official proceeding, and result | 1147 |
from related criminal acts that were committed within a | 1148 |
three-month period but do not result from the same act or from | 1149 |
offenses committed at the same time, they shall be counted as one | 1150 |
conviction, provided that a court may decide as provided in | 1151 |
division (C)(1)(a) of section 2953.32 of the Revised Code that it | 1152 |
is not in the public interest for the two or three convictions to | 1153 |
be counted as one conviction. | 1154 |
For purposes of, and except as otherwise provided in, this | 1155 |
division, a conviction for a minor misdemeanor, for a violation of | 1156 |
any section in Chapter 4507., 4510., 4511., 4513., or 4549. of the | 1157 |
Revised Code, or for a violation of a municipal ordinance that is | 1158 |
substantially similar to any section in those chapters is not a | 1159 |
previous or subsequent conviction. However, a conviction for a | 1160 |
violation of section 4511.19, 4511.251, 4549.02, 4549.021, | 1161 |
4549.03, 4549.042, or 4549.62 or sections 4549.41 to 4549.46 of | 1162 |
the Revised Code, for a violation of section 4510.11 or 4510.14 of | 1163 |
the Revised Code that is based upon the offender's operation of a | 1164 |
vehicle during a suspension imposed under section 4511.191 or | 1165 |
4511.196 of the Revised Code, for a violation of a substantially | 1166 |
equivalent municipal ordinance, for a felony violation of Title | 1167 |
XLV of the Revised Code, or for a violation of a substantially | 1168 |
equivalent former law of this state or former municipal ordinance | 1169 |
shall be considered a previous or subsequent conviction. | 1170 |
(B) Upon the filing of an application under this section, the | 1212 |
court shall set a date for a hearing and shall notify the | 1213 |
prosecutor for the case of the hearing on the application. The | 1214 |
prosecutor may object to the granting of the application by filing | 1215 |
an objection with the court prior to the date set for the hearing. | 1216 |
The prosecutor shall specify in the objection the reasons for | 1217 |
believing a denial of the application is justified. The court | 1218 |
shall direct its regular probation officer, a state probation | 1219 |
officer, or the department of probation of the county in which the | 1220 |
applicant resides to make inquiries and written reports as the | 1221 |
court requires concerning the applicant. | 1222 |
(a) Determine whether the applicant is a first offender or | 1224 |
whether the forfeiture of bail was agreed to by the applicant and | 1225 |
the prosecutor in the case. If the applicant applies as a first | 1226 |
offender pursuant to division (A)(1) of this section and has two | 1227 |
or three convictions that result from the same indictment, | 1228 |
information, or complaint, from the same plea of guilty, or from | 1229 |
the same official proceeding, and result from related criminal | 1230 |
acts that were committed within a three-month period but do not | 1231 |
result from the same act or from offenses committed at the same | 1232 |
time, in making its determination under this division, the court | 1233 |
initially shall determine whether it is not in the public interest | 1234 |
for the two or three convictions to be counted as one conviction. | 1235 |
If the court determines that it is not in the public interest for | 1236 |
the two or three convictions to be counted as one conviction, the | 1237 |
court shall determine that the applicant is not a first offender; | 1238 |
if the court does not make that determination, the court shall | 1239 |
determine that the offender is a first offender. | 1240 |
(2) If the court determines, after complying with division | 1254 |
(C)(1) of this section, that the applicant is a first offender or | 1255 |
the subject of a bail forfeiture, that no criminal proceeding is | 1256 |
pending against the applicant, and that the interests of the | 1257 |
applicant in having the records pertaining to the applicant's | 1258 |
conviction or bail forfeiture sealed are not outweighed by any | 1259 |
legitimate governmental needs to maintain those records, and that | 1260 |
the rehabilitation of an applicant who is a first offender | 1261 |
applying pursuant to division (A)(1) of this section has been | 1262 |
attained to the satisfaction of the court, the court, except as | 1263 |
provided in
divisiondivisions (G) and (H) of this section, shall | 1264 |
order all official records pertaining to the case sealed and, | 1265 |
except as provided in division (F) of this section, all index | 1266 |
references to the case deleted and, in the case of bail | 1267 |
forfeitures, shall dismiss the charges in the case. The | 1268 |
proceedings in the case shall be considered not to have occurred | 1269 |
and the conviction or bail forfeiture of the person who is the | 1270 |
subject of the proceedings shall be sealed, except that upon | 1271 |
conviction of a subsequent offense, the sealed record of prior | 1272 |
conviction or bail forfeiture may be considered by the court in | 1273 |
determining the sentence or other appropriate disposition, | 1274 |
including the relief provided for in sections 2953.31 to 2953.33 | 1275 |
of the Revised Code. | 1276 |
(F) The person or governmental agency, office, or department | 1347 |
that maintains sealed records pertaining to convictions or bail | 1348 |
forfeitures that have been sealed pursuant to this section may | 1349 |
maintain a manual or computerized index to the sealed records. The | 1350 |
index shall contain only the name of, and alphanumeric identifiers | 1351 |
that relate to, the persons who are the subject of the sealed | 1352 |
records, the word "sealed," and the name of the person, agency, | 1353 |
office, or department that has custody of the sealed records, and | 1354 |
shall not contain the name of the crime committed. The index shall | 1355 |
be made available by the person who has custody of the sealed | 1356 |
records only for the purposes set forth in divisions (C), (D), and | 1357 |
(E) of this section. | 1358 |
(G) Notwithstanding any provision of this section or section | 1359 |
2953.33 of the Revised Code that requires otherwise, a board of | 1360 |
education of a city, local, exempted village, or joint vocational | 1361 |
school district that maintains records of an individual who has | 1362 |
been permanently excluded under sections 3301.121 and 3313.662 of | 1363 |
the Revised Code is permitted to maintain records regarding a | 1364 |
conviction that was used as the basis for the individual's | 1365 |
permanent exclusion, regardless of a court order to seal the | 1366 |
record. An order issued under this section to seal the record of a | 1367 |
conviction does not revoke the adjudication order of the | 1368 |
superintendent of public instruction to permanently exclude the | 1369 |
individual who is the subject of the sealing order. An order | 1370 |
issued under this section to seal the record of a conviction of an | 1371 |
individual may be presented to a district superintendent as | 1372 |
