S.F. _____ H.F. _____ Section 1. Section 81.1, Code 2019, is amended to read as 1 follows: 2 81.1 Definitions. 3 As used in this chapter , unless the context otherwise 4 requires: 5 1. “Aggravated misdemeanor” means an offense classified as 6 an aggravated misdemeanor committed by a person eighteen years 7 of age or older on or after July 1, 2014, other than any of the 8 following offenses: 9 a. A violation of chapter 321 . 10 b. A second offense violation of section 321J.2 , unless 11 the person has more than one previous revocation as determined 12 pursuant to section 321J.2 , subsection 8, within the 13 twelve-year period immediately preceding the commission of the 14 offense in question. 15 c. A violation of chapter 716B . 16 d. A violation of chapter 717A . 17 e. A violation of section 725.7 . 18 2. “Combined DNA index system” means a national, searchable 19 DNA database created and maintained by the federal bureau of 20 investigation where DNA profiles are stored and searched at a 21 local, state, or national level. 22 2. 3. “DNA” means deoxyribonucleic acid. 23 3. 4. “DNA data bank” means the repository for DNA samples 24 obtained pursuant to section 81.4 . 25 4. 5. “DNA database” means the collection of DNA profiles 26 and DNA records. 27 5. 6. “DNA profile” means the objective form of the 28 results of DNA analysis performed on a forensic sample or an 29 individual’s DNA sample. The results of all DNA identification 30 analysis on an individual’s DNA sample are also collectively 31 referred to as the DNA profile of an individual. “DNA profile” 32 also means the objective form of the results of DNA analysis 33 performed on a forensic sample. 34 6. 7. “DNA profiling” means the procedure established by 35 -1- LSB 1258XD (7) 88 as/rh 1/ 11

S.F. _____ H.F. _____ the division of criminal investigation, department of public 1 safety, for determining a person’s genetic identity or for 2 testing a forensic sample, including analysis that might not 3 result in the establishment of a complete DNA profile . 4 7. 8. “DNA record” means the DNA sample and DNA profile, 5 and other records in the DNA database and DNA data bank used to 6 identify a person. 7 8. 9. “DNA sample” means a biological sample provided by 8 any person required to submit a DNA sample or a DNA sample 9 submitted for any other purpose under section 81.4 . 10 10. “Forensic sample” means an evidentiary item that may 11 contain DNA relevant to a crime. 12 11. “Keyboard search” means a manual keyboard search 13 conducted in accordance with the current version of the 14 national DNA index system operational procedures manual. 15 9. 12. “Person required to submit a DNA sample” means a 16 person convicted, adjudicated delinquent, receiving a deferred 17 judgment, or found not guilty by reason of insanity of an 18 offense requiring DNA profiling pursuant to section 81.2 . 19 “Person required to submit a DNA sample” also means a person 20 determined to be a sexually violent predator pursuant to 21 section 229A.7 . 22 Sec. 2. Section 81.10, Code 2019, is amended to read as 23 follows: 24 81.10 DNA profiling after conviction. 25 1. A defendant who has been convicted of a felony or 26 aggravated misdemeanor and who has not been required to submit 27 a DNA sample for DNA profiling may make a motion an application 28 to the court for an order to require that DNA analysis 29 profiling be performed on evidence a forensic sample collected 30 in the case for which the person stands convicted. 31 2. The motion application shall state the following: 32 a. The specific crimes for which the defendant stands 33 convicted in this case. 34 b. The facts of the underlying case, as proven at trial or 35 -2- LSB 1258XD (7) 88 as/rh 2/ 11

