To amend sections 2953.21 and 2953.23 and to enact sections 2953.71 to 2953.81 of the Revised Code to establish a mechanism for the DNA testing of certain inmates serving a prison term for a felony or under a sentence of death.

Section 1. That sections 2953.21 and 2953.23 be amended and sections 2953.71, 2953.72, 2953.73, 2953.74, 2953.75, 2953.76, 2953.77, 2953.78, 2953.79, 2953.80, and 2953.81 of the Revised Code be enacted to read as follows:

Sec. 2953.21.  (A)(1) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, and any person who has been convicted of a criminal offense that is a felony, who is an eligible inmate, and for whom DNA testing that was performed under sections 2953.71 to 2953.81 of the Revised Code provided results that clearly establish that the person is actually innocent of that felony offense or, if the person was sentenced to death, clearly establish that the person is actually innocent of the aggravating circumstance the person was found guilty of committing and that is the basis of that sentence of death, may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.

As used in this division, "eligible inmate" has the same meaning as in section 2953.71 of the Revised Code.

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

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

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

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

(B) The clerk of the court in which the petition is filed shall docket the petition and bring it promptly to the attention of the court. The petitioner need not serve a copy of the petition on the prosecuting attorney. The clerk of the court in which the petition is filed immediately shall forward a copy of the petition to the prosecuting attorney of that county.

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

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

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

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

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

(H)(1) Upon the filing of a petition pursuant to division (A) of this section by a prisoner in a state correctional institution who has received the death penalty person sentenced to death that is based upon a claimed denial or infringement of the person's rights that renders the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, the court that set the date for the execution of the sentence of death may stay execution of the judgment challenged by the petition.

(2) Upon the filing of a petition pursuant to division (A) of this section by a person sentenced to death that is based upon results of DNA testing performed under sections 2953.71 to 2953.81 of the Revised Code as described in that division, execution of the sentence of death may be suspended only upon an order of the supreme court.

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

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

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

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

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

(1) Both of the following apply:

(1) Either of the following applies:

(a) The Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.

(b) Subsequent, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right.

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

(2) The petitioner was convicted of a felony, the petitioner is an eligible inmate, as defined in section 2953.71 of the Revised Code, for whom DNA testing was performed under sections 2953.71 to 2953.81 of the Revised Code, and the results of the DNA testing clearly establish that the person is actually innocent of that felony offense or, if the person was sentenced to death, clearly establish that the person is actually innocent of the aggravating circumstance the person was found guilty of committing and that is the basis of that sentence of death.

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

Sec. 2953.71. As used in sections 2953.71 to 2953.81 of the Revised Code:

(A) "Application" or "application for DNA testing" means the form by which an eligible inmate requests the state to do DNA testing on biological material from the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting the DNA testing under sections 2953.71 to 2953.81 of the Revised Code.

(B) "Biological material" means blood, white blood cells, skin, tissue, sperm, saliva, vaginal swabs, mouth swabs, mouth scrapings, bones, hair, and any other biological substance of a similar nature.

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

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

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

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

(G) "Exclusion" or "exclusion result" means a result of DNA testing that scientifically precludes or forecloses the subject inmate as a contributor of biological material recovered from the crime scene or victim in question, in relation to the offense for which the inmate is an eligible inmate and for which the sentence of death or prison term was imposed upon the inmate.

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

(I) "Inclusion" or "inclusion result" means a result of DNA testing that scientifically cannot exclude, or that holds accountable, the subject inmate as a contributor of biological material recovered from the crime scene or victim in question, in relation to the offense for which the inmate is an eligible inmate and for which the sentence of death or prison term was imposed upon the inmate.

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

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

(L) "Offer" means the opportunity provided under sections 2953.71 to 2953.81 of the Revised Code for an eligible inmate to request DNA testing from the state.

(M) "Outcome determinative" means that had the results of DNA testing been presented at the subject eligible inmate's trial and been found relevant and admissible with respect to the felony offense for which the subject inmate is an eligible inmate and is requesting the DNA testing, no reasonable factfinder would have found the inmate guilty of that offense or, if the inmate was sentenced to death relative to that offense, would have found the inmate guilty of the aggravating circumstance the inmate was found guilty of committing and that is the basis of that sentence of death.

