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Sub. S. B. No. 11As Passed by the House
As Passed by the House
125th General Assembly | Regular Session | 2003-2004 |
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SENATORS Goodman, Blessing, Hottinger, Harris, Jacobson, Randy Gardner, Coughlin, Carey, Prentiss, Spada, Herington, Schuring, Stivers, Dann, Brady, Carnes, Miller, Nein, Roberts, Schuler, Austria
REPRESENTATIVES Latta, Seitz, Brown, Willamowski, Gilb, Collier, Allen, Barrett, Beatty, Boccieri, Brinkman, Buehrer, Carano, Carmichael, Cates, Chandler, Cirelli, Clancy, Daniels, DeBose, DePiero, Domenick, Driehaus, C. Evans, D. Evans, Fessler, Flowers, Gibbs, Hagan, Harwood, Hoops, Jolivette, Kearns, Key, Mason, McGregor, Miller, Niehaus, Oelslager, Olman, Otterman, T. Patton, Price, Redfern, Schlichter, Schmidt, Schneider, Sferra, G. Smith, D. Stewart, J. Stewart, Sykes, Walcher, White, Woodard, Yates
A BILL
To amend sections 109.573, 2953.21, and 2953.23 and to enact
sections 2953.71 to 2953.83 of the Revised Code to
establish a
mechanism and procedures for the DNA testing of
certain inmates
serving a prison term for a felony
or under a
sentence of death.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.573, 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, 2953.81, 2953.82, and 2953.83 of the
Revised
Code be enacted to read as follows: Sec. 109.573. (A) As used in this section: (1) "DNA" means human deoxyribonucleic acid. (2) "DNA analysis" means a laboratory analysis of a DNA
specimen to identify DNA characteristics and to create a
DNA
record. (3) "DNA database" means a collection of DNA records
from
forensic casework or from crime scenes, specimens from anonymous
and
unidentified sources, and
records collected pursuant to
sections 2152.74 and 2901.07 of the
Revised Code and a population
statistics database for
determining the frequency of occurrence of
characteristics in DNA
records. (4) "DNA record" means the objective result of a DNA
analysis of a DNA specimen, including representations of
DNA
fragment lengths, digital images of autoradiographs, discrete
allele assignment numbers, and other DNA specimen characteristics
that aid in establishing the identity of an individual. (5) "DNA specimen" includes human blood cells or
physiological
tissues or body fluids. (6) "Unidentified person database" means a collection of DNA
records, and, on and after
May 21, 1998, of fingerprint and
photograph records,
of unidentified human corpses, human remains,
or living individuals. (7) "Relatives of missing persons database" means a
collection
of DNA records of persons
related by consanguinity of
the first degree to a missing
person. (8) "Law enforcement agency" means a police department, the
office of a sheriff, the state highway patrol, a county
prosecuting attorney, or a federal, state, or local governmental
body that enforces criminal laws and that has employees who have
a
statutory power of arrest. (B)(1) The superintendent of the bureau of criminal
identification and investigation may do all of the following: (a) Establish and maintain a state DNA
laboratory to
perform
DNA analysis analyses of DNA specimens; (b) Establish and maintain a DNA
database; (c) Establish and maintain an unidentified person
database
to aid in the establishment of the identity of unknown human
corpses,
human remains, or living individuals; (d) Establish and maintain a relatives of missing
persons
database for comparison with the unidentified person
database to
aid in the establishment of the identity of unknown
human corpses,
human remains, and living individuals. (2) If the bureau of criminal identification and
investigation establishes
and maintains a DNA laboratory and a DNA
database, the
bureau may use or disclose information regarding DNA
records for the
following purposes: (a) The bureau may disclose information to a law enforcement
agency for
purposes of identification. (b) The bureau shall disclose pursuant to a court
order
issued under section 3111.09 of the Revised Code any information
necessary to determine the existence of a parent
and child
relationship in an action brought under sections 3111.01 to
3111.18
