Section 1. That sections 109.573, 2901.07, 2953.21, 2953.23, | 19 |
2953.71,
2953.72,
2953.73, 2953.74, 2953.75, 2953.76, 2953.77, | 20 |
2953.78,
2953.79,
2953.81, 2953.83, and 2953.84 be amended and | 21 |
sections
105.912,
109.561, 2933.81, 2933.82, and 2933.83
of the | 22 |
Revised
Code be
enacted to read as follows: | 23 |
(9) "Administration of criminal justice" means the | 66 |
performance of detection, apprehension, detention, pretrial | 67 |
release, post-trial release, prosecution, adjudication, | 68 |
correctional supervision, or rehabilitation of accused persons or | 69 |
criminal offenders. "Administration of criminal justice" also | 70 |
includes criminal identification activities and the collection, | 71 |
storage, and dissemination of criminal history record information. | 72 |
(a) If a person has disappeared and has been
continuously | 102 |
absent from the person's place of last domicile for
a thirty-day | 103 |
or longer period of time without being heard from during the | 104 |
period, persons related by consanguinity to
the missing person may | 105 |
submit to the
bureau a DNA specimen, the
bureau may include the | 106 |
DNA record of the specimen
in the relatives
of missing persons | 107 |
database,
and, if the bureau does not include
the DNA record of | 108 |
the
specimen in the relatives of missing persons
database, the | 109 |
bureau shall retain
the DNA record for future
reference and | 110 |
inclusion as appropriate in that database. | 111 |
(c)
If the DNA specimen submitted pursuant to division | 114 |
(B)(3)(a) of this section is collected by withdrawing blood from | 115 |
the person or a similarly invasive procedure, a physician, | 116 |
registered nurse, licensed practical nurse,
duly licensed
clinical | 117 |
laboratory technician, or other qualified
medical practitioner | 118 |
shall
conduct the collection procedure for
the DNA specimen | 119 |
submitted
pursuant to division
(B)(3)(a) of this
section and shall | 120 |
collect the
DNA specimen in a medically
approved
manner.
If the | 121 |
DNA specimen is collected by swabbing for buccal cells or a | 122 |
similarly noninvasive procedure, division (B)(3)(c) of this | 123 |
section does not require that the DNA specimen be collected by a | 124 |
qualified medical practitioner of that nature. No later than | 125 |
fifteen days after the date of
the
collection of the DNA
specimen, | 126 |
the person conducting the
DNA
specimen collection
procedure shall | 127 |
cause the DNA
specimen to be
forwarded to the bureau of criminal | 128 |
identification and
investigation in accordance with procedures | 129 |
established by the
superintendent of the bureau under division
(H) | 130 |
of this section.
The bureau
may provide the specimen vials, | 131 |
mailing tubes, labels,
postage, and instruction needed for the | 132 |
collection and
forwarding
of the DNA specimen
to the bureau. | 133 |
(D) When a DNA record is derived from a DNA
specimen
provided | 161 |
pursuant to section 2152.74 or 2901.07 of the Revised
Code,
the | 162 |
bureau of
criminal identification and investigation
shall attach | 163 |
to the DNA
record personal identification information
that | 164 |
identifies the person from
whom the DNA specimen was taken.
The | 165 |
personal identification
information may include the subject | 166 |
person's fingerprints and any other
information the bureau | 167 |
determines necessary. The DNA
record and personal identification | 168 |
information attached to it shall be used
only for the purpose of | 169 |
personal identification or for a purpose specified in
this | 170 |
section. | 171 |
(B)(1) A person who is eighteen years of age or older and who | 255 |
is arrested on or after the effective date of this amendment for a | 256 |
felony offense shall submit to a DNA specimen collection procedure | 257 |
administered by the head of the arresting law enforcement agency. | 258 |
The head of the arresting law enforcement agency shall cause the | 259 |
DNA specimen to be collected from the person during the intake | 260 |
process at the jail, community-based correctional facility, | 261 |
detention facility, or law enforcement agency office or station to | 262 |
which the arrested person is taken after the arrest. The head of | 263 |
the arresting law enforcement agency shall cause the DNA specimen | 264 |
to be collected in accordance with division (C) of this section. | 265 |
(2) Regardless of when the conviction occurred or the
guilty | 266 |
plea was entered, a person who has been convicted of, is | 267 |
convicted of, has pleaded guilty to, or pleads
guilty to a
felony | 268 |
offense and, who is
sentenced to a prison term or to a community | 269 |
residential sanction
in a jail
or community-based correctional | 270 |
facility for that offense pursuant to
section 2929.16 of the | 271 |
Revised Code, and who does not provide a DNA specimen pursuant to | 272 |
division (B)(1) of this section, and
a person who has been | 273 |
convicted of, is convicted
of, has pleaded guilty to, or pleads | 274 |
guilty to a misdemeanor
offense listed
in division
(D) of this | 275 |
section and, who is
sentenced to a term of
imprisonment
for that | 276 |
offense, and who does not provide a DNA specimen pursuant to | 277 |
division (B)(1) of this section, shall submit
to a
DNA specimen | 278 |
collection
procedure administered
by the
director of | 279 |
rehabilitation and
correction or the chief
administrative officer | 280 |
of the jail or other
detention facility in
which the person is | 281 |
serving the
term of imprisonment. If the
person serves the prison | 282 |
term in a state correctional institution,
the
director of | 283 |
rehabilitation and correction shall cause the
DNA
specimen to be | 284 |
collected from the person during the intake
process
at the | 285 |
reception
facility designated by the director. If the
person | 286 |
serves the
community residential sanction or term of
imprisonment | 287 |
in a jail, a
community-based correctional facility,
or another | 288 |
county, multicounty,
municipal,
municipal-county, or | 289 |
multicounty-municipal detention facility, the chief
administrative | 290 |
officer of the jail,
community-based correctional facility, or | 291 |
detention
facility shall cause the
DNA specimen to be collected | 292 |
from the person during the intake
process at the jail, | 293 |
community-based correctional facility, or
detention facility. The | 294 |
DNA specimen shall be
collected in
accordance with division (C) of | 295 |
this section. | 296 |
(2)(3) Regardless of when the conviction occurred or the | 297 |
guilty
plea was entered, if a person has been convicted of, is | 298 |
convicted
of, has pleaded guilty to, or pleads guilty to
a felony | 299 |
offense or
a misdemeanor
offense listed in division (D) of this | 300 |
section, is
serving
a
prison term, community residential sanction, | 301 |
or term of
imprisonment
for that offense, and does not provide a | 302 |
DNA
specimen
pursuant to division (B)(1) or (2) of this section, | 303 |
prior to the person's
release from the prison term, community | 304 |
residential sanction, or
imprisonment, the
person shall submit to, | 305 |
and the director of
rehabilitation and
correction or the chief | 306 |
administrative officer
of the jail, community-based
correctional | 307 |
facility, or detention
facility in which the person is serving
the | 308 |
prison term, community
residential sanction, or term of | 309 |
imprisonment
shall administer, a
DNA specimen collection
procedure | 310 |
at the state correctional
institution, jail, community-based | 311 |
correctional facility, or
detention facility in which the person | 312 |
is serving
the prison term,
community
residential sanction, or | 313 |
term of imprisonment. The
DNA
specimen shall be
collected in | 314 |
accordance with division (C)
of
this section. | 315 |
(3)(4)(a) Regardless of when the conviction occurred or the | 316 |
guilty plea was entered, if a person has been convicted of,
is | 317 |
convicted of, has pleaded guilty to, or pleads guilty to a felony | 318 |
offense or a misdemeanor
offense listed in division (D) of this | 319 |
section and the person is on
probation,
released on parole,
under | 320 |
transitional
control, on community control, on
post-release | 321 |
control,
or under any other type of supervised release
under
the | 322 |
supervision of
a probation
department or
the
adult parole | 323 |
authority for that offense, the person shall submit to a DNA | 324 |
specimen collection procedure administered by the chief | 325 |
administrative officer of the probation department or the adult | 326 |
parole authority. The DNA specimen shall be collected in | 327 |
accordance with division (C) of this section. If the person | 328 |
refuses to submit to a DNA specimen collection procedure as | 329 |
provided in this division, the person may be subject to the | 330 |
provisions of section 2967.15 of the Revised Code. | 331 |
(b) If a person to whom division (B)(3)(4)(a) of this section | 332 |
applies is
sent to
jail or is
returned to a jail,
community-based | 333 |
correctional
facility, or
state correctional
institution for a | 334 |
violation
of
the
terms and
conditions of the
probation,
parole, | 335 |
transitional
control, other
release, or
post-release
control, if | 336 |
the person was
or will be
serving
a
term
of imprisonment, prison | 337 |
term, or
community
residential
sanction
for
committing a felony | 338 |
offense or for committing a misdemeanor offense listed in
division | 339 |
(D) of this section,
and if the person did
not provide a
DNA | 340 |
specimen
pursuant to
division (B)(1),
(2), (3), or (3)(4)(a) of | 341 |
this
section,
the
person shall submit
to, and the
director of | 342 |
rehabilitation and
correction or the chief
administrative
officer | 343 |
of the jail or
community-based correctional
facility shall | 344 |
administer, a DNA
specimen collection
procedure at
the jail, | 345 |
community-based
correctional facility, or state
correctional | 346 |
institution in which
the person is serving
the
term
of | 347 |
imprisonment, prison term, or
community residential
sanction.
