Bill Text: OH SB77 | 2009-2010 | 128th General Assembly | Enrolled
Bill Title: Relative to the expansion of DNA testing for certain convicted felons, the elimination of the DNA testing mechanism for felons who pleaded guilty or no contest to the offense, the collection of DNA specimens from all persons eighteen years of age or older who are arrested for a felony offense, the sealing of the official records of persons who have their convictions vacated and set aside due to DNA testing, the preservation and accessibility of biological evidence in a criminal or delinquency investigation or proceeding, the improvement of eyewitness identification procedures, the electronic recording of custodial interrogations, and to provide that DNA records collected in the DNA database and fingerprints filed for record cannot be sealed unless certain circumstances apply.
Spectrum: Bipartisan Bill
Status: (Passed) 2010-07-06 - Effective Date [SB77 Detail]
Download: Ohio-2009-SB77-Enrolled.html
To amend sections 109.573, 2901.07, 2953.21, 2953.23, 2953.31, 2953.32, 2953.321, 2953.35, 2953.51, 2953.54, 2953.55, 2953.71, 2953.72, 2953.73, 2953.74, 2953.75, 2953.76, 2953.77, 2953.78, 2953.79, 2953.81, 2953.83, and 2953.84, to enact sections 109.561, 2933.81, 2933.82, 2933.83, 2953.56, 2953.57, 2953.58, 2953.59, and 2953.60, and to repeal section 2953.82 of the Revised Code relative to the expansion of DNA testing for certain convicted felons, the elimination of the DNA testing mechanism for felons who pleaded guilty or no contest to the offense, the collection of DNA specimens from all persons eighteen years of age or older who are arrested for a felony offense, the sealing of the official records of persons who have their convictions vacated and set aside due to DNA testing, the preservation and accessibility of biological evidence in a criminal or delinquency investigation or proceeding, the improvement of eyewitness identification procedures, the electronic recording of custodial interrogations, and to provide that DNA records collected in the DNA database and fingerprints filed for record cannot be sealed unless certain circumstances apply.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 109.573, 2901.07, 2953.21, 2953.23, 2953.31, 2953.32, 2953.321, 2953.35, 2953.51, 2953.54, 2953.55, 2953.71, 2953.72, 2953.73, 2953.74, 2953.75, 2953.76, 2953.77, 2953.78, 2953.79, 2953.81, 2953.83, and 2953.84 be amended and sections 109.561, 2933.81, 2933.82, 2933.83, 2953.56, 2953.57, 2953.58, 2953.59, and 2953.60 of the Revised Code be enacted to read as follows:
Sec. 109.561. There is hereby established within the bureau of criminal identification and investigation a preservation of biological evidence task force. The task force shall consist of officers and employees of the bureau; a representative from the Ohio prosecutors association; a representative from the Ohio state coroners association; a representative from the Ohio association of chiefs of police; a representative from the Ohio public defenders office, in consultation with the Ohio innocence project; and a representative from the buckeye state sheriffs association. The task force shall perform the duties and functions specified in division (C) of section 2933.82 of the Revised Code.
Sec. 109.573. (A) As used in this section:
(1) "DNA" means human deoxyribonucleic acid.
(2) "DNA analysis" means a laboratory analysis of a DNA specimen to identify DNA characteristics and to create a DNA record.
(3) "DNA database" means a collection of DNA records from forensic casework or from crime scenes, specimens from anonymous and unidentified sources, and records collected pursuant to sections 2152.74 and 2901.07 of the Revised Code and a population statistics database for determining the frequency of occurrence of characteristics in DNA records.
(4) "DNA record" means the objective result of a DNA analysis of a DNA specimen, including representations of DNA fragment lengths, digital images of autoradiographs, discrete allele assignment numbers, and other DNA specimen characteristics that aid in establishing the identity of an individual.
(5) "DNA specimen" includes human blood cells or physiological tissues or body fluids.
(6) "Unidentified person database" means a collection of DNA records, and, on and after May 21, 1998, of fingerprint and photograph records, of unidentified human corpses, human remains, or living individuals.
(7) "Relatives of missing persons database" means a collection of DNA records of persons related by consanguinity to a missing person.
(8) "Law enforcement agency" means a police department, the office of a sheriff, the state highway patrol, a county prosecuting attorney, or a federal, state, or local governmental body that enforces criminal laws and that has employees who have a statutory power of arrest.
(9) "Administration of criminal justice" means the performance of detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. "Administration of criminal justice" also includes criminal identification activities and the collection, storage, and dissemination of criminal history record information.
(B)(1) The superintendent of the bureau of criminal identification and investigation may do all of the following:
(a) Establish and maintain a state DNA laboratory to perform DNA analyses of DNA specimens;
(b) Establish and maintain a DNA database;
(c) Establish and maintain an unidentified person database to aid in the establishment of the identity of unknown human corpses, human remains, or living individuals;
(d) Establish and maintain a relatives of missing persons database for comparison with the unidentified person database to aid in the establishment of the identity of unknown human corpses, human remains, and living individuals.
(2) If the bureau of criminal identification and investigation establishes and maintains a DNA laboratory and a DNA database, the bureau may use or disclose information regarding DNA records for the following purposes:
(a) The bureau may disclose information to a law enforcement agency for the administration of criminal justice.
(b) The bureau shall disclose pursuant to a court order issued under section 3111.09 of the Revised Code any information necessary to determine the existence of a parent and child relationship in an action brought under sections 3111.01 to 3111.18 of the Revised Code.
(c) The bureau may use or disclose information from the population statistics database, for identification research and protocol development, or for quality control purposes.
(3) If the bureau of criminal identification and investigation establishes and maintains a relatives of missing persons database, all of the following apply:
(a) If a person has disappeared and has been continuously absent from the person's place of last domicile for a thirty-day or longer period of time without being heard from during the period, persons related by consanguinity to the missing person may submit to the bureau a DNA specimen, the bureau may include the DNA record of the specimen in the relatives of missing persons database, and, if the bureau does not include the DNA record of the specimen in the relatives of missing persons database, the bureau shall retain the DNA record for future reference and inclusion as appropriate in that database.
(b) The bureau shall not charge a fee for the submission of a DNA specimen pursuant to division (B)(3)(a) of this section.
(c) If the DNA specimen submitted pursuant to division (B)(3)(a) of this section is collected by withdrawing blood from the person or a similarly invasive procedure, a physician, registered nurse, licensed practical nurse, duly licensed clinical laboratory technician, or other qualified medical practitioner shall conduct the collection procedure for the DNA specimen submitted pursuant to division (B)(3)(a) of this section and shall collect the DNA specimen in a medically approved manner. If the DNA specimen is collected by swabbing for buccal cells or a similarly noninvasive procedure, division (B)(3)(c) of this section does not require that the DNA specimen be collected by a qualified medical practitioner of that nature. No later than fifteen days after the date of the collection of the DNA specimen, the person conducting the DNA specimen collection procedure shall cause the DNA specimen to be forwarded to the bureau of criminal identification and investigation in accordance with procedures established by the superintendent of the bureau under division (H) of this section. The bureau may provide the specimen vials, mailing tubes, labels, postage, and instruction needed for the collection and forwarding of the DNA specimen to the bureau.
(d) The superintendent, in the superintendent's discretion, may compare DNA records in the relatives of missing persons database with the DNA records in the unidentified person database.
(4) If the bureau of criminal identification and investigation establishes and maintains an unidentified person database and if the superintendent of the bureau identifies a matching DNA record for the DNA record of a person or deceased person whose DNA record is contained in the unidentified person database, the superintendent shall inform the coroner who submitted or the law enforcement agency that submitted the DNA specimen to the bureau of the match and, if possible, of the identity of the unidentified person.
(5) The bureau of criminal identification and investigation may enter into a contract with a qualified public or private laboratory to perform DNA analyses, DNA specimen maintenance, preservation, and storage, DNA record keeping, and other duties required of the bureau under this section. A public or private laboratory under contract with the bureau shall follow quality assurance and privacy requirements established by the superintendent of the bureau.
(C) The superintendent of the bureau of criminal identification and investigation shall establish procedures for entering into the DNA database the DNA records submitted pursuant to sections 2152.74 and 2901.07 of the Revised Code and for determining an order of priority for entry of the DNA records based on the types of offenses committed by the persons whose records are submitted and the available resources of the bureau.
(D) When a DNA record is derived from a DNA specimen provided pursuant to section 2152.74 or 2901.07 of the Revised Code, the bureau of criminal identification and investigation shall attach to the DNA record personal identification information that identifies the person from whom the DNA specimen was taken. The personal identification information may include the subject person's fingerprints and any other information the bureau determines necessary. The DNA record and personal identification information attached to it shall be used only for the purpose of personal identification or for a purpose specified in this section.
(E) DNA records, DNA specimens, fingerprints, and photographs that the bureau of criminal identification and investigation receives pursuant to this section and sections 313.08, 2152.74, and 2901.07 of the Revised Code and personal identification information attached to a DNA record are not public records under section 149.43 of the Revised Code.
(F) The bureau of criminal identification and investigation may charge a reasonable fee for providing information pursuant to this section to any law enforcement agency located in another state.
(G)(1) No person who because of the person's employment or official position has access to a DNA specimen, a DNA record, or other information contained in the DNA database that identifies an individual shall knowingly disclose that specimen, record, or information to any person or agency not entitled to receive it or otherwise shall misuse that specimen, record, or information.
(2) No person without authorization or privilege to obtain information contained in the DNA database that identifies an individual person shall purposely obtain that information.
(H) The superintendent of the bureau of criminal identification and investigation shall establish procedures for all of the following:
(1) The forwarding to the bureau of DNA specimens collected pursuant to division (H) of this section and sections 313.08, 2152.74, and 2901.07 of the Revised Code and of fingerprints and photographs collected pursuant to section 313.08 of the Revised Code;
(2) The collection, maintenance, preservation, and analysis of DNA specimens;
(3) The creation, maintenance, and operation of the DNA database;
(4) The use and dissemination of information from the DNA database;
(5) The creation, maintenance, and operation of the unidentified person database;
(6) The use and dissemination of information from the unidentified person database;
(7) The creation, maintenance, and operation of the relatives of missing persons database;
(8) The use and dissemination of information from the relatives of missing persons database;
(9) The verification of entities requesting DNA records and other DNA information from the bureau and the authority of the entity to receive the information;
(10) The operation of the bureau and responsibilities of employees of the bureau with respect to the activities described in this section.
(I) In conducting DNA analyses of DNA specimens, the state
DNA laboratory and any laboratory with which the bureau has
entered into a contract pursuant to division (B)(5) of this
section shall give DNA analyses of DNA specimens that relate to
ongoing criminal investigations or prosecutions priority over DNA
analyses of DNA specimens that relate to applications made
pursuant to section 2953.73 or 2953.82 of the Revised Code.
(J) The attorney general may develop procedures for entering into the national DNA index system the DNA records submitted pursuant to division (B)(1) of section 2901.07 of the Revised Code.
Sec. 2901.07. (A) As used in this section:
(1) "DNA analysis" and "DNA specimen" have the same meanings as in section 109.573 of the Revised Code.
(2) "Jail" and "community-based correctional facility" have the same meanings as in section 2929.01 of the Revised Code.
(3) "Post-release control" has the same meaning as in section 2967.01 of the Revised Code.
(4) "Head of the arresting law enforcement agency" means whichever of the following is applicable regarding the arrest in question:
(a) If the arrest was made by a sheriff or a deputy sheriff, the sheriff who made the arrest or who employs the deputy sheriff who made the arrest;
(b) If the arrest was made by a law enforcement officer of a law enforcement agency of a municipal corporation, the chief of police, marshal, or other chief law enforcement officer of the agency that employs the officer who made the arrest;
(c) If the arrest was made by a constable or a law enforcement officer of a township police department or police district police force, the constable who made the arrest or the chief law enforcement officer of the department or agency that employs the officer who made the arrest;
(d) If the arrest was made by the superintendent or a trooper of the state highway patrol, the superintendent of the state highway patrol;
(e) If the arrest was made by a law enforcement officer not identified in division (A)(4)(a), (b), (c), or (d) of this section, the chief law enforcement officer of the law enforcement agency that employs the officer who made the arrest.
(B)(1) On and after July 1, 2011, a person who is eighteen years of age or older and who is arrested on or after July 1, 2011, for a felony offense shall submit to a DNA specimen collection procedure administered by the head of the arresting law enforcement agency. The head of the arresting law enforcement agency shall cause the DNA specimen to be collected from the person during the intake process at the jail, community-based correctional facility, detention facility, or law enforcement agency office or station to which the arrested person is taken after the arrest. The head of the arresting law enforcement agency shall cause the DNA specimen to be collected in accordance with division (C) of this section.
(2) Regardless of when the conviction occurred or the guilty
plea was entered, a person who has been convicted of, is convicted
of, has pleaded guilty to, or pleads guilty to a felony offense
and, who is sentenced to a prison term or to a community
residential sanction in a jail or community-based correctional
facility for that offense pursuant to section 2929.16 of the
Revised Code, and who does not provide a DNA specimen pursuant to
division (B)(1) of this section, and a person who has been
convicted of, is convicted of, has pleaded guilty to, or pleads
guilty to a misdemeanor offense listed in division (D) of this
section and, who is sentenced to a term of imprisonment for that
offense, and who does not provide a DNA specimen pursuant to
division (B)(1) of this section, shall submit to a DNA specimen
collection procedure administered by the director of
rehabilitation and correction or the chief administrative officer
of the jail or other detention facility in which the person is
serving the term of imprisonment. If the person serves the prison
term in a state correctional institution, the director of
rehabilitation and correction shall cause the DNA specimen to be
collected from the person during the intake process at the
reception facility designated by the director. If the person
serves the community residential sanction or term of imprisonment
in a jail, a community-based correctional facility, or another
county, multicounty, municipal, municipal-county, or
multicounty-municipal detention facility, the chief administrative
officer of the jail, community-based correctional facility, or
detention facility shall cause the DNA specimen to be collected
from the person during the intake process at the jail,
community-based correctional facility, or detention facility. The
DNA specimen shall be collected in accordance with division (C) of
this section.