evidence to support the contention that the superintendent should | 1373 |
recommend that the permanent exclusion of the individual who is | 1374 |
the subject of the sealing order be revoked. Except as otherwise | 1375 |
authorized by this division and sections 3301.121 and 3313.662 of | 1376 |
the Revised Code, any school employee in possession of or having | 1377 |
access to the sealed conviction records of an individual that were | 1378 |
the basis of a permanent exclusion of the individual is subject to | 1379 |
section 2953.35 of the Revised Code. | 1380 |
(2) No law enforcement agency, or person employed by a law | 1427 |
enforcement agency, that receives investigatory work product | 1428 |
pursuant to division (B)(3) of this section shall use that work | 1429 |
product for any purpose other than the investigation of the | 1430 |
offense for which it was obtained from the other law enforcement | 1431 |
agency, or disclose the name of the person who is the subject of | 1432 |
the work product except when necessary for the conduct of the | 1433 |
investigation of the offense, or the prosecution of the person for | 1434 |
committing the offense, for which it was obtained from the other | 1435 |
law enforcement agency. | 1436 |
(3) It is not a violation of division (C)(1) or (2) of this | 1437 |
section for the bureau of criminal identification and | 1438 |
investigation or any authorized employee of the bureau | 1439 |
participating in the investigation of criminal activity to | 1440 |
release, disseminate, or otherwise make available to, or discuss | 1441 |
with, a person directly employed by a law enforcement agency DNA | 1442 |
records collected in the DNA database or fingerprints filed for | 1443 |
record by the superintendent of the bureau of criminal | 1444 |
identification and investigation. | 1445 |
Sec. 2953.35. (A) Except as authorized by divisions (D), | 1449 |
(E), and (F) of section 2953.32 of the Revised Code or by Chapter | 1450 |
2950. of the Revised Code, any officer or employee of the state, | 1451 |
or a political subdivision of the state, who releases or otherwise | 1452 |
disseminates or makes available for any purpose involving | 1453 |
employment, bonding, or licensing in connection with any business, | 1454 |
trade, or profession to any person, or to any department, agency, | 1455 |
or other instrumentality of the state, or any political | 1456 |
subdivision of the state, any information or other data concerning | 1457 |
any arrest, complaint, indictment, trial, hearing, adjudication, | 1458 |
conviction, or correctional supervision the records with respect | 1459 |
to which the officer or employee had knowledge of were sealed by | 1460 |
an existing order issued pursuant to sections 2953.31 to 2953.36 | 1461 |
of the Revised Code, or were expunged by an order issued pursuant | 1462 |
to section 2953.42 of the Revised Code as it existed prior to the | 1463 |
effective date of this amendmentJune 29, 1988, is guilty of | 1464 |
divulging confidential information, a misdemeanor of the fourth | 1465 |
degree. | 1466 |
(D) "Official records" means all records that are possessed | 1494 |
by any public office or agency that relate to a criminal case, | 1495 |
including, but not limited to: the notation to the case in the | 1496 |
criminal docket; all subpoenas issued in the case; all papers and | 1497 |
documents filed by the defendant or the prosecutor in the case; | 1498 |
all records of all testimony and evidence presented in all | 1499 |
proceedings in the case; all court files, papers, documents, | 1500 |
folders, entries, affidavits, or writs that pertain to the case; | 1501 |
all computer, microfilm, microfiche, or microdot records, indices, | 1502 |
or references to the case; all index references to the case; all | 1503 |
fingerprints and photographs; all records and investigative | 1504 |
reports pertaining to the case that are possessed by any law | 1505 |
enforcement officer or agency, except that any records or reports | 1506 |
that are the specific investigatory work product of a law | 1507 |
enforcement officer or agency are not and shall not be considered | 1508 |
to be official records when they are in the possession of that | 1509 |
officer or agency; and all investigative records and reports other | 1510 |
than those possessed by a law enforcement officer or agency | 1511 |
pertaining to the case. "Official records" does not include | 1512 |
records or reports maintained pursuant to section 2151.421 of the | 1513 |
Revised Code by a public children services agency or the | 1514 |
department of job and family services. | 1515 |
(1) Every law enforcement officer possessing records or | 1527 |
reports pertaining to the case that are the officer's specific | 1528 |
investigatory work product and that are excepted from the | 1529 |
definition of "official records" contained in section 2953.51 of | 1530 |
the Revised Code shall immediately deliver the records and reports | 1531 |
to histhe officer's employing law enforcement agency. Except as | 1532 |
provided in division (A)(3) of this section, no such officer shall | 1533 |
knowingly release, disseminate, or otherwise make the records and | 1534 |
reports or any information contained in them available to, or | 1535 |
discuss any information contained in them with, any person not | 1536 |
employed by the officer's employing law enforcement agency. | 1537 |
(2) Every law enforcement agency that possesses records or | 1538 |
reports pertaining to the case that are its specific investigatory | 1539 |
work product and that are excepted from the definition of | 1540 |
"official records" contained in section 2953.51 of the Revised | 1541 |
Code, or that are the specific investigatory work product of a law | 1542 |
enforcement officer it employs and that were delivered to it under | 1543 |
division (A)(1) of this section shall, except as provided in | 1544 |
division (A)(3) of this section, close the records and reports to | 1545 |
all persons who are not directly employed by the law enforcement | 1546 |
agency and shall, except as provided in division (A)(3) of this | 1547 |
section, treat the records and reports, in relation to all persons | 1548 |
other than those who are directly employed by the law enforcement | 1549 |
agency, as if they did not exist and had never existed. Except as | 1550 |
provided in division (A)(3) of this section, no person who is | 1551 |
employed by the law enforcement agency shall knowingly release, | 1552 |
disseminate, or otherwise make the records and reports in the | 1553 |
possession of the employing law enforcement agency or any | 1554 |
information contained in them available to, or discuss any | 1555 |
information contained in them with, any person not employed by the | 1556 |
employing law enforcement agency. | 1557 |
(3) A law enforcement agency that possesses records or | 1558 |
reports pertaining to the case that are its specific investigatory | 1559 |
work product and that are excepted from the definition of | 1560 |
"official records" contained in division (D) of section 2953.51 of | 1561 |
