HB 325: "An Act relating to post-conviction DNA testing; and amending Rule 35.1, Alaska Rules of Criminal Procedure."
00 HOUSE BILL NO. 325 01 "An Act relating to post-conviction DNA testing; and amending Rule 35.1, Alaska Rules 02 of Criminal Procedure." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 12.72 is amended by adding new sections to read: 05 Article 2. Post-Conviction DNA Testing. 06 Sec. 12.72.200. Procedure for application for DNA testing; appointment of 07 counsel. (a) An incarcerated person may apply to the superior court in the district 08 where the person was convicted for an order for DNA testing of biological evidence 09 from the conviction and sentence the person is currently serving. 10 (b) An application filed under (a) of this section must include specific facts 11 sufficient to support a prima facie showing that post-conviction relief is warranted 12 under the criteria set out in AS 12.72.210. The application must include the results of 13 all prior DNA tests, regardless of whether a test was performed by the defense or the 14 prosecution.
01 (c) If the application, files, and record of the case show to the satisfaction of 02 the court that the petitioner is not entitled to relief based on the criteria specified in 03 AS 12.72.210, the court shall deny the application without a hearing and without 04 appointment of counsel. The court may deny a second or subsequent application 05 requesting relief under this section. 06 (d) If the court does not deny the petitioner's application for testing, the court 07 shall appoint the public defender or the office of public advocacy if the court 08 determines the petitioner is indigent and has requested counsel. The court shall 09 forward a copy of the application for DNA testing to the attorney general. 10 (e) Counsel for the defendant may file a supplement to the application and 11 may ask the court to set the matter for a hearing if, on investigation of the petitioner's 12 application for testing, counsel believes sufficient grounds exist to support an order for 13 DNA testing. If the petitioner is not represented by counsel, the court may set the 14 matter for a hearing on petitioner's request. 15 (f) Following a request for a hearing, the court shall allow the attorney general 16 a reasonable amount of time, but not less than 30 days, to respond to the application 17 and any supplement filed by the petitioner's counsel and to prepare for the hearing. 18 (g) A court may not order DNA testing without a hearing, except on written 19 stipulation of the attorney general. 20 (h) The court shall deny a motion for production of transcripts unless the 21 petitioner makes a prima facie showing that a transcript will be necessary at a hearing 22 conducted under this section. 23 Sec. 12.72.210. Content of application for DNA testing. A court may not 24 order DNA testing unless the petitioner shows, by a preponderance of the evidence, 25 that 26 (1) favorable results of the DNA testing will demonstrate the 27 petitioner's actual innocence; 28 (2) a law enforcement agency collected biological evidence pertaining 29 to the offense and retains actual or constructive possession of the evidence that allows 30 for reliable DNA testing; 31 (3) conclusive DNA test results were not available before the
01 petitioner's conviction, and the petitioner did not secure DNA testing before the 02 petitioner's conviction because DNA testing was not reasonably available or for 03 reasons that constitute justifiable excuse, ineffective assistance of counsel, or 04 excusable neglect; and 05 (4) the petitioner consents to provide a biological sample for DNA 06 testing. 07 Sec. 12.72.220. Preservation of evidence. (a) A petitioner is not entitled to 08 relief on an allegation that a law enforcement agency failed to preserve biological 09 evidence. 10 (b) A court granting a motion for hearing under AS 12.72.200 shall order the 11 appropriate law enforcement agency to preserve existing biological evidence for DNA 12 testing. 13 (c) This section does not create a duty to preserve biological evidence except 14 as ordered in (b) of this section. This section does not create a liability on the part of a 15 law enforcement agency for failing to preserve biological evidence. 16 Sec. 12.72.230. Testing; payment. Testing shall be performed at a law 17 enforcement or correctional facility, and the petitioner shall pay for the testing. If the 18 petitioner is indigent and represented by court-appointed counsel, with the approval of 19 that counsel, the costs of the testing shall be paid by the Public Defender Agency or 20 the office of public advocacy, as appropriate. 21 Sec. 12.72.240. Results of the DNA test. (a) Notwithstanding any law or rule 22 of procedure that bars an application for post-conviction relief as untimely, a petitioner 23 may use the results of a DNA test ordered under AS 12.72.200 as the grounds for 24 filing a motion for post-conviction review under AS 12.72.010 - 12.72.040 and the 25 Alaska Rules of Criminal Procedure. 26 (b) The testing laboratory shall make the results of a DNA test ordered under 27 AS 12.72.200 available to the DNA identification registration system under 28 AS 44.41.035 and to any other law enforcement DNA databases. 29 Sec. 12.72.250. Definitions. In AS 12.72.200 - 12.72.250, 30 (1) "actual innocence" means clear and convincing evidence such that 31 no reasonable juror would have convicted the defendant;
01 (2) "actual or constructive possession" means the biological evidence 02 is maintained or stored on the premises of the law enforcement agency or at another 03 location or facility under the custody or control of the law enforcement agency, 04 including under an agreement or contract with the law enforcement agency and a 05 third-party service provider, in this state or elsewhere; 06 (3) "DNA" means deoxyribonucleic acid; 07 (4) "incarcerated" means physically housed in a correctional facility 08 following a felony conviction, or in a juvenile facility following adjudication for an 09 offense that would have been a felony if committed by an adult, or under parole or 10 probation supervision for a felony conviction. 11 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 INDIRECT COURT RULE CHANGE. AS 12.72.240, added by sec. 1 of this Act, has 14 the effect of amending Rule 35.1, Alaska Rules of Criminal Procedure, relating to the filing of 15 applications for post-conviction relief.