The | 348 |
DNA specimen shall be
collected from the
person in accordance with | 349 |
division
(C) of this
section. | 350 |
(4)(5) Regardless of when the conviction occurred or the | 351 |
guilty
plea was entered, if a person has been convicted of, is | 352 |
convicted
of, has pleaded guilty to, or pleads guilty to a felony | 353 |
offense or
a misdemeanor offense listed in division (D) of this | 354 |
section, the
person is not sentenced to a prison term, a | 355 |
community residential
sanction in a jail or community-based | 356 |
correctional facility, a
term of imprisonment, or any type of | 357 |
supervised release under the
supervision of a probation | 358 |
department or the adult parole
authority, and the person does not | 359 |
provide a DNA specimen pursuant
to division (B)(1), (2), (3), | 360 |
(4)(a), or (3)(4)(b) of this section, the
sentencing court shall | 361 |
order the person to report to the county
probation department | 362 |
immediately after sentencing to submit to a
DNA specimen | 363 |
collection procedure administered by the chief
administrative | 364 |
officer of the county probation office. If the
person is | 365 |
incarcerated at the time of sentencing, the person shall
submit | 366 |
to a DNA specimen collection procedure administered by the | 367 |
director of rehabilitation and correction or the chief | 368 |
administrative officer of the jail or other detention facility in | 369 |
which the person is incarcerated. The DNA specimen shall be | 370 |
collected in accordance with division (C) of this section. | 371 |
(C)
If the DNA specimen is collected by withdrawing blood | 372 |
from the person or a similarly invasive procedure, a physician, | 373 |
registered
nurse, licensed practical nurse,
duly licensed clinical | 374 |
laboratory technician,
or other qualified
medical practitioner | 375 |
shall collect in a medically approved
manner
the DNA specimen | 376 |
required to be collected pursuant to division
(B)
of this section. | 377 |
If the DNA specimen is collected by swabbing for buccal cells or a | 378 |
similarly noninvasive procedure, this section does not require | 379 |
that the DNA specimen be collected by a qualified medical | 380 |
practitioner of that nature. No later than fifteen days after the | 381 |
date of
the
collection of the DNA specimen, the head of the | 382 |
arresting law enforcement agency regarding a DNA specimen taken | 383 |
pursuant to division (B)(1) of this section, the director of | 384 |
rehabilitation
and
correction or the chief administrative officer | 385 |
of the jail,
community-based correctional facility, or other | 386 |
county,
multicounty,
municipal, municipal-county, or | 387 |
multicounty-municipal
detention facility,
in which the person is | 388 |
serving the prison
term,
community residential sanction, or term | 389 |
of imprisonment regarding a DNA specimen taken pursuant to | 390 |
division (B)(2), (3), or (4)(b) of this section, the chief | 391 |
administrative officer of the probation department or the adult | 392 |
parole authority regarding a DNA specimen taken pursuant to | 393 |
division (B)(4)(a) of this section, or the chief administrative | 394 |
officer of the county probation office, the director of | 395 |
rehabilitation and correction, or the chief administrative officer | 396 |
of the jail or other detention facility in which the person is | 397 |
incarcerated regarding a DNA specimen taken pursuant to division | 398 |
(B)(5) of this section, whichever is applicable,
shall cause the | 399 |
DNA specimen to be forwarded to
the bureau of
criminal | 400 |
identification and investigation in
accordance with
procedures | 401 |
established by the superintendent
of
the bureau under
division (H) | 402 |
of section 109.573 of the
Revised
Code. The bureau
shall provide | 403 |
the
specimen vials, mailing tubes,
labels, postage,
and | 404 |
instructions needed for
the collection and
forwarding of the
DNA | 405 |
specimen to the bureau. | 406 |
(D) The director of rehabilitation and correction, the
chief | 407 |
administrative officer of the jail, community-based
correctional | 408 |
facility,
or other county, multicounty, municipal, | 409 |
municipal-county, or multicounty-municipal detention facility, or | 410 |
the chief administrative officer of a county probation department | 411 |
or the adult parole authority
shall cause a
DNA specimen to be | 412 |
collected in
accordance
with
divisions (B) and (C) of this section | 413 |
from a person in
its custody or under its supervisionDNA specimen | 414 |
collection duty set forth in division (B)(1) of this section | 415 |
applies to any person who is eighteen years of age or older and | 416 |
who is arrested on or after the effective date of this amendment | 417 |
for any felony offense. The DNA specimen collection duties set | 418 |
forth in divisions (B)(2), (3), (4)(a), (4)(b), and (5) of this | 419 |
section apply to any person
who has been
convicted of, is | 420 |
convicted of, has pleaded guilty to, or pleads
guilty to
any | 421 |
felony offense or any of the
following misdemeanor
offenses: | 422 |
(2) A misdemeanor
violation of any law that arose out of the | 426 |
same
facts
and
circumstances and
same act as did a charge against | 427 |
the
person
of a violation of section
2903.01,
2903.02,
2905.01, | 428 |
2907.02,
2907.03, 2907.04, 2907.05,
or
2911.11 of the
Revised Code | 429 |
that
previously was
dismissed or
amended or as did a charge | 430 |
against the
person of a
violation of
section 2907.12 of the | 431 |
Revised Code
as it
existed
prior to
September 3,
1996, that | 432 |
previously was dismissed
or
amended; | 433 |
(1) "Custodial interrogation" means any interrogation | 451 |
involving a law enforcement officer's questioning that is | 452 |
reasonably likely to elicit incriminating responses and in which a | 453 |
reasonable person in the subject's position would consider self to | 454 |
be in custody, beginning when a person should have been advised of | 455 |
the person's right to counsel and right to remain silent and of | 456 |
the fact that anything the person says could be used against the | 457 |
person, as specified by the United States supreme court in Miranda | 458 |
v. Arizona (1966), 384 U.S. 436, and subsequent decisions, and | 459 |
ending when the questioning has completely finished. | 460 |
(C) In any criminal or delinquent child action or proceeding | 492 |
brought against a person, if any party to the action or proceeding | 493 |
seeks the admission as evidence of any statement made by the | 494 |
person during a custodial interrogation that is not electronically | 495 |
recorded or recorded as authorized by division (B)(2) of this | 496 |
section or the admission of any statement made thereafter by the | 497 |
person during the same custodial interrogation or a subsequent | 498 |
custodial interrogation, including but not limited to any | 499 |
statement made thereafter that is electronically recorded or | 500 |
recorded as authorized by division (B)(2) of this section, and if | 501 |
the statement otherwise is admissible in the action or proceeding | 502 |
under the Rules of Evidence, the court in its discretion may admit | 503 |
the statement as evidence or may exclude the statement from | 504 |
admission as evidence. If the court indicates that it intends to | 505 |
admit the statement as evidence, any party to the action or | 506 |
proceeding may object and file or make a motion to exclude the | 507 |
statement. If a party objects and makes or files a motion to | 508 |
exclude the statement, the court shall rule on the motion in | 509 |
accordance with the Rules of Evidence. | 510 |
(F) The Ohio judicial conference, pursuant to section 105.912 | 529 |
of the Revised Code, shall develop forms to survey custodial | 530 |
interrogations electronically recorded or recorded as authorized | 531 |
by division (B)(2) of this section and outcomes and identify any | 532 |
patterns of noncompliance with the provisions of this section. The | 533 |
conference shall provide copies of the forms to all courts of | 534 |
common pleas, municipal courts, county courts, prosecuting | 535 |
attorneys, city directors of law, village solicitors, and other | 536 |
chief legal officers of a municipal corporation. The conference | 537 |
shall monitor compliance with the recording requirement set forth | 538 |
in division (B) of this section through the submission of the | 539 |
forms developed under this division. The trial judge and the | 540 |
prosecutor shall complete and submit these forms for all of the | 541 |
following cases: | 542 |
(2) If a criminal or delinquent child proceeding is brought | 564 |
against a person who was the subject of a custodial interrogation | 565 |
that was electronically recorded or who was the subject of a part | 566 |
of a custodial interrogation that was recorded as authorized by | 567 |
division (B)(2) of this section, law enforcement personnel shall | 568 |