(N) "Parent sample" means the biological material first obtained from a crime scene or a victim of an offense for which an inmate is an eligible inmate and from which a sample will be presently taken to do a DNA comparison to the DNA of the subject inmate under sections 2953.71 to 2953.81 of the Revised Code.

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

(P) "Prosecuting attorney" means the prosecuting attorney who, or whose office, prosecuted the case in which the subject inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting the DNA testing.

(Q) "Prosecuting authority" means the prosecuting attorney or the attorney general.

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

(S) "Testing authority" means a laboratory at which DNA testing will be conducted under sections 2953.71 to 2953.81 of the Revised Code.

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

(1) That sections 2953.71 to 2953.81 of the Revised Code contemplate only offers for DNA testing of eligible inmates at a stage of a prosecution or case after the inmate has been sentenced to a prison term or a sentence of death, that any exclusion or inclusion result of DNA testing rendered pursuant to those sections may be used by a party in a postconviction proceeding under sections 2953.21 to 2953.23 of the Revised Code as described in section 2953.81 of the Revised Code, and that all requests for any DNA testing made at trial will continue to be handled by the prosecuting attorney in the case;

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

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

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

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

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

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

(8) That the acknowledgment memorializes the provisions of sections 2953.71 to 2953.81 of the Revised Code with respect to the offering of postconviction DNA testing to inmates, that those provisions do not give any inmate any additional constitutional right that the inmate did not have prior to the effective date of those provisions, that the state has no duty or obligation to offer postconviction DNA testing to inmates, that the court of common pleas has the sole discretion to determine whether an inmate is an eligible inmate and whether an eligible inmate's application for DNA testing satisfies the acceptance criteria described in division (A)(4) of this section and whether the application should be accepted or rejected, that the judgment of the court of common pleas is final and is not appealable by any person to any court, and that no determination otherwise made by the state in the exercise of its discretion regarding the eligibility of an inmate or regarding postconviction DNA testing under those provisions is reviewable by or appealable to any court;

(9) That the manner in which sections 2953.71 to 2953.81 of the Revised Code with respect to the offering of postconviction DNA testing to inmates are carried out does not confer any constitutional right upon any inmate, that the state has established guidelines and procedures relative to those provisions to ensure that they are carried out with both justice and efficiency in mind, and that an inmate who participates in any phase of the mechanism contained in those provisions, including, but not limited to, applying for DNA testing and being rejected, having an application for DNA testing accepted and not receiving the test, or having DNA testing conducted and receiving unfavorable results, does not gain as a result of the participation any constitutional right to challenge, or any right to any review or appeal of, the manner in which those provisions are carried out;

(10) That the most basic aspect of sections 2953.71 to 2953.81 of the Revised Code is that, in order for DNA testing to occur, there must be an inmate sample against which other evidence may be compared, that, if an eligible inmate's application is accepted but the inmate subsequently refuses to submit to the collection of the sample of biological material from the inmate or hinders the state from obtaining a sample of biological material from the inmate, the goal of those provisions will be frustrated, and that an inmate's refusal or hindrance constitutes a rejection by the inmate of the state's offer to conduct or facilitate DNA testing for the inmate, results in the state's offer to conduct or facilitate DNA testing for the inmate automatically being withdrawn as a matter of law, and releases the state from any agreement to conduct or facilitate DNA testing for the inmate.

(B) The attorney general shall prescribe a form to be used to make an application for DNA testing under division (A) of this section and section 2953.73 of the Revised Code and a form to be used to provide the acknowledgment described in division (A) of this section. The forms shall include all information described in division (A) of this section, spaces for an inmate to insert all information necessary to complete the forms, including, but not limited to, specifying the offense or offenses for which the inmate is an eligible inmate and is requesting the DNA testing, and any other information or material the attorney general determines is necessary or relevant, and instructions informing the clerk of the court of common pleas of the clerk's duties regarding the application after it is submitted to the court and the manner of fulfilling those duties. The attorney general shall distribute copies of the prescribed forms to the department of rehabilitation and correction, the department shall ensure that each prison in which inmates are housed has a supply of copies of the forms, and the department shall ensure that copies of the forms are provided free of charge to any inmate who requests them.