S.F. _____ H.F. _____ admitted to during a guilty plea proceeding. 1 c. Whether any of the charges include sexual abuse or 2 involve sexual assault, and if so, whether a sexual assault 3 examination was conducted and evidence forensic samples were 4 preserved, if known. 5 d. Whether identity was at issue or contested by the 6 defendant. 7 e. Whether the defendant offered an alibi, and if so, 8 testimony corroborating the alibi and, from whom. 9 f. Whether eyewitness testimony was offered, and if so from 10 whom. 11 g. Whether any issues of police or prosecutor misconduct 12 have been raised in the past or are being raised by the motion. 13 h. The type of inculpatory evidence admitted into evidence 14 at trial or admitted to during a guilty plea proceeding. 15 i. Whether blood testing or other biological evidence 16 testing was conducted previously in connection with the case 17 and, if so, by whom and the result, if known. 18 j. What biological evidence exists and, if known, the agency 19 or laboratory storing the evidence forensic sample that the 20 defendant seeks to have tested. 21 k. Why the requested analysis of DNA evidence DNA profiling 22 of the forensic sample is material to the issue in the case and 23 not merely cumulative or impeaching. 24 l. Why the DNA evidence profiling results would have 25 changed the outcome of the trial or invalidated a guilty plea 26 if the requested DNA profiling had been conducted prior to the 27 conviction. 28 3. a. A motion proceeding for relief filed under this 29 section shall be filed in the county where the defendant was 30 convicted , and . The proceeding is commenced by filing an 31 application for relief with the district court in which the 32 conviction took place, without paying a filing fee. The notice 33 of the motion application shall be served by certified mail 34 upon the county attorney and, if known, upon the state, local 35 -3- LSB 1258XD (7) 88 as/rh 3/ 11

S.F. _____ H.F. _____ agency, or laboratory holding evidence described in subsection 1 2 , paragraph “k” . The county attorney shall have sixty days to 2 file an answer to the motion. 3 b. The application shall be heard in, and before any 4 judge or the court in which the defendant’s conviction or 5 sentence took place. A record of the proceedings shall be made 6 and preserved. All rules and statutes applicable in civil 7 proceedings including pretrial and discovery procedures shall 8 be available to the parties. The court may receive proof of 9 affidavits, depositions, oral testimony, or other evidence, and 10 may order the defendant brought before it for the hearing of 11 the application. 12 4. Any DNA profiling of the defendant or other biological 13 evidence testing conducted by the state or by the defendant 14 shall be disclosed and the results of such profiling or testing 15 described in the motion or answer. 16 5. If the evidence forensic sample requested to be tested 17 was previously subjected to DNA or other biological analysis 18 by either party, the court may order the disclosure of the 19 results of such testing, including laboratory reports, notes, 20 and underlying data, to the court and the parties. 21 6. The court may order a hearing on the motion to determine 22 if evidence the forensic sample should be subjected to DNA 23 analysis profiling . 24 7. The court shall grant the motion application if all of 25 the following apply: 26 a. The evidence forensic sample subject to DNA testing 27 profiling is available and in a condition that will permit 28 analysis. any of the following apply: 29 (1) DNA profiling has not been performed on the forensic 30 sample. 31 (2) DNA profiling has been previously performed on 32 the forensic sample and the defendant is requesting DNA 33 profiling using a new method or technology approved by the 34 accrediting organization and authorized by the federal bureau 35 -4- LSB 1258XD (7) 88 as/rh 4/ 11