the Revised Code, or that are the specific investigatory work | 1562 |
product of a law enforcement officer it employs and that were | 1563 |
delivered to it under division (A)(1) of this section may permit | 1564 |
another law enforcement agency to use the records or reports in | 1565 |
the investigation of another offense, if the facts incident to the | 1566 |
offense being investigated by the other law enforcement agency and | 1567 |
the facts incident to an offense that is the subject of the case | 1568 |
are reasonably similar. The agency that provides the records and | 1569 |
reports may provide the other agency with the name of the person | 1570 |
who is the subject of the case, if it believes that the name of | 1571 |
the person is necessary to the conduct of the investigation by the | 1572 |
other agency. | 1573 |
No law enforcement agency, or person employed by a law | 1574 |
enforcement agency, that receives from another law enforcement | 1575 |
agency records or reports pertaining to a case the records of | 1576 |
which have been ordered sealed pursuant to division (B) of section | 1577 |
2953.52 of the Revised Code shall use the records and reports for | 1578 |
any purpose other than the investigation of the offense for which | 1579 |
they were obtained from the other law enforcement agency, or | 1580 |
disclose the name of the person who is the subject of the records | 1581 |
or reports except when necessary for the conduct of the | 1582 |
investigation of the offense, or the prosecution of the person for | 1583 |
committing the offense, for which they were obtained from the | 1584 |
other law enforcement agency. | 1585 |
Sec. 2953.55. (A) In any application for employment, | 1597 |
license, or any other right or privilege, any appearance as a | 1598 |
witness, or any other inquiry, a person may not be questioned with | 1599 |
respect to any record that has been sealed pursuant to section | 1600 |
2953.52 of the Revised Code. If an inquiry is made in violation of | 1601 |
this section, the person whose official record was sealed may | 1602 |
respond as if the arrest underlying the case to which the sealed | 1603 |
official records pertain and all other proceedings in that case | 1604 |
did not occur, and the person whose official record was sealed | 1605 |
shall not be subject to any adverse action because of the arrest, | 1606 |
the proceedings, or histhe person's response. | 1607 |
(B) An officer or employee of the state or any of its | 1608 |
political subdivisions who knowingly releases, disseminates, or | 1609 |
makes available for any purpose involving employment, bonding, | 1610 |
licensing, or education to any person or to any department, | 1611 |
agency, or other instrumentality of the state, or of any of its | 1612 |
political subdivisions, any information or other data concerning | 1613 |
any arrest, complaint, indictment, information, trial, | 1614 |
adjudication, or correctional supervision, the records of which | 1615 |
have been sealed pursuant to section 2953.52 of the Revised Code, | 1616 |
is guilty of divulging confidential information, a misdemeanor of | 1617 |
the fourth degree. | 1618 |
(D) Upon receiving a copy of an order to seal official | 1667 |
records pursuant to division (A) or (B) of this section or upon | 1668 |
otherwise becoming aware of an applicable order to seal official | 1669 |
records issued pursuant to section 2953.57 of the Revised Code, a | 1670 |
public office or agency shall comply with the order and, if | 1671 |
applicable, with the provisions of section 2953.59 of the Revised | 1672 |
Code, except that it may maintain a record of the case that is the | 1673 |
subject of the order if the record is maintained for the purpose | 1674 |
of compiling statistical data only and does not contain any | 1675 |
reference to the person who is the subject of the case and the | 1676 |
order. | 1677 |
A public office or agency also may maintain an index of | 1678 |
sealed official records, in a form similar to that for sealed | 1679 |
records of conviction as set forth in division (F) of section | 1680 |
2953.32 of the Revised Code, access to which may not be afforded | 1681 |
to any person other than the person who has custody of the sealed | 1682 |
official records. The sealed official records to which such an | 1683 |
index pertains shall not be available to any person, except that | 1684 |
the official records of a case that have been sealed may be made | 1685 |
available to the following persons for the following purposes: | 1686 |
(1) Every law enforcement officer possessing records or | 1698 |
reports pertaining to the case that are the officer's specific | 1699 |
investigatory work product and that are excepted from the | 1700 |
definition of "official records" contained in section 2953.51 of | 1701 |
the Revised Code shall immediately deliver the records and reports | 1702 |
to the officer's employing law enforcement agency. Except as | 1703 |
provided in division (A)(3) of this section, no such officer shall | 1704 |
knowingly release, disseminate, or otherwise make the records and | 1705 |
reports or any information contained in them available to, or | 1706 |
discuss any information contained in them with, any person not | 1707 |
employed by the officer's employing law enforcement agency. | 1708 |
(2) Every law enforcement agency that possesses records or | 1709 |
reports pertaining to the case that are its specific investigatory | 1710 |
work product and that are excepted from the definition of | 1711 |
"official records" contained in section 2953.51 of the Revised | 1712 |
Code, or that are the specific investigatory work product of a law | 1713 |
enforcement officer it employs and that were delivered to it under | 1714 |
division (A)(1) of this section shall, except as provided in | 1715 |
division (A)(3) of this section, close the records and reports to | 1716 |
all persons who are not directly employed by the law enforcement | 1717 |
agency and shall, except as provided in division (A)(3) of this | 1718 |
section, treat the records and reports, in relation to all persons | 1719 |
other than those who are directly employed by the law enforcement | 1720 |
agency, as if they did not exist and had never existed. Except as | 1721 |
provided in division (A)(3) of this section, no person who is | 1722 |
employed by the law enforcement agency shall knowingly release, | 1723 |
disseminate, or otherwise make the records and reports in the | 1724 |
possession of the employing law enforcement agency or any | 1725 |
information contained in them available to, or discuss any | 1726 |
information contained in them with, any person not employed by the | 1727 |
employing law enforcement agency. | 1728 |
(3) A law enforcement agency that possesses records or | 1729 |
reports pertaining to the case that are its specific investigatory | 1730 |
work product and that are excepted from the definition of | 1731 |
"official records" contained in division (D) of section 2953.51 of | 1732 |
the Revised Code, or that are the specific investigatory work | 1733 |