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

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

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

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

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

(D) The fact that an inmate is an eligible inmate does not, in and of itself, mean that a request for DNA testing that the inmate makes will be granted or that DNA testing will be conducted for the inmate. The decisions as to whether the request for DNA testing will be granted or denied and as to whether DNA testing will be conducted shall be made under sections 2953.72 to 2953.81 of the Revised Code.

Sec. 2953.73. (A)(1) An eligible inmate who wishes to request DNA testing to be conducted under sections 2953.71 to 2953.81 of the Revised Code shall submit an application for DNA testing on a form prescribed by the attorney general for this purpose and shall submit the form to the court of common pleas that heard the case in which the inmate was convicted of the offense for which the inmate is an eligible offender and is requesting DNA testing. The eligible inmate shall submit the application to that court of common pleas within whichever of the following periods applies:

(a) Except as provided in division (A)(1)(b) of this section, the eligible inmate shall submit the application not later than one year after the effective date of this section.

(b) If the eligible inmate has submitted a notice of an intention to request DNA testing pursuant to division (A)(3) of this section within the one-year period specified in that division, the eligible inmate shall submit the application not later than one year after the effective date of this section or not later than thirty days after the submission of the notice, whichever is later.

(2) No court of common pleas shall accept an application under this section after the expiration of the period of time specified in division (A)(1)(a) or (b) of this section that is applicable to the eligible inmate to whom the application pertains.

(3) An eligible inmate who wishes to request DNA testing to be conducted under sections 2953.71 to 2953.81 of the Revised Code may submit a notice of an intention to request DNA testing to the court of common pleas that heard the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting DNA testing. The notice may be in any form and contain any language that clearly indicates that the inmate wishes to request, and will be submitting an application for, DNA testing, and it is not required to be on the form prescribed by the attorney general for applications for DNA testing. The eligible inmate shall submit the notice of an intention to request DNA testing not later than one year after the effective date of this section.

Upon receipt of a notice of an intention to request DNA testing as described in this division, the clerk of the court of common pleas to which the notice is submitted promptly shall provide the eligible inmate with a copy of the application and acknowledgment forms prescribed by the attorney general under division (B) of section 2953.72 of the Revised Code. An eligible inmate who has submitted a notice of an intention to request DNA testing pursuant to this division may submit an application for DNA testing within the time specified in division (A)(1)(b) of this section.

(4) If a judge of a court of common pleas who was the trial judge in a case in which an inmate was convicted of an offense for which the inmate is an eligible inmate, or a judge of a court of common pleas who is the successor in office to a judge of a court of common pleas who was the trial judge in a case in which an inmate was convicted of an offense for which the inmate is an eligible inmate, believes that the eligible inmate's case satisfies the criteria set forth in section 2953.74 of the Revised Code, the judge on the judge's own motion may request DNA testing by filing within one year after the effective date of this section an application as described in this section. The judge is not required to file an acknowledgment with that application. Upon the judge's filing of an application under this division, the application shall be considered as if it had been filed by the eligible inmate.

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

(1) The clerk of the court of common pleas in which it is submitted promptly shall notify the prosecuting attorney and the attorney general, in writing, that the application has been submitted. The notice shall include the name of the eligible inmate who submitted the application, the date on which it was submitted, and the offense or offenses for which the inmate is an eligible inmate and is requesting the DNA testing, and shall inform the prosecuting attorney and attorney general that the prosecuting attorney or attorney general has a duty or right to file a response to the application, as determined under division (D) of this section, and of the date, set by the court, by which that response must be filed.

(2) The application shall be assigned to the judge of that court of common pleas who was the trial judge in the case in which the inmate was convicted of the offense for which the inmate is an eligible offender and is requesting DNA testing, or to the successor in office of that judge, and the judge to whom it is assigned shall decide the application.

(C) If an eligible inmate submits an application for DNA testing under division (A) of this section and the clerk of the court of common pleas in which it is submitted does not promptly provide the notices to the prosecuting attorney and attorney general as required under division (B)(1) of this section, both of the following apply:

(1) Except as provided in division (C)(2) of this section, the jurisdiction of the court of common pleas to decide the application terminates, and the court shall not proceed in deciding the application.