of the Revised Code. (c) The bureau may use or disclose information from
the
population statistics database, for identification research
and
protocol development, or for quality control purposes. (3) If the bureau of criminal identification and
investigation
establishes and maintains a relatives of missing
persons
database, all of the following apply: (a) If a person has disappeared and has been
continuously
absent from the person's place of last domicile for
a thirty-day
or longer period of time without being heard from during the
period, persons related by consanguinity of the first
degree to
the missing person may submit to the
bureau a DNA specimen, the
bureau may include the
DNA record of the specimen
in the relatives
of missing persons database,
and, if the bureau does not include
the DNA record of the
specimen in the relatives of missing persons
database, the bureau shall retain
the DNA record for future
reference and
inclusion as appropriate in that database. (b) The bureau shall not charge a fee for the
submission of
a DNA
specimen pursuant to division (B)(3)(a) of this
section. (c)
If the DNA specimen submitted pursuant to division
(B)(3)(a) of this section is collected by withdrawing blood from
the person or a similarly invasive procedure, a physician,
registered nurse, licensed practical nurse,
duly licensed
clinical
laboratory technician, or other qualified
medical practitioner
shall
conduct the collection procedure for
the DNA specimen
submitted
pursuant to division
(B)(3)(a) of this
section and shall
collect the
DNA specimen in a medically
approved
manner.
If the
DNA specimen is collected by swabbing for buccal cells or a
similarly noninvasive procedure, division (B)(3)(c) of this
section does not require that the DNA specimen be collected by a
qualified medical practitioner of that nature. No later than
fifteen days after the date of
the
collection of the DNA
specimen,
the person conducting the
DNA
specimen collection
procedure shall
cause the DNA
specimen to be
forwarded to the bureau of criminal
identification and
investigation in accordance with procedures
established by the
superintendent of the bureau under division
(H)
of this section.
The bureau
may provide the specimen vials,
mailing tubes, labels,
postage, and instruction needed for the
collection and
forwarding
of the DNA specimen
to the bureau. (d) The superintendent, in the superintendent's
discretion,
may compare DNA
records in the relatives of missing persons
database with the
DNA records in the unidentified person database. (4) If the bureau of criminal identification and
investigation establishes and maintains an unidentified person
database and if the superintendent of the bureau
identifies a
matching DNA record for the DNA record of a
person or deceased
person whose
DNA record is contained in the
unidentified person
database, the superintendent shall inform
the coroner who
submitted or the law enforcement agency that submitted the
DNA
specimen to the bureau of
the match and, if possible, of the
identity of the unidentified person. (5) The bureau of criminal identification and investigation
may enter into a contract with a qualified public or private
laboratory to
perform DNA analyses, DNA specimen maintenance,
preservation, and storage, DNA record keeping, and other duties
required of the bureau under this section. A public or private
laboratory
under contract with the bureau shall follow quality
assurance and privacy
requirements established by the
superintendent of the bureau. (C) The superintendent of the bureau of criminal
identification
and investigation shall establish procedures for
entering into the
DNA
database the DNA records submitted pursuant
to sections 2152.74 and
2901.07 of the Revised Code and for
determining an order of priority for entry
of the
DNA records
based on the types of offenses committed by the persons
whose
records are submitted and the available resources of the bureau. (D) When a DNA record is derived from a DNA
specimen
provided pursuant to section 2152.74 or 2901.07 of the Revised
Code,
the bureau of
criminal identification and investigation
shall attach to the DNA
record personal identification information
that identifies the person from
whom the DNA specimen was taken.