(2)(3) Regardless of when the conviction occurred or the
guilty plea was entered, if a person has been convicted of, is
convicted of, has pleaded guilty to, or pleads guilty to a felony
offense or a misdemeanor offense listed in division (D) of this
section, is serving a prison term, community residential sanction,
or term of imprisonment for that offense, and does not provide a
DNA specimen pursuant to division (B)(1) or (2) of this section,
prior to the person's release from the prison term, community
residential sanction, or imprisonment, the person shall submit to,
and the director of rehabilitation and correction or the chief
administrative officer of the jail, community-based correctional
facility, or detention facility in which the person is serving the
prison term, community residential sanction, or term of
imprisonment shall administer, a DNA specimen collection procedure
at the state correctional institution, jail, community-based
correctional facility, or detention facility in which the person
is serving the prison term, community residential sanction, or
term of imprisonment. The DNA specimen shall be collected in
accordance with division (C) of this section.
(3)(4)(a) Regardless of when the conviction occurred or the
guilty plea was entered, if a person has been convicted of, is
convicted of, has pleaded guilty to, or pleads guilty to a felony
offense or a misdemeanor offense listed in division (D) of this
section and the person is on probation, released on parole, under
transitional control, on community control, on post-release
control, or under any other type of supervised release under the
supervision of a probation department or the adult parole
authority for that offense, and did not provide a DNA specimen
pursuant to division (B)(1), (2), or (3) of this section, the
person shall submit to a DNA specimen collection procedure
administered by the chief administrative officer of the probation
department or the adult parole authority. The DNA specimen shall
be collected in accordance with division (C) of this section. If
the person refuses to submit to a DNA specimen collection
procedure as provided in this division, the person may be subject
to the provisions of section 2967.15 of the Revised Code.
(b) If a person to whom division (B)(3)(4)(a) of this section
applies is sent to jail or is returned to a jail, community-based
correctional facility, or state correctional institution for a
violation of the terms and conditions of the probation, parole,
transitional control, other release, or post-release control, if
the person was or will be serving a term of imprisonment, prison
term, or community residential sanction for committing a felony
offense or for committing a misdemeanor offense listed in division
(D) of this section, and if the person did not provide a DNA
specimen pursuant to division (B)(1), (2), (3), or (3)(4)(a) of
this section, the person shall submit to, and the director of
rehabilitation and correction or the chief administrative officer
of the jail or community-based correctional facility shall
administer, a DNA specimen collection procedure at the jail,
community-based correctional facility, or state correctional
institution in which the person is serving the term of
imprisonment, prison term, or community residential sanction. The
DNA specimen shall be collected from the person in accordance with
division (C) of this section.
(4)(5) Regardless of when the conviction occurred or the
guilty plea was entered, if a person has been convicted of, is
convicted of, has pleaded guilty to, or pleads guilty to a felony
offense or a misdemeanor offense listed in division (D) of this
section, the person is not sentenced to a prison term, a community
residential sanction in a jail or community-based correctional
facility, a term of imprisonment, or any type of supervised
release under the supervision of a probation department or the
adult parole authority, and the person does not provide a DNA
specimen pursuant to division (B)(1), (2), (3), (4)(a), or
(3)(4)(b) of this section, the sentencing court shall order the
person to report to the county probation department immediately
after sentencing to submit to a DNA specimen collection procedure
administered by the chief administrative officer of the county
probation office. If the person is incarcerated at the time of
sentencing, the person shall submit to a DNA specimen collection
procedure administered by the director of rehabilitation and
correction or the chief administrative officer of the jail or
other detention facility in which the person is incarcerated. The
DNA specimen shall be collected in accordance with division (C) of
this section.
(C) If the DNA specimen is collected by withdrawing blood
from the person or a similarly invasive procedure, a physician,
registered nurse, licensed practical nurse, duly licensed clinical
laboratory technician, or other qualified medical practitioner
shall collect in a medically approved manner the DNA specimen
required to be collected pursuant to division (B) of this section.
If the DNA specimen is collected by swabbing for buccal cells or a
similarly noninvasive procedure, this section does not require
that the DNA specimen be collected by a qualified medical
practitioner of that nature. No later than fifteen days after the
date of the collection of the DNA specimen, the head of the
arresting law enforcement agency regarding a DNA specimen taken
pursuant to division (B)(1) of this section, the director of
rehabilitation and correction or the chief administrative officer
of the jail, community-based correctional facility, or other
county, multicounty, municipal, municipal-county, or
multicounty-municipal detention facility, in which the person is
serving the prison term, community residential sanction, or term
of imprisonment regarding a DNA specimen taken pursuant to
division (B)(2), (3), or (4)(b) of this section, the chief
administrative officer of the probation department or the adult
parole authority regarding a DNA specimen taken pursuant to
division (B)(4)(a) of this section, or the chief administrative
officer of the county probation office, the director of
rehabilitation and correction, or the chief administrative officer
of the jail or other detention facility in which the person is
incarcerated regarding a DNA specimen taken pursuant to division
(B)(5) of this section, whichever is applicable, shall cause the
DNA specimen to be forwarded to the bureau of criminal
identification and investigation in accordance with procedures
established by the superintendent of the bureau under division (H)
of section 109.573 of the Revised Code. The bureau shall provide
the specimen vials, mailing tubes, labels, postage, and
instructions needed for the collection and forwarding of the DNA
specimen to the bureau.
(D) The director of rehabilitation and correction, the chief
administrative officer of the jail, community-based correctional
facility, or other county, multicounty, municipal,
municipal-county, or multicounty-municipal detention facility, or
the chief administrative officer of a county probation department
or the adult parole authority shall cause a DNA specimen to be
collected in accordance with divisions (B) and (C) of this section
from a person in its custody or under its supervision DNA specimen
collection duty set forth in division (B)(1) of this section
applies to any person who is eighteen years of age or older and
who is arrested on or after July 1, 2011, for any felony offense.
The DNA specimen collection duties set forth in divisions (B)(2),
(3), (4)(a), (4)(b), and (5) of this section apply to any person
who has been convicted of, is convicted of, has pleaded guilty to,
or pleads guilty to any felony offense or any of the following
misdemeanor offenses:
(1) A misdemeanor violation, an attempt to commit a misdemeanor violation, or complicity in committing a misdemeanor violation of section 2907.04 of the Revised Code;
(2) A misdemeanor violation of any law that arose out of the same facts and circumstances and same act as did a charge against the person of a violation of section 2903.01, 2903.02, 2905.01, 2907.02, 2907.03, 2907.04, 2907.05, or 2911.11 of the Revised Code that previously was dismissed or amended or as did a charge against the person of a violation of section 2907.12 of the Revised Code as it existed prior to September 3, 1996, that previously was dismissed or amended;
(3) A misdemeanor violation of section 2919.23 of the Revised Code that would have been a violation of section 2905.04 of the Revised Code as it existed prior to July 1, 1996, had it been committed prior to that date;
(4) A sexually oriented offense or a child-victim oriented offense, both as defined in section 2950.01 of the Revised Code, that is a misdemeanor, if, in relation to that offense, the offender is a tier III sex offender/child-victim offender, as defined in section 2950.01 of the Revised Code.
(E) The director of rehabilitation and correction may prescribe rules in accordance with Chapter 119. of the Revised Code to collect a DNA specimen, as provided in this section, from an offender whose supervision is transferred from another state to this state in accordance with the interstate compact for adult offender supervision described in section 5149.21 of the Revised Code.
Sec. 2933.81. (A) As used in this section:
(1) "Custodial interrogation" means any interrogation involving a law enforcement officer's questioning that is reasonably likely to elicit incriminating responses and in which a reasonable person in the subject's position would consider self to be in custody, beginning when a person should have been advised of the person's right to counsel and right to remain silent and of the fact that anything the person says could be used against the person, as specified by the United States supreme court in Miranda v. Arizona (1966), 384 U.S. 436, and subsequent decisions, and ending when the questioning has completely finished.
(2) "Detention facility" has the same meaning as in section 2921.01 of the Revised Code.
(3) "Electronic recording" or "electronically recorded" means an audio and visual recording that is an authentic, accurate, unaltered record of a custodial interrogation.
(4) "Law enforcement agency" has the same meaning as in section 109.573 of the Revised Code.
(5) "Law enforcement vehicle" means a vehicle primarily used by a law enforcement agency or by an employee of a law enforcement agency for official law enforcement purposes.
(6) "Local correctional facility" has the same meaning as in section 2903.13 of the Revised Code.
(7) "Place of detention" means a jail, police or sheriff's station, holding cell, state correctional institution, local correctional facility, detention facility, or department of youth services facility. "Place of detention" does not include a law enforcement vehicle.
(8) "State correctional institution" has the same meaning as in section 2967.01 of the Revised Code.
(9) "Statement" means an oral, written, sign language, or nonverbal communication.
(B) All statements made by a person who is the suspect of a violation of or possible violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03, or an attempt to commit a violation of section 2907.02 of the Revised Code during a custodial interrogation in a place of detention are presumed to be voluntary if the statements made by the person are electronically recorded. The person making the statements during the electronic recording of the custodial interrogation has the burden of proving that the statements made during the custodial interrogation were not voluntary. There shall be no penalty against the law enforcement agency that employs a law enforcement officer if the law enforcement officer fails to electronically record as required by this division a custodial interrogation. A law enforcement officer's failure to electronically record a custodial interrogation does not create a private cause of action against that law enforcement officer.
(C) A failure to electronically record a statement as required by this section shall not provide the basis to exclude or suppress the statement in any criminal proceeding, delinquent child proceeding, or other legal proceeding.
(D)(1) Law enforcement personnel shall clearly identify and catalog every electronic recording of a custodial interrogation that is recorded pursuant to this section.
(2) If a criminal or delinquent child proceeding is brought against a person who was the subject of a custodial interrogation that was electronically recorded, law enforcement personnel shall preserve the recording until the later of when all appeals, post-conviction relief proceedings, and habeas corpus proceedings are final and concluded or the expiration of the period of time within which such appeals and proceedings must be brought.
(3) Upon motion by the defendant in a criminal proceeding or the alleged delinquent child in a delinquent child proceeding, the court may order that a copy of an electronic recording of a custodial interrogation of the person be preserved for any period beyond the expiration of all appeals, post-conviction relief proceedings, and habeas corpus proceedings.
(4) If no criminal or delinquent child proceeding is brought against a person who was the subject of a custodial interrogation that was electronically recorded pursuant to this section, law enforcement personnel are not required to preserve the related recording.
Sec. 2933.82. (A) As used in this section:
(1)(a) "Biological evidence" means any of the following:
(i) The contents of a sexual assault examination kit;
(ii) Any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or any other identifiable biological material that was collected as part of a criminal investigation or delinquent child investigation and that reasonably may be used to incriminate or exculpate any person for an offense or delinquent act.
(b) The definition of "biological evidence" set forth in division (A)(1)(a) of this section applies whether the material in question is cataloged separately, such as on a slide or swab or in a test tube, or is present on other evidence, including, but not limited to, clothing, ligatures, bedding or other household material, drinking cups or containers, or cigarettes.
(2) "Biological material" has the same meaning as in section 2953.71 of the Revised Code.
(3) "DNA" has the same meaning as in section 109.573 of the Revised Code.
(4) "Profile" means a unique identifier of an individual, derived from DNA.
(5) "Prosecutor" has the same meaning as in section 2935.01 of the Revised Code.
(6) "Governmental evidence-retention entity" means all of the following:
(a) Any law enforcement agency, prosecutor's office, court, public hospital, crime laboratory, or other governmental or public entity or individual within this state that is charged with the collection, storage, or retrieval of biological evidence;
(b) Any official or employee of any entity or individual described in division (A)(6)(a) of this section.
(B)(1) Each governmental evidence-retention entity that secures any biological evidence in relation to an investigation or prosecution of a criminal offense or delinquent act that is a violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code shall secure the biological evidence for whichever of the following periods of time is applicable:
(a) For a violation of section 2903.01 or 2903.02 of the Revised Code, for the period of time that the offense or act remains unsolved;
(b) For a violation of section 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code, for a period of thirty years if the offense or act remains unsolved;
(c) If any person is convicted of or pleads guilty to the offense, or is adjudicated a delinquent child for committing the delinquent act, for the earlier of the following: (i) the expiration of the latest of the following periods of time that apply to the person: the period of time that the person is incarcerated, is in a department of youth services institution or other juvenile facility, is under a community control sanction for that offense, is under any order of disposition for that act, is on probation or parole for that offense, is under judicial release or supervised release for that act, is under post-release control for that offense, is involved in civil litigation in connection with that offense or act, or is subject to registration and other duties imposed for that offense or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code or (ii) thirty years. If after the period of thirty years the person remains incarcerated, then the governmental evidence-retention entity shall secure the biological evidence until the person is released from incarceration or dies.
(2) This section applies to evidence likely to contain biological material that was in the possession of any governmental evidence-retention entity during the investigation and prosecution of a criminal case or delinquent child case involving a violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code.
(3) A governmental evidence-retention entity that possesses biological evidence shall retain the biological evidence in the amount and manner sufficient to develop a DNA profile from the biological material contained in or included on the evidence.
(4) Upon written request by the defendant in a criminal case or the alleged delinquent child in a delinquent child case involving a violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or 2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation of section 2907.02 of the Revised Code, a governmental evidence-retention entity that possesses biological evidence shall prepare an inventory of the biological evidence that has been preserved in connection with the defendant's criminal case or the alleged delinquent child's delinquent child case.