preserve the recording until the later of when all appeals, | 569 |
post-conviction
relief proceedings, and habeas corpus proceedings | 570 |
are final and
concluded or the expiration of the period of time | 571 |
within which
such appeals and proceedings must be brought. | 572 |
(b) If any person is convicted of or pleads guilty to the | 628 |
offense, or is adjudicated a delinquent child for committing the | 629 |
delinquent act, for the period of time that the person remains | 630 |
incarcerated, in a department of youth services institution or | 631 |
other juvenile facility, under a community control sanction for | 632 |
that offense, under any order of disposition for that act, on | 633 |
probation or parole for that offense, under judicial release or | 634 |
supervised release for that act, under post-release control for | 635 |
that offense, involved in civil litigation in connection with that | 636 |
offense or act, or subject to registration and other duties | 637 |
imposed for that offense or act under sections 2950.04, 2950.041, | 638 |
2950.05, and 2950.06 of the Revised Code. | 639 |
(a) If a governmental evidence-retention entity possesses | 652 |
biological evidence related to the offense or act, the | 653 |
governmental evidence-retention entity shall not destroy the | 654 |
biological evidence if any of those additional co-defendants | 655 |
remain in custody, incarcerated, in a department of youth services | 656 |
institution or other juvenile facility, under a community control | 657 |
sanction for that offense, under any order of disposition for that | 658 |
act, on probation or parole for that offense, under judicial | 659 |
release or supervised release for that act, under post-release | 660 |
control for that offense, involved in civil litigation in | 661 |
connection with that offense or act, or subject to registration | 662 |
and other duties imposed for that offense or act under sections | 663 |
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code. | 664 |
(b) The governmental evidence-retention entity referred to in | 665 |
division (B)(3)(a) of this section shall preserve the biological | 666 |
evidence related to the offense for the period of time during | 667 |
which any of those additional co-defendants remain in custody, | 668 |
incarcerated, in an institution or facility, under a community | 669 |
control sanction, under an order of disposition, on probation or | 670 |
parole, under judicial release or supervised release, under | 671 |
post-release control, involved in civil litigation, or subject to | 672 |
registration and other duties under sections 2950.04, 2950.041, | 673 |
2950.05, and 2950.06 of the Revised Code, as described in division | 674 |
(B)(3)(a) of this section. | 675 |
(i) All persons who remain in custody, incarcerated, in a | 697 |
department of youth services institution or other juvenile | 698 |
facility, under a community control sanction, under any order of | 699 |
disposition, on probation or parole, under judicial release or | 700 |
supervised release, under post-release control, involved in civil | 701 |
litigation, or subject to registration and other duties imposed | 702 |
for that offense or act under sections 2950.04, 2950.041, 2950.05, | 703 |
and 2950.06 of the Revised Code as a result of a criminal | 704 |
conviction, delinquency adjudication, or commitment related to the | 705 |
evidence in question; | 706 |
(7) If, after providing notice under division (B)(6)(b) of | 724 |
this section of its intent to destroy evidence, a governmental | 725 |
evidence-retention entity receives a written request for retention | 726 |
of the evidence from any person to whom the notice is provided, | 727 |
the governmental evidence-retention entity shall retain the | 728 |
evidence while the person referred to in division (B)(6)(b)(i) of | 729 |
this section remains in custody, incarcerated, in a department of | 730 |
youth services institution or other juvenile facility, under a | 731 |
community control sanction, under any order of disposition, on | 732 |
probation or parole, under judicial release or supervised release, | 733 |
under post-release control, involved in civil litigation, or | 734 |
subject to registration and other duties imposed for that offense | 735 |
or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of | 736 |
the Revised Code as a result of a criminal conviction, delinquency | 737 |
adjudication, or commitment related to the evidence in question. | 738 |
(8) A governmental evidence-retention entity shall not be | 739 |
required to preserve physical evidence pursuant to this section | 740 |
that is of such a size, bulk, or physical character as to render | 741 |
retention impracticable. When retention of physical evidence that | 742 |
otherwise would be required to be retained pursuant to this | 743 |
section is impracticable as described in this division, the | 744 |
governmental evidence-retention entity that otherwise would be | 745 |
required to retain the physical evidence shall remove and preserve | 746 |
portions of the material evidence likely to contain biological | 747 |
evidence related to the offense, in a quantity sufficient to | 748 |
permit future DNA testing before returning or disposing of that | 749 |
physical evidence. | 750 |
(f) The administrator hands each of the ten folders to the | 815 |
witness individually without looking at the photograph in the | 816 |
folder. Each time the witness has viewed a folder, the witness | 817 |
indicates whether the photograph is of the person the witness saw, | 818 |
indicates the degree of the witness' confidence in this | 819 |
identification, and returns the folder and the photograph it | 820 |
contains to the administrator. The witness may request to view | 821 |
each of the folders a second time, and, if the witness so | 822 |
requests, the administrator follows the procedures specified in | 823 |
this division for the second viewing, handing them to the witness | 824 |
in the same order as during the first viewing. The witness is not | 825 |
permitted to have more than two viewings of the folders. The | 826 |
administrator preserves the order of the folders and the | 827 |
photographs they contain in a facedown position in order to | 828 |
document the steps specified in division (A)(6)(g) of this | 829 |
section. | 830 |
(g) The administrator documents and records the results of | 831 |
the procedure described in divisions (A)(6)(a) to (f) of this | 832 |
section. The documentation and record includes the date, time, and | 833 |
location of the lineup procedure; the name of the administrator; | 834 |
the names of all of the individuals present during the lineup; the | 835 |
number of photographs shown to the witness; copies of each | 836 |
photograph shown to the witness; the order in which the folders | 837 |
were presented to the witness; the source of each photograph that | 838 |
was used in the procedure; a statement of the witness' confidence | 839 |
in the witness' own words as to the certainty of the witness' | 840 |
identification of the photographs as being of the person the | 841 |
witness saw that is taken immediately upon the reaction of the | 842 |
witness to viewing the photograph; and any additional information | 843 |
the administrator considers pertinent to the lineup procedure. | 844 |
(5) If a video record of the live lineup or photo lineup is | 888 |
impracticable, the administrator conducting the lineup shall | 889 |
document the reason for that impracticability, and, unless | 890 |
impracticable, an audio record of the live lineup or photo lineup | 891 |
shall be made. The audio record shall include all of the | 892 |
information specified in divisions (B)(4)(a) to (e) of this | 893 |
section, and it shall be supplemented by all of the photographs | 894 |
used in a photo lineup or photographs of all of the individuals | 895 |
used in a live lineup, whichever is applicable. | 896 |
(3) When evidence of a failure to comply with any of the | 924 |
provisions of this section, or with any procedure for conducting | 925 |
lineups that has been adopted by a law enforcement agency or | 926 |
criminal justice agency pursuant to division (B) of this section | 927 |
and that conforms to any provision of divisions (B)(1) to (6) of | 928 |
this section, is presented at trial, the jury shall be instructed | 929 |
that it may consider credible evidence of noncompliance in | 930 |
determining the reliability of any eyewitness identification | 931 |
resulting from or related to the lineup. | 932 |
(2) The supreme court may adopt rules prescribing specific | 938 |
procedures to be followed for the administration by law | 939 |
enforcement agencies and criminal justice entities in this state | 940 |
of photo lineups, live lineups, and showups. Any rules adopted by | 941 |
the supreme court as described in this division shall be | 942 |
consistent with the requirements of divisions (B) and (C) of this | 943 |
section but may prescribe procedures for other aspects of the | 944 |
