Print
House Study Bill 142 - IntroducedA Bill ForAn Act 1relating to postconviction DNA profiling procedure.
2BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 81.1, Code 2019, is amended to read as
2follows:
381.1 Definitions.
4As used in this chapter, unless the context otherwise
5requires:
61. “Aggravated misdemeanor” means an offense classified as
7an aggravated misdemeanor committed by a person eighteen years
8of age or older on or after July 1, 2014, other than any of the
9following offenses:
10a. A violation of chapter 321.
11b. A second offense violation of section 321J.2, unless
12the person has more than one previous revocation as determined
13pursuant to section 321J.2, subsection 8, within the
14twelve-year period immediately preceding the commission of the
15offense in question.
16c. A violation of chapter 716B.
17d. A violation of chapter 717A.
18e. A violation of section 725.7.
192. “Combined DNA index system” means a national, searchable
20DNA database created and maintained by the federal bureau of
21investigation where DNA profiles are stored and searched at a
22local, state, or national level.
232. 3. “DNA” means deoxyribonucleic acid.
243. 4. “DNA data bank” means the repository for DNA samples
25obtained pursuant to section 81.4.
264. 5. “DNA database” means the collection of DNA profiles
27and DNA records.
285. 6. “DNA profile” means the objective form of the
29results of DNA analysis performed on a forensic sample or an
30individual’s DNA sample. The results of all DNA identification
31analysis on an individual’s DNA sample are also collectively
32referred to as the DNA profile of an individual. “DNA profile”
33 also means the objective form of the results of DNA analysis
34performed on a forensic sample.
356. 7. “DNA profiling” means the procedure established by
-1-1the division of criminal investigation, department of public
2safety, for determining a person’s genetic identity or for
3testing a forensic sample, including analysis that might not
4result in the establishment of a complete DNA profile.
57. 8. “DNA record” means the DNA sample and DNA profile,
6and other records in the DNA database and DNA data bank used to
7identify a person.
88. 9. “DNA sample” means a biological sample provided by
9any person required to submit a DNA sample or a DNA sample
10submitted for any other purpose under section 81.4.
1110. “Forensic sample” means an evidentiary item that may
12contain DNA relevant to a crime.
1311. “Keyboard search” means a manual keyboard search
14conducted in accordance with the current version of the
15national DNA index system operational procedures manual.
169. 12. “Person required to submit a DNA sample” means a
17person convicted, adjudicated delinquent, receiving a deferred
18judgment, or found not guilty by reason of insanity of an
19offense requiring DNA profiling pursuant to section 81.2.
20“Person required to submit a DNA sample” also means a person
21determined to be a sexually violent predator pursuant to
22section 229A.7.
23 Sec. 2. Section 81.10, Code 2019, is amended to read as
24follows:
2581.10 DNA profiling after conviction.
261. A defendant who has been convicted of a felony or
27aggravated misdemeanor and who has not been required to submit
28a DNA sample for DNA profiling may make a motion an application
29 to the court for an order to require that DNA analysis
30 profiling be performed on evidence a forensic sample collected
31in the case for which the person stands convicted.
322. The motion application shall state the following:
33a. The specific crimes for which the defendant stands
34convicted in this case.
35b. The facts of the underlying case, as proven at trial or
-2-1admitted to during a guilty plea proceeding.
2c. Whether any of the charges include sexual abuse or
3involve sexual assault, and if so, whether a sexual assault
4examination was conducted and evidence forensic samples were
5 preserved, if known.
6d. Whether identity was at issue or contested by the
7defendant.
8e. Whether the defendant offered an alibi, and if so,
9testimony corroborating the alibi and, from whom.
10f. Whether eyewitness testimony was offered, and if so from
11whom.
12g. Whether any issues of police or prosecutor misconduct
13have been raised in the past or are being raised by the motion.
14h. The type of inculpatory evidence admitted into evidence
15at trial or admitted to during a guilty plea proceeding.
16i. Whether blood testing or other biological evidence
17testing was conducted previously in connection with the case
18and, if so, by whom and the result, if known.
19j. What biological evidence exists and, if known, the agency
20or laboratory storing the evidence forensic sample that the
21defendant seeks to have tested.
22k. Why the requested analysis of DNA evidence DNA profiling
23of the forensic sample is material to the issue in the case and
24not merely cumulative or impeaching.