(5) Except as otherwise provided in division (B)(7) of this section, a governmental evidence-retention entity that possesses biological evidence that includes biological material may destroy the evidence before the expiration of the applicable period of time specified in division (B)(1) of this section if all of the following apply:
(a) No other provision of federal or state law requires the state to preserve the evidence.
(b) The governmental evidence-retention entity, by certified mail, return receipt requested, provides notice of intent to destroy the evidence to all of the following:
(i) All persons who remain in custody, incarcerated, in a department of youth services institution or other juvenile facility, under a community control sanction, under any order of disposition, on probation or parole, under judicial release or supervised release, under post-release control, involved in civil litigation, or subject to registration and other duties imposed for that offense or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code as a result of a criminal conviction, delinquency adjudication, or commitment related to the evidence in question;
(ii) The attorney of record for each person who is in custody in any circumstance described in division (B)(5)(b)(i) of this section if the attorney of record can be located;
(iii) The state public defender;
(iv) The office of the prosecutor of record in the case that resulted in the custody of the person in custody in any circumstance described in division (B)(5)(b)(i) of this section;
(v) The attorney general.
(c) No person who is notified under division (B)(5)(b) of this section does either of the following within one year after the date on which the person receives the notice:
(i) Files a motion for testing of evidence under sections 2953.71 to 2953.81 or section 2953.82 of the Revised Code;
(ii) Submits a written request for retention of evidence to the governmental evidence-retention entity that provided notice of its intent to destroy evidence under division (B)(5)(b) of this section.
(6) Except as otherwise provided in division (B)(7) of this section, if, after providing notice under division (B)(5)(b) of this section of its intent to destroy evidence, a governmental evidence-retention entity receives a written request for retention of the evidence from any person to whom the notice is provided, the governmental evidence-retention entity shall retain the evidence while the person referred to in division (B)(5)(b)(i) of this section remains in custody, incarcerated, in a department of youth services institution or other juvenile facility, under a community control sanction, under any order of disposition, on probation or parole, under judicial release or supervised release, under post-release control, involved in civil litigation, or subject to registration and other duties imposed for that offense or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code as a result of a criminal conviction, delinquency adjudication, or commitment related to the evidence in question.
(7) A governmental evidence-retention entity that possesses biological evidence that includes biological material may destroy the evidence five years after a person pleads guilty or no contest to a violation of section 2903.01, 2903.02, or 2903.03, a violation of 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of section 2907.02, 2907.03, division (A)(4) or (B) of section 2907.05, or an attempt to commit a violation of section 2907.02 of the Revised Code and all appeals have been exhausted unless, upon a motion to the court by the person who pleaded guilty or no contest or the person's attorney and notice to those persons described in division (B)(5)(b) of this section requesting that the evidence not be destroyed, the court finds good cause as to why that evidence must be retained.
(8) A governmental evidence-retention entity shall not be required to preserve physical evidence pursuant to this section that is of such a size, bulk, or physical character as to render retention impracticable. When retention of physical evidence that otherwise would be required to be retained pursuant to this section is impracticable as described in this division, the governmental evidence-retention entity that otherwise would be required to retain the physical evidence shall remove and preserve portions of the material evidence likely to contain biological evidence related to the offense, in a quantity sufficient to permit future DNA testing before returning or disposing of that physical evidence.
(C)(1) The preservation of biological evidence task force established within the bureau of criminal identification and investigation under section 109.561 of the Revised Code shall establish a system regarding the proper preservation of biological evidence in this state. In establishing the system, the task force shall do all of the following:
(a) Devise standards regarding the proper collection, retention, and cataloguing of biological evidence for ongoing investigations and prosecutions;
(b) Recommend practices, protocols, models, and resources for the cataloging and accessibility of preserved biological evidence already in the possession of governmental evidence-retention entities.
(2) In consultation with the preservation of biological evidence task force described in division (C)(1) of this section, the division of criminal justice services of the department of public safety shall administer and conduct training programs for law enforcement officers and other relevant employees who are charged with preserving and cataloging biological evidence regarding the methods and procedures referenced in this section.
Sec. 2933.83. (A) As used in this section:
(1) "Administrator" means the person conducting a photo lineup or live lineup.
(2) "Blind administrator" means the administrator does not know the identity of the suspect. "Blind administrator" includes an administrator who conducts a photo lineup through the use of a folder system or a substantially similar system.
(3) "Blinded administrator" means the administrator may know who the suspect is, but does not know which lineup member is being viewed by the eyewitness. "Blinded administrator" includes an administrator who conducts a photo lineup through the use of a folder system or a substantially similar system.
(4) "Eyewitness" means a person who observes another person at or near the scene of an offense.
(5) "Filler" means either a person or a photograph of a person who is not suspected of an offense and is included in an identification procedure.
(6) "Folder system" means a system for conducting a photo lineup that satisfies all of the following:
(a) The investigating officer uses one "suspect photograph" that resembles the description of the suspected perpetrator of the offense provided by the eyewitness, five "filler photographs" of persons not suspected of the offense that match the description of the suspected perpetrator but do not cause the suspect photograph to unduly stand out, four "blank photographs" that contain no images of any person, and ten empty folders.
(b) The investigating officer places one "filler photograph" into one of the empty folders and numbers it as folder 1.
(c) The administrator places the "suspect photograph" and the other four "filler photographs" into five other empty folders, shuffles the five folders so that the administrator is unaware of which folder contains the "suspect photograph," and numbers the five shuffled folders as folders 2 through 6.
(d) The administrator places the four "blank photographs" in the four remaining empty folders and numbers these folders as folders 7 through 10, and these folders serve as "dummy folders."
(e) The administrator provides instructions to the eyewitness as to the lineup procedure and informs the eyewitness that a photograph of the alleged perpetrator of the offense may or may not be included in the photographs the eyewitness is about to see and that the administrator does not know which, if any, of the folders contains the photograph of the alleged perpetrator. The administrator also shall instruct the eyewitness that the administrator does not want to view any of the photographs and will not view any of the photographs and that the eyewitness may not show the administrator any of the photographs. The administrator shall inform the eyewitness that if the eyewitness identifies a photograph as being the person the eyewitness saw the eyewitness shall identify the photograph only by the number of the photograph's corresponding folder.
(f) The administrator hands each of the ten folders to the eyewitness individually without looking at the photograph in the folder. Each time the eyewitness has viewed a folder, the eyewitness indicates whether the photograph is of the person the eyewitness saw, indicates the degree of the eyewitness's confidence in this identification, and returns the folder and the photograph it contains to the administrator.
(g) The administrator follows the procedures specified in this division for a second viewing if the eyewitness requests to view each of the folders a second time, handing them to the eyewitness in the same order as during the first viewing; the eyewitness is not permitted to have more than two viewings of the folders; and the administrator preserves the order of the folders and the photographs they contain in a facedown position in order to document the steps specified in division (A)(6)(h) of this section.
(h) The administrator documents and records the results of the procedure described in divisions (A)(6)(a) to (f) of this section before the eyewitness views each of the folders a second time and before the administrator views any photograph that the eyewitness identifies as being of the person the eyewitness saw. The documentation and record includes the date, time, and location of the lineup procedure; the name of the administrator; the names of all of the individuals present during the lineup; the number of photographs shown to the eyewitness; copies of each photograph shown to the eyewitness; the order in which the folders were presented to the witness; the source of each photograph that was used in the procedure; a statement of the eyewitness's confidence in the eyewitness's own words as to the certainty of the eyewitness's identification of the photographs as being of the person the eyewitness saw that is taken immediately upon the reaction of the eyewitness to viewing the photograph; and any additional information the administrator considers pertinent to the lineup procedure. If the eyewitness views each of the folders a second time, the administrator shall document and record the statement of the eyewitness's confidence in the eyewitness's own words as to the certainty of the eyewitness's identification of a photograph as being of the person the eyewitness saw and document that the identification was made during a second viewing of each of the folders by the eyewitness.
(i) The administrator shall not say anything to the eyewitness or give any oral or nonverbal cues as to whether or not the eyewitness identified the "suspect photograph" until the administrator documents and records the results of the procedure described in divisions (A)(6)(a) to (g) of this section and the photo lineup has concluded.
(7) "Live lineup" means an identification procedure in which a group of persons, including the suspected perpetrator of an offense and other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator of the offense.
(8) "Photo lineup" means an identification procedure in which an array of photographs, including a photograph of the suspected perpetrator of an offense and additional photographs of other persons not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator of the offense.
(9) "Perpetrator" means the person who committed the offense.
(10) "Suspect" means the person believed by law enforcement to be the possible perpetrator of the offense.
(B) Prior to conducting any live lineup or photo lineup on or after the effective date of this section, any law enforcement agency or criminal justice entity in this state that conducts live lineups or photo lineups shall adopt specific procedures for conducting the lineups. The procedures, at a minimum, shall impose the following requirements:
(1) Unless impracticable, a blind or blinded administrator shall conduct the live lineup or photo lineup.
(2) When it is impracticable for a blind administrator to conduct the live lineup or photo lineup, the administrator shall state in writing the reason for that impracticability.
(3) When it is impracticable for either a blind or blinded administrator to conduct the live lineup or photo lineup, the administrator shall state in writing the reason for that impracticability.
(4) The administrator conducting the lineup shall make a written record that includes all of the following information:
(a) All identification and nonidentification results obtained during the lineup, signed by the eyewitnesses, including the eyewitnesses' confidence statements made immediately at the time of the identification;
(b) The names of all persons present at the lineup;
(c) The date and time of the lineup;
(d) Any eyewitness identification of one or more fillers in the lineup;
(e) The names of the lineup members and other relevant identifying information, and the sources of all photographs or persons used in the lineup.
(5) If a blind administrator is conducting the live lineup or the photo lineup, the administrator shall inform the eyewitness that the suspect may or may not be in the lineup and that the administrator does not know who the suspect is.
(C) For any photo lineup or live lineup that is administered on or after the effective date of this section, all of the following apply:
(1) Evidence of a failure to comply with any of the provisions of this section or with any procedure for conducting lineups that has been adopted by a law enforcement agency or criminal justice agency pursuant to division (B) of this section and that conforms to any provision of divisions (B)(1) to (5) of this section shall be considered by trial courts in adjudicating motions to suppress eyewitness identification resulting from or related to the lineup.
(2) Evidence of a failure to comply with any of the provisions of this section or with any procedure for conducting lineups that has been adopted by a law enforcement agency or criminal justice agency pursuant to division (B) of this section and that conforms to any provision of divisions (B)(1) to (5) of this section shall be admissible in support of any claim of eyewitness misidentification resulting from or related to the lineup as long as that evidence otherwise is admissible.
(3) When evidence of a failure to comply with any of the provisions of this section, or with any procedure for conducting lineups that has been adopted by a law enforcement agency or criminal justice agency pursuant to division (B) of this section and that conforms to any provision of divisions (B)(1) to (5) of this section, is presented at trial, the jury shall be instructed that it may consider credible evidence of noncompliance in determining the reliability of any eyewitness identification resulting from or related to the lineup.
(D) The requirements in this section regarding the procedures for live lineups or photo lineups conducted by a law enforcement agency or criminal justice entity do not prohibit a law enforcement agency or criminal justice entity from adopting other scientifically accepted procedures for conducting live lineups or photo lineups that the scientific community considers more effective.
Sec. 2953.21. (A)(1)(a) Any person who has been convicted of
a criminal offense or adjudicated a delinquent child and who
claims that there was such a denial or infringement of the
person's rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States,
and any person who has been convicted of a criminal offense that
is a felony, and who is an inmate, and offender for whom DNA
testing that was performed under sections 2953.71 to 2953.81 of
the Revised Code or under former section 2953.82 of the Revised
Code and analyzed in the context of and upon consideration of all
available admissible evidence related to the inmate's person's
case as described in division (D) of section 2953.74 of the
Revised Code provided results that establish, by clear and
convincing evidence, actual innocence of that felony offense or,
if the person was sentenced to death, establish, by clear and
convincing evidence, actual innocence of the aggravating
circumstance or circumstances the person was found guilty of
committing and that is or are the basis of that sentence of death,
may file a petition in the court that imposed sentence, stating
the grounds for relief relied upon, and asking the court to vacate
or set aside the judgment or sentence or to grant other
appropriate relief. The petitioner may file a supporting affidavit
and other documentary evidence in support of the claim for relief.
(b) As used in division (A)(1)(a) of this section, "actual
innocence" means that, had the results of the DNA testing
conducted under sections 2953.71 to 2953.81 of the Revised Code or
under former section 2953.82 of the Revised Code been presented at
trial, and had those results been analyzed in the context of and
upon consideration of all available admissible evidence related to
the
inmate's person's case as described in division (D) of
section 2953.74 of the Revised Code, no reasonable factfinder
would have found the petitioner guilty of the offense of which the
petitioner was convicted, or, if the person was sentenced to
death, no reasonable factfinder would have found the petitioner
guilty of the aggravating circumstance or circumstances the
petitioner was found guilty of committing and that is or are the
basis of that sentence of death.
(c) As used in divisions (A)(1)(a) and (b) of this section, "former section 2953.82 of the Revised Code" means section 2953.82 of the Revised Code as it existed prior to the effective date of this amendment.
(2) Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal.
(3) In a petition filed under division (A) of this section, a person who has been sentenced to death may ask the court to render void or voidable the judgment with respect to the conviction of aggravated murder or the specification of an aggravating circumstance or the sentence of death.
(4) A petitioner shall state in the original or amended petition filed under division (A) of this section all grounds for relief claimed by the petitioner. Except as provided in section 2953.23 of the Revised Code, any ground for relief that is not so stated in the petition is waived.
