ORS 138.692
Motion for DNA testing

  • declaration
  • court order
  • costs

(1)

After a person files a petition under ORS 138.690 (Commencement of DNA testing proceedings), 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)

Intentionally left blank —Ed.
(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)

Intentionally left blank —Ed.

(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:

(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)

Intentionally left blank —Ed.

(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)

Intentionally left blank —Ed.

(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 (Entry of unidentified profile into DNA databases).

(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 (Appointed counsel).

(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 (Definitions).

Source: Section 138.692 — Motion for DNA testing; declaration; court order; costs, https://www.­oregonlegislature.­gov/bills_laws/ors/ors138.­html.

Notes of Decisions

Where defendant, convicted of sex abuse, did not establish logical relationship between presumed exculpatory DNA testing results of certain physical evidence and theory of defense in context of underlying trial proceedings, and did not explain relevance of evidence, defendant failed to make prima facie showing of actual innocence and trial court properly denied motion for post-conviction DNA test. State v. Romero, 274 Or App 590, 360 P3d 1275 (2015), Sup Ct review denied

138.005
Definitions for ORS 138.010 to 138.310
138.010
Mode of review
138.015
Statutes applicable to appeals
138.020
Who may appeal
138.030
Parties designated “appellant” and “respondent”
138.035
Appeal by defendant
138.045
Appeal by state
138.052
Appeal from judgment of conviction and sentence of death
138.057
Appeal from judgment involving violation
138.065
Appeal from judgment or order deciding special statutory proceeding
138.071
Time within which appeal must be taken
138.081
Service and filing of notice of appeal
138.085
Content requirements for certain notices of appeal
138.090
Signature to notice of appeal
138.105
Appeal by defendant
138.115
Appeal by state
138.210
Failure to file brief by appellant
138.225
Summary affirmation
138.227
Joint motion to vacate and remand
138.255
Court of Appeals certification of appeal to Supreme Court in lieu of disposition
138.257
Determination on appeal
138.261
Time within which certain appeals must be decided
138.275
Notice to parties concerning modified judgment or order or supplemental judgment
138.285
Order staying execution of sentence
138.295
Stay of judgment or order on appeal by state
138.305
Delivery of defendant under sentence of imprisonment to intake center
138.310
Notice to court below when public defense services executive director certifies costs, expenses or compensation
138.480
Public Defense Services Commission to provide representation for prisoner in proceeding before appellate court
138.500
Appointment of counsel and furnishing of transcript for appellant without funds
138.504
Waiver of counsel
138.510
Persons who may file petition for relief
138.520
Relief which court may grant
138.525
Dismissal of meritless petition
138.527
Frivolous petition or response
138.530
When relief must be granted
138.540
Petition for relief as exclusive remedy for challenging conviction
138.550
Availability of relief as affected by prior judicial proceedings
138.560
Procedure upon filing petition for relief
138.570
Who shall be named as defendant
138.580
Petition
138.585
Access to confidential jury records
138.590
Petitioner may proceed as a financially eligible person
138.610
Pleadings
138.615
Disclosure of witness information
138.620
Hearing
138.622
Appearance by communication device
138.625
Victim testimony
138.627
Victim’s rights
138.630
Evidence of events occurring at trial of petitioner
138.640
Judgment
138.650
Appeal
138.660
Summary affirmation of judgment
138.665
Remand for reconsideration of judgment or order
138.670
Admissibility, at new trial, of testimony of witness at first trial
138.680
Short title
138.686
Automatic stay of sentence of death for federal appeal and state post-conviction relief
138.688
Definitions
138.690
Commencement of DNA testing proceedings
138.692
Motion for DNA testing
138.694
Appointed counsel
138.696
Test results
138.697
Appeal of court order
138.698
Effect of setting aside conviction on plea agreement
138.700
Entry of unidentified profile into DNA databases
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