25l. Why the DNA evidence profiling results would have
26changed the outcome of the trial or invalidated a guilty plea
27if the requested DNA profiling had been conducted prior to the
28conviction.
293. a. A motion proceeding for relief filed under this
30section shall be filed in the county where the defendant was
31convicted, and. The proceeding is commenced by filing an
32application for relief with the district court in which the
33conviction took place, without paying a filing fee. The notice
34of the motion application shall be served by certified mail
35upon the county attorney and, if known, upon the state, local
-3-1agency, or laboratory holding evidence described in subsection
22, paragraph “k”. The county attorney shall have sixty days to
3file an answer to the motion.
4b. The application shall be heard in, and before any
5judge or the court in which the defendant’s conviction or
6sentence took place. A record of the proceedings shall be made
7and preserved. All rules and statutes applicable in civil
8proceedings including pretrial and discovery procedures shall
9be available to the parties. The court may receive proof of
10affidavits, depositions, oral testimony, or other evidence, and
11may order the defendant brought before it for the hearing of
12the application.
134. Any DNA profiling of the defendant or other biological
14evidence testing conducted by the state or by the defendant
15shall be disclosed and the results of such profiling or testing
16described in the motion or answer.
175. If the evidence forensic sample requested to be tested
18was previously subjected to DNA or other biological analysis
19by either party, the court may order the disclosure of the
20results of such testing, including laboratory reports, notes,
21and underlying data, to the court and the parties.
226. The court may order a hearing on the motion to determine
23if evidence the forensic sample should be subjected to DNA
24analysis profiling.
257. The court shall grant the motion application if all of
26the following apply:
27a. The evidence forensic sample subject to DNA testing
28 profiling is available and in a condition that will permit
29analysis. any of the following apply:
30(1) DNA profiling has not been performed on the forensic
31sample.
32(2) DNA profiling has been previously performed on
33the forensic sample and the defendant is requesting DNA
34profiling using a new method or technology approved by the
35accrediting organization and authorized by the federal bureau
-4-1of investigation for DNA profiling that is substantially more
2probative than the DNA profiling previously performed.
3b. A sufficient chain of custody has been established for
4the evidence forensic sample.
5c. The identity of the person who committed the crime for
6which the defendant was convicted was a significant issue in
7the crime for which the defendant was convicted.
8d. The evidence forensic sample subject to DNA analysis
9 profiling is material to, and not merely cumulative or
10impeaching of, evidence included in the trial record or
11admitted to at a guilty plea proceeding.
12e. DNA analysis of the evidence The DNA profiling results
13 would raise a reasonable probability that the defendant would
14not have been convicted if DNA profiling had been available at
15the time of the conviction and had been conducted prior to the
16conviction such results had been introduced at trial.
178. a. Upon the court granting a motion an application filed
18pursuant to this section, DNA analysis profiling of evidence
19 a forensic sample shall be conducted within the guidelines
20generally accepted by the scientific community. The defendant
21shall provide DNA samples for testing if requested by the
22state.
23b. After proper notice to the parties, including the
24department of public safety or other entity authorized to
25perform the search, if a DNA profile complies with federal
26bureau of investigation requirements or state requirements,
27whichever are applicable, as such requirements are applied
28to law enforcement agencies seeking such a comparison, and
29the database meets combined DNA index system or state DNA
30index system criteria, whichever is applicable, the court may
31enter an order that authorizes the department of public safety
32or other entity to access the DNA database to do any of the
33following:
34(1) Compare a DNA profile obtained from a DNA sample or
35forensic sample collected in connection with an investigation
-5-1or prosecution of the defendant against the DNA database
2through the use of a keyboard search or through a continuous
3keyboard search method that involves uploading the DNA profile
4to the DNA database.
5(2) Utilize a search method similar to a keyboard search
6that does not involve uploading the DNA profile to the DNA
7database.
89. Results of DNA analysis profiling conducted pursuant
9to this section shall be reported to the parties and to the
10court and may be provided to the board of parole, department
11of corrections, and criminal and juvenile justice agencies,
12as defined in section 692.1, for use in the course of
13investigations and prosecutions, and for consideration in
14connection with requests for parole, pardon, reprieve, and
15commutation. DNA samples obtained pursuant to this section
16may be included in the DNA data bank, and DNA profiles and DNA
17records developed pursuant to this section may be included in
18the DNA database.