product of a law enforcement officer it employs and that were | 1734 |
delivered to it under division (A)(1) of this section may permit | 1735 |
another law enforcement agency to use the records or reports in | 1736 |
the investigation of another offense, if the facts incident to the | 1737 |
offense being investigated by the other law enforcement agency and | 1738 |
the facts incident to an offense that is the subject of the case | 1739 |
are reasonably similar and if all references to the name or | 1740 |
identifying information of the person whose records were sealed | 1741 |
are redacted from the records or reports. The agency that provides | 1742 |
the records and reports may not provide the other agency with the | 1743 |
name of the person who is the subject of the case the records of | 1744 |
which were sealed. | 1745 |
Sec. 2953.60. (A) In any application for employment, | 1749 |
license, or any other right or privilege, any appearance as a | 1750 |
witness, or any other inquiry, a person may not be questioned with | 1751 |
respect to any record that has been sealed pursuant to section | 1752 |
2953.57 of the Revised Code. If an inquiry is made in violation of | 1753 |
this section, the person whose official record was sealed may | 1754 |
respond as if the arrest underlying the case to which the sealed | 1755 |
official records pertain and all other proceedings in that case | 1756 |
did not occur, and the person whose official record was sealed | 1757 |
shall not be subject to any adverse action because of the arrest, | 1758 |
the proceedings, or the person's response. | 1759 |
(B) An officer or employee of the state or any of its | 1760 |
political subdivisions who knowingly releases, disseminates, or | 1761 |
makes available for any purpose involving employment, bonding, | 1762 |
licensing, or education to any person or to any department, | 1763 |
agency, or other instrumentality of the state, or of any of its | 1764 |
political subdivisions, any information or other data concerning | 1765 |
any arrest, complaint, indictment, information, trial, | 1766 |
adjudication, or correctional supervision, the records of which | 1767 |
have been sealed pursuant to section 2953.57 of the Revised Code, | 1768 |
is guilty of divulging confidential information, a misdemeanor of | 1769 |
the fourth degree. | 1770 |
(C) "Chain of custody" means a record or other evidence that | 1786 |
tracks a subject sample of biological material from the time the | 1787 |
biological material was first obtained until the time it currently | 1788 |
exists in its place of storage and, in relation to a DNA sample, a | 1789 |
record or other evidence that tracks the DNA sample from the time | 1790 |
it was first obtained until it currently exists in its place of | 1791 |
storage. For purposes of this division, examples of when | 1792 |
biological material or a DNA sample is first obtained include, but | 1793 |
are not limited to, obtaining the material or sample at the scene | 1794 |
of a crime, from a victim, from an inmateoffender, or in any | 1795 |
other manner or time as is appropriate in the facts and | 1796 |
circumstances present. | 1797 |
(G) "Exclusion" or "exclusion result" means a result of DNA | 1806 |
testing that scientifically precludes or forecloses the subject | 1807 |
inmateoffender as a contributor of biological material recovered | 1808 |
from the crime scene or victim in question, in relation to the | 1809 |
offense for which the inmateoffender is an eligible inmate | 1810 |
offender and for which the sentence of death or prison term was | 1811 |
imposed upon the inmate or, regarding a request for DNA testing | 1812 |
made under section 2953.82 of the Revised Code, in relation to the | 1813 |
offense for which the inmate made the request and for which the | 1814 |
sentence of death or prison term was imposed upon the inmate | 1815 |
offender. | 1816 |
(I) "Inclusion" or "inclusion result" means a result of DNA | 1821 |
testing that scientifically cannot exclude, or that holds | 1822 |
accountable, the subject inmateoffender as a contributor of | 1823 |
biological material recovered from the crime scene or victim in | 1824 |
question, in relation to the offense for which the inmateoffender | 1825 |
is an eligible inmateoffender and for which the sentence of death | 1826 |
or prison term was imposed upon the inmate or, regarding a request | 1827 |
for DNA testing made under section 2953.82 of the Revised Code, in | 1828 |
relation to the offense for which the inmate made the request and | 1829 |
for which the sentence of death or prison term was imposed upon | 1830 |
the inmateoffender. | 1831 |
(L) "Outcome determinative" means that had the results of DNA | 1838 |
testing of the subject inmateoffender been presented at the trial | 1839 |
of the subject inmateoffender requesting DNA testing and been | 1840 |
found relevant and admissible with respect to the felony offense | 1841 |
for which the inmateoffender is an eligible inmateoffender and | 1842 |
is requesting the DNA testing or for which the inmateis | 1843 |
requesting the DNA testing under section 2953.82 of the Revised | 1844 |
Code, and had those results been analyzed in the context of and | 1845 |
upon consideration of all available admissible evidence related to | 1846 |
the inmate'soffender's case as described in division (D) of | 1847 |
section 2953.74 of the Revised Code, there is a strong probability | 1848 |
that no reasonable factfinder would have found the inmateoffender | 1849 |
guilty of that offense or, if the inmateoffender was sentenced to | 1850 |
death relative to that offense, would have found the
inmate | 1851 |
offender guilty of the aggravating circumstance or circumstances | 1852 |
the inmateoffender was found guilty of committing and that is or | 1853 |
are the basis of that sentence of death. | 1854 |
(U) "Definitive DNA test" means a DNA test that clearly | 1885 |
establishes that biological material from the perpetrator of the | 1886 |
crime was recovered from the crime scene and also clearly | 1887 |
establishes whether or not the biological material is that of the | 1888 |
eligible offender. A prior DNA test is not definitive if the | 1889 |
eligible offender proves by a preponderance of the evidence that | 1890 |
because of advances in DNA technology there is a possibility of | 1891 |
discovering new biological material from the perpetrator that the | 1892 |
prior DNA test may have failed to discover. Prior testing may have | 1893 |
been a prior "definitive DNA test" as to some biological evidence | 1894 |
but may not have been a prior "definitive DNA test" as to other | 1895 |
biological evidence. | 1896 |
Sec. 2953.72. (A) Any eligible inmateoffender who wishes to | 1897 |
request DNA testing under sections 2953.71 to 2953.81 of the | 1898 |
Revised Code shall submit an application for the testing to the | 1899 |
court of common pleas specified in section 2953.73 of the Revised | 1900 |
Code, on a form prescribed by the attorney general for this | 1901 |
purpose. The eligible
inmateoffender shall submit the application | 1902 |
