As used in this section and in sections 18-1-412 to 18-1-416, unless the context otherwise requires:
(1) Repealed.
(2) Actual or constructive possession means the biological evidence is maintained or stored on the premises of the law enforcement agency or at another location or facility under the custody or control of the law enforcement agency, including pursuant to an agreement or contract with the law enforcement agency and a third-party service provider, in Colorado or elsewhere.
(3) DNA means deoxyribonucleic acid.
(3.3) Eligible person means a person convicted of a felony offense in Colorado or adjudicated not guilty by reason of insanity for a felony offense in Colorado pursuant to section 16-8-105.5, including a person currently incarcerated; a person on parole or probation for a felony offense; a person subject to sex offender registration pursuant to section 16-22-103; or a person who has completed the sentence imposed for the felony offense.
(3.5) Favorable result means a result that indicates a reasonable probability that the petitioner would not have been convicted.
(4) Incarcerated means physically housed in a department of corrections facility, a private correctional facility under contract with the department of corrections, or a county jail following a felony conviction, or in a juvenile facility following adjudication for an offense that would have been a felony if committed by an adult, or under parole supervision.
Source: L. 2003: Entire section added, p. 815, � 1, effective August 6. L. 2023: (1) repealed and (3.3) and (3.5) added, (HB 23-1034), ch. 15, p. 44, � 1, effective October 1.
18-1-412. Procedure for application for DNA testing - appointment of counsel. (1) An eligible person may apply at any time to the district court in the district where the conviction was secured for DNA testing concerning the conviction and sentence.
(2) A motion filed pursuant to this section shall include specific facts sufficient to support a prima facie showing that post-conviction relief is warranted under the criteria set forth in section 18-1-413. The motion shall include the results of all prior DNA tests, regardless of whether a test was performed by the defense or the prosecution.
(3) If the motion, files, and record of the case show to the satisfaction of the court that the petitioner is not entitled to relief based on the criteria specified in section 18-1-413, the court shall deny the motion without a hearing and without appointment of counsel.
(4) If the court does not deny the petitioner's motion for testing, the court shall appoint counsel if the court determines the petitioner is indigent and has requested counsel. The court shall forward a copy of the motion for DNA testing to the district attorney.
(5) Counsel for the defendant may request the court to set the matter for a hearing, if, upon investigation of the petitioner's motion for testing, counsel believes sufficient grounds exist to support an order for DNA testing. If the petitioner represents himself or herself, the court may set the matter for a hearing upon his or her request.
(6) Following a request for a hearing, the court shall allow the district attorney a reasonable amount of time, but not less than thirty-five days, to respond to the motion and any supplement filed by the petitioner's counsel and to prepare for the hearing.
(7) A court shall not order DNA testing without a hearing, except upon written stipulation of the district attorney.
(8) The court shall deny a motion for production of transcripts unless the petitioner makes a prima facie showing that a transcript will be necessary at a hearing conducted pursuant to this section.
(9) Upon motion of the defendant or the defendant's counsel, the court shall order a database search by a law enforcement agency in both national and local databases if the court determines that a reasonable probability exists that the database search will produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing. DNA profiles must meet current national DNA database index system eligibility standards and conform to current federal bureau of investigation quality assurance standards in order to be eligible for search against the state index system.
Source: L. 2003: Entire section added, p. 816, � 1, effective August 6. L. 2009: (9) added, (SB 09-241), ch. 295, p. 1582, � 11, effective July 1. L. 2012: (6) amended, (SB 12-175), ch. 208, p. 862, � 103, effective July 1. L. 2023: (1), (3), and (9) amended, (HB 23-1034), ch. 15, p. 44, � 2, effective October 1.