1910. A criminal or juvenile justice agency, as defined in
20section 692.1, shall maintain DNA samples and evidence forensic
21samples that could be tested for DNA for a period of three
22years beyond the limitations for the commencement of criminal
23actions as set forth in chapter 802. This section does not
24create a cause of action for damages or a presumption of
25spoliation in the event evidence a forensic sample is no longer
26available for testing.
2711. If the court determines a defendant who files a motion
28 an application under this section is indigent, the defendant
29shall be entitled to appointment of counsel as provided in
30chapter 815.
3112. If the court determines after DNA analysis profiling
32 ordered pursuant to this section that the results indicate
33conclusively that the DNA profile of the defendant matches the
34profile from the analyzed evidence used against the defendant,
35the court may order the defendant to pay the costs of these
-6-1proceedings, including costs of all testing, court costs, and
2costs of court-appointed counsel, if any.
313. a. If DNA profiling results ordered pursuant to this
4section are favorable to the defendant, the defendant may
5file a motion for release. The state shall file a response
6consenting to or opposing the motion no later than thirty days
7after the docketing of the motion, or within any further time
8as determined by the court.
9b. If the state does not oppose the motion and if the
10court finds that the results of the DNA profiling indicate a
11reasonable probability that the defendant would not have been
12convicted if such DNA profiling results had been introduced
13at trial, the court shall enter an appropriate order with
14respect to the defendant’s conviction or sentence in the former
15criminal proceedings, and any supplementary orders as to
16rearraignment, retrial, custody, bail, discharge, correction of
17sentence, or other matters that may be necessary and proper.
18c. If the state files a response opposing the defendant’s
19motion for release, the court shall conduct a hearing. The
20defendant shall have the burden of proving the allegations of
21the motion by a preponderance of the evidence. If the court
22determines after a hearing that the results of DNA profiling
23ordered pursuant to this section indicate a reasonable
24probability the defendant would not have been convicted if
25such DNA profiling results had been introduced at trial, the
26court shall enter an appropriate order with respect to the
27defendant’s conviction or sentence in the former criminal
28proceedings, and any supplementary orders as to rearraignment,
29retrial, custody, bail, discharge, correction of sentence, or
30other matters that may be necessary and proper.
31d. The court shall make specific findings of fact, and
32state expressly its conclusions of law, relating to each issue
33presented. This order shall be considered a final judgment,
34but the judgment shall not be given preclusive effect in a
35subsequent action pursuant to chapter 822.
-7-1 Sec. 3. NEW SECTION. 81.11 Compliance with applicable laws.
2A court shall not enter an order under this chapter that
3would result in a violation of state or federal law or loss of
4access to a federal system or database.
5EXPLANATION
6The inclusion of this explanation does not constitute agreement with
7the explanation’s substance by the members of the general assembly.
8This bill relates to a defendant filing an application for
9an order to require that DNA analysis be performed on evidence
10after conviction.
11The bill modifies or adds numerous definitions under Code
12chapter 81 (DNA profiling).
13The bill defines “combined DNA index system” to mean a
14national, searchable DNA database created and maintained by the
15federal bureau of investigation where DNA profiles are stored
16and searched at a local, state, or national level.
17The bill expands the definition of “DNA profile” to include
18the objective form of the results of DNA analysis performed on
19a forensic sample or an individual’s DNA sample. Currently,
20“DNA profile” means the objective form of the results of DNA
21analysis performed on a DNA sample, and the results of all DNA
22identification analysis on an individual’s DNA sample are also
23collectively referred to as the DNA profile of an individual.
24The bill defines “forensic sample” to mean an evidentiary
25item that may contain DNA relevant to a crime.
26The bill defines “keyboard search” to mean a manual keyboard
27search conducted in accordance with the current version of the
28national DNA index operational procedures manual.
29The bill provides that a defendant who has been convicted of
30a felony or an aggravated misdemeanor may make an application
31to the court for an order to require that DNA profiling be
32performed on a forensic sample collected in the case for which
33the defendant stands convicted. Current law provides that such
34a defendant who has not previously been required to submit a
35DNA sample for DNA profiling may make such an application.
-8- 1The bill requires the defendant’s application for an order
2to require DNA profiling be performed on a forensic sample
3collected in the case to include a statement detailing why
4the DNA profiling results would have changed the outcome of
5the trial or invalidated a guilty plea if the requested DNA
6profiling had been conducted prior to the conviction. Current
7law requires such application to state why DNA evidence would
8have changed the outcome of the trial or invalidated a guilty
9plea if DNA profiling had been conducted prior to conviction.