administration of such lineups and showups as determined | 945 |
appropriate by the court. If the supreme court adopts rules of the | 946 |
type described in this division, on and after the date on which | 947 |
the rules take effect, law enforcement agencies and criminal | 948 |
justice entities in this state shall comply with the rules in | 949 |
conducting live lineups, photo lineups, and showups. | 950 |
Sec. 2953.21. (A)(1)(a) Any person who has been convicted of | 958 |
a
criminal offense
or adjudicated a delinquent child and who | 959 |
claims
that there was such a denial
or infringement of the | 960 |
person's
rights as to render the judgment void or
voidable under | 961 |
the Ohio
Constitution or the Constitution of the United States, | 962 |
and any
person who has been convicted of a criminal offense that | 963 |
is a
felony,and who is an inmate, andoffender for whom DNA | 964 |
testing that
was performed under sections 2953.71 to 2953.81 of | 965 |
the Revised
Code or under former section 2953.82 of the Revised | 966 |
Code and
analyzed in the context of and upon consideration of all | 967 |
available
admissible evidence related to the inmate'sperson's | 968 |
case as
described in division (D) of section 2953.74 of the | 969 |
Revised Code
provided results that establish, by clear and | 970 |
convincing evidence,
actual innocence of that felony offense or, | 971 |
if the person was
sentenced to death, establish, by clear and | 972 |
convincing evidence,
actual innocence of the aggravating | 973 |
circumstance or circumstances
the person was found
guilty of | 974 |
committing and that is or are the
basis of that sentence of | 975 |
death, may file a
petition in the court
that imposed sentence, | 976 |
stating the grounds
for relief
relied upon,
and asking the court | 977 |
to vacate or set
aside the judgment or
sentence or to grant other | 978 |
appropriate
relief. The petitioner may
file a
supporting | 979 |
affidavit and other
documentary evidence in
support of the claim | 980 |
for relief. | 981 |
(b) As used in division (A)(1)(a) of this section, "actual | 982 |
innocence" means that, had the results of the DNA testing | 983 |
conducted under sections 2953.71 to 2953.81 of the Revised Code or | 984 |
under former section 2953.82 of the Revised Code been presented at | 985 |
trial,
and had those results been analyzed in the context of and | 986 |
upon
consideration of all available admissible evidence related | 987 |
to the
inmate'sperson's case as described in division (D) of | 988 |
section
2953.74 of the Revised Code, no reasonable factfinder | 989 |
would have
found the petitioner guilty of the offense of which | 990 |
the petitioner
was convicted, or, if the person was sentenced to | 991 |
death, no
reasonable factfinder would have found the petitioner | 992 |
guilty of
the aggravating circumstance or circumstances the | 993 |
petitioner was
found guilty of committing and that is or are the | 994 |
basis of that
sentence of death. | 995 |
(2) Except as otherwise provided in section 2953.23 of the | 1000 |
Revised Code, a petition under division (A)(1) of this section | 1001 |
shall
be filed no later
than one hundred eighty days after the | 1002 |
date on
which the trial transcript is
filed in the court of | 1003 |
appeals in the
direct appeal of the
judgment of conviction or | 1004 |
adjudication or, if
the direct appeal involves a
sentence of | 1005 |
death, the date on which
the trial transcript is filed in the | 1006 |
supreme court. If no appeal
is taken, except as otherwise provided | 1007 |
in section 2953.23 of the Revised Code, the petition shall be | 1008 |
filed no later
than one hundred
eighty days after the expiration | 1009 |
of the time for filing the
appeal. | 1010 |
(5) If the petitioner in a petition filed under division (A) | 1021 |
of this section
was convicted of or pleaded guilty to a felony, | 1022 |
the petition
may include a claim that the petitioner was denied | 1023 |
the equal protection
of the laws in violation of the Ohio | 1024 |
Constitution or the
United States Constitution because the | 1025 |
sentence
imposed upon the petitioner for the felony was part of a | 1026 |
consistent pattern of
disparity in sentencing by the judge who | 1027 |
imposed the sentence, with regard to
the petitioner's race, | 1028 |
gender, ethnic background, or religion. If the supreme
court | 1029 |
adopts a rule requiring a court of common pleas to
maintain | 1030 |
information with regard to an offender's race, gender,
ethnic | 1031 |
background, or religion, the supporting evidence for the petition | 1032 |
shall
include, but shall not be limited to, a copy of that type of | 1033 |
information
relative to the petitioner's sentence and copies of | 1034 |
that type of information
relative to sentences that the same judge | 1035 |
imposed upon other persons. | 1036 |
(C) The court shall consider a petition that is timely filed | 1042 |
under division
(A)(2) of this section even if a direct appeal of | 1043 |
the judgment is pending.
Before granting a hearing on a petition | 1044 |
filed under division (A) of this
section, the court shall | 1045 |
determine whether there are
substantive grounds for relief. In | 1046 |
making such
a determination, the court shall consider, in addition | 1047 |
to the
petition, the supporting affidavits, and the documentary | 1048 |
evidence, all the
files and records
pertaining to the proceedings | 1049 |
against the petitioner, including,
but not limited to, the | 1050 |
indictment, the court's journal entries,
the journalized records | 1051 |
of the clerk of the court, and the court
reporter's transcript. | 1052 |
The court reporter's transcript, if
ordered and certified by the | 1053 |
court, shall be taxed as court
costs. If the court dismisses the | 1054 |
petition, it shall make and
file findings of fact and conclusions | 1055 |
of law with respect to such
dismissal. | 1056 |
(G) If the court does not find grounds for granting relief, | 1074 |
it shall make and
file findings of fact and conclusions of law and | 1075 |
shall enter judgment denying
relief on the petition. If no direct | 1076 |
appeal of the case is pending and the
court finds grounds for | 1077 |
relief or if a pending direct appeal of the case has
been remanded | 1078 |
to the court pursuant to a request made pursuant to division (E) | 1079 |
of this section and the court finds grounds for granting relief, | 1080 |
it shall make
and file findings of fact and conclusions of law
and | 1081 |
shall enter a judgment that vacates and sets aside the judgment in | 1082 |
question, and, in the case of a petitioner who is a prisoner in | 1083 |
custody, shall discharge or resentence the petitioner or grant
a | 1084 |
new trial as the court determines appropriate. The court also may | 1085 |
make
supplementary orders to the
relief granted, concerning such | 1086 |
matters as rearraignment,
retrial, custody, and bail. If the
trial | 1087 |
court's order
granting the petition is reversed on appeal
and if | 1088 |
the direct appeal of the
case has been remanded from an
appellate | 1089 |
court pursuant to a request under
division (E) of this
section, | 1090 |
the appellate court reversing the order granting
the
petition | 1091 |
shall
notify the appellate court in which the direct
appeal of the | 1092 |
case was pending at the time of the remand of the
reversal and | 1093 |
remand of the trial court's order. Upon the reversal
and remand
of | 1094 |
the trial court's order granting the petition,
regardless of | 1095 |
whether notice is sent or received, the direct
appeal of the
case | 1096 |
that was remanded is reinstated. | 1097 |
(I)(1) If a person
sentenced to death intends to file a | 1101 |
petition under this section, the court shall
appoint counsel to | 1102 |
represent the
person upon a finding that the
person is indigent | 1103 |
and that the person either
accepts the
appointment of counsel or | 1104 |
is unable to make a competent decision
whether to accept or reject | 1105 |
the appointment of counsel. The court
may decline
to appoint | 1106 |
counsel for the person only upon a finding,
after a hearing if | 1107 |
necessary, that the person rejects the
appointment of counsel and | 1108 |
understands
the legal consequences of
that decision or upon a | 1109 |
finding that the person is
not indigent. | 1110 |
(2) The court shall not appoint as counsel under division | 1111 |
(I)(1) of this section an attorney who
represented the petitioner | 1112 |
at trial in the case to which the petition relates
unless the | 1113 |
person and the attorney expressly request the appointment. The | 1114 |
court shall appoint as counsel under division
(I)(1) of this | 1115 |
section only an attorney who is
certified under Rule
20 of the | 1116 |
Rules of
Superintendence for
the Courts of
Ohio to
represent | 1117 |
indigent defendants charged with or convicted of an
offense for | 1118 |
which the death penalty can be or has been imposed.