S.F. _____ H.F. _____ of investigation for DNA profiling that is substantially more 1 probative than the DNA profiling previously performed. 2 b. A sufficient chain of custody has been established for 3 the evidence forensic sample . 4 c. The identity of the person who committed the crime for 5 which the defendant was convicted was a significant issue in 6 the crime for which the defendant was convicted. 7 d. The evidence forensic sample subject to DNA analysis 8 profiling is material to, and not merely cumulative or 9 impeaching of, evidence included in the trial record or 10 admitted to at a guilty plea proceeding. 11 e. DNA analysis of the evidence The DNA profiling results 12 would raise a reasonable probability that the defendant would 13 not have been convicted if DNA profiling had been available at 14 the time of the conviction and had been conducted prior to the 15 conviction such results had been introduced at trial . 16 8. a. Upon the court granting a motion an application filed 17 pursuant to this section , DNA analysis profiling of evidence 18 a forensic sample shall be conducted within the guidelines 19 generally accepted by the scientific community. The defendant 20 shall provide DNA samples for testing if requested by the 21 state. 22 b. After proper notice to the parties, including the 23 department of public safety or other entity authorized to 24 perform the search, if a DNA profile complies with federal 25 bureau of investigation requirements or state requirements, 26 whichever are applicable, as such requirements are applied 27 to law enforcement agencies seeking such a comparison, and 28 the database meets combined DNA index system or state DNA 29 index system criteria, whichever is applicable, the court may 30 enter an order that authorizes the department of public safety 31 or other entity to access the DNA database to do any of the 32 following: 33 (1) Compare a DNA profile obtained from a DNA sample or 34 forensic sample collected in connection with an investigation 35 -5- LSB 1258XD (7) 88 as/rh 5/ 11

S.F. _____ H.F. _____ or prosecution of the defendant against the DNA database 1 through the use of a keyboard search or through a continuous 2 keyboard search method that involves uploading the DNA profile 3 to the DNA database. 4 (2) Utilize a search method similar to a keyboard search 5 that does not involve uploading the DNA profile to the DNA 6 database. 7 9. Results of DNA analysis profiling conducted pursuant 8 to this section shall be reported to the parties and to the 9 court and may be provided to the board of parole, department 10 of corrections, and criminal and juvenile justice agencies, 11 as defined in section 692.1 , for use in the course of 12 investigations and prosecutions, and for consideration in 13 connection with requests for parole, pardon, reprieve, and 14 commutation. DNA samples obtained pursuant to this section 15 may be included in the DNA data bank, and DNA profiles and DNA 16 records developed pursuant to this section may be included in 17 the DNA database. 18 10. A criminal or juvenile justice agency, as defined in 19 section 692.1 , shall maintain DNA samples and evidence forensic 20 samples that could be tested for DNA for a period of three 21 years beyond the limitations for the commencement of criminal 22 actions as set forth in chapter 802 . This section does not 23 create a cause of action for damages or a presumption of 24 spoliation in the event evidence a forensic sample is no longer 25 available for testing. 26 11. If the court determines a defendant who files a motion 27 an application under this section is indigent, the defendant 28 shall be entitled to appointment of counsel as provided in 29 chapter 815 . 30 12. If the court determines after DNA analysis profiling 31 ordered pursuant to this section that the results indicate 32 conclusively that the DNA profile of the defendant matches the 33 profile from the analyzed evidence used against the defendant, 34 the court may order the defendant to pay the costs of these 35 -6- LSB 1258XD (7) 88 as/rh 6/ 11

S.F. _____ H.F. _____ proceedings, including costs of all testing, court costs, and 1 costs of court-appointed counsel, if any. 2 13. a. If DNA profiling results ordered pursuant to this 3 section are favorable to the defendant, the defendant may 4 file a motion for release. The state shall file a response 5 consenting to or opposing the motion no later than thirty days 6 after the docketing of the motion, or within any further time 7 as determined by the court. 8 b. If the state does not oppose the motion and if the 9 court finds that the results of the DNA profiling indicate a 10 reasonable probability that the defendant would not have been 11 convicted if such DNA profiling results had been introduced 12 at trial, the court shall enter an appropriate order with 13 respect to the defendant’s conviction or sentence in the former 14 criminal proceedings, and any supplementary orders as to 15 rearraignment, retrial, custody, bail, discharge, correction of 16 sentence, or other matters that may be necessary and proper. 17 c. If the state files a response opposing the defendant’s 18 motion for release, the court shall conduct a hearing. The 19 defendant shall have the burden of proving the allegations of 20 the motion by a preponderance of the evidence. If the court 21 determines after a hearing that the results of DNA profiling 22 ordered pursuant to this section indicate a reasonable 23 probability the defendant would not have been convicted if 24 such DNA profiling results had been introduced at trial, the 25 court shall enter an appropriate order with respect to the 26 defendant’s conviction or sentence in the former criminal 27 proceedings, and any supplementary orders as to rearraignment, 28 retrial, custody, bail, discharge, correction of sentence, or 29 other matters that may be necessary and proper. 30 d. The court shall make specific findings of fact, and 31 state expressly its conclusions of law, relating to each issue 32 presented. This order shall be considered a final judgment, 33 but the judgment shall not be given preclusive effect in a 34 subsequent action pursuant to chapter 822. 35 -7- LSB 1258XD (7) 88 as/rh 7/ 11