10The bill specifies that the defendant’s application shall
11be served upon the county attorney and upon the laboratory, if
12known by the defendant, holding the biological evidence.
13Subject to the confidentiality provisions of Code section
1481.8, the bill requires that any DNA profiling of the defendant
15or an unknown person, or other biological evidence conducted
16by the state or by the defendant shall be disclosed and the
17results of such profiling or other testing be described in
18the motion or answer. Current law requires DNA profiling,
19not DNA testing results, to be disclosed and does not require
20disclosure when the DNA profiling results in the DNA profile of
21an unknown person.
22The bill specifies that the court shall grant the
23defendant’s application for an order to require that DNA
24profiling be performed on a forensic sample collected in
25the case for which the person stands convicted when either
26DNA profiling has not been performed on the forensic sample
27or when DNA profiling has been previously performed on
28the forensic sample and the defendant is requesting DNA
29profiling using a new method or technology approved by the
30accrediting organization and authorized by the federal bureau
31of investigation for DNA profiling that is substantially more
32probative than prior DNA profiling.
33Additionally, the bill specifies that the defendant’s
34application shall be granted if a sufficient chain of custody
35has been established for the forensic sample; the identity of
-9-1the person who committed the crime for which the defendant
2was convicted was a significant issue in the crime for which
3the defendant was convicted; the forensic sample is material
4to evidence included in the trial record or admitted to at a
5guilty plea proceeding; and the DNA profiling results would
6raise a reasonable probability that the defendant would not
7have been convicted if such results had been introduced at
8trial.
9Upon the court granting a defendant’s application under the
10bill, DNA profiling of a forensic sample shall be conducted
11within the guidelines generally accepted by the scientific
12community. The court may enter an order that authorizes the
13department of public safety or other entity to access the DNA
14database and either compare a DNA profile obtained from a DNA
15sample or forensic sample collected in connection with an
16investigation or prosecution of the defendant against the DNA
17database by using a keyboard search or using a search method
18similar to a keyboard search that does not involve uploading
19the DNA profile to the DNA database.
20The court may enter an order authorizing the department
21of public safety or other entity to utilize a search method
22similar to the keyboard search that does not involve uploading
23the DNA profile to the DNA database if the DNA profile complies
24with federal bureau of investigation requirements or state
25requirements, whichever are applicable, as such requirements
26are applied to law enforcement agencies seeking such a
27comparison, and the database meets combined DNA index system
28criteria or state DNA index system criteria, whichever is
29applicable.
30The bill provides that if the results of a DNA profile are
31favorable to the defendant, the defendant may file a motion
32for release. The state shall file a response consenting to or
33opposing the motion no later than 30 days after the docketing
34of the motion, or within any further time as determined by the
35court. If the state does not oppose the motion and if the
-10-1court finds that the results of such DNA profiling indicate a
2reasonable probability that the defendant would not have been
3convicted if such DNA profiling results had been introduced
4at trial, the court shall enter an appropriate order with
5respect to the defendant’s conviction or sentence in the former
6criminal proceedings, and any supplementary orders as to
7rearraignment, retrial, custody, bail, discharge, correction of
8sentence, or other matters that may be necessary and proper.
9The bill provides that if the state files a response opposing
10the defendant’s motion for release, the court shall conduct a
11hearing. The defendant shall have the burden of proving the
12allegations of the motion by a preponderance of the evidence.
13If the court determines after a hearing that the results of DNA
14profiling ordered pursuant to the bill indicate a reasonable
15probability the defendant would not have been convicted if
16such DNA profiling results had been introduced at trial, the
17court shall enter an appropriate order with respect to the
18defendant’s conviction or sentence in the former criminal
19proceedings, and any supplementary orders as to rearraignment,
20retrial, custody, bail, discharge, correction of sentence, or
21other matters that may be necessary and proper. The court
22shall make specific findings of fact, and state expressly its
23conclusions of law, relating to each issue presented. This
24order shall be considered a final judgment, but the judgment
25shall not be given preclusive effect to a subsequent action
26pursuant to Code chapter 822 (postconviction procedure).
27The bill also specifies that a court shall not enter an order
28that would result in a violation of state or federal law or
29loss of access to a federal system or database.