(5) If the petitioner in a petition filed under division (A) of this section was convicted of or pleaded guilty to a felony, the petition may include a claim that the petitioner was denied the equal protection of the laws in violation of the Ohio Constitution or the United States Constitution because the sentence imposed upon the petitioner for the felony was part of a consistent pattern of disparity in sentencing by the judge who imposed the sentence, with regard to the petitioner's race, gender, ethnic background, or religion. If the supreme court adopts a rule requiring a court of common pleas to maintain information with regard to an offender's race, gender, ethnic background, or religion, the supporting evidence for the petition shall include, but shall not be limited to, a copy of that type of information relative to the petitioner's sentence and copies of that type of information relative to sentences that the same judge imposed upon other persons.
(B) The clerk of the court in which the petition is filed shall docket the petition and bring it promptly to the attention of the court. The clerk of the court in which the petition is filed immediately shall forward a copy of the petition to the prosecuting attorney of that county.
(C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. The court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal.
(D) Within ten days after the docketing of the petition, or within any further time that the court may fix for good cause shown, the prosecuting attorney shall respond by answer or motion. Within twenty days from the date the issues are raised, either party may move for summary judgment. The right to summary judgment shall appear on the face of the record.
(E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending. If the court notifies the parties that it has found grounds for granting relief, either party may request an appellate court in which a direct appeal of the judgment is pending to remand the pending case to the court.
(F) At any time before the answer or motion is filed, the petitioner may amend the petition with or without leave or prejudice to the proceedings. The petitioner may amend the petition with leave of court at any time thereafter.
(G) If the court does not find grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter judgment denying relief on the petition. If no direct appeal of the case is pending and the court finds grounds for relief or if a pending direct appeal of the case has been remanded to the court pursuant to a request made pursuant to division (E) of this section and the court finds grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter a judgment that vacates and sets aside the judgment in question, and, in the case of a petitioner who is a prisoner in custody, shall discharge or resentence the petitioner or grant a new trial as the court determines appropriate. The court also may make supplementary orders to the relief granted, concerning such matters as rearraignment, retrial, custody, and bail. If the trial court's order granting the petition is reversed on appeal and if the direct appeal of the case has been remanded from an appellate court pursuant to a request under division (E) of this section, the appellate court reversing the order granting the petition shall notify the appellate court in which the direct appeal of the case was pending at the time of the remand of the reversal and remand of the trial court's order. Upon the reversal and remand of the trial court's order granting the petition, regardless of whether notice is sent or received, the direct appeal of the case that was remanded is reinstated.
(H) Upon the filing of a petition pursuant to division (A) of this section by a person sentenced to death, only the supreme court may stay execution of the sentence of death.
(I)(1) If a person sentenced to death intends to file a petition under this section, the court shall appoint counsel to represent the person upon a finding that the person is indigent and that the person either accepts the appointment of counsel or is unable to make a competent decision whether to accept or reject the appointment of counsel. The court may decline to appoint counsel for the person only upon a finding, after a hearing if necessary, that the person rejects the appointment of counsel and understands the legal consequences of that decision or upon a finding that the person is not indigent.
(2) The court shall not appoint as counsel under division (I)(1) of this section an attorney who represented the petitioner at trial in the case to which the petition relates unless the person and the attorney expressly request the appointment. The court shall appoint as counsel under division (I)(1) of this section only an attorney who is certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted of an offense for which the death penalty can be or has been imposed. The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.
(3) Division (I) of this section does not preclude attorneys who represent the state of Ohio from invoking the provisions of 28 U.S.C. 154 with respect to capital cases that were pending in federal habeas corpus proceedings prior to July 1, 1996, insofar as the petitioners in those cases were represented in proceedings under this section by one or more counsel appointed by the court under this section or section 120.06, 120.16, 120.26, or 120.33 of the Revised Code and those appointed counsel meet the requirements of division (I)(2) of this section.
(J) Subject to the appeal of a sentence for a felony that is authorized by section 2953.08 of the Revised Code, the remedy set forth in this section is the exclusive remedy by which a person may bring a collateral challenge to the validity of a conviction or sentence in a criminal case or to the validity of an adjudication of a child as a delinquent child for the commission of an act that would be a criminal offense if committed by an adult or the validity of a related order of disposition.
Sec. 2953.23. (A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
(2) The petitioner was convicted of a felony, the petitioner
is an inmate offender for whom DNA testing was performed under
sections 2953.71 to 2953.81 of the Revised Code or under former
section 2953.82 of the Revised Code and analyzed in the context of
and upon consideration of all available admissible evidence
related to the inmate's case as described in division (D) of
section 2953.74 of the Revised Code, and the results of the DNA
testing establish, by clear and convincing evidence, actual
innocence of that felony offense or, if the person was sentenced
to death, establish, by clear and convincing evidence, actual
innocence of the aggravating circumstance or circumstances the
person was found guilty of committing and that is or are the basis
of that sentence of death.
As used in this division, "actual innocence" has the same meaning as in division (A)(1)(b) of section 2953.21 of the Revised Code, and "former section 2953.82 of the Revised Code" has the same meaning as in division (A)(1)(c) of section 2953.21 of the Revised Code.
(B) An order awarding or denying relief sought in a petition filed pursuant to section 2953.21 of the Revised Code is a final judgment and may be appealed pursuant to Chapter 2953. of the Revised Code.
Sec. 2953.31. As used in sections 2953.31 to 2953.36 of the Revised Code:
(A) "First offender" means anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction. When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction. When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction, provided that a court may decide as provided in division (C)(1)(a) of section 2953.32 of the Revised Code that it is not in the public interest for the two or three convictions to be counted as one conviction.
For purposes of, and except as otherwise provided in, this division, a conviction for a minor misdemeanor, for a violation of any section in Chapter 4507., 4510., 4511., 4513., or 4549. of the Revised Code, or for a violation of a municipal ordinance that is substantially similar to any section in those chapters is not a previous or subsequent conviction. However, a conviction for a violation of section 4511.19, 4511.251, 4549.02, 4549.021, 4549.03, 4549.042, or 4549.62 or sections 4549.41 to 4549.46 of the Revised Code, for a violation of section 4510.11 or 4510.14 of the Revised Code that is based upon the offender's operation of a vehicle during a suspension imposed under section 4511.191 or 4511.196 of the Revised Code, for a violation of a substantially equivalent municipal ordinance, for a felony violation of Title XLV of the Revised Code, or for a violation of a substantially equivalent former law of this state or former municipal ordinance shall be considered a previous or subsequent conviction.
(B) "Prosecutor" means the county prosecuting attorney, city director of law, village solicitor, or similar chief legal officer, who has the authority to prosecute a criminal case in the court in which the case is filed.
(C) "Bail forfeiture" means the forfeiture of bail by a defendant who is arrested for the commission of a misdemeanor, other than a defendant in a traffic case as defined in Traffic Rule 2, if the forfeiture is pursuant to an agreement with the court and prosecutor in the case.
(D) "Official records" has the same meaning as in division (D) of section 2953.51 of the Revised Code.
(E) "Official proceeding" has the same meaning as in section 2921.01 of the Revised Code.
(F) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code.
(G) "Post-release control" and "post-release control sanction" have the same meanings as in section 2967.01 of the Revised Code.
(H) "DNA database," "DNA record," and "law enforcement agency" have the same meanings as in section 109.573 of the Revised Code.
(I) "Fingerprints filed for record" means any fingerprints obtained by the superintendent of the bureau of criminal identification and investigation pursuant to sections 109.57 and 109.571 of the Revised Code.
Sec. 2953.32. (A)(1) Except as provided in section 2953.61 of the Revised Code, a first offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the conviction record. Application may be made at the expiration of three years after the offender's final discharge if convicted of a felony, or at the expiration of one year after the offender's final discharge if convicted of a misdemeanor.
(2) Any person who has been arrested for any misdemeanor offense and who has effected a bail forfeiture may apply to the court in which the misdemeanor criminal case was pending when bail was forfeited for the sealing of the record of the case. Except as provided in section 2953.61 of the Revised Code, the application may be filed at any time after the expiration of one year from the date on which the bail forfeiture was entered upon the minutes of the court or the journal, whichever entry occurs first.
(B) Upon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant.
(C)(1) The court shall do each of the following:
(a) Determine whether the applicant is a first offender or whether the forfeiture of bail was agreed to by the applicant and the prosecutor in the case. If the applicant applies as a first offender pursuant to division (A)(1) of this section and has two or three convictions that result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, in making its determination under this division, the court initially shall determine whether it is not in the public interest for the two or three convictions to be counted as one conviction. If the court determines that it is not in the public interest for the two or three convictions to be counted as one conviction, the court shall determine that the applicant is not a first offender; if the court does not make that determination, the court shall determine that the offender is a first offender.
(b) Determine whether criminal proceedings are pending against the applicant;
(c) If the applicant is a first offender who applies pursuant to division (A)(1) of this section, determine whether the applicant has been rehabilitated to the satisfaction of the court;
(d) If the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
(e) Weigh the interests of the applicant in having the records pertaining to the applicant's conviction sealed against the legitimate needs, if any, of the government to maintain those records.
(2) If the court determines, after complying with division
(C)(1) of this section, that the applicant is a first offender or
the subject of a bail forfeiture, that no criminal proceeding is
pending against the applicant, and that the interests of the
applicant in having the records pertaining to the applicant's
conviction or bail forfeiture sealed are not outweighed by any
legitimate governmental needs to maintain those records, and that
the rehabilitation of an applicant who is a first offender
applying pursuant to division (A)(1) of this section has been
attained to the satisfaction of the court, the court, except as
provided in
division divisions (G) and (H) of this section, shall
order all official records pertaining to the case sealed and,
except as provided in division (F) of this section, all index
references to the case deleted and, in the case of bail
forfeitures, shall dismiss the charges in the case. The
proceedings in the case shall be considered not to have occurred
and the conviction or bail forfeiture of the person who is the
subject of the proceedings shall be sealed, except that upon
conviction of a subsequent offense, the sealed record of prior
conviction or bail forfeiture may be considered by the court in
determining the sentence or other appropriate disposition,
including the relief provided for in sections 2953.31 to 2953.33
of the Revised Code.
(3) Upon the filing of an application under this section, the applicant, unless indigent, shall pay a fee of fifty dollars. The court shall pay thirty dollars of the fee into the state treasury. It shall pay twenty dollars of the fee into the county general revenue fund if the sealed conviction or bail forfeiture was pursuant to a state statute, or into the general revenue fund of the municipal corporation involved if the sealed conviction or bail forfeiture was pursuant to a municipal ordinance.
(D) Inspection of the sealed records included in the order may be made only by the following persons or for the following purposes:
(1) By a law enforcement officer or prosecutor, or the assistants of either, to determine whether the nature and character of the offense with which a person is to be charged would be affected by virtue of the person's previously having been convicted of a crime;
(2) By the parole or probation officer of the person who is the subject of the records, for the exclusive use of the officer in supervising the person while on parole or under a community control sanction or a post-release control sanction, and in making inquiries and written reports as requested by the court or adult parole authority;
(3) Upon application by the person who is the subject of the records, by the persons named in the application;
(4) By a law enforcement officer who was involved in the case, for use in the officer's defense of a civil action arising out of the officer's involvement in that case;
(5) By a prosecuting attorney or the prosecuting attorney's assistants, to determine a defendant's eligibility to enter a pre-trial diversion program established pursuant to section 2935.36 of the Revised Code;
(6) By any law enforcement agency or any authorized employee of a law enforcement agency or by the department of rehabilitation and correction as part of a background investigation of a person who applies for employment with the agency as a law enforcement officer or with the department as a corrections officer;
(7) By any law enforcement agency or any authorized employee of a law enforcement agency, for the purposes set forth in, and in the manner provided in, section 2953.321 of the Revised Code;
(8) By the bureau of criminal identification and investigation or any authorized employee of the bureau for the purpose of providing information to a board or person pursuant to division (F) or (G) of section 109.57 of the Revised Code;
(9) By the bureau of criminal identification and investigation or any authorized employee of the bureau for the purpose of performing a criminal history records check on a person to whom a certificate as prescribed in section 109.77 of the Revised Code is to be awarded;
(10) By the bureau of criminal identification and investigation or any authorized employee of the bureau for the purpose of conducting a criminal records check of an individual pursuant to division (B) of section 109.572 of the Revised Code that was requested pursuant to any of the sections identified in division (B)(1) of that section;
(11) By the bureau of criminal identification and investigation, an authorized employee of the bureau, a sheriff, or an authorized employee of a sheriff in connection with a criminal records check described in section 311.41 of the Revised Code;
(12) By the attorney general or an authorized employee of the attorney general or a court for purposes of determining a person's classification pursuant to Chapter 2950. of the Revised Code.
When the nature and character of the offense with which a person is to be charged would be affected by the information, it may be used for the purpose of charging the person with an offense.
(E) In any criminal proceeding, proof of any otherwise admissible prior conviction may be introduced and proved, notwithstanding the fact that for any such prior conviction an order of sealing previously was issued pursuant to sections 2953.31 to 2953.36 of the Revised Code.
(F) The person or governmental agency, office, or department that maintains sealed records pertaining to convictions or bail forfeitures that have been sealed pursuant to this section may maintain a manual or computerized index to the sealed records. The index shall contain only the name of, and alphanumeric identifiers that relate to, the persons who are the subject of the sealed records, the word "sealed," and the name of the person, agency, office, or department that has custody of the sealed records, and shall not contain the name of the crime committed. The index shall be made available by the person who has custody of the sealed records only for the purposes set forth in divisions (C), (D), and (E) of this section.