The | 1119 |
ineffectiveness or incompetence of counsel during proceedings | 1120 |
under this
section does not constitute grounds for relief in a | 1121 |
proceeding under this
section, in an appeal of any action under | 1122 |
this section, or in an application
to reopen a direct appeal. | 1123 |
(3) Division (I) of this section does not preclude attorneys | 1124 |
who represent
the state of Ohio from invoking the provisions of 28 | 1125 |
U.S.C. 154
with respect to capital cases that were pending in | 1126 |
federal habeas corpus
proceedings prior to July 1, 1996, insofar | 1127 |
as the
petitioners in those cases were
represented in proceedings | 1128 |
under this section
by one or more
counsel appointed by the court | 1129 |
under this section or section
120.06, 120.16, 120.26, or 120.33 of | 1130 |
the Revised Code and
those
appointed counsel meet the requirements | 1131 |
of division (I)(2) of
this
section. | 1132 |
(2) The petitioner was convicted of a felony, the petitioner | 1164 |
is an inmateoffender for whom DNA testing was
performed under | 1165 |
sections
2953.71 to 2953.81 of the Revised Code or under former | 1166 |
section
2953.82 of the Revised Code and analyzed in the context | 1167 |
of and
upon consideration of all available admissible evidence | 1168 |
related to
the inmate's case as described in division (D) of | 1169 |
section 2953.74
of the Revised Code,
and the results of the DNA | 1170 |
testing establish,
by clear and convincing evidence, actual | 1171 |
innocence of
that felony
offense or, if the person was sentenced | 1172 |
to death, establish, by
clear and convincing evidence, actual | 1173 |
innocence of the
aggravating
circumstance or circumstances the | 1174 |
person was found guilty of
committing
and that is or are the | 1175 |
basis of that sentence of death. | 1176 |
(C) "Chain of custody" means a record or other evidence that | 1201 |
tracks a subject
sample of biological material from the time the | 1202 |
biological
material was first obtained until the time it currently | 1203 |
exists in
its place of storage and, in relation to a DNA sample, a | 1204 |
record or other evidence
that tracks the DNA sample from the time | 1205 |
it was first obtained
until it currently exists in its place of | 1206 |
storage. For purposes
of this division, examples of when | 1207 |
biological material or a DNA
sample is first
obtained include, but | 1208 |
are not limited to,
obtaining the material or sample
at the scene | 1209 |
of a crime, from a
victim, from an inmateoffender, or in any | 1210 |
other manner or time as is
appropriate in the facts and | 1211 |
circumstances present. | 1212 |
(G) "Exclusion" or "exclusion result" means a result of DNA | 1221 |
testing that
scientifically precludes or forecloses the subject | 1222 |
inmateoffender
as a contributor of biological material recovered | 1223 |
from the
crime
scene or victim in question, in relation to the | 1224 |
offense for
which the inmateoffender is an eligible inmate | 1225 |
offender and for which
the sentence
of death
or prison term was | 1226 |
imposed upon the
inmate
or, regarding a request for DNA
testing | 1227 |
made under section
2953.82 of the Revised Code, in
relation to | 1228 |
the offense for which
the inmate made the
request and for which | 1229 |
the sentence of death
or prison term was
imposed upon the inmate | 1230 |
offender. | 1231 |
(I) "Inclusion" or "inclusion result" means a result of DNA | 1236 |
testing that
scientifically cannot exclude, or that holds | 1237 |
accountable, the
subject inmateoffender as a contributor of | 1238 |
biological
material
recovered from the crime scene or victim in | 1239 |
question, in
relation
to the offense for which the inmateoffender | 1240 |
is an eligible inmateoffender
and for which the sentence of
death | 1241 |
or prison term was imposed
upon the inmate or, regarding
a | 1242 |
request for DNA testing made under section 2953.82 of the
Revised | 1243 |
Code, in relation to the offense for which the inmate made the | 1244 |
request and for which the sentence of death or
prison term was | 1245 |
imposed upon the inmateoffender. | 1246 |
(L) "Outcome determinative" means that had the results of
DNA | 1253 |
testing of the subject inmateoffender been presented at the trial | 1254 |
of the subject inmateoffender requesting DNA testing and been | 1255 |
found relevant and admissible with respect to the felony
offense | 1256 |
for which the inmateoffender is an eligible inmateoffender and | 1257 |
is
requesting the DNA testing or for which the inmateis | 1258 |
requesting the DNA testing under section 2953.82 of the Revised | 1259 |
Code, and had those results been analyzed in the context of and | 1260 |
upon consideration of all available admissible evidence related to | 1261 |
the inmate'soffender's case as described in division (D) of | 1262 |
section 2953.74 of the Revised Code, there is a strong probability | 1263 |
that no reasonable factfinder would have
found the inmateoffender | 1264 |
guilty of that offense or, if the inmateoffender was
sentenced to | 1265 |
death relative to that offense, would have found the
inmate | 1266 |
offender guilty of the aggravating circumstance or circumstances | 1267 |
the inmateoffender was
found
guilty of committing and that is or | 1268 |
are the basis of that sentence
of
death. | 1269 |
Sec. 2953.72. (A) Any eligible inmateoffender who wishes to | 1300 |
request
DNA testing under sections 2953.71 to 2953.81 of the | 1301 |
Revised Code
shall
submit an application for the testing to the | 1302 |
court of common
pleas specified in section 2953.73 of the Revised | 1303 |
Code, on a form
prescribed
by the
attorney general for this | 1304 |
purpose. The eligible
inmateoffender
shall submit the application | 1305 |
in
accordance with the procedures set forth in section 2953.73 of | 1306 |
the Revised Code. The eligible inmateoffender shall specify on | 1307 |
the
application the offense or offenses for which the inmate | 1308 |
offender is an
eligible inmateoffender and is requesting the DNA | 1309 |
testing. Along with the
application, the
eligible inmateoffender | 1310 |
shall submit an
acknowledgment
that is
on a form prescribed by the | 1311 |
attorney
general for this
purpose and
that is signed by the inmate | 1312 |
offender.