(2) In the discretion of the court, if the clerk thereafter provides the notices to the prosecuting attorney and attorney general required under division (B)(1) of this section, the court may decide the application in the same manner as if the clerk had promptly provided the required notices.

(D)(1) If an eligible inmate submits an application for DNA testing under division (A) of this section and the inmate has not yet commenced any federal habeas corpus proceeding relative to the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting DNA testing, the prosecuting attorney shall file a response to the application by the date specified in the notice provided under division (B)(1) of this section. In the circumstances described in this division, the attorney general may, but is not required to, file a response to the application. If the attorney general files a response under this division, the attorney general shall file it by the date specified in the notice provided under division (B)(1) of this section.

(2) If an eligible inmate submits an application for DNA testing under division (A) of this section and the inmate has commenced a federal habeas corpus proceeding relative to the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting DNA testing, the attorney general shall file a response to the application by the date specified in the notice provided under division (B)(1) of this section. In the circumstances described in this division, the prosecuting attorney may, but is not required to, file a response to the application. If the prosecuting attorney files a response under this division, the prosecuting attorney shall file it by the date specified in the notice provided under division (B)(1) of this section.

(3) A response to an application that a prosecuting attorney or the attorney general files under division (D)(1) or (2) of this section shall state whether the prosecuting attorney or attorney general agrees or disagrees that the application should be accepted and, if the prosecuting attorney or attorney general disagrees that the application should be accepted, a statement of the reasons for that disagreement.

(E) If an eligible inmate submits an application for DNA testing under division (A) of this section, the court shall make the determination as to whether the application should be accepted or rejected. The court shall expedite its decision-making process as to whether the application should be accepted or rejected. The court shall make the determination in accordance with the criteria and procedures set forth in sections 2953.74 to 2953.81 of the Revised Code and, in making the determination, shall consider the application and all responses to the application filed under division (D) of this section by a prosecuting attorney or the attorney general. Upon making its determination, the court shall enter a judgment that either accepts or rejects the application. If the judgment rejects the application, the court shall include within the judgment the reasons for the rejection. Upon entering its judgment, the court immediately shall send a copy of the judgment to the eligible inmate who filed it, the prosecuting attorney, and the attorney general.

(F) A judgment of a court entered under division (E) of this section is final and is not appealable by any person to any court.

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

Sec. 2953.74. (A) If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code, all of the following apply:

(1) The court and the testing authority that will be used shall screen the application in accordance with the criteria set forth in divisions (B) to (D) of this section.

(2) The court shall use those criteria in determining whether to accept or reject the application.

(3) The court shall make its determination as to whether to accept or reject the application, and shall enter its judgment, as described in section 2953.73 of the Revised Code.

(B) If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code and a prior definitive DNA test has been conducted regarding the same biological evidence that the inmate seeks to have tested, the court shall reject the inmate's application. If an eligible inmate files an application for DNA testing and a prior inconclusive DNA test has been conducted regarding the same biological evidence that the inmate seeks to have tested, the court shall review the application and has the discretion, on a case-by-case basis, to either accept or reject the application. The court may consult with a testing authority in determining whether prior DNA test results were definitive or inconclusive and whether to accept or reject an application in relation to which there were prior inconclusive DNA test results.

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

(1) The inmate did not have a DNA test taken at the trial stage in the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting the DNA testing regarding the same biological evidence that the inmate seeks to have tested, the inmate shows that DNA exclusion would have been outcome determinative at that trial stage in that case, and, at the time of the trial stage in that case, DNA testing was not generally accepted, the results of DNA testing were not generally admissible in evidence, or DNA testing was not yet available.

(2) The inmate had a DNA test taken at the trial stage in the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting the DNA testing regarding the same biological evidence that the inmate seeks to have tested, the test was not a prior definitive DNA test that is subject to division (B) of this section, and the inmate shows that DNA exclusion would have been outcome determinative at the trial stage in that case.

