Title 138 · ORS Chapter 138

138.700. The State Court Administrator shall provide the forms to the clerk of each circuit court, who shall make the forms available to the public. �� (6) ORS 138.688 to 138.700 are not the exclu

Citation: ORS 138.700

Section: 138.700

138.700. The State Court Administrator shall provide the forms to the clerk of each circuit court, who shall make the forms available to the public.

�� (6) ORS 138.688 to 138.700 are not the exclusive means by which a person convicted of a crime may obtain post-conviction DNA testing, and nothing in ORS 138.688 to 138.700 limits or affects any other means by which a person convicted of a crime may obtain post-conviction DNA testing.

�� (7) If the victim did not request notification under ORS 147.433, the district attorney may provide notification upon the filing of a petition under this section if the name and address of the victim are known to the district attorney. [2001 c.697 �1; 2005 c.759 �1; 2007 c.800 �1; 2015 c.564 �1; 2019 c.368 �3]

�� Note: See note under 138.688.

�� 138.692 Motion for DNA testing; declaration; court order; costs. (1) After a person files a petition under ORS 138.690, the person may file a motion requesting the performance of DNA testing on evidence. The motion must be supported by:

�� (a) A declaration by the person made under penalty of perjury that the person is innocent of the offense for which the person was convicted; and

�� (b) A statement that:

�� (A) Identifies the evidence to be tested with as much specificity as is reasonably practicable. The evidence must have been secured in connection with the prosecution, including the investigation, that resulted in the conviction of the person;

�� (B) Includes the results of any previous DNA test of the evidence if a previous DNA test was conducted by either the prosecution or the defense;

�� (C)(i) The identity of the individual who committed the crime or conduct was at issue in the underlying prosecution; or

�� (ii) No crime occurred; and

�� (D) Explains, in light of all the evidence, how there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution:

�� (i) The person would not have been prosecuted or convicted of the offense; or

�� (ii) There would have been a more favorable outcome to the underlying prosecution.

�� (2) Concurrently with the filing of a motion under this section, the person shall serve the district attorney with:

�� (a) A copy of any prior sworn testimony by the person concerning the underlying prosecution, including but not limited to affidavits, declarations, depositions and any testimony from the person in a prior post-conviction relief action challenging the conviction; or

�� (b) A document affirming that there are no prior sworn statements.

�� (3) A person may file a motion under this section notwithstanding the fact that the person pleaded guilty or no contest to the underlying conviction or, before or after conviction, made a confession or admission.

�� (4) Upon being served as described in subsection (2) of this section, the state shall answer the motion requesting the performance of DNA testing and may refute the basis for the motion.

�� (5) Upon the motion of a party or the court�s own motion, the court may allow the testimony of witnesses if the testimony will assist the court in making its determination to grant or deny the motion requesting the performance of DNA testing. The court may not allow testimony from the victim of the offense without the consent of the victim.

�� (6) The court shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that:

�� (a) Unless the parties stipulate otherwise, the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been altered in any material aspect;

�� (b) The motion is made for the purpose of demonstrating the innocence of the person of the offense and not to delay the execution of the sentence or administration of justice;

�� (c)(A) The identity of the individual who committed the crime or conduct was at issue in the underlying prosecution; or

�� (B) If the person alleges that no crime occurred, the testing could not have been obtained during the criminal proceedings with the exercise of reasonable diligence; and

�� (d) In light of all the evidence, there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution, the person would not have been prosecuted or convicted of the offense.

�� (7) The court may order the DNA testing requested in a motion under subsection (1) of this section if the court finds that:

�� (b) The motion is made for the purpose of demonstrating the innocence of the person of the offense and not to delay the execution of the sentence or administration of justice;

�� (c)(A) The identity of the individual who committed the crime or conduct was at issue in the underlying prosecution; or

�� (B) If the person alleges that no crime occurred, the testing could not have been obtained during the criminal proceedings with the exercise of reasonable diligence; and

�� (d) In light of all the evidence, there is a reasonable probability that, had exculpatory results been available at the time of the underlying prosecution, there would have been a more favorable outcome to the underlying prosecution.

�� (8) In granting a motion under this section, the court may impose reasonable conditions designed to protect the interests of the state in the integrity of the evidence and the testing process.

�� (9)(a) If a motion is granted under this section, the district attorney shall notify the victim if the name and address of the victim are known to the district attorney.

�� (b) The district attorney may notify the victim of the results of DNA testing ordered under this section.

�� (10) Unless both parties agree or the court finds compelling circumstances otherwise, the court shall order the Department of State Police to conduct the DNA testing. The court may order a second test upon a showing that the state police failed to follow appropriate DNA protocols and that failure reasonably affected the accuracy of the DNA test.

�� (11) A party seeking entry into the National DNA Index System or State DNA Index System of any unknown DNA profile generated through DNA testing ordered under this section shall comply with ORS 138.700.

�� (12) The costs of DNA testing ordered under this section must be paid by:

�� (a) The person making the motion for DNA testing if the person is not incarcerated or, if the person is incarcerated, if the person is financially able to pay; or

�� (b) The state if counsel at state expense has been appointed under ORS 138.694.

�� (13) The laboratory conducting the DNA test shall provide access to the results of the test and to any other written materials related to the testing, including reports, underlying data, notes and protocols, to the person filing the motion and to the state.

�� (14) Notwithstanding the fact that an appeal of the conviction or a petition for post-conviction relief in the underlying case is pending at the time a motion is filed under this section, the circuit court shall consider the motion. If the court grants the motion, the court shall notify the court considering the appeal or post-conviction petition of that fact. When a court receives notice under this subsection, the court shall stay the appeal or post-conviction proceedings pending the outcome of the motion filed under this section and any further proceedings resulting from the motion.

�� (15) The court shall make written findings when issuing an order under this section. [2001 c.697 �2; 2005 c.759 �2; 2007 c.800 �2; 2015 c.564 �2; 2019 c.368 �4]

�� Note: See note under 138.688.

�� 138.694 Appointed counsel. (1) A person described in ORS 138.690 is entitled to counsel during all stages of the proceedings described in ORS 138.692, 138.696, 138.697 and 138.700.

�� (2) A person described in ORS 138.690 may file a petition in the circuit court in which the judgment of conviction was entered requesting the appointment of counsel at state expense to assist the person in determining whether to file a motion under ORS 138.692. The petition must be accompanied by:

�� (a) A completed affidavit of eligibility for appointment of counsel at state expense; and

�� (b) An affidavit stating that:

�� (A) The person meets the criteria in ORS 138.690;

�� (B) The person is innocent of the charge for which the person was convicted; and

�� (C) The person is without sufficient funds and assets, as shown by the affidavit required by paragraph (a) of this subsection, to hire an attorney to represent the person in determining whether to file a motion under ORS 138.692.

�� (3) The court shall grant a petition filed under this section if:

�� (a) The petitioner complies with the requirements of subsection (2) of this section; and

�� (b) It appears to the court that the petitioner is financially unable to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the matter.

�� (4) An attorney appointed under this section:

�� (a) If other than counsel provided pursuant to ORS 151.460, is entitled to compensation and expenses as provided in ORS 135.055; or

�� (b) If counsel provided pursuant to ORS 151.460, is entitled to expenses as provided in ORS