§ 18-1-414 — Preservation of evidence

(1) A petitioner shall not be entitled to
relief based solely on an allegation that a law enforcement agency failed to
preserve biological evidence.

(2) (a) A court granting a motion for hearing pursuant to section 18-1-412
shall order the appropriate law enforcement agency to preserve existing biological
evidence for DNA testing.

(b) If a law enforcement agency, through negligence, destroys, loses, or
otherwise disposes of biological evidence that is the subject of an order pursuant to
this subsection (2) before the evidence may be tested, the court shall set a hearing
to determine whether a remedy is warranted. If the court determines that a remedy
is warranted, the court may order whatever remedy the court finds is just, equitable,
and appropriate. Nothing in this subsection (2) shall be construed to limit or
eliminate the court's authority to order any remedy otherwise available under law
for the destruction, loss, or disposal of evidence.

(c) For the purposes of this subsection (2), negligence means a departure
from the ordinary standard of care.

(d) When a motion for postconviction DNA testing is granted, the primary
investigative agency that handled the case shall prepare an inventory of the
evidence related to the case and issue a copy of the inventory to the petitioner and
the court.

(3) Except as provided in subsection (2) of this section, this section does not
create a duty to preserve biological evidence. Notwithstanding the provisions of
subsection (2) of this section, this section does not create a liability on the part of a
law enforcement agency for failing to preserve biological evidence.

Legislative History

Source: L. 2003: Entire section added, p. 817, � 1, effective August 6. L. 2008: (2) and (3) amended, p. 1513, � 2, effective May 28. L. 2023: (2)(d) added, (HB 23-1034), ch. 15, p. 46, � 4, effective October 1.