-11-as/rh
2BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. Section 81.1, Code 2019, is amended to read as
2follows:
381.1 Definitions.
4As used in this chapter, unless the context otherwise
5requires:
61. “Aggravated misdemeanor” means an offense classified as
7an aggravated misdemeanor committed by a person eighteen years
8of age or older on or after July 1, 2014, other than any of the
9following offenses:
10a. A violation of chapter 321.
11b. A second offense violation of section 321J.2, unless
12the person has more than one previous revocation as determined
13pursuant to section 321J.2, subsection 8, within the
14twelve-year period immediately preceding the commission of the
15offense in question.
16c. A violation of chapter 716B.
17d. A violation of chapter 717A.
18e. A violation of section 725.7.
192. “Combined DNA index system” means a national, searchable
20DNA database created and maintained by the federal bureau of
21investigation where DNA profiles are stored and searched at a
22local, state, or national level.
232. 3. “DNA” means deoxyribonucleic acid.
243. 4. “DNA data bank” means the repository for DNA samples
25obtained pursuant to section 81.4.
264. 5. “DNA database” means the collection of DNA profiles
27and DNA records.
285. 6. “DNA profile” means the objective form of the
29results of DNA analysis performed on a forensic sample or an
30individual’s DNA sample. The results of all DNA identification
31analysis on an individual’s DNA sample are also collectively
32referred to as the DNA profile of an individual. “DNA profile”
33 also means the objective form of the results of DNA analysis
34performed on a forensic sample.
356. 7. “DNA profiling” means the procedure established by
-1-1the division of criminal investigation, department of public
2safety, for determining a person’s genetic identity or for
3testing a forensic sample, including analysis that might not
4result in the establishment of a complete DNA profile.
57. 8. “DNA record” means the DNA sample and DNA profile,
6and other records in the DNA database and DNA data bank used to
7identify a person.
88. 9. “DNA sample” means a biological sample provided by
9any person required to submit a DNA sample or a DNA sample
10submitted for any other purpose under section 81.4.
1110. “Forensic sample” means an evidentiary item that may
12contain DNA relevant to a crime.
1311. “Keyboard search” means a manual keyboard search
14conducted in accordance with the current version of the
15national DNA index system operational procedures manual.
169. 12. “Person required to submit a DNA sample” means a
17person convicted, adjudicated delinquent, receiving a deferred
18judgment, or found not guilty by reason of insanity of an
19offense requiring DNA profiling pursuant to section 81.2.
20“Person required to submit a DNA sample” also means a person
21determined to be a sexually violent predator pursuant to
22section 229A.7.
23 Sec. 2. Section 81.10, Code 2019, is amended to read as
24follows:
2581.10 DNA profiling after conviction.
261. A defendant who has been convicted of a felony or
27aggravated misdemeanor and who has not been required to submit
28a DNA sample for DNA profiling may make a motion an application
29 to the court for an order to require that DNA analysis
30 profiling be performed on evidence a forensic sample collected
31in the case for which the person stands convicted.
322. The motion application shall state the following:
33a. The specific crimes for which the defendant stands
34convicted in this case.
35b. The facts of the underlying case, as proven at trial or
-2-1admitted to during a guilty plea proceeding.
2c. Whether any of the charges include sexual abuse or
3involve sexual assault, and if so, whether a sexual assault
4examination was conducted and evidence forensic samples were
5 preserved, if known.
6d. Whether identity was at issue or contested by the
7defendant.
8e. Whether the defendant offered an alibi, and if so,
9testimony corroborating the alibi and, from whom.
10f. Whether eyewitness testimony was offered, and if so from
11whom.
12g. Whether any issues of police or prosecutor misconduct
13have been raised in the past or are being raised by the motion.
14h. The type of inculpatory evidence admitted into evidence
15at trial or admitted to during a guilty plea proceeding.
16i. Whether blood testing or other biological evidence
17testing was conducted previously in connection with the case
18and, if so, by whom and the result, if known.
19j. What biological evidence exists and, if known, the agency
20or laboratory storing the evidence forensic sample that the
21defendant seeks to have tested.
22k. Why the requested analysis of DNA evidence DNA profiling
23of the forensic sample is material to the issue in the case and
24not merely cumulative or impeaching.