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

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

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

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

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

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

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

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

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

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

Sec. 2953.75. If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code, the court shall use reasonable diligence to determine whether biological material was collected from the crime scene or victim of the offense for which the inmate is an eligible inmate and is requesting the DNA testing against which a sample from the inmate can be compared and whether the parent sample of that biological material still exists at that point in time. In using reasonable diligence to make those determinations, the court shall rely upon all relevant sources, including, but not limited to, all of the following:

(A) All prosecuting authorities in the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting the DNA testing and in the appeals of, and postconviction proceedings related to, that case;

(B) All law enforcement authorities involved in the investigation of the offense for which the inmate is an eligible offender and is requesting the DNA testing;

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

(D) The custodian of all custodial agencies described in division (C) of this section;

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

(F) All other reasonable sources.

Sec. 2953.76. If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code, the court and the testing authority shall make determinations regarding the quantity and quality of the parent sample of the biological material collected from the crime scene or victim of the offense for which the inmate is an eligible inmate and is requesting the DNA testing and that is to be tested, and of the chain of custody and reliability regarding that parent sample, as follows:

(A) The testing authority shall determine whether there is a scientifically sufficient quantity of the parent sample to test and whether the parent sample is so minute or fragile that there is a substantial risk that the parent sample could be destroyed in testing. The testing authority may determine that there is not a sufficient quantity to test in order to preserve the state's ability to present in the future the original evidence presented at trial, if another trial is required. Upon making its determination under this division, the testing authority shall prepare and provide to the court, a written document that contains its determination and the reasoning and rationale for that determination. The court may determine in its discretion, on a case-by-case basis, that, even if the parent sample of the biological material so collected is so minute or fragile as to risk destruction of the parent sample by the extraction, the application should not be rejected solely on the basis of that risk.

(B) The testing authority shall determine whether the parent sample has degraded or been contaminated to the extent that it has become scientifically unsuitable for testing and whether the parent sample otherwise has been preserved, and remains, in a condition that is suitable for testing. Upon making its determination under this division, the testing authority shall prepare and provide to the court, a written document that contains its determination and the reasoning and rationale for that determination.

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

Sec. 2953.77.  (A) If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code and if the application is accepted and DNA testing is to be performed, the specified person or entity shall satisfy all of the applicable following precautions to ensure that the parent sample of the biological material collected from the crime scene or the victim of the offense for which the inmate is an eligible inmate and requested the DNA testing, and the test sample of the parent sample that is extracted and actually is to be tested, are not contaminated during transport or the testing process:

(1) The court and the testing authority shall maintain and document the chain of custody of the parent sample and the test sample actually to be tested between the time they are removed from their place of storage or the time of their extraction to the time at which the DNA testing will be performed.

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

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

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

(5) After the DNA testing, the court, the testing authority, and the original custodial agency of the parent sample, or any combination of those entities, shall coordinate the return of the remaining parent sample back to its place of storage with the original custodial agency or to any other place determined in accordance with this division and section 2953.81 of the Revised Code. The court and testing authority shall be responsible for determining the custodial agency to maintain any newly created, extracted, or collected DNA material resulting from the testing. The court and testing authority shall document the return procedures for original materials and for any newly created, extracted, or collected DNA material resulting from the testing, and also the custodial agency to which those materials should be taken.

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

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

(B) If a court selects a testing authority pursuant to division (A) of this section and the eligible inmate for whom the test is to be performed objects to the use of the selected testing authority, the objection constitutes a rejection by the inmate of the state's offer to conduct or facilitate DNA testing for the inmate, the state's offer to conduct or facilitate DNA testing for the inmate automatically is withdrawn as a matter of law, and the state is released from any obligation to conduct or facilitate DNA testing for the inmate. An objection as described in this division, and the resulting rejection, withdrawal, and release, do not preclude a court from accepting in the court's discretion, a subsequent application by the same eligible inmate requesting DNA testing.

(C) The attorney general shall approve or designate testing authorities that may be selected and used for the conduct of DNA testing, shall prepare a list of the approved or designated testing authorities, and shall provide copies of the list to all courts of common pleas. The attorney general shall update the list as appropriate to reflect changes in the approved or designated testing authorities and shall provide copies of the updated list to all courts of common pleas. The attorney general shall not approve or designate a testing authority under this division unless the testing authority satisfies the criteria set forth in section 2953.80 of the Revised Code.