The personal identification
information may include the subject
person's fingerprints and any other
information the bureau
determines necessary. The DNA
record and personal identification
information attached to it shall be used
only for the purpose of
personal identification or for a purpose specified in
this
section. (E) DNA records, DNA specimens,
fingerprints, and
photographs that the bureau of criminal
identification and
investigation receives pursuant to this section and sections
313.08, 2152.74, and 2901.07 of the Revised
Code and personal
identification information attached to a
DNA record are not public
records under section 149.43 of the
Revised Code. (F) The bureau of criminal identification and investigation
may
charge a reasonable fee for providing information pursuant to
this section to
any law enforcement agency located in another
state. (G)(1) No person who because of the person's employment or
official
position has access to a DNA specimen, a DNA record, or
other information contained in the DNA database that identifies an
individual shall knowingly disclose that specimen, record, or
information to
any person or agency not entitled to receive it or
otherwise
shall misuse that specimen, record, or information. (2) No person without authorization or privilege to obtain
information contained in the DNA database that identifies an
individual person
shall purposely obtain that information. (H) The superintendent of the bureau of criminal
identification
and investigation shall establish procedures for
all of the
following: (1) The forwarding to the bureau of DNA specimens collected
pursuant to division (H) of this section and sections 313.08,
2152.74, and 2901.07
of the Revised Code and of fingerprints and
photographs collected pursuant
to section 313.08 of the Revised
Code; (2) The collection, maintenance, preservation, and analysis
of
DNA specimens; (3) The creation, maintenance, and operation of the DNA
database; (4) The use and dissemination of information from the DNA
database; (5) The creation, maintenance, and operation of the
unidentified person database; (6) The use and dissemination of information from the
unidentified person database; (7) The creation, maintenance, and operation of the
relatives of missing persons database; (8) The use and dissemination of information from the
relatives of missing persons database; (9) The verification of entities requesting DNA records and
other DNA information from the bureau and the authority of the
entity
to receive the information; (10) The operation of the bureau and responsibilities of
employees of the bureau with respect to the activities described
in this
section. (I) In conducting DNA analyses of DNA specimens, the state DNA laboratory and any laboratory with which the bureau has entered into a contract pursuant to division (B)(5) of this section shall give DNA analyses of DNA specimens that relate to ongoing criminal investigations or prosecutions priority over DNA analyses of DNA specimens that relate to applications made pursuant to section 2953.73 or 2953.82 of the Revised Code.
Sec. 2953.21. (A)(1)(a) 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 inmate, and for whom DNA testing that
was performed under sections 2953.71 to 2953.81 of the Revised
Code or under section 2953.82 of the Revised Code provided results that establish, by clear and convincing evidence, actual innocence of that felony offense or, if the person was
sentenced to death, establish, by clear and convincing evidence, actual innocence of the aggravating circumstance or circumstances the person was found
guilty of committing and that is or are 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. (b) As used in division (A)(1)(a) of this section, "actual innocence" means that, had the results of the DNA testing conducted under sections 2953.71 to 2953.81 of the Revised Code or under section 2953.82 of the Revised Code been presented at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted, or, if the person was sentenced to death, no reasonable factfinder would have found the petitioner guilty of the aggravating circumstance or circumstances the petitioner was found guilty of committing and that is or are the basis of that sentence of death. (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) 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 person sentenced to death penalty, only the supreme court may stay execution
of the
judgment challenged by the petition sentence of death. (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 inmate for whom DNA testing was
performed under sections
2953.71 to 2953.81 of the Revised Code or under section 2953.82 of the Revised Code,
and the results of the DNA
testing establish, by clear and convincing evidence, actual innocence of
that felony offense or, if the person was sentenced to death, establish, by clear and convincing evidence, actual innocence of the
aggravating circumstance or circumstances the person was found guilty of committing
and that is or are the basis of that sentence of death. As used in this division, "actual innocence" has the same meaning as in division (A)(1)(b) of section 2953.21 of the Revised Code. (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 2953.83 of the
Revised Code: (A) "Application" or "application for DNA testing" means
a request through postconviction relief for the state
to
do DNA
testing on biological material from whichever of the following is applicable: (1) 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; (2) The case in which the inmate pleaded guilty or no contest to the offense for which the inmate is requesting the DNA testing under section 2953.82 of the Revised Code.