25l. Why the DNA evidence profiling results would have
26changed the outcome of the trial or invalidated a guilty plea
27if the requested DNA profiling had been conducted prior to the
28conviction.
293. a. A motion proceeding for relief filed under this
30section shall be filed in the county where the defendant was
31convicted, and. The proceeding is commenced by filing an
32application for relief with the district court in which the
33conviction took place, without paying a filing fee. The notice
34of the motion application shall be served by certified mail
35upon the county attorney and, if known, upon the state, local
-3-1agency, or laboratory holding evidence described in subsection
22, paragraph “k”. The county attorney shall have sixty days to
3file an answer to the motion.
4b. The application shall be heard in, and before any
5judge or the court in which the defendant’s conviction or
6sentence took place. A record of the proceedings shall be made
7and preserved. All rules and statutes applicable in civil
8proceedings including pretrial and discovery procedures shall
9be available to the parties. The court may receive proof of
10affidavits, depositions, oral testimony, or other evidence, and
11may order the defendant brought before it for the hearing of
12the application.
134. Any DNA profiling of the defendant or other biological
14evidence testing conducted by the state or by the defendant
15shall be disclosed and the results of such profiling or testing
16described in the motion or answer.
175. If the evidence forensic sample requested to be tested
18was previously subjected to DNA or other biological analysis
19by either party, the court may order the disclosure of the
20results of such testing, including laboratory reports, notes,
21and underlying data, to the court and the parties.
226. The court may order a hearing on the motion to determine
23if evidence the forensic sample should be subjected to DNA
24analysis profiling.
257. The court shall grant the motion application if all of
26the following apply:
27a. The evidence forensic sample subject to DNA testing
28 profiling is available and in a condition that will permit
29analysis. any of the following apply:
30(1) DNA profiling has not been performed on the forensic
31sample.
32(2) DNA profiling has been previously performed on
33the forensic sample and the defendant is requesting DNA
34profiling using a new method or technology approved by the
35accrediting organization and authorized by the federal bureau
-4-1of investigation for DNA profiling that is substantially more
2probative than the DNA profiling previously performed.
3b. A sufficient chain of custody has been established for
4the evidence forensic sample.
5c. The identity of the person who committed the crime for
6which the defendant was convicted was a significant issue in
7the crime for which the defendant was convicted.
8d. The evidence forensic sample subject to DNA analysis
9 profiling is material to, and not merely cumulative or
10impeaching of, evidence included in the trial record or
11admitted to at a guilty plea proceeding.
12e. DNA analysis of the evidence The DNA profiling results
13 would raise a reasonable probability that the defendant would
14not have been convicted if DNA profiling had been available at
15the time of the conviction and had been conducted prior to the
16conviction such results had been introduced at trial.
178. a. Upon the court granting a motion an application filed
18pursuant to this section, DNA analysis profiling of evidence
19 a forensic sample shall be conducted within the guidelines
20generally accepted by the scientific community. The defendant
21shall provide DNA samples for testing if requested by the
22state.
23b. After proper notice to the parties, including the
24department of public safety or other entity authorized to
25perform the search, if a DNA profile complies with federal
26bureau of investigation requirements or state requirements,
27whichever are applicable, as such requirements are applied
28to law enforcement agencies seeking such a comparison, and
29the database meets combined DNA index system or state DNA
30index system criteria, whichever is applicable, the court may
31enter an order that authorizes the department of public safety
32or other entity to access the DNA database to do any of the
33following:
34(1) Compare a DNA profile obtained from a DNA sample or
35forensic sample collected in connection with an investigation
-5-1or prosecution of the defendant against the DNA database
2through the use of a keyboard search or through a continuous
3keyboard search method that involves uploading the DNA profile
4to the DNA database.
5(2) Utilize a search method similar to a keyboard search
6that does not involve uploading the DNA profile to the DNA
7database.
89. Results of DNA analysis profiling conducted pursuant
9to this section shall be reported to the parties and to the
10court and may be provided to the board of parole, department
11of corrections, and criminal and juvenile justice agencies,
12as defined in section 692.1, for use in the course of
13investigations and prosecutions, and for consideration in
14connection with requests for parole, pardon, reprieve, and
15commutation. DNA samples obtained pursuant to this section
16may be included in the DNA data bank, and DNA profiles and DNA
17records developed pursuant to this section may be included in
18the DNA database.