S.F. _____ H.F. _____ Sec. 3. NEW SECTION . 81.11 Compliance with applicable laws. 1 A court shall not enter an order under this chapter that 2 would result in a violation of state or federal law or loss of 3 access to a federal system or database. 4 EXPLANATION 5 The inclusion of this explanation does not constitute agreement with 6 the explanation’s substance by the members of the general assembly. 7 This bill relates to a defendant filing an application for 8 an order to require that DNA analysis be performed on evidence 9 after conviction. 10 The bill modifies or adds numerous definitions under Code 11 chapter 81 (DNA profiling). 12 The bill defines “combined DNA index system” to mean a 13 national, searchable DNA database created and maintained by the 14 federal bureau of investigation where DNA profiles are stored 15 and searched at a local, state, or national level. 16 The bill expands the definition of “DNA profile” to include 17 the objective form of the results of DNA analysis performed on 18 a forensic sample or an individual’s DNA sample. Currently, 19 “DNA profile” means the objective form of the results of DNA 20 analysis performed on a DNA sample, and the results of all DNA 21 identification analysis on an individual’s DNA sample are also 22 collectively referred to as the DNA profile of an individual. 23 The bill defines “forensic sample” to mean an evidentiary 24 item that may contain DNA relevant to a crime. 25 The bill defines “keyboard search” to mean a manual keyboard 26 search conducted in accordance with the current version of the 27 national DNA index operational procedures manual. 28 The bill provides that a defendant who has been convicted of 29 a felony or an aggravated misdemeanor may make an application 30 to the court for an order to require that DNA profiling be 31 performed on a forensic sample collected in the case for which 32 the defendant stands convicted. Current law provides that such 33 a defendant who has not previously been required to submit a 34 DNA sample for DNA profiling may make such an application. 35 -8- LSB 1258XD (7) 88 as/rh 8/ 11

S.F. _____ H.F. _____ The bill requires the defendant’s application for an order 1 to require DNA profiling be performed on a forensic sample 2 collected in the case to include a statement detailing why 3 the DNA profiling results would have changed the outcome of 4 the trial or invalidated a guilty plea if the requested DNA 5 profiling had been conducted prior to the conviction. Current 6 law requires such application to state why DNA evidence would 7 have changed the outcome of the trial or invalidated a guilty 8 plea if DNA profiling had been conducted prior to conviction. 9 The bill specifies that the defendant’s application shall 10 be served upon the county attorney and upon the laboratory, if 11 known by the defendant, holding the biological evidence. 12 Subject to the confidentiality provisions of Code section 13 81.8, the bill requires that any DNA profiling of the defendant 14 or an unknown person, or other biological evidence conducted 15 by the state or by the defendant shall be disclosed and the 16 results of such profiling or other testing be described in 17 the motion or answer. Current law requires DNA profiling, 18 not DNA testing results, to be disclosed and does not require 19 disclosure when the DNA profiling results in the DNA profile of 20 an unknown person. 21 The bill specifies that the court shall grant the 22 defendant’s application for an order to require that DNA 23 profiling be performed on a forensic sample collected in 24 the case for which the person stands convicted when either 25 DNA profiling has not been performed on the forensic sample 26 or when DNA profiling has been previously performed on 27 the forensic sample and the defendant is requesting DNA 28 profiling using a new method or technology approved by the 29 accrediting organization and authorized by the federal bureau 30 of investigation for DNA profiling that is substantially more 31 probative than prior DNA profiling. 32 Additionally, the bill specifies that the defendant’s 33 application shall be granted if a sufficient chain of custody 34 has been established for the forensic sample; the identity of 35 -9- LSB 1258XD (7) 88 as/rh 9/ 11