(G) Notwithstanding any provision of this section or section 2953.33 of the Revised Code that requires otherwise, a board of education of a city, local, exempted village, or joint vocational school district that maintains records of an individual who has been permanently excluded under sections 3301.121 and 3313.662 of the Revised Code is permitted to maintain records regarding a conviction that was used as the basis for the individual's permanent exclusion, regardless of a court order to seal the record. An order issued under this section to seal the record of a conviction does not revoke the adjudication order of the superintendent of public instruction to permanently exclude the individual who is the subject of the sealing order. An order issued under this section to seal the record of a conviction of an individual may be presented to a district superintendent as evidence to support the contention that the superintendent should recommend that the permanent exclusion of the individual who is the subject of the sealing order be revoked. Except as otherwise authorized by this division and sections 3301.121 and 3313.662 of the Revised Code, any school employee in possession of or having access to the sealed conviction records of an individual that were the basis of a permanent exclusion of the individual is subject to section 2953.35 of the Revised Code.
(H) For purposes of sections 2953.31 to 2953.36 of the Revised Code, DNA records collected in the DNA database and fingerprints filed for record by the superintendent of the bureau of criminal identification and investigation shall not be sealed unless the superintendent receives a certified copy of a final court order establishing that the offender's conviction has been overturned. For purposes of this section, a court order is not "final" if time remains for an appeal or application for discretionary review with respect to the order.
Sec. 2953.321. (A) As used in this section, "investigatory work product" means any records or reports of a law enforcement officer or agency that are excepted from the definition of "official records" contained in section 2953.51 of the Revised Code and that pertain to a case the records of which have been ordered sealed pursuant to division (C)(2) of section 2953.32 of the Revised Code.
(B) Upon the issuance of an order by a court pursuant to division (C)(2) of section 2953.32 of the Revised Code directing that all official records pertaining to a case be sealed:
(1) Every law enforcement officer who possesses investigatory
work product immediately shall deliver that work product to his
the law enforcement officer's employing law enforcement agency.
(2) Except as provided in division (B)(3) of this section, every law enforcement agency that possesses investigatory work product shall close that work product to all persons who are not directly employed by the law enforcement agency and shall treat that work product, in relation to all persons other than those who are directly employed by the law enforcement agency, as if it did not exist and never had existed.
(3) A law enforcement agency that possesses investigatory work product may permit another law enforcement agency to use that work product in the investigation of another offense if the facts incident to the offense being investigated by the other law enforcement agency and the facts incident to an offense that is the subject of the case are reasonably similar. The agency that permits the use of investigatory work product may provide the other agency with the name of the person who is the subject of the case if it believes that the name of the person is necessary to the conduct of the investigation by the other agency.
(C)(1) Except as provided in division (B)(3) of this section, no law enforcement officer or other person employed by a law enforcement agency shall knowingly release, disseminate, or otherwise make the investigatory work product or any information contained in that work product available to, or discuss any information contained in it with, any person not employed by the employing law enforcement agency.
(2) No law enforcement agency, or person employed by a law enforcement agency, that receives investigatory work product pursuant to division (B)(3) of this section shall use that work product for any purpose other than the investigation of the offense for which it was obtained from the other law enforcement agency, or disclose the name of the person who is the subject of the work product except when necessary for the conduct of the investigation of the offense, or the prosecution of the person for committing the offense, for which it was obtained from the other law enforcement agency.
(3) It is not a violation of division (C)(1) or (2) of this section for the bureau of criminal identification and investigation or any authorized employee of the bureau participating in the investigation of criminal activity to release, disseminate, or otherwise make available to, or discuss with, a person directly employed by a law enforcement agency DNA records collected in the DNA database or fingerprints filed for record by the superintendent of the bureau of criminal identification and investigation.
(D) Whoever violates division (C)(1) or (2) of this section is guilty of divulging confidential investigatory work product, a misdemeanor of the fourth degree.
Sec. 2953.35. (A) Except as authorized by divisions (D),
(E), and (F) of section 2953.32 of the Revised Code or by Chapter
2950. of the Revised Code, any officer or employee of the state,
or a political subdivision of the state, who releases or otherwise
disseminates or makes available for any purpose involving
employment, bonding, or licensing in connection with any business,
trade, or profession to any person, or to any department, agency,
or other instrumentality of the state, or any political
subdivision of the state, any information or other data concerning
any arrest, complaint, indictment, trial, hearing, adjudication,
conviction, or correctional supervision the records with respect
to which the officer or employee had knowledge of were sealed by
an existing order issued pursuant to sections 2953.31 to 2953.36
of the Revised Code, or were expunged by an order issued pursuant
to section 2953.42 of the Revised Code as it existed prior to the
effective date of this amendment June 29, 1988, is guilty of
divulging confidential information, a misdemeanor of the fourth
degree.
(B) Any person who, in violation of section 2953.32 of the Revised Code, uses, disseminates, or otherwise makes available any index prepared pursuant to division (F) of section 2953.32 of the Revised Code is guilty of a misdemeanor of the fourth degree.
(C) It is not a violation of this section for the bureau of criminal identification and investigation or any authorized employee of the bureau participating in the investigation of criminal activity to release, disseminate, or otherwise make available to, or discuss with, a person directly employed by a law enforcement agency DNA records collected in the DNA database or fingerprints filed for record by the superintendent of the bureau of criminal identification and investigation.
Sec. 2953.51. As used in sections 2953.51 to 2953.55 2953.56
of the Revised Code:
(A) "No bill" means a report by the foreperson or deputy foreperson of a grand jury that an indictment is not found by the grand jury against a person who has been held to answer before the grand jury for the commission of an offense.
(B) "Prosecutor" has the same meaning as in section 2953.31 of the Revised Code.
(C) "Court" means the court in which a case is pending at the time a finding of not guilty in the case or a dismissal of the complaint, indictment, or information in the case is entered on the minutes or journal of the court, or the court to which the foreperson or deputy foreperson of a grand jury reports, pursuant to section 2939.23 of the Revised Code, that the grand jury has returned a no bill.
(D) "Official records" means all records that are possessed by any public office or agency that relate to a criminal case, including, but not limited to: the notation to the case in the criminal docket; all subpoenas issued in the case; all papers and documents filed by the defendant or the prosecutor in the case; all records of all testimony and evidence presented in all proceedings in the case; all court files, papers, documents, folders, entries, affidavits, or writs that pertain to the case; all computer, microfilm, microfiche, or microdot records, indices, or references to the case; all index references to the case; all fingerprints and photographs; all records and investigative reports pertaining to the case that are possessed by any law enforcement officer or agency, except that any records or reports that are the specific investigatory work product of a law enforcement officer or agency are not and shall not be considered to be official records when they are in the possession of that officer or agency; and all investigative records and reports other than those possessed by a law enforcement officer or agency pertaining to the case. "Official records" does not include records or reports maintained pursuant to section 2151.421 of the Revised Code by a public children services agency or the department of job and family services.
(E) "DNA database," "DNA record," and "law enforcement agency" have the same meanings as in section 109.573 of the Revised Code.
(F) "Fingerprints filed for record" has the same meaning as in section 2953.31 of the Revised Code.
Sec. 2953.54. (A) Except as otherwise provided in Chapter 2950. of the Revised Code, upon the issuance of an order by a court under division (B) of section 2953.52 of the Revised Code directing that all official records pertaining to a case be sealed and that the proceedings in the case be deemed not to have occurred:
(1) Every law enforcement officer possessing records or
reports pertaining to the case that are the officer's specific
investigatory work product and that are excepted from the
definition of "official records" contained in section 2953.51 of
the Revised Code shall immediately deliver the records and reports
to his the officer's employing law enforcement agency. Except as
provided in division (A)(3) of this section, no such officer shall
knowingly release, disseminate, or otherwise make the records and
reports or any information contained in them available to, or
discuss any information contained in them with, any person not
employed by the officer's employing law enforcement agency.
(2) Every law enforcement agency that possesses records or reports pertaining to the case that are its specific investigatory work product and that are excepted from the definition of "official records" contained in section 2953.51 of the Revised Code, or that are the specific investigatory work product of a law enforcement officer it employs and that were delivered to it under division (A)(1) of this section shall, except as provided in division (A)(3) of this section, close the records and reports to all persons who are not directly employed by the law enforcement agency and shall, except as provided in division (A)(3) of this section, treat the records and reports, in relation to all persons other than those who are directly employed by the law enforcement agency, as if they did not exist and had never existed. Except as provided in division (A)(3) of this section, no person who is employed by the law enforcement agency shall knowingly release, disseminate, or otherwise make the records and reports in the possession of the employing law enforcement agency or any information contained in them available to, or discuss any information contained in them with, any person not employed by the employing law enforcement agency.
(3) A law enforcement agency that possesses records or reports pertaining to the case that are its specific investigatory work product and that are excepted from the definition of "official records" contained in division (D) of section 2953.51 of the Revised Code, or that are the specific investigatory work product of a law enforcement officer it employs and that were delivered to it under division (A)(1) of this section may permit another law enforcement agency to use the records or reports in the investigation of another offense, if the facts incident to the offense being investigated by the other law enforcement agency and the facts incident to an offense that is the subject of the case are reasonably similar. The agency that provides the records and reports may provide the other agency with the name of the person who is the subject of the case, if it believes that the name of the person is necessary to the conduct of the investigation by the other agency.
No law enforcement agency, or person employed by a law enforcement agency, that receives from another law enforcement agency records or reports pertaining to a case the records of which have been ordered sealed pursuant to division (B) of section 2953.52 of the Revised Code shall use the records and reports for any purpose other than the investigation of the offense for which they were obtained from the other law enforcement agency, or disclose the name of the person who is the subject of the records or reports except when necessary for the conduct of the investigation of the offense, or the prosecution of the person for committing the offense, for which they were obtained from the other law enforcement agency.
(B) Whoever violates division (A)(1), (2), or (3) of this section is guilty of divulging confidential information, a misdemeanor of the fourth degree.
(C) It is not a violation of this section for the bureau of criminal identification and investigation or any authorized employee of the bureau participating in the investigation of criminal activity to release, disseminate, or otherwise make available to, or discuss with, a person directly employed by a law enforcement agency DNA records collected in the DNA database or fingerprints filed for record by the superintendent of the bureau of criminal identification and investigation.
Sec. 2953.55. (A) In any application for employment,
license, or any other right or privilege, any appearance as a
witness, or any other inquiry, a person may not be questioned with
respect to any record that has been sealed pursuant to section
2953.52 of the Revised Code. If an inquiry is made in violation of
this section, the person whose official record was sealed may
respond as if the arrest underlying the case to which the sealed
official records pertain and all other proceedings in that case
did not occur, and the person whose official record was sealed
shall not be subject to any adverse action because of the arrest,
the proceedings, or his the person's response.
(B) An officer or employee of the state or any of its political subdivisions who knowingly releases, disseminates, or makes available for any purpose involving employment, bonding, licensing, or education to any person or to any department, agency, or other instrumentality of the state, or of any of its political subdivisions, any information or other data concerning any arrest, complaint, indictment, information, trial, adjudication, or correctional supervision, the records of which have been sealed pursuant to section 2953.52 of the Revised Code, is guilty of divulging confidential information, a misdemeanor of the fourth degree.
(C) It is not a violation of this section for the bureau of criminal identification and investigation or any authorized employee of the bureau participating in the investigation of criminal activity to release, disseminate, or otherwise make available to, or discuss with, a person directly employed by a law enforcement agency DNA records collected in the DNA database or fingerprints filed for record by the superintendent of the bureau of criminal identification and investigation.
Sec. 2953.56. Violations of sections 2953.31 to 2953.61 of the Revised Code shall not provide the basis to exclude or suppress any of the following evidence that is otherwise admissible in a criminal proceeding, delinquent child proceeding, or other legal proceeding:
(A) DNA records collected in the DNA database;
(B) Fingerprints filed for record by the superintendent of the bureau of criminal identification and investigation;
(C) Other evidence that was obtained or discovered as the direct or indirect result of divulging or otherwise using the records described in divisions (A) and (B) of this section.
Sec. 2953.57. (A) A court that enters a judgment that vacates and sets aside the conviction of a person because of DNA testing that was performed under sections 2953.71 to 2953.81 of the Revised Code or under section 2953.82 of the Revised Code shall issue ninety days after the court vacates and sets aside the conviction an order directing that all official records pertaining to the case involving the vacated conviction be sealed and that the proceedings in the case shall be deemed not to have occurred.
(B) As used in sections 2953.57 to 2953.60 of the Revised Code, "official records" has the same meaning as in section 2953.51 of the Revised Code.
Sec. 2953.58. (A) The court shall send notice of an order to seal official records issued pursuant to section 2953.57 of the Revised Code to any public office or agency that the court knows or has reason to believe may have any record of the case, whether or not it is an official record, that is the subject of the order. The notice shall be sent by certified mail, return receipt requested.
(B) A person whose official records have been sealed pursuant to an order issued pursuant to section 2953.57 of the Revised Code may present a copy of that order and a written request to comply with it, to a public office or agency that has a record of the case that is the subject of the order.
(C) An order to seal official records issued pursuant to section 2953.57 of the Revised Code applies to every public office or agency that has a record of the case that is the subject of the order, regardless of whether it receives a copy of the order to seal the official records pursuant to division (A) or (B) of this section.
(D) Upon receiving a copy of an order to seal official records pursuant to division (A) or (B) of this section or upon otherwise becoming aware of an applicable order to seal official records issued pursuant to section 2953.57 of the Revised Code, a public office or agency shall comply with the order and, if applicable, with the provisions of section 2953.59 of the Revised Code, except that it may maintain a record of the case that is the subject of the order if the record is maintained for the purpose of compiling statistical data only and does not contain any reference to the person who is the subject of the case and the order.
A public office or agency also may maintain an index of sealed official records, in a form similar to that for sealed records of conviction as set forth in division (F) of section 2953.32 of the Revised Code, access to which may not be afforded to any person other than the person who has custody of the sealed official records. The sealed official records to which such an index pertains shall not be available to any person, except that the official records of a case that have been sealed may be made available to the following persons for the following purposes:
(1) To the person who is the subject of the records upon written application, and to any other person named in the application, for any purpose;
(2) To a law enforcement officer who was involved in the case, for use in the officer's defense of a civil action arising out of the officer's involvement in that case.