1910. A criminal or juvenile justice agency, as defined in
20section 692.1, shall maintain DNA samples and evidence forensic
21samples that could be tested for DNA for a period of three
22years beyond the limitations for the commencement of criminal
23actions as set forth in chapter 802. This section does not
24create a cause of action for damages or a presumption of
25spoliation in the event evidence a forensic sample is no longer
26available for testing.
2711. If the court determines a defendant who files a motion
28 an application under this section is indigent, the defendant
29shall be entitled to appointment of counsel as provided in
30chapter 815.
3112. If the court determines after DNA analysis profiling
32 ordered pursuant to this section that the results indicate
33conclusively that the DNA profile of the defendant matches the
34profile from the analyzed evidence used against the defendant,
35the court may order the defendant to pay the costs of these
-6-1proceedings, including costs of all testing, court costs, and
2costs of court-appointed counsel, if any.
313. a. If DNA profiling results ordered pursuant to this
4section are favorable to the defendant, the defendant may
5file a motion for release. The state shall file a response
6consenting to or opposing the motion no later than thirty days
7after the docketing of the motion, or within any further time
8as determined by the court.
9b. If the state does not oppose the motion and if the
10court finds that the results of the DNA profiling indicate a
11reasonable probability that the defendant would not have been
12convicted if such DNA profiling results had been introduced
13at trial, the court shall enter an appropriate order with
14respect to the defendant’s conviction or sentence in the former
15criminal proceedings, and any supplementary orders as to
16rearraignment, retrial, custody, bail, discharge, correction of
17sentence, or other matters that may be necessary and proper.
18c. If the state files a response opposing the defendant’s
19motion for release, the court shall conduct a hearing. The
20defendant shall have the burden of proving the allegations of
21the motion by a preponderance of the evidence. If the court
22determines after a hearing that the results of DNA profiling
23ordered pursuant to this section indicate a reasonable
24probability the defendant would not have been convicted if
25such DNA profiling results had been introduced at trial, the
26court shall enter an appropriate order with respect to the
27defendant’s conviction or sentence in the former criminal
28proceedings, and any supplementary orders as to rearraignment,
29retrial, custody, bail, discharge, correction of sentence, or
30other matters that may be necessary and proper.
31d. The court shall make specific findings of fact, and
32state expressly its conclusions of law, relating to each issue
33presented. This order shall be considered a final judgment,
34but the judgment shall not be given preclusive effect in a
35subsequent action pursuant to chapter 822.
-7-1 Sec. 3. NEW SECTION. 81.11 Compliance with applicable laws.
2A court shall not enter an order under this chapter that
3would result in a violation of state or federal law or loss of
4access to a federal system or database.
5EXPLANATION
6The inclusion of this explanation does not constitute agreement with
7the explanation’s substance by the members of the general assembly.
8This bill relates to a defendant filing an application for
9an order to require that DNA analysis be performed on evidence
10after conviction.
11The bill modifies or adds numerous definitions under Code
12chapter 81 (DNA profiling).
13The bill defines “combined DNA index system” to mean a
14national, searchable DNA database created and maintained by the
15federal bureau of investigation where DNA profiles are stored
16and searched at a local, state, or national level.
17The bill expands the definition of “DNA profile” to include
18the objective form of the results of DNA analysis performed on
19a forensic sample or an individual’s DNA sample. Currently,
20“DNA profile” means the objective form of the results of DNA
21analysis performed on a DNA sample, and the results of all DNA
22identification analysis on an individual’s DNA sample are also
23collectively referred to as the DNA profile of an individual.
24The bill defines “forensic sample” to mean an evidentiary
25item that may contain DNA relevant to a crime.
26The bill defines “keyboard search” to mean a manual keyboard
27search conducted in accordance with the current version of the
28national DNA index operational procedures manual.
29The bill provides that a defendant who has been convicted of
30a felony or an aggravated misdemeanor may make an application
31to the court for an order to require that DNA profiling be
32performed on a forensic sample collected in the case for which
33the defendant stands convicted. Current law provides that such
34a defendant who has not previously been required to submit a
35DNA sample for DNA profiling may make such an application.
-8- 1The bill requires the defendant’s application for an order
2to require DNA profiling be performed on a forensic sample
3collected in the case to include a statement detailing why
4the DNA profiling results would have changed the outcome of
5the trial or invalidated a guilty plea if the requested DNA
6profiling had been conducted prior to the conviction. Current
7law requires such application to state why DNA evidence would
8have changed the outcome of the trial or invalidated a guilty
9plea if DNA profiling had been conducted prior to conviction.