S.F. _____ H.F. _____ the person who committed the crime for which the defendant 1 was convicted was a significant issue in the crime for which 2 the defendant was convicted; the forensic sample is material 3 to evidence included in the trial record or admitted to at a 4 guilty plea proceeding; and the DNA profiling results would 5 raise a reasonable probability that the defendant would not 6 have been convicted if such results had been introduced at 7 trial. 8 Upon the court granting a defendant’s application under the 9 bill, DNA profiling of a forensic sample shall be conducted 10 within the guidelines generally accepted by the scientific 11 community. The court may enter an order that authorizes the 12 department of public safety or other entity to access the DNA 13 database and either compare a DNA profile obtained from a DNA 14 sample or forensic sample collected in connection with an 15 investigation or prosecution of the defendant against the DNA 16 database by using a keyboard search or using a search method 17 similar to a keyboard search that does not involve uploading 18 the DNA profile to the DNA database. 19 The court may enter an order authorizing the department 20 of public safety or other entity to utilize a search method 21 similar to the keyboard search that does not involve uploading 22 the DNA profile to the DNA database if the DNA profile complies 23 with federal bureau of investigation requirements or state 24 requirements, whichever are applicable, as such requirements 25 are applied to law enforcement agencies seeking such a 26 comparison, and the database meets combined DNA index system 27 criteria or state DNA index system criteria, whichever is 28 applicable. 29 The bill provides that if the results of a DNA profile are 30 favorable to the defendant, the defendant may file a motion 31 for release. The state shall file a response consenting to or 32 opposing the motion no later than 30 days after the docketing 33 of the motion, or within any further time as determined by the 34 court. If the state does not oppose the motion and if the 35 -10- LSB 1258XD (7) 88 as/rh 10/ 11

S.F. _____ H.F. _____ court finds that the results of such DNA profiling indicate a 1 reasonable probability that the defendant would not have been 2 convicted if such DNA profiling results had been introduced 3 at trial, the court shall enter an appropriate order with 4 respect to the defendant’s conviction or sentence in the former 5 criminal proceedings, and any supplementary orders as to 6 rearraignment, retrial, custody, bail, discharge, correction of 7 sentence, or other matters that may be necessary and proper. 8 The bill provides that if the state files a response opposing 9 the defendant’s motion for release, the court shall conduct a 10 hearing. The defendant shall have the burden of proving the 11 allegations of the motion by a preponderance of the evidence. 12 If the court determines after a hearing that the results of DNA 13 profiling ordered pursuant to the bill indicate a reasonable 14 probability the defendant would not have been convicted if 15 such DNA profiling results had been introduced at trial, the 16 court shall enter an appropriate order with respect to the 17 defendant’s conviction or sentence in the former criminal 18 proceedings, and any supplementary orders as to rearraignment, 19 retrial, custody, bail, discharge, correction of sentence, or 20 other matters that may be necessary and proper. The court 21 shall make specific findings of fact, and state expressly its 22 conclusions of law, relating to each issue presented. This 23 order shall be considered a final judgment, but the judgment 24 shall not be given preclusive effect to a subsequent action 25 pursuant to Code chapter 822 (postconviction procedure). 26 The bill also specifies that a court shall not enter an order 27 that would result in a violation of state or federal law or 28 loss of access to a federal system or database. 29 -11- LSB 1258XD (7) 88 as/rh 11/ 11