§ 18-1-413 — Content of application for DNA testing

(1) The court shall order
DNA testing if:

(a) It finds a reasonable probability that the petitioner would not have been
convicted if favorable results had been obtained through DNA testing at the time of
the original prosecution;

(b) It finds by a preponderance of the evidence that a law enforcement
agency collected biological evidence pertaining to the offense;

(c) (I) It finds by a preponderance of the evidence that DNA results were not
available prior to the petitioner's conviction or, if previously available and tested,
the evidence can be subjected to more advanced, scientifically reliable DNA testing
that provides a reasonable likelihood of more probative results; or

(II) The petitioner did not secure the requested DNA testing prior to the
petitioner's conviction because DNA testing was not reasonably available or for
reasons that constitute justifiable excuse, ineffective assistance of counsel, or
excusable neglect; and

(d) The petitioner consents to provide a biological sample for DNA testing.

(2) A petitioner may only file a subsequent petition with new grounds for
relief not raised in the prior petition if the petitioner exercised due diligence to raise
all viable claims at the time of the initial petition or if the petitioner was not granted
a hearing on the initial petition and the subsequent petition raises viable grounds
for relief. If the court determines these criteria are satisfied, the court may consider
the subsequent petition if the petitioner establishes good cause why a successive
petition should be considered or the court finds that the interests of justice so
require. If the court considers the subsequent petition, the court shall determine
whether to grant the petition pursuant to subsection (1) of this section.

Legislative History

Source: L. 2003: Entire section added, p. 816, � 1, effective August 6. L. 2023: IP(1), (1)(a), (1)(b), and (1)(c) amended and (2) added, (HB 23-1034), ch. 15, p. 45, � 3, effective October 1.