in accordance with the procedures set forth in section 2953.73 of | 1903 |
the Revised Code. The eligible inmateoffender shall specify on | 1904 |
the application the offense or offenses for which the inmate | 1905 |
offender is an eligible inmateoffender and is requesting the DNA | 1906 |
testing. Along with the application, the eligible inmateoffender | 1907 |
shall submit an acknowledgment that is on a form prescribed by the | 1908 |
attorney general for this purpose and that is signed by the inmate | 1909 |
offender. The acknowledgment shall set forth all of the following: | 1910 |
(8) That the acknowledgment memorializes the provisions of | 1954 |
sections 2953.71 to 2953.81 of the Revised Code with respect to | 1955 |
the application of postconviction DNA testing to inmates | 1956 |
offenders, that those provisions do not give any inmateoffender | 1957 |
any additional constitutional right that the inmateoffender did | 1958 |
not already have, that the court has no duty or obligation to | 1959 |
provide postconviction DNA testing to inmatesoffenders, that the | 1960 |
court of common pleas has the sole discretion subject to an appeal | 1961 |
as described in this division to determine whether an
inmate | 1962 |
offender is an eligible inmateoffender and whether an eligible | 1963 |
inmate'soffender's application for DNA testing satisfies the | 1964 |
acceptance criteria described in division (A)(4) of this section | 1965 |
and whether the application should be accepted or rejected, that | 1966 |
if the court of common pleas rejects an eligible inmate's | 1967 |
offender's application, the inmateoffender may seek leave of the | 1968 |
supreme court to appeal the rejection to that court if the inmate | 1969 |
offender was sentenced to death for the offense for which the | 1970 |
inmateoffender is requesting the DNA testing and, if the inmate | 1971 |
offender was not sentenced to death for that offense, may appeal | 1972 |
the rejection to the court of appeals, and that no determination | 1973 |
otherwise made by the court of common pleas in the exercise of its | 1974 |
discretion regarding the eligibility of an
inmateoffender or | 1975 |
regarding postconviction DNA testing under those provisions is | 1976 |
reviewable by or appealable to any court; | 1977 |
(9) That the manner in which sections 2953.71 to 2953.81 of | 1978 |
the Revised Code with respect to the offering of postconviction | 1979 |
DNA testing to inmatesoffenders are carried out does not confer | 1980 |
any constitutional right upon any inmateoffender, that the state | 1981 |
has established guidelines and procedures relative to those | 1982 |
provisions to ensure that they are carried out with both justice | 1983 |
and efficiency in mind, and that an inmateoffender who | 1984 |
participates in any phase of the mechanism contained in those | 1985 |
provisions, including, but not limited to, applying for DNA | 1986 |
testing and being rejected, having an application for DNA testing | 1987 |
accepted and not receiving the test, or having DNA testing | 1988 |
conducted and receiving unfavorable results, does not gain as a | 1989 |
result of the participation any constitutional right to challenge, | 1990 |
or, except as provided in division (A)(8) of this section, any | 1991 |
right to any review or appeal of, the manner in which those | 1992 |
provisions are carried out; | 1993 |
(10) That the most basic aspect of sections 2953.71 to | 1994 |
2953.81 of the Revised Code is that, in order for DNA testing to | 1995 |
occur, there must be an inmateoffender sample against which other | 1996 |
evidence may be compared, that, if an eligible inmate'soffender's | 1997 |
application is accepted but the inmateoffender subsequently | 1998 |
refuses to submit to the collection of the sample of biological | 1999 |
material from the inmateoffender or hinders the state from | 2000 |
obtaining a sample of biological material from the inmate | 2001 |
offender, the goal of those provisions will be frustrated, and | 2002 |
that an inmate'soffender's refusal or hindrance shall cause the | 2003 |
court to rescind its prior acceptance of the application for DNA | 2004 |
testing for the inmateoffender and deny the application; | 2005 |
(B) The attorney general shall prescribe a form to be used to | 2014 |
make an application for DNA testing under division (A) of this | 2015 |
section and section 2953.73 of the Revised Code and a form to be | 2016 |
used to provide the acknowledgment described in division (A) of | 2017 |
this section. The forms shall include all information described in | 2018 |
division (A) of this section, spaces for an inmateoffender to | 2019 |
insert all information necessary to complete the forms, including, | 2020 |
but not limited to, specifying the offense or offenses for which | 2021 |
the
inmateoffender is an eligible inmateoffender and is | 2022 |
requesting the DNA testing or for which the inmate is requesting | 2023 |
the DNA testing under section 2953.82 of the Revised Code, and any | 2024 |
other information or material the attorney general determines is | 2025 |
necessary or relevant. The forms also shall be used to make an | 2026 |
application requesting DNA testing under section 2953.82 of the | 2027 |
Revised Code, and the attorney general shall ensure that they are | 2028 |
sufficient for that type of use, and that they include all | 2029 |
information and spaces necessary for that type of use. The | 2030 |
attorney general shall distribute copies of the prescribed forms | 2031 |
to the department of rehabilitation and correction, the department | 2032 |
shall ensure that each prison in which inmatesoffenders are | 2033 |
housed has a supply of copies of the forms, and the department | 2034 |
shall ensure that copies of the forms are provided free of charge | 2035 |
to any inmateoffender who requests them. | 2036 |
(C) If an eligible inmateoffender submits an application for | 2092 |
DNA testing under division (A) of this section, regardless of | 2093 |
whether the inmateoffender has commenced any federal habeas | 2094 |
corpus proceeding relative to the case in which the inmate | 2095 |
offender was convicted of the offense for which the inmate | 2096 |
offender is an eligible inmateoffender and is requesting DNA | 2097 |
testing, any response to the application by the prosecuting | 2098 |
attorney or the attorney general shall be filed not later than | 2099 |
forty-five days after the date on which the eligible inmate | 2100 |
offender submits the application. The prosecuting attorney or the | 2101 |
attorney general, or both, may, but are not required to, file a | 2102 |
response to the application. If the prosecuting attorney or the | 2103 |
attorney general files a response under this division, the | 2104 |
prosecuting attorney or attorney general, whoever filed the | 2105 |
response, shall serve a copy of the response on the eligible | 2106 |
inmateoffender. | 2107 |
(D) If an eligible inmateoffender submits an application for | 2108 |
DNA testing under division (A) of this section, the court shall | 2109 |
