SSB 1136

Currently, “DNA profile” means the objective form of the results of DNA analysis performed on a DNA sample, and the results of all DNA identification analysis on an individual’s DNA sample are also collectively referred to as the DNA profile of an individual. The bill defines “forensic sample” to mean an evidentiary item that may contain DNA relevant to a crime. The bill defines “keyboard search” to mean a manual keyboard search conducted in accordance with the current version of the national DNA index operational procedures manual. The bill provides that a defendant who has been convicted of a felony or an aggravated misdemeanor may make an application to the court for an order to require that DNA profiling be performed on a forensic sample collected in the case for which the defendant stands convicted. Current law provides that such a defendant who has not previously been required to submit a DNA sample for DNA profiling may make such an application. _____ The bill requires the defendant’s application for an order to require DNA profiling be performed on a forensic sample collected in the case to include a statement detailing why the DNA profiling results would have changed the outcome of the trial or invalidated a guilty plea if the requested DNA profiling had been conducted prior to the conviction. Current law requires such application to state why DNA evidence would have changed the outcome of the trial or invalidated a guilty plea if DNA profiling had been conducted prior to conviction. The bill specifies that the defendant’s application shall be served upon the county attorney and upon the laboratory, if known by the defendant, holding the biological evidence.8, the bill requires that any DNA profiling of the defendant or an unknown person, or other biological evidence conducted by the state or by the defendant shall be disclosed and the results of such profiling or other testing be described in the motion or answer. Current law requires DNA profiling, not DNA testing results, to be disclosed and does not require disclosure when the DNA profiling results in the DNA profile of an unknown person. The bill specifies that the court shall grant the defendant’s application for an order to require that DNA profiling be performed on a forensic sample collected in the case for which the person stands convicted when either DNA profiling has not been performed on the forensic sample or when DNA profiling has been previously performed on the forensic sample and the defendant is requesting DNA profiling using a new method or technology approved by the accrediting organization and authorized by the federal bureau of investigation for DNA profiling that is substantially more probative than prior DNA profiling. _____ the person who committed the crime for which the defendant was convicted was a significant issue in the crime for which the defendant was convicted; the forensic sample is material to evidence included in the trial record or admitted to at a guilty plea proceeding; and the DNA profiling results would raise a reasonable probability that the defendant would not have been convicted if such results had been introduced at trial. Upon the court granting a defendant’s application under the bill, DNA profiling of a forensic sample shall be conducted within the guidelines generally accepted by the scientific community. The court may enter an order that authorizes the department of public safety or other entity to access the DNA database and either compare a DNA profile obtained from a DNA sample or forensic sample collected in connection with an investigation or prosecution of the defendant against the DNA database by using a keyboard search or using a search method similar to a keyboard search that does not involve uploading the DNA profile to the DNA database. The court may enter an order authorizing the department of public safety or other entity to utilize a search method similar to the keyboard search that does not involve uploading the DNA profile to the DNA database if the DNA profile complies with federal bureau of investigation requirements or state requirements, whichever are applicable, as such requirements are applied to law enforcement agencies seeking such a comparison, and the database meets combined DNA index system criteria or state DNA index system criteria, whichever is applicable. The bill provides that if the results of a DNA profile are favorable to the defendant, the defendant may file a motion for release. The state shall file a response consenting to or opposing the motion no later than 30 days after the docketing of the motion, or within any further time as determined by the court. _____ court finds that the results of such DNA profiling indicate a reasonable probability that the defendant would not have been convicted if such DNA profiling results had been introduced at trial, the court shall enter an appropriate order with respect to the defendant’s conviction or sentence in the former criminal proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. The bill provides that if the state files a response opposing the defendant’s motion for release, the court shall conduct a hearing. The defendant shall have the burden of proving the allegations of the motion by a preponderance of the evidence. If the court determines after a hearing that the results of DNA profiling ordered pursuant to the bill indicate a reasonable probability the defendant would not have been convicted if such DNA profiling results had been introduced at trial, the court shall enter an appropriate order with respect to the defendant’s conviction or sentence in the former criminal proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. This order shall be considered a final judgment, but the judgment shall not be given preclusive effect to a subsequent action pursuant to Code chapter 822 (postconviction procedure). The bill also specifies that a court shall not enter an order that would result in a violation of state or federal law or loss of access to a federal system or database.