54th legislature - STATE OF NEW MEXICO - first session, 2019


Cisco McSorley










     SECTION 1. Section 31-1A-2 NMSA 1978 (being Laws 2003, Chapter 27, Section 1) is amended to read:


          A. A person convicted of a felony, who claims that DNA evidence will establish [his] the person's innocence, may petition the district court of the judicial district in which [he] the person was convicted to order the disclosure, preservation, production and testing of evidence that can be subjected to DNA testing. A copy of the petition shall be served on the district attorney for the judicial district in which the district court is located. A petitioner shall be granted full, fair and prompt proceedings upon filing the petition.

          B. As a condition to the district court's acceptance of [his] the person's petition, the petitioner shall:

                (1) submit to DNA testing ordered by the district court; and

                (2) authorize the district attorney's use of the DNA test results to investigate all aspects of the case that the petitioner is seeking to reopen.

          C. DNA samples obtained pursuant to Subsection B of this section shall be submitted for DNA testing according to the procedures in the DNA Identification Act, and the results of the DNA test shall be submitted into the federal bureau of investigation's national DNA index system for storage and exchange of DNA records submitted by forensic DNA laboratories.

          [C.] D. The petitioner shall show, by a preponderance of the evidence, that:

                (1) [he] the petitioner was convicted of a felony;

                (2) evidence exists that can be subjected to DNA testing;

                (3) the evidence to be subjected to DNA testing:

                     (a) has not previously been subjected to DNA testing;

                     (b) has not previously been subjected to the type of DNA testing that is now being requested; or

                     (c) was previously subjected to DNA testing, but was tested incorrectly or interpreted incorrectly;

                (4) the DNA testing [he] the petitioner is requesting will be likely to produce admissible evidence; and

                (5) identity was an issue in [his] the petitioner's case or that if the DNA testing [he] the petitioner is requesting had been performed prior to [his] the petitioner's conviction and the results had been exculpatory, there is a reasonable probability that the petitioner would not have pled guilty or been found guilty.

          [D.] E. If the petitioner satisfies the requirements set forth in Subsection [C] D of this section, the district court shall appoint counsel for the petitioner, unless the petitioner waives counsel or retains [his] the petitioner's own counsel.

          [E.] F. After reviewing a petition, the district court may dismiss the petition, order a response by the district attorney or issue an order for DNA testing.

          [F.] G. The district court shall order all evidence secured that is related to the petitioner's case and that could be subjected to DNA testing. The evidence shall be preserved during the pendency of the proceeding. The district court may impose appropriate sanctions, including dismissal of the petitioner's conviction or criminal contempt, if the court determines that evidence was intentionally destroyed after issuance of the court's order to secure evidence.

          [G.] H. The district court shall order DNA testing if the petitioner satisfies the requirements set forth in Subsections B and [C] D of this section.

          [H.] I. If the results of the DNA testing are exculpatory, the district court may set aside the petitioner's judgment and sentence, may dismiss the charges against the petitioner with prejudice, may grant the petitioner a new trial or may order other appropriate relief.

          [I.] J. The cost of DNA testing ordered pursuant to this section shall be borne by the state or the petitioner, as the district court may order in the interest of justice. Provided, that a petitioner shall not be denied DNA testing because of [his] the petitioner's inability to pay for the cost of DNA testing. Testing under this provision shall only be performed by a laboratory that meets the minimum standards of the national DNA index system.

          [J.] K. The provisions of this section shall not be interpreted to limit:

                (1) other circumstances under which a person may obtain DNA testing; or

                (2) post-conviction relief a petitioner may seek pursuant to other provisions of law.

          [K.] L. The petitioner shall have the right to appeal a district court's denial of the requested DNA testing, a district court's final order on a petition or a district court's decision regarding relief for the petitioner. The state shall have the right to appeal any final order issued by the district court. An appeal shall be filed by a party within thirty days to the court of appeals.

          [L.] M. The state shall preserve all evidence that is secured in relation to an investigation or prosecution of a crime, and that could be subjected to DNA testing, for not less than the period of time that a person remains subject to incarceration or [supervision] on probation or parole in connection with the investigation or prosecution.

          [M.] N. The state may dispose of evidence before the expiration of the time period set forth in Subsection [K] M of this section if:

                (1) no other law, regulation or court order requires that the evidence be preserved;

                (2) the evidence must be returned to its rightful owner;

                (3) preservation of the evidence is impractical due to the size, bulk or physical characteristics of the evidence; and

                (4) the state takes reasonable measures to remove and preserve portions of the evidence sufficient to permit future DNA testing.

          O. In proceedings under this section, the Rules of Evidence and the Rules of Civil Procedure for the District Courts shall apply.

          [N.] P. As used in this section, "DNA" means deoxyribonucleic acid."

     SECTION 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2019.

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