make the determination as to whether the application should be | 2110 |
accepted or rejected. The court shall expedite its review of the | 2111 |
application. The court shall make the determination in accordance | 2112 |
with the criteria and procedures set forth in sections 2953.74 to | 2113 |
2953.81 of the Revised Code and, in making the determination, | 2114 |
shall consider the application, the supporting affidavits, and the | 2115 |
documentary evidence and, in addition to those materials, shall | 2116 |
consider all the files and records pertaining to the proceedings | 2117 |
against the applicant, including, but not limited to, the | 2118 |
indictment, the court's journal entries, the journalized records | 2119 |
of the clerk of the court, and the court reporter's transcript and | 2120 |
all responses to the application filed under division (C) of this | 2121 |
section by a prosecuting attorney or the attorney general, unless | 2122 |
the application and the files and records show the applicant is | 2123 |
not entitled to DNA testing, in which case the application may be | 2124 |
denied. The court is not required to conduct an evidentiary | 2125 |
hearing in conducting its review of, and in making its | 2126 |
determination as to whether to accept or reject, the application. | 2127 |
Upon making its determination, the court shall enter a judgment | 2128 |
and order that either accepts or rejects the application and that | 2129 |
includes within the judgment and order the reasons for the | 2130 |
acceptance or rejection as applied to the criteria and procedures | 2131 |
set forth in sections 2953.71 to 2953.81 of the Revised Code. The | 2132 |
court shall send a copy of the judgment and order to the eligible | 2133 |
inmateoffender who filed it, the prosecuting attorney, and the | 2134 |
attorney general. | 2135 |
Sec. 2953.74. (A) If an eligible inmateoffender submits an | 2165 |
application for DNA testing under section 2953.73 of the Revised | 2166 |
Code and a prior definitive DNA test has been conducted regarding | 2167 |
the same biological evidence that the inmateoffender seeks to | 2168 |
have tested, the court shall reject the inmate'soffender's | 2169 |
application. If an eligible
inmateoffender files an application | 2170 |
for DNA testing and a prior inconclusive DNA test has been | 2171 |
conducted regarding the same biological evidence that the
inmate | 2172 |
offender seeks to have tested, the court shall review the | 2173 |
application and has the discretion, on a case-by-case basis, to | 2174 |
either accept or reject the application. The court may direct a | 2175 |
testing authority to provide the court with information that the | 2176 |
court may use in determining whether prior DNA test results were | 2177 |
definitive or inconclusive and whether to accept or reject an | 2178 |
application in relation to which there were prior inconclusive DNA | 2179 |
test results. | 2180 |
(1) The inmateoffender did not have a DNA test taken at the | 2184 |
trial stage in the case in which the inmateoffender was convicted | 2185 |
of the offense for which the inmateoffender is an eligible inmate | 2186 |
offender and is requesting the DNA testing regarding the same | 2187 |
biological evidence that the
inmateoffender seeks to have tested, | 2188 |
the inmateoffender shows that DNA exclusion when analyzed in the | 2189 |
context of and upon consideration of all available admissible | 2190 |
evidence related to the subject inmate'soffender's case as | 2191 |
described in division (D) of this section would have been outcome | 2192 |
determinative at that trial stage in that case, and, at the time | 2193 |
of the trial stage in that case, DNA testing was not generally | 2194 |
accepted, the results of DNA testing were not generally admissible | 2195 |
in evidence, or DNA testing was not yet available. | 2196 |
(2) The inmateoffender had a DNA test taken at the trial | 2197 |
stage in the case in which the inmateoffender was convicted of | 2198 |
the offense for which the inmateoffender is an eligible inmate | 2199 |
offender and is requesting the DNA testing regarding the same | 2200 |
biological evidence that the inmateoffender seeks to have | 2201 |
tested, the test was not a prior definitive DNA test that is | 2202 |
subject to division (A) of this section, and the inmateoffender | 2203 |
shows that DNA exclusion when analyzed in the context of and upon | 2204 |
consideration of all available admissible evidence related to the | 2205 |
subject inmate'soffender's case as described in division (D) of | 2206 |
this section would have been outcome determinative at the trial | 2207 |
stage in that case. | 2208 |
(E) If an eligible inmateoffender submits an application for | 2268 |
DNA testing under section 2953.73 of the Revised Code and the | 2269 |
court accepts the application, the eligible inmateoffender may | 2270 |
request the court to order, or the court on its own initiative may | 2271 |
order, the bureau of criminal identification and investigation to | 2272 |
compare the results of DNA testing of biological material from an | 2273 |
unidentified person other than the inmateoffender that was | 2274 |
obtained from the crime scene or from a victim of the offense for | 2275 |
which the inmateoffender has been approved for DNA testing to the | 2276 |
combined DNA index system maintained by the federal bureau of | 2277 |
investigation. | 2278 |
If the bureau, upon comparing the test results to the | 2286 |
combined DNA index system, is unable to determine the identity of | 2287 |
the person who is the contributor of the biological material, the | 2288 |
bureau may compare the test results to other previously obtained | 2289 |
and acceptable DNA test results of any person whose identity is | 2290 |
known other than the eligible inmateoffender. If the bureau, upon | 2291 |
comparing the test results to the DNA test results of any person | 2292 |
whose identity is known, determines that the person whose identity | 2293 |
is known is the contributor of the biological material, the bureau | 2294 |
shall provide that information to the court that accepted the | 2295 |
application, the inmateoffender, and the prosecuting attorney. | 2296 |
The inmateoffender or the state may use the information for any | 2297 |
lawful purpose. | 2298 |
Sec. 2953.75. (A) If an eligible inmateoffender submits an | 2299 |
application for DNA testing under section 2953.73 of the Revised | 2300 |
Code, the court shall require the prosecuting attorney to use | 2301 |
reasonable diligence to determine whether biological material was | 2302 |
collected from the crime scene or victim of the offense for which | 2303 |
the inmateoffender is an eligible inmateoffender and is | 2304 |
requesting the DNA testing against which a sample from the
inmate | 2305 |
offender can be compared and whether the parent sample of that | 2306 |
biological material still exists at that point in time. In using | 2307 |
reasonable diligence to make those determinations, the prosecuting | 2308 |
attorney shall rely upon all relevant sources, including, but not | 2309 |