Sec. 2953.59. (A) Except as otherwise provided in Chapter 2950. of the Revised Code, upon the issuance of an order by a court under section 2953.57 of the Revised Code directing that all official records pertaining to a case be sealed and that the proceedings in the case be deemed not to have occurred:
(1) Every law enforcement officer possessing records or reports pertaining to the case that are the officer's specific investigatory work product and that are excepted from the definition of "official records" contained in section 2953.51 of the Revised Code shall immediately deliver the records and reports to the officer's employing law enforcement agency. Except as provided in division (A)(3) of this section, no such officer shall knowingly release, disseminate, or otherwise make the records and reports or any information contained in them available to, or discuss any information contained in them with, any person not employed by the officer's employing law enforcement agency.
(2) Every law enforcement agency that possesses records or reports pertaining to the case that are its specific investigatory work product and that are excepted from the definition of "official records" contained in section 2953.51 of the Revised Code, or that are the specific investigatory work product of a law enforcement officer it employs and that were delivered to it under division (A)(1) of this section shall, except as provided in division (A)(3) of this section, close the records and reports to all persons who are not directly employed by the law enforcement agency and shall, except as provided in division (A)(3) of this section, treat the records and reports, in relation to all persons other than those who are directly employed by the law enforcement agency, as if they did not exist and had never existed. Except as provided in division (A)(3) of this section, no person who is employed by the law enforcement agency shall knowingly release, disseminate, or otherwise make the records and reports in the possession of the employing law enforcement agency or any information contained in them available to, or discuss any information contained in them with, any person not employed by the employing law enforcement agency.
(3) A law enforcement agency that possesses records or reports pertaining to the case that are its specific investigatory work product and that are excepted from the definition of "official records" contained in division (D) of section 2953.51 of the Revised Code, or that are the specific investigatory work product of a law enforcement officer it employs and that were delivered to it under division (A)(1) of this section may permit another law enforcement agency to use the records or reports in the investigation of another offense, if the facts incident to the offense being investigated by the other law enforcement agency and the facts incident to an offense that is the subject of the case are reasonably similar and if all references to the name or identifying information of the person whose records were sealed are redacted from the records or reports. The agency that provides the records and reports may not provide the other agency with the name of the person who is the subject of the case the records of which were sealed.
(B) Whoever violates division (A)(1), (2), or (3) of this section is guilty of divulging confidential information, a misdemeanor of the fourth degree.
Sec. 2953.60. (A) In any application for employment, license, or any other right or privilege, any appearance as a witness, or any other inquiry, a person may not be questioned with respect to any record that has been sealed pursuant to section 2953.57 of the Revised Code. If an inquiry is made in violation of this section, the person whose official record was sealed may respond as if the arrest underlying the case to which the sealed official records pertain and all other proceedings in that case did not occur, and the person whose official record was sealed shall not be subject to any adverse action because of the arrest, the proceedings, or the person's response.
(B) An officer or employee of the state or any of its political subdivisions who knowingly releases, disseminates, or makes available for any purpose involving employment, bonding, licensing, or education to any person or to any department, agency, or other instrumentality of the state, or of any of its political subdivisions, any information or other data concerning any arrest, complaint, indictment, information, trial, adjudication, or correctional supervision, the records of which have been sealed pursuant to section 2953.57 of the Revised Code, is guilty of divulging confidential information, a misdemeanor of the fourth degree.
Sec. 2953.71. As used in sections 2953.71 to 2953.83 of the Revised Code:
(A) "Application" or "application for DNA testing" means a
request through postconviction relief for the state to do DNA
testing on biological material from whichever of the following is
applicable:
(1) The case in which the inmate offender was convicted of
the offense for which the inmate offender is an eligible
inmate
offender and is requesting the DNA testing under sections 2953.71
to 2953.81 of the Revised Code;
(2) The case in which the inmate pleaded guilty or no contest
to the offense for which the inmate is requesting the DNA testing
under section 2953.82 of the Revised Code.
(B) "Biological material" means any product of a human body containing DNA.
(C) "Chain of custody" means a record or other evidence that
tracks a subject sample of biological material from the time the
biological material was first obtained until the time it currently
exists in its place of storage and, in relation to a DNA sample, a
record or other evidence that tracks the DNA sample from the time
it was first obtained until it currently exists in its place of
storage. For purposes of this division, examples of when
biological material or a DNA sample is first obtained include, but
are not limited to, obtaining the material or sample at the scene
of a crime, from a victim, from an inmate offender, or in any
other manner or time as is appropriate in the facts and
circumstances present.
(D) "Custodial agency" means the group or entity that has the responsibility to maintain biological material in question.
(E) "Custodian" means the person who is the primary representative of a custodial agency.
(F) "Eligible inmate offender" means an inmate offender who
is eligible under division (C) of section 2953.72 of the Revised
Code to request DNA testing to be conducted under sections 2953.71
to 2953.81 of the Revised Code.
(G) "Exclusion" or "exclusion result" means a result of DNA
testing that scientifically precludes or forecloses the subject
inmate offender as a contributor of biological material recovered
from the crime scene or victim in question, in relation to the
offense for which the inmate offender is an eligible inmate
offender and for which the sentence of death or prison term was
imposed upon the inmate or, regarding a request for DNA testing
made under section 2953.82 of the Revised Code, in relation to the
offense for which the inmate made the request and for which the
sentence of death or prison term was imposed upon the inmate
offender.
(H) "Extracting personnel" means medically approved personnel
who are employed to physically obtain an inmate offender's DNA
specimen for purposes of DNA testing under sections 2953.71 to
2953.81 or section 2953.82 of the Revised Code.
(I) "Inclusion" or "inclusion result" means a result of DNA
testing that scientifically cannot exclude, or that holds
accountable, the subject inmate offender as a contributor of
biological material recovered from the crime scene or victim in
question, in relation to the offense for which the inmate offender
is an eligible inmate offender and for which the sentence of death
or prison term was imposed upon the inmate or, regarding a request
for DNA testing made under section 2953.82 of the Revised Code, in
relation to the offense for which the inmate made the request and
for which the sentence of death or prison term was imposed upon
the inmate offender.
(J) "Inconclusive" or "inconclusive result" means a result of DNA testing that is rendered when a scientifically appropriate and definitive DNA analysis or result, or both, cannot be determined.
(K) "Inmate Offender" means an inmate in a prison a criminal
offender who was sentenced by a court, or by a jury and a court,
of this state.
(L) "Outcome determinative" means that had the results of DNA
testing of the subject inmate offender been presented at the trial
of the subject inmate offender requesting DNA testing and been
found relevant and admissible with respect to the felony offense
for which the inmate offender is an eligible inmate offender and
is requesting the DNA testing or for which the inmate is
requesting the DNA testing under section 2953.82 of the Revised
Code, and had those results been analyzed in the context of and
upon consideration of all available admissible evidence related to
the inmate's offender's case as described in division (D) of
section 2953.74 of the Revised Code, there is a strong probability
that no reasonable factfinder would have found the inmate offender
guilty of that offense or, if the inmate offender was sentenced to
death relative to that offense, would have found the
inmate
offender guilty of the aggravating circumstance or circumstances
the inmate offender was found guilty of committing and that is or
are the basis of that sentence of death.
(M) "Parent sample" means the biological material first
obtained from a crime scene or a victim of an offense for which an
inmate offender is an eligible inmate or for which the inmate is
requesting the DNA testing under section 2953.82 of the Revised
Code offender, and from which a sample will be presently taken to
do a DNA comparison to the DNA of the subject
inmate offender
under sections 2953.71 to 2953.81 or section 2953.82 of the
Revised Code.
(N) "Prison" has and "community control sanction" have the
same meaning meanings as in section 2929.01 of the Revised Code.
(O) "Prosecuting attorney" means the prosecuting attorney
who, or whose office, prosecuted the case in which the subject
inmate offender was convicted of the offense for which the inmate
offender is an eligible inmate offender and is requesting the DNA
testing or for which the inmate is requesting the DNA testing
under section 2953.82 of the Revised Code.
(P) "Prosecuting authority" means the prosecuting attorney or the attorney general.
(Q) "Reasonable diligence" means a degree of diligence that is comparable to the diligence a reasonable person would employ in searching for information regarding an important matter in the person's own life.
(R) "Testing authority" means a laboratory at which DNA
testing will be conducted under sections 2953.71 to 2953.81 or
section 2953.82 of the Revised Code.
(S) "Parole" and "post-release control" have the same meanings as in section 2967.01 of the Revised Code.
(T) "Sexually oriented offense" and "child-victim oriented offense" have the same meanings as in section 2950.01 of the Revised Code.
(U) "Definitive DNA test" means a DNA test that clearly establishes that biological material from the perpetrator of the crime was recovered from the crime scene and also clearly establishes whether or not the biological material is that of the eligible offender. A prior DNA test is not definitive if the eligible offender proves by a preponderance of the evidence that because of advances in DNA technology there is a possibility of discovering new biological material from the perpetrator that the prior DNA test may have failed to discover. Prior testing may have been a prior "definitive DNA test" as to some biological evidence but may not have been a prior "definitive DNA test" as to other biological evidence.
Sec. 2953.72. (A) Any eligible inmate offender who wishes to
request DNA testing under sections 2953.71 to 2953.81 of the
Revised Code shall submit an application for the testing to the
court of common pleas specified in section 2953.73 of the Revised
Code, on a form prescribed by the attorney general for this
purpose. The eligible
inmate offender shall submit the application
in accordance with the procedures set forth in section 2953.73 of
the Revised Code. The eligible inmate offender shall specify on
the application the offense or offenses for which the inmate
offender is an eligible inmate offender and is requesting the DNA
testing. Along with the application, the eligible inmate offender
shall submit an acknowledgment that is on a form prescribed by the
attorney general for this purpose and that is signed by the inmate
offender. The acknowledgment shall set forth all of the following:
(1) That sections 2953.71 to 2953.81 of the Revised Code
contemplate applications for DNA testing of an eligible
inmates
offender at a stage of a prosecution or case after the inmate
offender has been sentenced to a prison term or a sentence of
death, that any exclusion or inclusion result of DNA testing
rendered pursuant to those sections may be used by a party in any
proceeding as described in section 2953.81 of the Revised Code,
and that all requests for any DNA testing made at trial will
continue to be handled by the prosecuting attorney in the case;
(2) That the process of conducting postconviction DNA testing
for an eligible inmate offender under sections 2953.71 to 2953.81
of the Revised Code begins when the inmate offender submits an
application under section 2953.73 of the Revised Code and the
acknowledgment described in this section;
(3) That the eligible inmate offender must submit the
application and acknowledgment to the court of common pleas that
heard the case in which the inmate offender was convicted of the
offense for which the inmate offender is an eligible offender and
is requesting the DNA testing;
(4) That the state has established a set of criteria set
forth in section 2953.74 of the Revised Code by which eligible
inmate offender applications for DNA testing will be screened and
that a judge of a court of common pleas upon receipt of a properly
filed application and accompanying acknowledgment will apply those
criteria to determine whether to accept or reject the application;
(5) That the results of DNA testing conducted under sections 2953.71 to 2953.81 of the Revised Code will be provided as described in section 2953.81 of the Revised Code to all parties in the postconviction proceedings and will be reported to various courts;
(6) That, if DNA testing is conducted with respect to an
inmate offender under sections 2953.71 to 2953.81 of the Revised
Code, the state will not offer the inmate offender a retest if an
inclusion result is achieved relative to the testing and that, if
the state were to offer a retest after an inclusion result, the
policy would create an atmosphere in which endless testing could
occur and in which postconviction proceedings could be stalled for
many years;
(7) That, if the court rejects an eligible
inmate's
offender's application for DNA testing because the
inmate offender
does not satisfy the acceptance criteria described in division
(A)(4) of this section, the court will not accept or consider
subsequent applications;
(8) That the acknowledgment memorializes the provisions of
sections 2953.71 to 2953.81 of the Revised Code with respect to
the application of postconviction DNA testing to inmates
offenders, that those provisions do not give any inmate offender
any additional constitutional right that the inmate offender did
not already have, that the court has no duty or obligation to
provide postconviction DNA testing to inmates offenders, that the
court of common pleas has the sole discretion subject to an appeal
as described in this division to determine whether an
inmate
offender is an eligible inmate offender and whether an eligible
inmate's offender's application for DNA testing satisfies the
acceptance criteria described in division (A)(4) of this section
and whether the application should be accepted or rejected, that
if the court of common pleas rejects an eligible inmate's
offender's application, the inmate offender may seek leave of the
supreme court to appeal the rejection to that court if the inmate
offender was sentenced to death for the offense for which the
inmate offender is requesting the DNA testing and, if the inmate
offender was not sentenced to death for that offense, may appeal
the rejection to the court of appeals, and that no determination
otherwise made by the court of common pleas in the exercise of its
discretion regarding the eligibility of an
inmate offender or
regarding postconviction DNA testing under those provisions is
reviewable by or appealable to any court;
(9) That the manner in which sections 2953.71 to 2953.81 of
the Revised Code with respect to the offering of postconviction
DNA testing to inmates offenders are carried out does not confer
any constitutional right upon any inmate offender, that the state
has established guidelines and procedures relative to those
provisions to ensure that they are carried out with both justice
and efficiency in mind, and that an inmate offender who
participates in any phase of the mechanism contained in those
provisions, including, but not limited to, applying for DNA
testing and being rejected, having an application for DNA testing
accepted and not receiving the test, or having DNA testing
conducted and receiving unfavorable results, does not gain as a
result of the participation any constitutional right to challenge,
or, except as provided in division (A)(8) of this section, any
right to any review or appeal of, the manner in which those
provisions are carried out;
(10) That the most basic aspect of sections 2953.71 to
2953.81 of the Revised Code is that, in order for DNA testing to
occur, there must be an inmate offender sample against which other
evidence may be compared, that, if an eligible inmate's offender's
application is accepted but the inmate offender subsequently
refuses to submit to the collection of the sample of biological
material from the inmate offender or hinders the state from
obtaining a sample of biological material from the inmate
offender, the goal of those provisions will be frustrated, and
that an inmate's offender's refusal or hindrance shall cause the
court to rescind its prior acceptance of the application for DNA
testing for the inmate offender and deny the application;
(11) That, if the inmate is an inmate who pleaded guilty or
no contest to a felony offense and who is using the application
and acknowledgment to request DNA testing under section 2953.82 of
the Revised Code, all references in the acknowledgment to an
"eligible inmate" are considered to be references to, and apply
to, the .inmate and all references in the acknowledgment to
"sections 2953.71 to 2953.81 of the Revised Code" are considered
to be references to "section 2953.82 of the Revised Code"
(B) The attorney general shall prescribe a form to be used to
make an application for DNA testing under division (A) of this
section and section 2953.73 of the Revised Code and a form to be
used to provide the acknowledgment described in division (A) of
this section. The forms shall include all information described in
division (A) of this section, spaces for an inmate offender to
insert all information necessary to complete the forms, including,
but not limited to, specifying the offense or offenses for which
the
inmate offender is an eligible inmate offender and is
requesting the DNA testing or for which the inmate is requesting
the DNA testing under section 2953.82 of the Revised Code, and any
other information or material the attorney general determines is
necessary or relevant. The forms also shall be used to make an
application requesting DNA testing under section 2953.82 of the
Revised Code, and the attorney general shall ensure that they are
sufficient for that type of use, and that they include all
information and spaces necessary for that type of use. The
attorney general shall distribute copies of the prescribed forms
to the department of rehabilitation and correction, the department
shall ensure that each prison in which inmates
offenders are
housed has a supply of copies of the forms, and the department
shall ensure that copies of the forms are provided free of charge
to any inmate offender who requests them.
