Colorado § 18-1-413 - Content of application for DNA testing.

§ 18-1-413. Content of application for DNA testing.

(1) The court shall order DNA testing if:

(a) It finds a reasonable probability that the petitioner would not have been convicted if favorable results had been obtained through DNA testing at the time of the original prosecution;

(b) It finds by a preponderance of the evidence that a law enforcement agency collected biological evidence pertaining to the offense;

(c) (I) It finds by a preponderance of the evidence that DNA results were not available prior to the petitioner's conviction or, if previously available and tested, the evidence can be subjected to more advanced, scientifically reliable DNA testing that provides a reasonable likelihood of more probative results; or

(II) The petitioner did not secure the requested DNA testing prior to the petitioner's conviction because DNA testing was not reasonably available or for reasons that constitute justifiable excuse, ineffective assistance of counsel, or excusable neglect; and

(d) The petitioner consents to provide a biological sample for DNA testing.

(2) A petitioner may only file a subsequent petition with new grounds for relief not raised in the prior petition if the petitioner exercised due diligence to raise all viable claims at the time of the initial petition or if the petitioner was not granted a hearing on the initial petition and the subsequent petition raises viable grounds for relief. If the court determines these criteria are satisfied, the court may consider the subsequent petition if the petitioner establishes good cause why a successive petition should be considered or the court finds that the interests of justice so require. If the court considers the subsequent petition, the court shall determine whether to grant the petition pursuant to subsection (1) of this section.

Source: L. 2003: Entire section added, p. 816, § 1, effective August 6. L. 2023: IP(1), (1)(a), (1)(b), and (1)(c) amended and (2) added, (HB 23-1034), ch. 15, p. 45, § 3, effective October 1.

ANNOTATION

Defendant not entitled to DNA testing under this section because defendant failed to establish by a preponderance of the evidence that favorable results of DNA testing would demonstrate his actual innocence. People v. Young, 2014 COA 169, 412 P.3d 676.

Defendant failed to satisfy the actual innocence prong. The absence of defendant's DNA on the mattress pad, blanket, extension cord, and victim's clothes would not constitute "clear and convincing evidence such that no reasonable juror would have convicted the defendant." DNA testing of these items would not necessarily or logically rebut other strong evidence of the defendant's guilt. People v. Thompson, 2020 COA 117, 485 P.3d 566.