KRS 422.285: Person convicted of certain offenses may request DNA testing --

Right to counsel -- Deposit -- Court orders -- Cost -- Access to reports --

Preservation of evidence -- Dismissal -- Hearing when results favorable to

petitioner.

(1) (a) Except as provided in paragraph (b) of this subsection, a person who was

convicted of a capital offense, a Class A felony, a Class B felony, or any

offense designated a violent offense under KRS 439.3401 and who meets

the requirements of this section may at any time request the forensic

deoxyribonucleic acid (DNA) testing and analysis of any evidence that is

in the possession or control of the court or Commonwealth, that is related

to the investigation or prosecution that resulted in the judgment of

conviction and that may contain biological evidence.

(b) This subsection shall not apply to offenses under KRS Chapter 218A,

unless the offense was accompanied by another offense outside of that

chapter for which testing is authorized by paragraph (a) of this subsection.

(2) Upon receipt of a request under this section accompanied by a supporting

affidavit containing sufficient factual averments to support the request from a

person who meets the requirements of subsection (5)(f) of this section at the

time the request is made for an offense to which the DNA relates, the court

shall:

(a) If the petitioner is not represented by counsel, appoint the Department of

Public Advocacy to represent the petitioner for purposes of the request,

pursuant to KRS 31.110(2)(c); or

(b) If the petitioner is represented by counsel or waives appointment of

counsel in writing or if the Department of Public Advocacy has previously

withdrawn from representation of the petitioner for purposes of the

request, require the petitioner to deposit an amount certain with the court

sufficient to cover the reasonable costs of the testing being requested.

(3) Counsel representing the petitioner shall be provided a reasonable opportunity

to investigate the petitioner's request and shall be permitted to supplement the

request. Pursuant to KRS 31.110(2)(c), the petitioner shall have no further right

to counsel provided by the Department of Public Advocacy on the matter if

counsel determines that it is not a proceeding that a reasonable person with

adequate means would be willing to bring at his or her own expense. If the

Department of Public Advocacy moves to withdraw as counsel for petitioner

and the court grants the motion, the court shall proceed as directed under

subsection (2)(b) of this section.

(4) Upon receipt of the deposit required under subsection (2)(b) of this section or a

motion from counsel provided by the Department of Public Advocacy to

proceed, the court shall provide notice to the prosecutor and an opportunity to

respond to the petitioner's request.

(5) After due consideration of the request and any supplements and responses

thereto, the court shall order DNA testing and analysis if the court finds that all

of the following apply:

(a) A reasonable probability exists that the petitioner would not have been

prosecuted or convicted if exculpatory results had been obtained through

DNA testing and analysis;

(b) The evidence is still in existence and is in a condition that allows DNA

testing and analysis to be conducted;

(c) The evidence was not previously subjected to DNA testing and analysis

or was not subjected to the testing and analysis that is now requested and

may resolve an issue not previously resolved by the previous testing and

analysis;

(d) Except for a petitioner sentenced to death, the petitioner was convicted of

the offense after a trial or after entering an Alford plea;

(e) Except for a petitioner sentenced to death, the testing is not sought for

touch DNA, meaning casual or limited contact DNA; and

(f) The petitioner is still incarcerated or on probation, parole, or other form of

correctional supervision, monitoring, or registration for the offense to

which the DNA relates.

(6) After due consideration of the request and any supplements and responses

thereto, the court may order DNA testing and analysis if the court finds that all

of the following apply:

(a) A reasonable probability exists that either:

1. The petitioner's verdict or sentence would have been more

favorable if the results of DNA testing and analysis had been

available at the trial leading to the judgment of conviction; or

2. DNA testing and analysis will produce exculpatory evidence;

(b) The evidence is still in existence and is in a condition that allows DNA

testing and analysis to be conducted;

(c) The evidence was not previously subject to DNA testing and analysis or

was not subjected to the testing and analysis that is now requested and

that may resolve an issue not previously resolved by the previous testing

and analysis;

(d) Except for a petitioner sentenced to death, the petitioner was convicted of

the offense after a trial or after entering an Alford plea;

(e) Except for a petitioner sentenced to death, the testing is not sought for

touch DNA, meaning casual or limited contact DNA; and

(f) The petitioner is still incarcerated or on probation, parole, or other form of

correctional supervision, monitoring, or registration for the offense to

which the DNA relates.

(7) The provisions of KRS 17.176 to the contrary notwithstanding, the petitioner

shall pay the costs of all testing and analysis ordered under this section. If the

court determines that the petitioner is a needy person using the standards set

out in KRS 31.120 and the Department of Public Advocacy so moves, the court

shall treat the costs of testing and analysis as a direct expense of the defense

for the purposes of authorizing payment under KRS 31.185.

(8) If the prosecutor or defense counsel has previously subjected evidence to DNA

testing and analysis, the court shall order the prosecutor or defense counsel to

provide all the parties and the court with access to the laboratory reports that

were prepared in connection with the testing and analysis, including underlying

data and laboratory notes. If the court orders DNA testing and analysis

pursuant to this section, the court shall order the production of any laboratory

reports that are prepared in connection with the testing and analysis and may

order the production of any underlying data and laboratory notes.

(9) If a petition is filed pursuant to this section, the court shall order the state to

preserve during the pendency of the proceeding all evidence in the state's

possession or control that could be subjected to DNA testing and analysis. The

state shall prepare an inventory of the evidence and shall submit a copy of the

inventory to the defense and the court. If the evidence is intentionally destroyed

after the court orders its preservation, the court may impose appropriate

sanctions, including criminal contempt.

(10) The court may make any other orders that the court deems appropriate,

including designating any of the following:

(a) The preservation of some of the sample for replicating the testing and

analysis; and

(b) Elimination samples from third parties.

(11) If the results of the DNA testing and analysis are not favorable to the petitioner,

the court shall dismiss the petition. The court may make further orders as it

deems appropriate, including any of the following:

(a) Notifying the Department of Corrections and the Parole Board;

(b) Requesting that the petitioner's sample be added to the Department of

Kentucky State Police database; and

(c) Providing notification to the victim or family of the victim.

(12) Notwithstanding any other provision of law that would bar a hearing as

untimely, if the results of the DNA testing and analysis are favorable to the

petitioner, the court shall order a hearing and make any further orders that are

required pursuant to this section or the Kentucky Rules of Criminal Procedure.