(C)(1) An inmate offender is eligible to request DNA testing
to be conducted under sections 2953.71 to 2953.81 of the Revised
Code only if all of the following apply:
(a) The offense for which the inmate offender claims to be an
eligible inmate offender is a felony, and the inmate offender was
convicted by a judge or jury of that offense.
(b) One of the following applies:
(i) The inmate offender was sentenced to a prison term or
sentence of death for the felony described in division (C)(1)(a)
of this section, and the offender is in prison serving that prison
term or under that sentence of death, has been paroled or is on
probation regarding that felony, is under post-release control
regarding that felony, or has been released from that prison term
and is under a community control sanction regarding that felony.
(ii) The offender was not sentenced to a prison term or sentence of death for the felony described in division (C)(1)(a) of this section, but was sentenced to a community control sanction for that felony and is under that community control sanction.
(iii) The felony described in division (C)(1)(a) of this section was a sexually oriented offense or child-victim oriented offense, and the offender has a duty to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code relative to that felony.
(c) On the date on which the application is filed, the inmate
has at least one year remaining on the prison term described in
division (C)(1)(b) of this section, or the inmate is in prison
under a sentence of death as described in that division.
(2) An inmate offender is not an eligible inmate offender
under division (C)(1) of this section regarding any offense to
which the inmate offender pleaded guilty or no contest.
(3) An offender is not an eligible offender under division (C)(1) of this section regarding any offense if the offender dies prior to submitting an application for DNA testing related to that offense under section 2953.73 of the Revised Code.
Sec. 2953.73. (A) An eligible inmate offender who wishes to
request DNA testing to be conducted under sections 2953.71 to
2953.81 of the Revised Code shall submit an application for DNA
testing on a form prescribed by the attorney general for this
purpose and shall submit the form to the court of common pleas
that sentenced the inmate offender for the offense for which the
inmate offender is an eligible inmate offender and is requesting
DNA testing.
(B) If an eligible inmate offender submits an application for
DNA testing under division (A) of this section, upon the
submission of the application, all of the following apply:
(1) The eligible inmate offender shall serve a copy of the
application on the prosecuting attorney and the attorney general.
(2) The application shall be assigned to the judge of that
court of common pleas who was the trial judge in the case in which
the eligible inmate offender was convicted of the offense for
which the inmate offender is requesting DNA testing, or, if that
judge no longer is a judge of that court, it shall be assigned
according to court rules. The judge to whom the application is
assigned shall decide the application. The application shall
become part of the file in the case.
(C) If an eligible inmate offender submits an application for
DNA testing under division (A) of this section, regardless of
whether the inmate offender has commenced any federal habeas
corpus proceeding relative to the case in which the inmate
offender was convicted of the offense for which the inmate
offender is an eligible inmate offender and is requesting DNA
testing, any response to the application by the prosecuting
attorney or the attorney general shall be filed not later than
forty-five days after the date on which the eligible inmate
offender submits the application. The prosecuting attorney or the
attorney general, or both, may, but are not required to, file a
response to the application. If the prosecuting attorney or the
attorney general files a response under this division, the
prosecuting attorney or attorney general, whoever filed the
response, shall serve a copy of the response on the eligible
inmate offender.
(D) If an eligible inmate offender submits an application for
DNA testing under division (A) of this section, the court shall
make the determination as to whether the application should be
accepted or rejected. The court shall expedite its review of the
application. The court shall make the determination in accordance
with the criteria and procedures set forth in sections 2953.74 to
2953.81 of the Revised Code and, in making the determination,
shall consider the application, the supporting affidavits, and the
documentary evidence and, in addition to those materials, shall
consider all the files and records pertaining to the proceedings
against the applicant, including, but not limited to, the
indictment, the court's journal entries, the journalized records
of the clerk of the court, and the court reporter's transcript and
all responses to the application filed under division (C) of this
section by a prosecuting attorney or the attorney general, unless
the application and the files and records show the applicant is
not entitled to DNA testing, in which case the application may be
denied. The court is not required to conduct an evidentiary
hearing in conducting its review of, and in making its
determination as to whether to accept or reject, the application.
Upon making its determination, the court shall enter a judgment
and order that either accepts or rejects the application and that
includes within the judgment and order the reasons for the
acceptance or rejection as applied to the criteria and procedures
set forth in sections 2953.71 to 2953.81 of the Revised Code. The
court shall send a copy of the judgment and order to the eligible
inmate offender who filed it, the prosecuting attorney, and the
attorney general.
(E) A judgment and order of a court entered under division
(D) of this section is appealable only as provided in this
division. If an eligible inmate offender submits an application
for DNA testing under section 2953.73 of the Revised Code and the
court of common pleas rejects the application under division (D)
of this section, one of the following applies:
(1) If the inmate offender was sentenced to death for the
offense for which the inmate offender claims to be an eligible
inmate offender and is requesting DNA testing, the inmate offender
may seek leave of the supreme court to appeal the rejection to the
supreme court. Courts of appeals do not have jurisdiction to
review any rejection if the inmate offender was sentenced to death
for the offense for which the inmate offender claims to be an
eligible inmate offender and is requesting DNA testing.
(2) If the inmate offender was not sentenced to death for the
offense for which the inmate offender claims to be an eligible
inmate offender and is requesting DNA testing, the rejection is a
final appealable order, and the inmate offender may appeal it to
the court of appeals of the district in which is located that
court of common pleas.
(F) Notwithstanding any provision of law regarding fees and costs, no filing fee shall be required of, and no court costs shall be assessed against, an eligible offender who is indigent and who submits an application under this section.
(G) If a court rejects an eligible inmate's offender's
application for DNA testing under division (D) of this section,
unless the rejection is overturned on appeal, no court shall
require the state to administer a DNA test under sections 2953.71
to 2953.81 of the Revised Code on the eligible inmate offender.
Sec. 2953.74. (A) If an eligible inmate offender submits an
application for DNA testing under section 2953.73 of the Revised
Code and a prior definitive DNA test has been conducted regarding
the same biological evidence that the inmate offender seeks to
have tested, the court shall reject the inmate's offender's
application. If an eligible
inmate offender files an application
for DNA testing and a prior inconclusive DNA test has been
conducted regarding the same biological evidence that the
inmate
offender seeks to have tested, the court shall review the
application and has the discretion, on a case-by-case basis, to
either accept or reject the application. The court may direct a
testing authority to provide the court with information that the
court may use in determining whether prior DNA test results were
definitive or inconclusive and whether to accept or reject an
application in relation to which there were prior inconclusive DNA
test results.
(B) If an eligible inmate offender submits an application for
DNA testing under section 2953.73 of the Revised Code, the court
may accept the application only if one of the following applies:
(1) The inmate offender did not have a DNA test taken at the
trial stage in the case in which the inmate offender was convicted
of the offense for which the inmate offender is an eligible inmate
offender and is requesting the DNA testing regarding the same
biological evidence that the
inmate
offender seeks to have tested,
the inmate offender shows that DNA exclusion when analyzed in the
context of and upon consideration of all available admissible
evidence related to the subject inmate's offender's case as
described in division (D) of this section would have been outcome
determinative at that trial stage in that case, and, at the time
of the trial stage in that case, DNA testing was not generally
accepted, the results of DNA testing were not generally admissible
in evidence, or DNA testing was not yet available.
(2) The inmate offender had a DNA test taken at the trial
stage in the case in which the inmate offender was convicted of
the offense for which the inmate offender is an eligible inmate
offender and is requesting the DNA testing regarding the same
biological evidence that the inmate
offender seeks to have
tested, the test was not a prior definitive DNA test that is
subject to division (A) of this section, and the inmate
offender
shows that DNA exclusion when analyzed in the context of and upon
consideration of all available admissible evidence related to the
subject inmate's offender's case as described in division (D) of
this section would have been outcome determinative at the trial
stage in that case.
(C) If an eligible inmate offender submits an application for
DNA testing under section 2953.73 of the Revised Code, the court
may accept the application only if all of the following apply:
(1) The court determines pursuant to section 2953.75 of the
Revised Code that biological material was collected from the crime
scene or the victim of the offense for which the
inmate offender
is an eligible inmate offender and is requesting the DNA testing
and that the parent sample of that biological material against
which a sample from the inmate
offender can be compared still
exists at that point in time.
(2) The testing authority determines all of the following pursuant to section 2953.76 of the Revised Code regarding the parent sample of the biological material described in division (C)(1) of this section:
(a) The parent sample of the biological material so collected contains scientifically sufficient material to extract a test sample.
(b) The parent sample of the biological material so collected is not so minute or fragile as to risk destruction of the parent sample by the extraction described in division (C)(2)(a) of this section; provided that the court may determine in its discretion, on a case-by-case basis, that, even if the parent sample of the biological material so collected is so minute or fragile as to risk destruction of the parent sample by the extraction, the application should not be rejected solely on the basis of that risk.
(c) The parent sample of the biological material so collected has not degraded or been contaminated to the extent that it has become scientifically unsuitable for testing, and the parent sample otherwise has been preserved, and remains, in a condition that is scientifically suitable for testing.
(3) The court determines that, at the trial stage in the case
in which the inmate offender was convicted of the offense for
which the inmate offender is an eligible inmate offender and is
requesting the DNA testing, the identity of the person who
committed the offense was an issue.
(4) The court determines that one or more of the defense
theories asserted by the inmate offender at the trial stage in the
case described in division (C)(3) of this section or in a retrial
of that case in a court of this state was of such a nature that,
if DNA testing is conducted and an exclusion result is obtained,
the exclusion result will be outcome determinative.
(5) The court determines that, if DNA testing is conducted
and an exclusion result is obtained, the results of the testing
will be outcome determinative regarding that
inmate offender.
(6) The court determines pursuant to section 2953.76 of the Revised Code from the chain of custody of the parent sample of the biological material to be tested and of any test sample extracted from the parent sample, and from the totality of circumstances involved, that the parent sample and the extracted test sample are the same sample as collected and that there is no reason to believe that they have been out of state custody or have been tampered with or contaminated since they were collected.
(D) If an eligible inmate offender submits an application for
DNA testing under section 2953.73 of the Revised Code, the court,
in determining whether the "outcome determinative" criterion
described in divisions (B)(1) and (2) of this section has been
satisfied, shall consider all available admissible evidence
related to the subject inmate's offender's case.
(E) If an eligible inmate offender submits an application for
DNA testing under section 2953.73 of the Revised Code and the
court accepts the application, the eligible inmate offender may
request the court to order, or the court on its own initiative may
order, the bureau of criminal identification and investigation to
compare the results of DNA testing of biological material from an
unidentified person other than the inmate offender that was
obtained from the crime scene or from a victim of the offense for
which the inmate offender has been approved for DNA testing to the
combined DNA index system maintained by the federal bureau of
investigation.
If the bureau, upon comparing the test results to the
combined DNA index system, determines the identity of the person
who is the contributor of the biological material, the bureau
shall provide that information to the court that accepted the
application, the inmate offender, and the prosecuting attorney.
The inmate offender or the state may use the information for any
lawful purpose.
If the bureau, upon comparing the test results to the
combined DNA index system, is unable to determine the identity of
the person who is the contributor of the biological material, the
bureau may compare the test results to other previously obtained
and acceptable DNA test results of any person whose identity is
known other than the eligible inmate offender. If the bureau, upon
comparing the test results to the DNA test results of any person
whose identity is known, determines that the person whose identity
is known is the contributor of the biological material, the bureau
shall provide that information to the court that accepted the
application, the inmate offender, and the prosecuting attorney.
The inmate offender or the state may use the information for any
lawful purpose.