(B) "Biological material" means any product of a human body containing DNA. (C) "Chain of custody" means a record or other evidence 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 or other evidence
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 or, regarding a request for DNA testing made under section 2953.82 of the Revised Code, in relation to the offense for which the inmate made the request 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 or section 2953.82 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 or, regarding a request for DNA testing made under section 2953.82 of the Revised Code, in relation to the offense for which the inmate made the request 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) "Outcome determinative" means that had the results of
DNA
testing been presented at the trial
of the subject inmate requesting DNA testing and been found relevant and admissible with respect to the felony
offense for which the inmate is an eligible inmate and
is
requesting the DNA testing or for which the inmate is requesting the DNA testing under section 2953.82 of the Revised Code, 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 or circumstances the inmate was
found
guilty of committing and that is or are the basis of that sentence
of
death. (M) "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 or for which the inmate is requesting the DNA testing under section 2953.82 of the Revised Code, 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 or section 2953.82 of the
Revised Code. (N) "Prison" has the same meaning as in section 2929.01 of
the Revised Code. (O) "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 or for which the inmate is requesting the DNA testing under section 2953.82 of the Revised Code. (P) "Prosecuting authority" means the prosecuting attorney
or the attorney general. (Q) "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. (R) "Testing authority" means a laboratory at which DNA
testing will be conducted under sections 2953.71 to 2953.81 or section 2953.82 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 applications 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 any proceeding
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 court 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 application 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 court has no duty or
obligation to
provide postconviction DNA testing to inmates,
that the court of
common pleas has the
sole
discretion subject to an appeal as described in this division 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 if the court of common
pleas rejects an eligible inmate's application, the inmate may seek leave of the supreme court to appeal the rejection to that court if the inmate was sentenced to death for the offense for which the inmate is requesting the DNA testing and, if the inmate was not sentenced to death for that offense, may appeal the rejection to the court of appeals, and that no
determination otherwise made
by
the court of common pleas 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, except as provided in division (A)(8) of this section, 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 shall cause the court to rescind its prior acceptance of the application for
DNA testing for
the inmate and deny the application; (11) That, if the inmate is an inmate who pleaded guilty or no contest to a felony offense and who is using the application and acknowledgment to request DNA testing under section 2953.82 of the Revised Code, all references in the acknowledgment to an "eligible inmate" are considered to be references to, and apply to, the inmate and all references in the acknowledgment to "sections 2953.71 to 2953.81 of the Revised Code" are considered to be references to "section 2953.82 of the Revised Code". (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 or for which the inmate is requesting the DNA testing under section 2953.82 of the Revised Code,
and any other information or material the attorney general
determines is necessary or relevant. The forms also shall be used to make an application requesting DNA testing under section 2953.82 of the Revised Code, and the attorney general shall ensure that they are sufficient for that type of use, and that they include all information and spaces necessary for that type of use. 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 date on which the application is filed, 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. Sec. 2953.73. (A) 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 sentenced the inmate for the
offense for which the inmate is an eligible inmate and is
requesting DNA testing.
