{"data":{"id":"us-ky/krs-422.285","jurisdiction":"us-ky","citation":"KRS 422.285","heading":"Person convicted of certain offenses may  request DNA  testing --","body":"Right to counsel -- Deposit -- Court orders -- Cost -- Access to reports --\nPreservation of evidence -- Dismissal -- Hearing when results favorable to\npetitioner.\n(1) (a) Except as provided in paragraph (b) of this subsection, a person who was\nconvicted of a capital offense, a Class A felony, a Class B felony, or any\noffense designated a violent offense under KRS 439.3401 and who meets\nthe requirements of this section may  at any time request the forensic\ndeoxyribonucleic acid (DNA) testing and analysis of any evidence that is\nin the possession or control of the court or Commonwealth, that is related\nto the investigation or prosecution that resulted in the judgment of\nconviction and that may contain biological evidence.\n(b) This subsection shall not apply to offenses under KRS  Chapter 218A,\nunless the offense was accompanied by another offense outside of that\nchapter for which testing is authorized by paragraph (a) of this subsection.\n(2) Upon  receipt of a request under this section accompanied by a supporting\naffidavit containing sufficient factual averments to support the request from a\nperson who meets the requirements of subsection (5)(f) of this section at the\ntime the request is made  for an offense to which the DNA  relates, the court\nshall:\n(a) If the petitioner is not represented by counsel, appoint the Department of\nPublic Advocacy to represent the petitioner for purposes of the request,\npursuant to KRS 31.110(2)(c); or\n(b) If the petitioner is represented by counsel or waives appointment of\ncounsel in writing or if the Department of Public Advocacy has previously\nwithdrawn from representation of the petitioner for purposes of the\nrequest, require the petitioner to deposit an amount certain with the court\nsufficient to cover the reasonable costs of the testing being requested.\n(3) Counsel representing the petitioner shall be provided a reasonable opportunity\nto investigate the petitioner's request and shall be permitted to supplement the\nrequest. Pursuant to KRS  31.110(2)(c), the petitioner shall have no further right\nto counsel provided by the Department of Public Advocacy on the matter if\ncounsel determines that it is not a proceeding that a reasonable person with\nadequate means  would be willing to bring at his or her own expense. If the\nDepartment of Public Advocacy moves  to withdraw as counsel for petitioner\nand  the court grants the motion, the court shall proceed as directed under\nsubsection (2)(b) of this section.\n(4) Upon  receipt of the deposit required under subsection (2)(b) of this section or a\nmotion from counsel provided by the Department of Public Advocacy  to\nproceed, the court shall provide notice to the prosecutor and an opportunity to\nrespond to the petitioner's request.\n(5) After due consideration of the request and any supplements and responses\nthereto, the court shall order DNA  testing and analysis if the court finds that all\nof the following apply:\n(a) A  reasonable probability exists that the petitioner would not have been\nprosecuted or convicted if exculpatory results had been obtained through\nDNA  testing and analysis;\n(b) The  evidence is still in existence and is in a condition that allows DNA\ntesting and analysis to be conducted;\n(c) The  evidence was not previously subjected to DNA  testing and analysis\nor was not subjected to the testing and analysis that is now requested and\nmay  resolve an issue not previously resolved by the previous testing and\nanalysis;\n(d) Except for a petitioner sentenced to death, the petitioner was convicted of\nthe offense after a trial or after entering an Alford plea;\n(e) Except for a petitioner sentenced to death, the testing is not sought for\ntouch DNA, meaning casual or limited contact DNA; and\n(f) The petitioner is still incarcerated or on probation, parole, or other form of\ncorrectional supervision, monitoring, or registration for the offense to\nwhich the DNA  relates.\n(6) After due consideration of the request and any supplements and responses\nthereto, the court may order DNA  testing and analysis if the court finds that all\nof the following apply:\n(a) A reasonable probability exists that either:\n1. The  petitioner's verdict or sentence would  have  been  more\nfavorable if the results of DNA  testing and analysis had been\navailable at the trial leading to the judgment of conviction; or\n2. DNA  testing and analysis will produce exculpatory evidence;\n(b) The  evidence is still in existence and is in a condition that allows DNA\ntesting and analysis to be conducted;\n(c) The evidence was not previously subject to DNA  testing and analysis or\nwas  not subjected to the testing and analysis that is now requested and\nthat may resolve an issue not previously resolved by the previous testing\nand analysis;\n(d) Except for a petitioner sentenced to death, the petitioner was convicted of\nthe offense after a trial or after entering an Alford plea;\n(e) Except for a petitioner sentenced to death, the testing is not sought for\ntouch DNA, meaning casual or limited contact DNA; and\n(f) The petitioner is still incarcerated or on probation, parole, or other form of\ncorrectional supervision, monitoring, or registration for the offense to\nwhich the DNA  relates.\n(7) The  provisions of KRS  17.176 to the contrary notwithstanding, the petitioner\nshall pay the costs of all testing and analysis ordered under this section. If the\ncourt determines that the petitioner is a needy person using the standards set\nout in KRS  31.120 and the Department of Public Advocacy so moves, the court\nshall treat the costs of testing and analysis as a direct expense of the defense\nfor the purposes of authorizing payment under KRS 31.185.\n(8) If the prosecutor or defense counsel has previously subjected evidence to DNA\ntesting and analysis, the court shall order the prosecutor or defense counsel to\nprovide all the parties and the court with access to the laboratory reports that\nwere prepared in connection with the testing and analysis, including underlying\ndata and laboratory notes. If the court orders DNA  testing and analysis\npursuant to this section, the court shall order the production of any laboratory\nreports that are prepared in connection with the testing and analysis and may\norder the production of any underlying data and laboratory notes.\n(9) If a petition is filed pursuant to this section, the court shall order the state to\npreserve during the pendency of the proceeding all evidence in the state's\npossession or control that could be subjected to DNA  testing and analysis. The\nstate shall prepare an inventory of the evidence and shall submit a copy of the\ninventory to the defense and the court. If the evidence is intentionally destroyed\nafter the court orders its preservation, the court may  impose appropriate\nsanctions, including criminal contempt.\n(10) The  court may  make  any other orders that the court deems  appropriate,\nincluding designating any of the following:\n(a) The  preservation of some  of the sample for replicating the testing and\nanalysis; and\n(b) Elimination samples from third parties.\n(11) If the results of the DNA  testing and analysis are not favorable to the petitioner,\nthe court shall dismiss the petition. The court may make  further orders as it\ndeems  appropriate, including any of the following:\n(a) Notifying the Department of Corrections and the Parole Board;\n(b) Requesting that the petitioner's sample be added to the Department of\nKentucky State Police database; and\n(c) Providing notification to the victim or family of the victim.\n(12) Notwithstanding any other provision of law that would bar a hearing as\nuntimely, if the results of the DNA  testing and analysis are favorable to the\npetitioner, the court shall order a hearing and make any further orders that are\nrequired pursuant to this section or the Kentucky Rules of Criminal Procedure.","path":["KRS Chapter 422"],"source_url":"https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=46886","current_through":"Includes enactments through the 2026 Regular Session","vintage":"09/05/2026","retrieved_at":"2026-09-05T20:59:39Z","sha256":"5d766706b612dc2abc8aa6cbe477d2fa8c883279a62536f3307e0b9fd3bcd8e8","source_id":"us-ky","stale":false,"prev":"us-ky/krs-422.280","next":"us-ky/krs-422.287"},"notice":"GroundRules: Original legal text. Not legal advice."}