§ 16-112-202 - Form of motion.
16-112-202. Form of motion.
Except when direct appeal is available, a person convicted of a crime may make a motion for the performance of fingerprinting, forensic deoxyribonucleic acid (DNA) testing, or other tests which may become available through advances in technology to demonstrate the person's actual innocence if:
(1) The specific evidence to be tested was secured as a result of the conviction of an offense's being challenged under 16-112-201;
(2) The specific evidence to be tested was not previously subjected to testing and the person making the motion under this section did not:
(A) Knowingly and voluntarily waive the right to request testing of the evidence in a court proceeding commenced on or after August 12, 2005; or
(B) Knowingly fail to request testing of the evidence in a prior motion for post-conviction testing;
(3) The specific evidence was previously subjected to testing and the person making a motion under this section requests testing that uses a new method or technology that is substantially more probative than the prior testing;
(4) The specific evidence to be tested is in the possession of the state and has been subject to a chain of custody and retained under conditions sufficient to ensure that the evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed testing;
(5) The proposed testing is reasonable in scope, utilizes scientifically sound methods, and is consistent with accepted forensic practices;
(6) The person making a motion under this section identifies a theory of defense that:
(A) Is not inconsistent with an affirmative defense presented at the trial of the offense being challenged under 16-112-201; and
(B) Would establish the actual innocence of the person in relation to the offense being challenged under 16-112-201;
(7) The identity of the perpetrator was at issue during the investigation or prosecution of the offense being challenged under 16-112-201;
(8) The proposed testing of the specific evidence may produce new material evidence that would:
(A) Support the theory of defense described in subdivision (6) of this section; and
(B) Raise a reasonable probability that the person making a motion under this section did not commit the offense;
(9) The person making a motion under this section certifies that he or she will provide a deoxyribonucleic acid (DNA) or other sample or a fingerprint for comparison; and
(10) The motion is made in a timely fashion subject to the following conditions:
(A) There shall be a rebuttable presumption of timeliness if the motion is made within thirty-six (36) months of the date of conviction. The presumption may be rebutted upon a showing:
(i) That the motion for a test under this section is based solely upon information used in a previously denied motion; or
(ii) Of clear and convincing evidence that the motion filed under this section was filed solely to cause delay or harassment; and
(B) There shall be a rebuttable presumption against timeliness for any motion not made within thirty-six (36) months of the date of conviction. The presumption may be rebutted upon a showing:
(i) That the person making a motion under this section was or is incompetent and the incompetence substantially contributed to the delay in the motion for a test;
(ii) That the evidence to be tested is newly discovered evidence;
(iii) That the motion is not based solely upon the person's own assertion of innocence and a denial of the motion would result in a manifest injustice;
(iv) That a new method of technology that is substantially more probative than prior testing is available; or
(v) Of good cause.