10The bill specifies that the defendant’s application shall
11be served upon the county attorney and upon the laboratory, if
12known by the defendant, holding the biological evidence.
13Subject to the confidentiality provisions of Code section
1481.8, the bill requires that any DNA profiling of the defendant
15or an unknown person, or other biological evidence conducted
16by the state or by the defendant shall be disclosed and the
17results of such profiling or other testing be described in
18the motion or answer. Current law requires DNA profiling,
19not DNA testing results, to be disclosed and does not require
20disclosure when the DNA profiling results in the DNA profile of
21an unknown person.
22The bill specifies that the court shall grant the
23defendant’s application for an order to require that DNA
24profiling be performed on a forensic sample collected in
25the case for which the person stands convicted when either
26DNA profiling has not been performed on the forensic sample
27or when DNA profiling has been previously performed on
28the forensic sample and the defendant is requesting DNA
29profiling using a new method or technology approved by the
30accrediting organization and authorized by the federal bureau
31of investigation for DNA profiling that is substantially more
32probative than prior DNA profiling.
33Additionally, the bill specifies that the defendant’s
34application shall be granted if a sufficient chain of custody
35has been established for the forensic sample; the identity of
-9-1the person who committed the crime for which the defendant
2was convicted was a significant issue in the crime for which
3the defendant was convicted; the forensic sample is material
4to evidence included in the trial record or admitted to at a
5guilty plea proceeding; and the DNA profiling results would
6raise a reasonable probability that the defendant would not
7have been convicted if such results had been introduced at
8trial.
9Upon the court granting a defendant’s application under the
10bill, DNA profiling of a forensic sample shall be conducted
11within the guidelines generally accepted by the scientific
12community. The court may enter an order that authorizes the
13department of public safety or other entity to access the DNA
14database and either compare a DNA profile obtained from a DNA
15sample or forensic sample collected in connection with an
16investigation or prosecution of the defendant against the DNA
17database by using a keyboard search or using a search method
18similar to a keyboard search that does not involve uploading
19the DNA profile to the DNA database.
20The court may enter an order authorizing the department
21of public safety or other entity to utilize a search method
22similar to the keyboard search that does not involve uploading
23the DNA profile to the DNA database if the DNA profile complies
24with federal bureau of investigation requirements or state
25requirements, whichever are applicable, as such requirements
26are applied to law enforcement agencies seeking such a
27comparison, and the database meets combined DNA index system
28criteria or state DNA index system criteria, whichever is
29applicable.
30The bill provides that if the results of a DNA profile are
31favorable to the defendant, the defendant may file a motion
32for release. The state shall file a response consenting to or
33opposing the motion no later than 30 days after the docketing
34of the motion, or within any further time as determined by the
35court. If the state does not oppose the motion and if the
-10-1court finds that the results of such DNA profiling indicate a
2reasonable probability that the defendant would not have been
3convicted if such DNA profiling results had been introduced
4at trial, the court shall enter an appropriate order with
5respect to the defendant’s conviction or sentence in the former
6criminal proceedings, and any supplementary orders as to
7rearraignment, retrial, custody, bail, discharge, correction of
8sentence, or other matters that may be necessary and proper.
9The bill provides that if the state files a response opposing
10the defendant’s motion for release, the court shall conduct a
11hearing. The defendant shall have the burden of proving the
12allegations of the motion by a preponderance of the evidence.
13If the court determines after a hearing that the results of DNA
14profiling ordered pursuant to the bill indicate a reasonable
15probability the defendant would not have been convicted if
16such DNA profiling results had been introduced at trial, the
17court shall enter an appropriate order with respect to the
18defendant’s conviction or sentence in the former criminal
19proceedings, and any supplementary orders as to rearraignment,
20retrial, custody, bail, discharge, correction of sentence, or
21other matters that may be necessary and proper. The court
22shall make specific findings of fact, and state expressly its
23conclusions of law, relating to each issue presented. This
24order shall be considered a final judgment, but the judgment
25shall not be given preclusive effect to a subsequent action
26pursuant to Code chapter 822 (postconviction procedure).
27The bill also specifies that a court shall not enter an order
28that would result in a violation of state or federal law or
29loss of access to a federal system or database.
-11-as/rh