limited to, all of the following: | 2310 |
Sec. 2953.76. If an eligible inmateoffender submits an | 2331 |
application for DNA testing under section 2953.73 of the Revised | 2332 |
Code, the court shall require the prosecuting attorney to consult | 2333 |
with the testing authority and to prepare findings regarding the | 2334 |
quantity and quality of the parent sample of the biological | 2335 |
material collected from the crime scene or victim of the offense | 2336 |
for which the inmateoffender is an eligible
inmateoffender and | 2337 |
is requesting the DNA testing and that is to be tested, and of the | 2338 |
chain of custody and reliability regarding that parent sample, as | 2339 |
follows: | 2340 |
(A) The testing authority shall determine whether there is a | 2341 |
scientifically sufficient quantity of the parent sample to test | 2342 |
and whether the parent sample is so minute or fragile that there | 2343 |
is a substantial risk that the parent sample could be destroyed in | 2344 |
testing. The testing authority may determine that there is not a | 2345 |
sufficient quantity to test in order to preserve the state's | 2346 |
ability to present in the future the original evidence presented | 2347 |
at trial, if another trial is required. Upon making its | 2348 |
determination under this division, the testing authority shall | 2349 |
prepare a written document that contains its determination and the | 2350 |
reasoning and rationale for that determination and shall provide a | 2351 |
copy to the court, the eligible inmateoffender, the prosecuting | 2352 |
attorney, and the attorney general. The court may determine in its | 2353 |
discretion, on a case-by-case basis, that, even if the parent | 2354 |
sample of the biological material so collected is so minute or | 2355 |
fragile as to risk destruction of the parent sample by the | 2356 |
extraction, the application should not be rejected solely on the | 2357 |
basis of that risk. | 2358 |
(B) The testing authority shall determine whether the parent | 2359 |
sample has degraded or been contaminated to the extent that it has | 2360 |
become scientifically unsuitable for testing and whether the | 2361 |
parent sample otherwise has been preserved, and remains, in a | 2362 |
condition that is suitable for testing. Upon making its | 2363 |
determination under this division, the testing authority shall | 2364 |
prepare a written document that contains its determination and the | 2365 |
reasoning and rationale for that determination and shall provide a | 2366 |
copy to the court, the eligible inmateoffender, the prosecuting | 2367 |
attorney, and the attorney general. | 2368 |
(C) The court shall determine, from the chain of custody of | 2369 |
the parent sample of the biological material to be tested and of | 2370 |
any test sample extracted from the parent sample and from the | 2371 |
totality of circumstances involved, whether the parent sample and | 2372 |
the extracted test sample are the same sample as collected and | 2373 |
whether there is any reason to believe that they have been out of | 2374 |
state custody or have been tampered with or contaminated since | 2375 |
they were collected. Upon making its determination under this | 2376 |
division, the court shall prepare and retain a written document | 2377 |
that contains its determination and the reasoning and rationale | 2378 |
for that determination. | 2379 |
Sec. 2953.77. (A) If an eligible inmateoffender submits an | 2380 |
application for DNA testing under section 2953.73 of the Revised | 2381 |
Code and if the application is accepted and DNA testing is to be | 2382 |
performed, the court shall require that the chain of custody | 2383 |
remain intact and that all of the applicable following precautions | 2384 |
are satisfied to ensure that the parent sample of the biological | 2385 |
material collected from the crime scene or the victim of the | 2386 |
offense for which the inmateoffender is an eligible inmate | 2387 |
offender and requested the DNA testing, and the test sample of the | 2388 |
parent sample that is extracted and actually is to be tested, are | 2389 |
not contaminated during transport or the testing process: | 2390 |
(5) After the DNA testing, the court, the testing authority, | 2410 |
and the original custodial agency of the parent sample, or any | 2411 |
combination of those entities, shall coordinate the return of the | 2412 |
remaining parent sample back to its place of storage with the | 2413 |
original custodial agency or to any other place determined in | 2414 |
accordance with this division and section 2953.81 of the Revised | 2415 |
Code. The court shall determine, in consultation with the testing | 2416 |
authority, the custodial agency to maintain any newly created, | 2417 |
extracted, or collected DNA material resulting from the testing. | 2418 |
The court and testing authority shall document the return | 2419 |
procedures for original materials and for any newly created, | 2420 |
extracted, or collected DNA material resulting from the testing, | 2421 |
and also the custodial agency to which those materials should be | 2422 |
taken. | 2423 |
(B) If a court selects a testing authority pursuant to | 2436 |
division (A) of this section and the eligible inmateoffender for | 2437 |
whom the test is to be performed objects to the use of the | 2438 |
selected testing authority, the court shall rescind its prior | 2439 |
acceptance of the application for DNA testing for the inmate | 2440 |
offender and deny the application. An objection as described in | 2441 |
this division, and the resulting rescission and denial, do not | 2442 |
preclude a court from accepting in the court's discretion, a | 2443 |
subsequent application by the same eligible inmateoffender | 2444 |
requesting DNA testing. | 2445 |
(C) The attorney general shall approve or designate testing | 2446 |
authorities that may be selected and used to conduct DNA testing, | 2447 |
shall prepare a list of the approved or designated testing | 2448 |
authorities, and shall provide copies of the list to all courts of | 2449 |
common pleas. The attorney general shall update the list as | 2450 |
appropriate to reflect changes in the approved or designated | 2451 |
testing authorities and shall provide copies of the updated list | 2452 |
to all courts of common pleas. The attorney general shall not | 2453 |
approve or designate a testing authority under this division | 2454 |
unless the testing authority satisfies the criteria set forth in | 2455 |
section 2953.80 of the Revised Code. A testing authority that is | 2456 |
equipped to handle advanced DNA testing may be approved or | 2457 |
designated under this division, provided it satisfies the criteria | 2458 |
set forth in that section. | 2459 |
(D) The attorney general's approval or designation of testing | 2460 |
authorities under division (C) of this section, and the selection | 2461 |
and use of any approved or designated testing authority, do not | 2462 |
afford an inmateoffender any right to subsequently challenge the | 2463 |