The acknowledgment
shall set forth
all of the following: | 1313 |
(8) That the acknowledgment memorializes the provisions of | 1357 |
sections 2953.71 to 2953.81 of the Revised Code with respect to | 1358 |
the application of postconviction DNA testing to inmates | 1359 |
offenders, that
those
provisions do not give any inmateoffender | 1360 |
any additional
constitutional
right that the inmateoffender did | 1361 |
not already have, that the court has no duty or
obligation to | 1362 |
provide postconviction DNA testing to inmatesoffenders,
that the | 1363 |
court of
common pleas has the
sole
discretion subject to an appeal | 1364 |
as described in this division to determine whether an
inmate | 1365 |
offender is an eligible inmateoffender
and whether an
eligible | 1366 |
inmate'soffender's
application for DNA testing
satisfies
the | 1367 |
acceptance criteria
described in division (A)(4) of
this
section | 1368 |
and whether the
application should be accepted or
rejected, that | 1369 |
if the court of common
pleas rejects an eligible inmate's | 1370 |
offender's application, the inmateoffender may seek leave of the | 1371 |
supreme court to appeal the rejection to that court if the inmate | 1372 |
offender was sentenced to death for the offense for which the | 1373 |
inmateoffender is requesting the DNA testing and, if the inmate | 1374 |
offender was not sentenced to death for that offense, may appeal | 1375 |
the rejection to the court of appeals, and that no
determination | 1376 |
otherwise made
by
the court of common pleas in the
exercise
of its | 1377 |
discretion
regarding the
eligibility of an
inmateoffender or | 1378 |
regarding postconviction DNA testing
under those provisions
is | 1379 |
reviewable by or appealable to any
court; | 1380 |
(9) That the manner in which sections 2953.71 to 2953.81 of | 1381 |
the Revised Code with respect to the offering of postconviction | 1382 |
DNA testing to inmatesoffenders are carried out does not confer | 1383 |
any
constitutional right upon any inmateoffender, that the state | 1384 |
has
established guidelines and procedures relative to those | 1385 |
provisions
to ensure that they are carried out with both justice | 1386 |
and
efficiency in mind, and that an inmateoffender who | 1387 |
participates in
any
phase of the mechanism contained in those | 1388 |
provisions,
including,
but not limited to, applying for DNA | 1389 |
testing and being
rejected,
having an application for DNA testing | 1390 |
accepted and not
receiving
the test, or having DNA testing | 1391 |
conducted and receiving
unfavorable results, does not gain as a | 1392 |
result of the
participation any constitutional right to challenge, | 1393 |
or, except as provided in division (A)(8) of this section, any | 1394 |
right
to any review or appeal of, the manner in
which those | 1395 |
provisions
are carried out; | 1396 |
(10) That the most basic aspect of sections 2953.71 to | 1397 |
2953.81 of the Revised Code is that, in order for DNA testing to | 1398 |
occur, there must be an inmateoffender sample against which other | 1399 |
evidence
may be compared, that, if an eligible inmate'soffender's | 1400 |
application
is
accepted but the inmateoffender subsequently | 1401 |
refuses to
submit
to the
collection of the sample of biological | 1402 |
material from
the
inmateoffender
or hinders the state from | 1403 |
obtaining a sample of
biological
material from the inmate | 1404 |
offender, the goal of those
provisions
will be
frustrated, and | 1405 |
that an inmate'soffender's refusal
or
hindrance shall cause the | 1406 |
court to rescind its prior acceptance of the application for
DNA | 1407 |
testing for
the inmateoffender and deny the application; | 1408 |
(B) The attorney general shall prescribe a form to be used
to | 1417 |
make an application for DNA testing under division (A) of this | 1418 |
section and section 2953.73 of the Revised Code and a form to be | 1419 |
used to provide the acknowledgment described in division (A) of | 1420 |
this section. The forms shall include all information described in | 1421 |
division (A) of this section, spaces for an inmateoffender to | 1422 |
insert all
information necessary to complete the forms, including, | 1423 |
but not
limited to, specifying the offense or offenses for which | 1424 |
the
inmateoffender is an eligible inmateoffender and is | 1425 |
requesting the DNA testing or for which the inmate is
requesting | 1426 |
the DNA testing under section 2953.82 of the Revised
Code,
and | 1427 |
any other information or material the attorney general
determines | 1428 |
is necessary or relevant. The forms also shall be used
to make an | 1429 |
application requesting DNA testing under section
2953.82 of the | 1430 |
Revised Code, and the attorney general shall ensure
that they are | 1431 |
sufficient for that type of use, and that they
include all | 1432 |
information and spaces necessary for that type of use.
The | 1433 |
attorney general shall
distribute copies of the
prescribed
forms | 1434 |
to the department of
rehabilitation and
correction, the | 1435 |
department shall ensure that
each
prison in which inmates | 1436 |
offenders are housed has a
supply of
copies of
the forms, and the | 1437 |
department shall ensure
that copies
of the
forms are provided free | 1438 |
of charge to any
inmateoffender who
requests
them. | 1439 |
(C) If an eligible inmateoffender submits an application for | 1495 |
DNA
testing under division (A) of this section, regardless of | 1496 |
whether the inmateoffender has commenced any federal habeas | 1497 |
corpus proceeding relative to the
case in which the inmate | 1498 |
offender was convicted of the offense for which
the inmate | 1499 |
offender is an eligible inmateoffender and is requesting DNA | 1500 |
testing,
any response to the application by the prosecuting | 1501 |
attorney or the attorney general shall be filed not later than | 1502 |
forty-five days after the date on which the eligible inmate | 1503 |
offender submits the application. The prosecuting attorney or
the | 1504 |
attorney general, or both, may, but are not required to, file a | 1505 |
response
to the application. If the prosecuting attorney or the | 1506 |
attorney general files a response under this division, the | 1507 |
prosecuting attorney or attorney general, whoever filed the | 1508 |
response, shall serve a copy of the response on the eligible | 1509 |
inmateoffender. | 1510 |
(D) If an eligible inmateoffender submits an application for | 1511 |
DNA
testing under division (A) of this section, the court
shall | 1512 |
make
the determination as to whether the
application should be | 1513 |
accepted
or rejected. The court shall expedite its review of
the | 1514 |
application. The
court shall make the determination in accordance | 1515 |
with the
criteria
and procedures set forth in sections 2953.74 to | 1516 |
2953.81
of the
Revised Code and, in making the determination, | 1517 |
shall
consider the
application, the supporting affidavits, and the | 1518 |
documentary evidence and, in addition to those materials, shall | 1519 |
consider all the files and records pertaining to the proceedings | 1520 |
against the applicant, including, but not limited to, the | 1521 |
indictment, the court's journal entries, the journalized records | 1522 |
of the clerk of the court, and the court reporter's transcript and | 1523 |
all responses to the application
filed under
division (C) of this | 1524 |
section by a prosecuting attorney
or the
attorney general, unless | 1525 |
the application and the files and records show the applicant is | 1526 |
not entitled to DNA testing, in which case the application may be | 1527 |
denied. The court is not required to conduct an evidentiary | 1528 |
hearing in conducting its review of, and in making its | 1529 |
determination as to whether to accept or reject, the application. | 1530 |
Upon making its determination, the
court shall
enter a judgment | 1531 |
and order that either accepts or
rejects the application and that | 1532 |
includes
within the judgment and order the
reasons for the | 1533 |
acceptance or rejection as applied to the criteria and procedures | 1534 |
set forth in sections 2953.71 to 2953.81 of the Revised Code. The | 1535 |
court shall send a copy of the
judgment and order to the eligible | 1536 |
inmateoffender who filed it, the prosecuting
attorney, and the | 1537 |
attorney
general. | 1538 |
Sec. 2953.74. (A) If an eligible inmateoffender submits an | 1568 |
application
for
DNA
testing under section 2953.73 of the Revised | 1569 |
Code and a prior
definitive DNA test has been conducted
regarding | 1570 |
the same
biological evidence that the inmateoffender seeks to | 1571 |
have tested,
the
court shall reject the inmate'soffender's | 1572 |
application. If an
eligible
inmateoffender files an application | 1573 |
for DNA
testing and a prior
inconclusive DNA test has been | 1574 |
conducted
regarding the same
biological evidence that the
inmate | 1575 |
offender seeks to
have tested, the
court shall review
the | 1576 |
application
and has the
discretion, on a
case-by-case basis,
to | 1577 |
either accept
or reject
the application.
