23-5B-1. Order upon motion for DNA testing of person convicted of felony--Requirements.
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/sd/title-23/chapter-23-5/23-5b-1A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Upon a written motion by any person who has been convicted of a felony offense, the court that entered the judgment of conviction for the felony offense shall order DNA testing of specific evidence if the court finds that all of the following apply:
(1)The petitioner asserts, under penalty of perjury, that the petitioner is actually innocent of the felony offense for which the petitioner is under a sentence of imprisonment or death;
(2)The petitioner's conviction is final under chapter 23A-32 ;
(3)The petitioner has exhausted any claim for relief under chapter 21-27 or 28 U.S.C. § 2254;
(4)The specific evidence to be tested was secured in relation to the investigation or prosecution of the felony offense for which the petitioner was convicted;
(5)The specific evidence was either:
(a)Not previously subjected to DNA testing and the petitioner did not:
(i)Knowingly and voluntarily waive the right to request DNA testing of that evidence in a court proceeding after the date of enactment of this chapter; or
(ii)Knowingly fail to request DNA testing of that evidence in a prior petition for relief under chapter 21-27 or 28 U.S.C. § 2254; or
(b)Previously subjected to DNA testing and the petitioner is requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing;
(6)The petitioner shows good cause for the failure to request DNA testing of the specific evidence at the time of trial;
(7)The specific evidence to be tested exists, is in the possession of the state, and has been subject to a chain of custody and retained under conditions sufficient to ensure that such evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed DNA testing;
(8)The proposed DNA testing is reasonable in scope, uses scientifically sound methods, and is consistent with accepted forensic practices;
(9)The petitioner identifies a theory of defense that:
(a)Is consistent with an affirmative defense presented at trial; or
(b)Would establish the actual innocence of the petitioner of the felony offense referenced in the petitioner's assertion under subdivision (1); and
(10)If the petitioner was convicted following a trial, the identity of the perpetrator was at issue in the trial.