The
eligible inmate shall submit the
application to that court of common pleas not
later
than
one year after the effective date of this section. No court of common pleas shall accept an application
under this section after the expiration of the period of time
specified
in this division. (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 eligible inmate shall serve a copy of the application on the prosecuting attorney and the
attorney general. (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 eligible inmate was convicted of the offense for which the inmate is requesting DNA testing, or, if that judge no longer is a judge of that court, it shall be assigned according to court rules. The judge to whom the application is
assigned shall decide the application. The application shall become part of the file in the case. (C) If an eligible inmate submits an application for DNA
testing under division (A) of this section, regardless of whether the inmate has 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,
any response to the application by the prosecuting attorney or the attorney general shall be filed not later than forty-five days after the date on which the eligible inmate submits the application. The prosecuting attorney or
the attorney general, or both, may, but are not required to, file a response
to the application. If the prosecuting attorney or the attorney general files a response under this division, the prosecuting attorney or attorney general, whoever filed the response, shall serve a copy of the response on the eligible inmate. (D) 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 review of
the application. 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, the supporting affidavits, and the documentary evidence and, in addition to those materials, shall consider all the files and records pertaining to the proceedings against the applicant, 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 and all responses to the application
filed under
division (C) of this section by a prosecuting attorney
or the
attorney general, unless the application and the files and records show the applicant is not entitled to DNA testing, in which case the application may be denied. The court is not required to conduct an evidentiary hearing in conducting its review of, and in making its determination as to whether to accept or reject, the application. Upon making its determination, the
court shall
enter a judgment and order that either accepts or
rejects the application and that includes
within the judgment and order the
reasons for the acceptance or rejection as applied to the criteria and procedures set forth in sections 2953.71 to 2953.81 of the Revised Code. The court shall send a copy of the
judgment and order to the eligible
inmate who filed it, the prosecuting
attorney, and the attorney
general. (E) A judgment and order of a court entered under
division (D) of this
section is appealable only as provided in this division. If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code and the court of common pleas rejects the application under division (D) of this section, one of the following applies: (a) If the inmate was sentenced to death for the offense for which the inmate claims to be an eligible inmate and is requesting DNA testing, the inmate may seek leave of the supreme court to appeal the rejection to the supreme court. Courts of appeals do not have jurisdiction to review any rejection if the inmate was sentenced to death for the offense for which the inmate claims to be an eligible inmate and is requesting DNA testing. (b) If the inmate was not sentenced to death for the offense for which the inmate claims to be an eligible inmate and is requesting DNA testing, the rejection is a final appealable order, and the inmate may appeal it to the court of appeals of the district in which is located that court of common pleas. (F) 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. (G) If a court rejects an eligible inmate's application for DNA testing under division (D) of this section, unless the rejection is overturned on appeal, no court shall require the state to administer a DNA test under sections 2953.71 to 2953.81 of the Revised Code on the eligible inmate.
Sec. 2953.74. (A) 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 direct a
testing authority to provide the court with information that the court may use 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.
(B) 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 (A) of
this section, and the inmate
shows that
DNA exclusion
would have been outcome determinative at
the trial
stage in that
case. (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 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
(C)(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 (C)(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 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. (A) If an eligible inmate submits an
application
for DNA testing under section 2953.73 of the Revised
Code, the
court shall require the prosecuting attorney to 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
prosecuting attorney
shall rely upon
all relevant sources,
including, but not
limited
to, all of the
following:
(1) 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; (2) 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; (3) All custodial agencies involved at any time with the
biological material in question; (4) The custodian of all custodial agencies described in
division (A)(3) of this section;
(5) All crime laboratories involved at any time with the
biological material in question;
(6) All other reasonable sources. (B) The prosecuting attorney shall prepare a report that contains the prosecuting attorney's determinations made under division (A) of this section and shall file a copy of the report with the court and provide a copy to the eligible inmate and the attorney general. Sec. 2953.76. If an eligible inmate submits an
application
for DNA testing under section 2953.73 of the Revised
Code, the
court shall require the prosecuting attorney to consult with the
testing authority and to prepare findings
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 a written document
that contains
its
determination and the
reasoning and rationale
for that
determination and shall provide a copy to the court, the eligible inmate, the prosecuting attorney, and the attorney general. 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 a written document
that contains
its
determination and the
reasoning and rationale
for that
determination and shall provide a copy to the court, the eligible inmate, the prosecuting attorney, and the attorney general. (C) The court shall determine, from the 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 court shall require that the chain of custody remain intact and that all of the
applicable following precautions are satisfied 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 shall
require that the chain of custody be maintained and documented relative to 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 shall determine, in consultation with the testing authority, 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 court shall rescind its prior acceptance of the application for
DNA
testing
for the inmate and deny the application. An objection as
described in this
division, and
the resulting rescission and denial, 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 to conduct 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 require the state to coordinate with
the department of rehabilitation and
correction as to the time and
place at
which the sample of biological material
will be obtained
from the
inmate. The sample of biological material shall be obtained from the inmate at
the facility in which the inmate is housed, and
the department shall make
the inmate
available at the
specified time. The
court shall require the state to 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 require the state to 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 court shall rescind its prior acceptance of the application for DNA testing
for the inmate and deny the application. (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, maintain the documentation, and notify the court of the inmate's refusal or hindrance. 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 require the state to
maintain the
results of the testing and to
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 any 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 any proceeding.