The court may direct a | 1578 |
testing authority to provide the court with information that the | 1579 |
court may use in determining
whether prior DNA test
results
were | 1580 |
definitive or inconclusive and
whether to accept or
reject an | 1581 |
application in relation to which
there were prior
inconclusive DNA | 1582 |
test results. | 1583 |
(1) The inmateoffender did not have a DNA test taken at the | 1587 |
trial
stage in the case in which the inmateoffender was convicted | 1588 |
of the offense
for which the inmateoffender is an eligible inmate | 1589 |
offender and is requesting the
DNA testing regarding the same | 1590 |
biological evidence
that the
inmateoffender seeks to have tested, | 1591 |
the inmateoffender shows that DNA
exclusion when analyzed in the | 1592 |
context of and upon consideration of all available admissible | 1593 |
evidence related to the subject inmate'soffender's case as | 1594 |
described in division (D) of this section
would
have been
outcome | 1595 |
determinative at that trial stage
in that
case,
and,
at the
time | 1596 |
of the trial stage in that case, DNA
testing
was
not generally | 1597 |
accepted, the results of DNA testing
were not
generally admissible | 1598 |
in evidence, or DNA testing was not
yet
available. | 1599 |
(2) The inmateoffender had a DNA test taken at the trial | 1600 |
stage in
the case in which the inmateoffender was convicted of | 1601 |
the offense for
which the inmateoffender is an eligible inmate | 1602 |
offender and is requesting the DNA
testing regarding the same | 1603 |
biological
evidence that the inmateoffender seeks to have | 1604 |
tested, the test
was not a prior definitive DNA test
that is | 1605 |
subject to division (A) of
this section, and the inmateoffender | 1606 |
shows that
DNA exclusion when analyzed in the context of and upon | 1607 |
consideration of all available admissible evidence related to the | 1608 |
subject inmate'soffender's case as described in division (D) of | 1609 |
this section
would have been outcome determinative at
the trial | 1610 |
stage in that
case. | 1611 |
(E) If an eligible inmateoffender submits an application for | 1671 |
DNA testing under section 2953.73 of the Revised Code and the | 1672 |
court accepts the application, the eligible inmateoffender may | 1673 |
request the court to order, or the court on its own initiative may | 1674 |
order, the bureau of criminal identification and investigation to | 1675 |
compare the results of DNA testing of biological material from an | 1676 |
unidentified person other than the inmateoffender that was | 1677 |
obtained from the crime scene or from a victim of the offense for | 1678 |
which the inmateoffender has been approved for DNA testing to the | 1679 |
combined DNA index system maintained by the federal bureau of | 1680 |
investigation. | 1681 |
If the bureau, upon comparing the test results to the | 1689 |
combined DNA index system, is unable to determine the identity of | 1690 |
the person who is the contributor of the biological material, the | 1691 |
bureau may compare the test results to other previously obtained | 1692 |
and acceptable DNA test results of any person whose identity is | 1693 |
known other than the eligible inmateoffender. If the bureau, upon | 1694 |
comparing the test results to the DNA test results of any person | 1695 |
whose identity is known, determines that the person whose identity | 1696 |
is known is the contributor of the biological material, the bureau | 1697 |
shall provide that information to the court that accepted the | 1698 |
application, the inmateoffender, and the prosecuting attorney. | 1699 |
The inmateoffender or the state may use the information for any | 1700 |
lawful purpose. | 1701 |
Sec. 2953.75. (A) If an eligible inmateoffender submits an | 1702 |
application
for DNA testing under section 2953.73 of the Revised | 1703 |
Code, the
court shall require the prosecuting attorney to use | 1704 |
reasonable diligence to
determine
whether
biological material was | 1705 |
collected from the crime
scene or
victim
of the offense for which | 1706 |
the inmateoffender is an eligible inmateoffender and is | 1707 |
requesting the DNA testing against which a sample
from the
inmate | 1708 |
offender can
be compared and whether the parent sample of
that | 1709 |
biological
material still exists at that point in time. In
using | 1710 |
reasonable
diligence to make those determinations, the
prosecuting | 1711 |
attorney
shall rely upon
all relevant sources,
including, but not | 1712 |
limited
to, all of the
following: | 1713 |
Sec. 2953.76. If an eligible inmateoffender submits an | 1734 |
application
for DNA testing under section 2953.73 of the Revised | 1735 |
Code, the
court shall require the prosecuting attorney to consult | 1736 |
with the
testing authority and to prepare findings
regarding the | 1737 |
quantity
and quality of the parent
sample of the
biological | 1738 |
material
collected from the crime scene
or victim of
the offense | 1739 |
for which the inmateoffender is an eligible
inmateoffender and | 1740 |
is
requesting the DNA testing and that is to be
tested, and
of the | 1741 |
chain of custody and reliability
regarding that
parent sample, as | 1742 |
follows: | 1743 |
(A) The testing authority shall determine whether there is
a | 1744 |
scientifically sufficient quantity of the parent sample to test | 1745 |
and whether the parent sample is so minute or fragile that there | 1746 |
is a substantial risk that the parent sample could be destroyed in | 1747 |
testing. The testing authority may determine that there is not a | 1748 |
sufficient quantity to test in order to preserve the state's | 1749 |
ability to present in the future the original evidence presented | 1750 |
at trial, if another trial is required. Upon making its | 1751 |
determination under this division, the testing authority shall | 1752 |
prepare a written document
that contains
its
determination and the | 1753 |
reasoning and rationale
for that
determination and shall provide a | 1754 |
copy to the court, the eligible inmateoffender, the prosecuting | 1755 |
attorney, and the attorney general. The court may determine in
its | 1756 |
discretion, on a
case-by-case
basis, that, even if the parent | 1757 |
sample of the
biological material
so collected is so minute or | 1758 |
fragile as to
risk destruction of the
parent sample by the | 1759 |
extraction, the
application should not be
rejected solely on the | 1760 |
basis of that
risk. | 1761 |
(B) The testing authority shall determine whether the
parent | 1762 |
sample has degraded or been contaminated to the extent that
it has | 1763 |
become scientifically unsuitable for testing and whether
the | 1764 |
parent sample otherwise has been preserved, and remains, in a | 1765 |
condition that is suitable for testing. Upon making its | 1766 |
determination under this division, the testing authority shall | 1767 |
prepare a written document
that contains
its
determination and the | 1768 |
reasoning and rationale
for that
determination and shall provide a | 1769 |
copy to the court, the eligible inmateoffender, the prosecuting | 1770 |
attorney, and the attorney general. | 1771 |
(C) The court shall determine, from the chain of
custody of | 1772 |
the parent sample of the biological
material
to be
tested and of | 1773 |
any test sample extracted from the
parent
sample and
from the | 1774 |
totality of circumstances involved,
whether the parent
sample and | 1775 |
the extracted test sample are the
same sample as
collected and | 1776 |
whether there is any reason to
believe that they
have been out of | 1777 |
state custody or have been
tampered with or
contaminated since | 1778 |
they were collected. Upon
making its
determination under this | 1779 |
division, the
court shall prepare and
retain a written document | 1780 |
that
contains its determination and the
reasoning and rationale | 1781 |
for
that determination. | 1782 |
Sec. 2953.77. (A) If an eligible inmateoffender submits an | 1783 |
application for DNA testing under section 2953.73 of the Revised | 1784 |
Code and if the application is accepted and
DNA testing is to be | 1785 |
performed, the court shall require that the chain of custody | 1786 |
remain intact and that all of the
applicable following precautions | 1787 |
are satisfied to
ensure that the parent sample
of the biological | 1788 |
material collected from the crime scene or the
victim of the | 1789 |
offense for which the inmateoffender is an eligible inmate | 1790 |
offender and requested the DNA testing, and the
test sample of the | 1791 |
parent
sample that is extracted and actually is
to be tested, are | 1792 |
not
contaminated during transport or the testing