Sec. 2953.75. (A) If an eligible inmate offender submits an
application for DNA testing under section 2953.73 of the Revised
Code, the court shall require the prosecuting attorney to use
reasonable diligence to determine whether biological material was
collected from the crime scene or victim of the offense for which
the inmate offender is an eligible inmate
offender and is
requesting the DNA testing against which a sample from the
inmate
offender can be compared and whether the parent sample of that
biological material still exists at that point in time. In using
reasonable diligence to make those determinations, the prosecuting
attorney shall rely upon all relevant sources, including, but not
limited to, all of the following:
(1) All prosecuting authorities in the case in which the
inmate offender was convicted of the offense for which the inmate
offender is an eligible inmate offender and is requesting the DNA
testing and in the appeals of, and postconviction proceedings
related to, that case;
(2) All law enforcement authorities involved in the
investigation of the offense for which the inmate offender is an
eligible offender and is requesting the DNA testing;
(3) All custodial agencies involved at any time with the biological material in question;
(4) The custodian of all custodial agencies described in division (A)(3) of this section;
(5) All crime laboratories involved at any time with the biological material in question;
(6) All other reasonable sources.
(B) The prosecuting attorney shall prepare a report that
contains the prosecuting attorney's determinations made under
division (A) of this section and shall file a copy of the report
with the court and provide a copy to the eligible inmate offender
and the attorney general.
Sec. 2953.76. If an eligible inmate offender submits an
application for DNA testing under section 2953.73 of the Revised
Code, the court shall require the prosecuting attorney to consult
with the testing authority and to prepare findings regarding the
quantity and quality of the parent sample of the biological
material collected from the crime scene or victim of the offense
for which the inmate offender is an eligible
inmate offender and
is requesting the DNA testing and that is to be tested, and of the
chain of custody and reliability regarding that parent sample, as
follows:
(A) The testing authority shall determine whether there is a
scientifically sufficient quantity of the parent sample to test
and whether the parent sample is so minute or fragile that there
is a substantial risk that the parent sample could be destroyed in
testing. The testing authority may determine that there is not a
sufficient quantity to test in order to preserve the state's
ability to present in the future the original evidence presented
at trial, if another trial is required. Upon making its
determination under this division, the testing authority shall
prepare a written document that contains its determination and the
reasoning and rationale for that determination and shall provide a
copy to the court, the eligible inmate offender, the prosecuting
attorney, and the attorney general. The court may determine in its
discretion, on a case-by-case basis, that, even if the parent
sample of the biological material so collected is so minute or
fragile as to risk destruction of the parent sample by the
extraction, the application should not be rejected solely on the
basis of that risk.
(B) The testing authority shall determine whether the parent
sample has degraded or been contaminated to the extent that it has
become scientifically unsuitable for testing and whether the
parent sample otherwise has been preserved, and remains, in a
condition that is suitable for testing. Upon making its
determination under this division, the testing authority shall
prepare a written document that contains its determination and the
reasoning and rationale for that determination and shall provide a
copy to the court, the eligible inmate offender, the prosecuting
attorney, and the attorney general.
(C) The court shall determine, from the chain of custody of the parent sample of the biological material to be tested and of any test sample extracted from the parent sample and from the totality of circumstances involved, whether the parent sample and the extracted test sample are the same sample as collected and whether there is any reason to believe that they have been out of state custody or have been tampered with or contaminated since they were collected. Upon making its determination under this division, the court shall prepare and retain a written document that contains its determination and the reasoning and rationale for that determination.
Sec. 2953.77. (A) If an eligible inmate offender submits an
application for DNA testing under section 2953.73 of the Revised
Code and if the application is accepted and DNA testing is to be
performed, the court shall require that the chain of custody
remain intact and that all of the applicable following precautions
are satisfied to ensure that the parent sample of the biological
material collected from the crime scene or the victim of the
offense for which the inmate offender is an eligible inmate
offender and requested the DNA testing, and the test sample of the
parent sample that is extracted and actually is to be tested, are
not contaminated during transport or the testing process:
(1) The court shall require that the chain of custody be maintained and documented relative to the parent sample and the test sample actually to be tested between the time they are removed from their place of storage or the time of their extraction to the time at which the DNA testing will be performed.
(2) The court, the testing authority, and the law enforcement and prosecutorial personnel involved in the process, or any combination of those entities and persons, shall coordinate the transport of the parent sample and the test sample actually to be tested between their place of storage and the place where the DNA testing will be performed, and the court and testing authority shall document the transport procedures so used.
(3) The testing authority shall determine and document the custodian of the parent sample and the test sample actually to be tested after they are in the possession of the testing authority.
(4) The testing authority shall maintain and preserve the parent sample and the test sample actually to be tested after they are in the possession of the testing authority and shall document the maintenance and preservation procedures used.
(5) After the DNA testing, the court, the testing authority, and the original custodial agency of the parent sample, or any combination of those entities, shall coordinate the return of the remaining parent sample back to its place of storage with the original custodial agency or to any other place determined in accordance with this division and section 2953.81 of the Revised Code. The court shall determine, in consultation with the testing authority, the custodial agency to maintain any newly created, extracted, or collected DNA material resulting from the testing. The court and testing authority shall document the return procedures for original materials and for any newly created, extracted, or collected DNA material resulting from the testing, and also the custodial agency to which those materials should be taken.
(B) A court or testing authority shall provide the documentation required under division (A) of this section in writing and shall maintain that documentation.
Sec. 2953.78. (A) If an eligible inmate offender submits an
application for DNA testing under section 2953.73 of the Revised
Code and if the application is accepted and DNA testing is to be
performed, the court shall select the testing authority to be used
for the testing. A court shall not select or use a testing
authority for DNA testing unless the attorney general approves or
designates the testing authority pursuant to division (C) of this
section and unless the testing authority satisfies the criteria
set forth in section 2953.80 of the Revised Code.
(B) If a court selects a testing authority pursuant to
division (A) of this section and the eligible inmate
offender for
whom the test is to be performed objects to the use of the
selected testing authority, the court shall rescind its prior
acceptance of the application for DNA testing for the inmate
offender and deny the application. An objection as described in
this division, and the resulting rescission and denial, do not
preclude a court from accepting in the court's discretion, a
subsequent application by the same eligible inmate
offender
requesting DNA testing.
(C) The attorney general shall approve or designate testing authorities that may be selected and used to conduct DNA testing, shall prepare a list of the approved or designated testing authorities, and shall provide copies of the list to all courts of common pleas. The attorney general shall update the list as appropriate to reflect changes in the approved or designated testing authorities and shall provide copies of the updated list to all courts of common pleas. The attorney general shall not approve or designate a testing authority under this division unless the testing authority satisfies the criteria set forth in section 2953.80 of the Revised Code. A testing authority that is equipped to handle advanced DNA testing may be approved or designated under this division, provided it satisfies the criteria set forth in that section.
(D) The attorney general's approval or designation of testing
authorities under division (C) of this section, and the selection
and use of any approved or designated testing authority, do not
afford an inmate offender any right to subsequently challenge the
approval, designation, selection, or use, and an inmate offender
may not appeal to any court the approval, designation, selection,
or use of a testing authority.
Sec. 2953.79. (A) If an eligible inmate offender submits an
application for DNA testing under section 2953.73 of the Revised
Code and if the application is accepted and DNA testing is to be
performed, a sample of biological material shall be obtained from
the inmate offender in accordance with this section, to be
compared with the parent sample of biological material collected
from the crime scene or the victim of the offense for which the
inmate offender is an eligible inmate offender and requested the
DNA testing. The
inmate's
offender's filing of the application
constitutes the
inmate's
offender's consent to the obtaining of
the sample of biological material from the inmate offender. The
testing authority shall obtain the sample of biological material
from the inmate
offender in accordance with medically accepted
procedures.
(B) If DNA testing is to be performed for an inmate
offender
as described in division (A) of this section, the court shall
require the state to coordinate with the department of
rehabilitation and correction or the other state agency or entity
of local government with custody of the offender, whichever is
applicable, as to the time and place at which the sample of
biological material will be obtained from the
inmate offender. The
If the offender is in prison or is in custody in another facility
at the time the DNA testing is to be performed, the sample of
biological material shall be obtained from the inmate offender at
the facility in which the inmate offender is housed, and the
department of rehabilitation and correction or the other state
agency or entity of local government with custody of the offender,
whichever is applicable, shall make the inmate offender available
at the specified time. The court shall require the state to
provide notice to the inmate offender and to the inmate's
offender's counsel of the date on which, and the time and place at
which, the sample will be so obtained.
The court also shall require the state to coordinate with the
testing authority regarding the obtaining of the sample from the
inmate offender.
(C)(1) If DNA testing is to be performed for an inmate
offender as described in division (A) of this section, and the
inmate offender refuses to submit to the collection of the sample
of biological material from the inmate offender or hinders the
state from obtaining a sample of biological material from the
inmate offender, the court shall rescind its prior acceptance of
the application for DNA testing for the inmate offender and deny
the application.
(2) For purposes of division (C)(1) of this section:
(a) An inmate's offender's "refusal to submit to the
collection of a sample of biological material from the inmate
offender" includes, but is not limited to, the inmate's offender's
rejection of the physical manner in which a sample of the inmate's
offender's biological material is to be taken.
(b) An inmate's offender's "hindrance of the state in
obtaining a sample of biological material from the inmate
offender" includes, but is not limited to, the inmate offender
being physically or verbally uncooperative or antagonistic in the
taking of a sample of the
inmate's offender's biological material.
(D) The extracting personnel shall make the determination as
to whether an eligible inmate offender for whom DNA testing is to
be performed is refusing to submit to the collection of a sample
of biological material from the inmate offender or is hindering
the state from obtaining a sample of biological material from the
inmate offender at the time and date of the scheduled collection
of the sample. If the extracting personnel determine that an
inmate offender is refusing to submit to the collection of a
sample or is hindering the state from obtaining a sample, the
extracting personnel shall document in writing the conditions that
constitute the refusal or hindrance, maintain the documentation,
and notify the court of the inmate's offender's refusal or
hindrance.
Sec. 2953.81. If an eligible offender submits an application for DNA testing under section 2953.73 of the Revised Code and if DNA testing is performed based on that application, upon completion of the testing, all of the following apply:
(A) The court or a designee of the court shall require the
state to maintain the results of the testing and to maintain and
preserve both the parent sample of the biological material used
and the
inmate offender sample of the biological material used.
The testing authority may be designated as the person to maintain
the results of the testing or to maintain and preserve some or all
of the samples, or both. The results of the testing remain state's
evidence. The samples shall be preserved during the entire period
of time for which the
inmate offender is imprisoned or confined
relative to the prison term or sentence of death in question and,
if that prison term expires or the inmate is executed under that
sentence of death, is on parole or probation relative to that
sentence, is under post-release control or a community control
sanction relative to that sentence, or has a duty to comply with
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised
Code relative to that sentence. Additionally, if the prison term
or confinement under the sentence in question expires, if the
sentence in question is a sentence of death and the offender is
executed, or if the parole or probation period, the period of
post-release control, the community control sanction, or the duty
to comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of
the Revised Code under the sentence in question ends, the samples
shall be preserved for a reasonable period of time of not less
than twenty-four months after the term or confinement expires
or,
the inmate offender is executed, or the parole or probation
period, the period of post-release control, the community control
sanction, or the duty to comply with sections 2950.04, 2950.041,
2950.05, and 2950.06 of the Revised Code ends, whichever is
applicable. The court shall determine the period of time that is
reasonable for purposes of this division, provided that the period
shall not be less than twenty-four months after the term or
confinement expires or, the inmate offender is executed, or the
parole or probation period, the period of post-release control,
the community control sanction, or the duty to comply with
sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised
Code ends, whichever is applicable.
(B) The results of the testing are a public record.
(C) The court or the testing authority shall provide a copy
of the results of the testing to the prosecuting attorney, the
attorney general, and the subject inmate offender.
(D) If the postconviction proceeding in question is pending at that time in a court of this state, the court of common pleas that decided the DNA application or the testing authority shall provide a copy of the results of the testing to any court of this state, and, if it is pending in a federal court, the court of common pleas that decided the DNA application or the testing authority shall provide a copy of the results of the testing to that federal court.
(E) The testing authority shall provide a copy of the results of the testing to the court of common pleas that decided the DNA application.
(F) The inmate offender or the state may enter the results of
the testing into any proceeding.
Sec. 2953.83. In any court proceeding under sections 2953.71
to 2953.82 2953.81 of the Revised Code, the Rules of Criminal
Procedure apply, except to the extent that sections 2953.71 to
2953.82 2953.81 of the Revised Code provide a different procedure
or to the extent that the Rules would by their nature be clearly
inapplicable.
Sec. 2953.84. The provisions of sections 2953.71 to 2953.82
2953.81 of the Revised Code by which an inmate offender may obtain
postconviction DNA testing are not the exclusive means by which an
inmate offender may obtain postconviction DNA testing, and the
provisions of those sections do not limit or affect any other
means by which an inmate offender may obtain postconviction DNA
testing.
SECTION 2. That existing sections 109.573, 2901.07, 2953.21, 2953.23, 2953.31, 2953.32, 2953.321, 2953.35, 2953.51, 2953.54, 2953.55, 2953.71, 2953.72, 2953.73, 2953.74, 2953.75, 2953.76, 2953.77, 2953.78, 2953.79, 2953.81, 2953.83, and 2953.84 and section 2953.82 of the Revised Code are hereby repealed.
SECTION 3. (A) The General Assembly hereby requests the Attorney General to adopt rules pursuant to Chapter 119. of the Revised Code prescribing specific procedures to be followed for the administration by law enforcement agencies and criminal justice entities in this state of photo lineups, live lineups, and showups. The General Assembly also requests that any rules adopted by the Attorney General be consistent with the requirements of divisions (B) and (C) of section 2933.83 of the Revised Code. If the Attorney General adopts rules of the type described in this division, on and after the date on which the rules take effect, law enforcement agencies and criminal justice entities in this state shall comply with the rules in conducting live lineups, photo lineups, and showups.
(B) The General Assembly hereby requests the Ohio Judicial Conference to review existing jury instructions regarding eyewitness identification for compliance with this act.