Sec. 2953.82. (A) An inmate who pleaded guilty or no contest to a felony offense that was committed prior to the effective date of this section may request DNA testing under this section regarding that offense if all of the following apply:
(1) The inmate was sentenced to a prison term or sentence of death for that felony and, on the effective date of this section, is in prison serving that prison term or under that sentence of death.
(2) On the date on which the inmate files the application requesting the testing with the court as described in division (B) of this section, the inmate has at least one year remaining on the prison term described in division (A)(1) of this section, or the inmate is in prison under a sentence of death as described in that division.
(B) An inmate who pleaded guilty or no contest to a felony offense that was committed prior to the effective date of this section, who satisfies the criteria set forth in division (A) of this section, and who wishes to request DNA testing under this section shall submit, in accordance with this division, an application for the testing to the court of common pleas and the prosecuting attorney. The inmate shall specify on the application the offense or offenses for which the inmate is requesting the DNA testing under this section. Along with the application, the inmate shall submit an acknowledgment that is signed by the inmate. The application and acknowledgment required under this division shall be the same application and acknowledgment as are used by eligible inmates who request DNA testing under sections 2953.71 to 2953.81 of the Revised Code. The inmate shall file the application with the court of common pleas not later than one year after the effective date of this section. Upon filing the application, the inmate shall serve a copy on the prosecuting attorney.
(C) Within forty-five days after the filing of an application for DNA testing under division (B) of this section, the prosecuting attorney shall file a statement with the court that indicates whether the prosecuting attorney agrees or disagrees that the inmate should be permitted to obtain DNA testing under this section. If the prosecuting attorney agrees that the inmate should be permitted to obtain DNA testing under this section, all of the following apply:
(1) The application and the written statement shall be considered for all purposes as if they were an application for DNA testing filed under section 2953.73 of the Revised Code that the court accepted, and the court, the prosecuting attorney, the attorney general, the inmate, law enforcement personnel, and all other involved persons shall proceed regarding DNA testing for the inmate pursuant to sections 2953.77 to 2953.81 of the Revised Code, in the same manner as if the inmate was an eligible inmate for whom an application for DNA testing had been accepted.
(2) Upon completion of the DNA testing, section 2953.81 of the Revised Code applies.
(D) If the prosecuting attorney disagrees that the inmate should be permitted to obtain DNA testing under this section, the prosecuting attorney's disagreement is final and is not appealable by any person to any court, and no court shall have authority, without agreement of the prosecuting attorney, to order DNA testing regarding that inmate and the offense or offenses for which the inmate requested DNA testing in the application. (E) If the prosecuting attorney fails to file a statement of agreement or disagreement within the time provided in division (C) of this section, the court may order the prosecuting attorney to file a statement of that nature within fifteen days of the date of the order. Sec. 2953.83. In any court proceeding under sections 2953.71 to 2953.82 of the Revised Code, the Rules of Criminal Procedure apply, except to the extent that sections 2953.71 to 2953.82 of the Revised Code provide a different procedure or to the extent that the Rules would by their nature be clearly inapplicable. Section 2. That existing sections 109.573, 2953.21, and 2953.23 of the
Revised Code are hereby repealed.
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