approval, designation, selection, or use, and an inmateoffender | 2464 |
may not appeal to any court the approval, designation, selection, | 2465 |
or use of a testing authority. | 2466 |
Sec. 2953.79. (A) If an eligible inmateoffender submits an | 2467 |
application for DNA testing under section 2953.73 of the Revised | 2468 |
Code and if the application is accepted and DNA testing is to be | 2469 |
performed, a sample of biological material shall be obtained from | 2470 |
the inmateoffender in accordance with this section, to be | 2471 |
compared with the parent sample of biological material collected | 2472 |
from the crime scene or the victim of the offense for which the | 2473 |
inmateoffender is an eligible inmateoffender and requested the | 2474 |
DNA testing. The
inmate'soffender's filing of the application | 2475 |
constitutes the
inmate'soffender's consent to the obtaining of | 2476 |
the sample of biological material from the inmateoffender. The | 2477 |
testing authority shall obtain the sample of biological material | 2478 |
from the inmateoffender in accordance with medically accepted | 2479 |
procedures. | 2480 |
(B) If DNA testing is to be performed for an inmateoffender | 2481 |
as described in division (A) of this section, the court shall | 2482 |
require the state to coordinate with the department of | 2483 |
rehabilitation and correction or the other state agency or entity | 2484 |
of local government with custody of the offender, whichever is | 2485 |
applicable, as to the time and place at which the sample of | 2486 |
biological material will be obtained from the
inmateoffender. The | 2487 |
If the offender is in prison or is in custody in another facility | 2488 |
at the time the DNA testing is to be performed, the sample of | 2489 |
biological material shall be obtained from the inmateoffender at | 2490 |
the facility in which the inmateoffender is housed, and the | 2491 |
department of rehabilitation and correction or the other state | 2492 |
agency or entity of local government with custody of the offender, | 2493 |
whichever is applicable, shall make the inmateoffender available | 2494 |
at the specified time. The court shall require the state to | 2495 |
provide notice to the inmateoffender and to the inmate's | 2496 |
offender's counsel of the date on which, and the time and place at | 2497 |
which, the sample will be so obtained. | 2498 |
(D) The extracting personnel shall make the determination as | 2521 |
to whether an eligible inmateoffender for whom DNA testing is to | 2522 |
be performed is refusing to submit to the collection of a sample | 2523 |
of biological material from the inmateoffender or is hindering | 2524 |
the state from obtaining a sample of biological material from the | 2525 |
inmateoffender at the time and date of the scheduled collection | 2526 |
of the sample. If the extracting personnel determine that an | 2527 |
inmateoffender is refusing to submit to the collection of a | 2528 |
sample or is hindering the state from obtaining a sample, the | 2529 |
extracting personnel shall document in writing the conditions that | 2530 |
constitute the refusal or hindrance, maintain the documentation, | 2531 |
and notify the court of the inmate'soffender's refusal or | 2532 |
hindrance. | 2533 |
(A) The court or a designee of the court shall require the | 2538 |
state to maintain the results of the testing and to maintain and | 2539 |
preserve both the parent sample of the biological material used | 2540 |
and the
inmateoffender sample of the biological material used. | 2541 |
The testing authority may be designated as the person to maintain | 2542 |
the results of the testing or to maintain and preserve some or all | 2543 |
of the samples, or both. The results of the testing remain state's | 2544 |
evidence. The samples shall be preserved during the entire period | 2545 |
of time for which the
inmateoffender is imprisoned or confined | 2546 |
relative to the prison term or sentence of death in question and, | 2547 |
if that prison term expires or the inmate is executed under that | 2548 |
sentence of death, is on parole or probation relative to that | 2549 |
sentence, is under post-release control or a community control | 2550 |
sanction relative to that sentence, or has a duty to comply with | 2551 |
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised | 2552 |
Code relative to that sentence. Additionally, if the prison term | 2553 |
or confinement under the sentence in question expires, if the | 2554 |
sentence in question is a sentence of death and the offender is | 2555 |
executed, or if the parole or probation period, the period of | 2556 |
post-release control, the community control sanction, or the duty | 2557 |
to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of | 2558 |
the Revised Code under the sentence in question ends, the samples | 2559 |
shall be preserved for a reasonable period of time of not less | 2560 |
than twenty-four months after the term or confinement expires
or, | 2561 |
the inmateoffender is executed, or the parole or probation | 2562 |
period, the period of post-release control, the community control | 2563 |
sanction, or the duty to comply with sections 2950.04, 2950.041, | 2564 |
2950.05, and 2950.06 of the Revised Code ends, whichever is | 2565 |
applicable. The court shall determine the period of time that is | 2566 |
reasonable for purposes of this division, provided that the period | 2567 |
shall not be less than twenty-four months after the term or | 2568 |
confinement expires or, the inmateoffender is executed, or the | 2569 |
parole or probation period, the period of post-release control, | 2570 |
the community control sanction, or the duty to comply with | 2571 |
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised | 2572 |
Code ends, whichever is applicable. | 2573 |
Section 2. That existing sections 109.573, 2901.07, 2953.21, | 2604 |
2953.23, 2953.31, 2953.32, 2953.321, 2953.35, 2953.51, 2953.54, | 2605 |
2953.55, 2953.71, 2953.72, 2953.73, 2953.74, 2953.75, 2953.76, | 2606 |
2953.77, 2953.78, 2953.79, 2953.81, 2953.83, and 2953.84 and | 2607 |
section
2953.82 of the Revised Code are hereby repealed. | 2608 |
Section 3. (A) The General Assembly hereby requests the | 2609 |
Attorney General to adopt rules pursuant to Chapter 119. of the | 2610 |
Revised Code prescribing specific procedures to be followed for | 2611 |
the administration by law enforcement agencies and criminal | 2612 |
justice entities in this state of photo lineups, live lineups, and | 2613 |
showups. The General Assembly also requests that any rules adopted | 2614 |
by the Attorney General be consistent with the requirements of | 2615 |
divisions (B) and (C) of section 2933.83 of the Revised Code. If | 2616 |
the Attorney General adopts rules of the type described in this | 2617 |
division, on and after the date on which the rules take effect, | 2618 |
law enforcement agencies and criminal justice entities in this | 2619 |
state shall comply with the rules in conducting live lineups, | 2620 |
photo lineups, and showups. | 2621 |