process: | 1793 |
(5) After the DNA testing, the court, the
testing
authority, | 1813 |
and the original custodial agency of the parent
sample,
or any | 1814 |
combination of those entities, shall coordinate the
return
of the | 1815 |
remaining parent sample
back to its place of storage
with
the | 1816 |
original custodial agency or
to any other place
determined in | 1817 |
accordance with this division and section 2953.81
of
the Revised | 1818 |
Code. The court shall determine, in consultation with the testing | 1819 |
authority, the custodial agency to
maintain any newly created, | 1820 |
extracted, or collected DNA material
resulting from the testing. | 1821 |
The court and testing
authority shall document the return | 1822 |
procedures for original
materials and for any newly created, | 1823 |
extracted, or collected DNA
material resulting from the testing, | 1824 |
and also the custodial agency
to which those materials should be | 1825 |
taken. | 1826 |
(B) If a court
selects a testing authority
pursuant to | 1839 |
division (A) of this
section and the eligible inmateoffender for | 1840 |
whom the
test is to be
performed objects to the use of the | 1841 |
selected testing
authority,
the court shall rescind its prior | 1842 |
acceptance of the application for
DNA
testing
for the inmate | 1843 |
offender and deny the application. An objection as
described in | 1844 |
this
division, and
the resulting rescission and denial, do
not | 1845 |
preclude
a court
from accepting in the court's
discretion,
a | 1846 |
subsequent application by the
same eligible inmateoffender | 1847 |
requesting
DNA
testing. | 1848 |
(C) The attorney general shall approve or designate testing | 1849 |
authorities that may be selected and used to conduct DNA
testing, | 1850 |
shall prepare a list of the approved or designated
testing | 1851 |
authorities, and shall provide copies of the list to all
courts of | 1852 |
common pleas. The attorney general shall update the
list
as | 1853 |
appropriate to reflect changes in the approved or
designated | 1854 |
testing authorities and shall provide copies of the
updated list | 1855 |
to all courts of common pleas. The attorney general
shall not | 1856 |
approve or designate a testing authority under this
division | 1857 |
unless the testing authority satisfies the criteria set
forth in | 1858 |
section 2953.80 of the Revised Code. A testing authority that is | 1859 |
equipped to handle advanced DNA testing may be approved or | 1860 |
designated under this division, provided it satisfies the criteria | 1861 |
set forth in that section. | 1862 |
(D) The attorney general's approval or designation of
testing | 1863 |
authorities under division (C) of this section, and the
selection | 1864 |
and use of any approved or designated testing authority,
do not | 1865 |
afford an inmateoffender any right to subsequently challenge the | 1866 |
approval, designation, selection, or use, and an inmateoffender | 1867 |
may not
appeal to any court the approval, designation, selection, | 1868 |
or use
of a testing authority. | 1869 |
Sec. 2953.79. (A) If an eligible inmateoffender submits an | 1870 |
application for DNA testing under section 2953.73 of the Revised | 1871 |
Code and if the application is accepted and
DNA testing is to be | 1872 |
performed, a sample of biological material
shall be obtained from | 1873 |
the inmateoffender in accordance with this section,
to be | 1874 |
compared
with
the parent sample of biological material collected | 1875 |
from the crime
scene or the victim of the offense for which the | 1876 |
inmateoffender is an
eligible inmateoffender and requested the | 1877 |
DNA testing. The
inmate'soffender's filing of the application | 1878 |
constitutes the
inmate'soffender's consent to the
obtaining of | 1879 |
the sample of biological
material from
the inmateoffender.
The | 1880 |
testing authority shall
obtain the sample of
biological
material | 1881 |
from the inmateoffender in accordance with medically
accepted | 1882 |
procedures. | 1883 |
(B) If DNA testing is to be performed for an inmateoffender | 1884 |
as
described in division (A) of this section, the court
shall | 1885 |
require the state to coordinate with
the department of | 1886 |
rehabilitation and
correction or the other state agency or entity | 1887 |
of local government with custody of the offender, whichever is | 1888 |
applicable, as to the time and
place at
which the sample of | 1889 |
biological material
will be obtained
from the
inmateoffender. The | 1890 |
If the offender is in prison or is in custody in another facility | 1891 |
at the time the DNA testing is to be performed, the sample of | 1892 |
biological material shall be obtained from the inmateoffender at | 1893 |
the facility in which the inmateoffender is housed, and
the | 1894 |
department of rehabilitation and correction or the other state | 1895 |
agency or entity of local government with custody of the offender, | 1896 |
whichever is applicable, shall make
the inmateoffender
available | 1897 |
at the
specified time. The
court shall require the state to | 1898 |
provide
notice to
the inmateoffender and to the
inmate's | 1899 |
offender's counsel of the date
on
which, and the time and place at | 1900 |
which, the
sample will be so
obtained. | 1901 |
(D) The extracting personnel shall make the determination
as | 1924 |
to whether an eligible inmateoffender for whom DNA testing is
to | 1925 |
be
performed is refusing to submit to the collection of a
sample | 1926 |
of
biological material from the inmateoffender or is hindering | 1927 |
the
state
from obtaining a sample of biological material from the
| 1928 |
inmateoffender at
the time and date of the scheduled collection | 1929 |
of
the
sample. If
the extracting personnel determine that an | 1930 |
inmateoffender is
refusing to
submit to the collection of a | 1931 |
sample or is
hindering
the state
from obtaining a sample, the | 1932 |
extracting
personnel shall
document
in writing the conditions that | 1933 |
constitute
the refusal or
hindrance, maintain the documentation, | 1934 |
and notify the court of the inmate'soffender's refusal or | 1935 |
hindrance. | 1936 |
(A) The court or a
designee of the court shall require the | 1941 |
state to
maintain the
results of the testing and to
maintain and | 1942 |
preserve
both the
parent sample of the biological
material used | 1943 |
and the
inmateoffender
sample of the biological material
used. | 1944 |
The
testing
authority may
be designated as the person to
maintain | 1945 |
the
results
of the testing
or to maintain and preserve
some or all | 1946 |
of
the
samples, or both.
The results of the testing
remain
state's | 1947 |
evidence. The
samples
shall be preserved during
the
entire period | 1948 |
of time for
which the
inmateoffender is imprisoned or confined | 1949 |
relative
to the prison
term or sentence of
death
in question and, | 1950 |
if that
prison term
expires or the inmate
is executed under
that | 1951 |
sentence
of death, is on parole or probation relative to that | 1952 |
sentence, is under post-release control or a community control | 1953 |
sanction relative to that sentence, or has a duty to comply with | 1954 |
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised | 1955 |
Code relative to that sentence. Additionally, if the prison term | 1956 |
or confinement under the sentence in question expires, if the | 1957 |
sentence in question is a sentence of death and the offender is | 1958 |
executed, or if the parole or probation period, the period of | 1959 |
post-release control, the community control sanction, or the duty | 1960 |
to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of | 1961 |
the Revised Code under the sentence in question ends, the samples | 1962 |
shall be preserved for a reasonable period
of time of not less | 1963 |
than
twenty-four
months after the term or confinement expires
or, | 1964 |
the inmateoffender is
executed, or the parole or probation | 1965 |
period, the period of post-release control, the community control | 1966 |
sanction, or the duty to comply with sections 2950.04, 2950.041, | 1967 |
2950.05, and 2950.06 of the Revised Code ends, whichever is | 1968 |
applicable. The
court shall determine the
period
of
time
that is | 1969 |
reasonable for purposes of this division,
provided
that
the period | 1970 |
shall not be less than twenty-four months
after
the
term or | 1971 |
confinement expires or, the inmateoffender is
executed, or the | 1972 |
parole or probation period, the period of post-release control, | 1973 |
the community control sanction, or the duty to comply with | 1974 |
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised | 1975 |
Code ends, whichever is applicable. | 1976 |