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

Sec. 2953.79.  (A) If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code and if the application is accepted and DNA testing is to be performed, a sample of biological material shall be obtained from the inmate in accordance with this section, to be compared with the parent sample of biological material collected from the crime scene or the victim of the offense for which the inmate is an eligible inmate and requested the DNA testing. The inmate's filing of the application constitutes the inmate's consent to the obtaining of the sample of biological material from the inmate. The testing authority shall obtain the sample of biological material from the inmate in accordance with medically accepted procedures.

(B) If DNA testing is to be performed for an inmate as described in division (A) of this section, the court shall contact the department of rehabilitation and correction and coordinate with the department the date on which, and the time and place at which, the sample of biological material will be obtained from the inmate. The department shall provide the facility at which the sample will be obtained and shall make the inmate available at that facility at the specified time. The court shall provide notice to the inmate and to the inmate's counsel of the date on which, and the time and place at which, the sample will be so obtained.

The court also shall coordinate with the testing authority regarding the obtaining of the sample from the inmate.

(C)(1) If DNA testing is to be performed for an inmate as described in division (A) of this section, and the inmate refuses to submit to the collection of the sample of biological material from the inmate or hinders the state from obtaining a sample of biological material from the inmate, the inmate's refusal or hindrance constitutes a rejection by the inmate of the state's offer to conduct or facilitate DNA testing for the inmate, the state's offer to conduct or facilitate DNA testing for the inmate automatically is withdrawn as a matter of law, and the state is released from any obligation to conduct or facilitate DNA testing for the inmate.

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

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

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

(D) The extracting personnel shall make the determination as to whether an eligible inmate for whom DNA testing is to be performed is refusing to submit to the collection of a sample of biological material from the inmate or is hindering the state from obtaining a sample of biological material from the inmate at the time and date of the scheduled collection of the sample. If the extracting personnel determine that an inmate is refusing to submit to the collection of a sample or is hindering the state from obtaining a sample, the extracting personnel shall document in writing the conditions that constitute the refusal or hindrance and shall maintain the documentation.

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

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

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

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

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

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

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

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

(A) The court or a designee of the court shall maintain the results of the testing and shall maintain and preserve both the parent sample of the biological material used and the inmate sample of the biological material used. The testing authority may be designated as the person to maintain the results of the testing or to maintain and preserve some or all of the samples, or both. The results of the testing remain state's evidence. The samples shall be preserved during the entire period of time for which the inmate is imprisoned relative to the prison term or sentence of death in question and, if that prison term expires or the inmate is executed under that sentence of death, for a reasonable period of time of not less than twenty-four months after the term expires or the inmate is executed. The court shall determine the period of time that is reasonable for purposes of this division, provided that the period shall not be less than twenty-four months after the term expires or the inmate is executed.

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

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

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

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

(F) The inmate or the state may enter the results of the testing into a postconviction proceeding under sections 2953.21 to 2953.23 of the Revised Code only if the results of the testing are an exclusion result or an inclusion result and subject to the limitations otherwise set forth in divisions (G) to (J) of this section.

(G) The inmate may enter an exclusion result for the purpose of establishing substantive grounds for a postconviction hearing under division (C) of section 2953.21 of the Revised Code.

(H) The state may use an inclusion result for the purpose of foreclosing and discrediting claims of "actual innocence" in any current or subsequent proceeding in a court of this state or a federal court.

(I) By making the application for DNA testing, and by accepting and agreeing to the testing, the inmate agrees that appropriate exclusion or inclusion results, as described in divisions (F) to (H) of this section, may be used in postconviction proceedings in support of a second petition or successive petition pursuant to, and in satisfaction of, the requirements set forth in section 2953.23 of the Revised Code.

(J) A result of testing that is an inconclusive result or a "no result" shall not be entered into or offered for use in any proceeding under sections 2953.21 to 2953.23 of the Revised Code or in any other postconviction proceeding.

Section 2. That existing sections 2953.21 and 2953.23 of the Revised Code are hereby repealed.