2021 Colorado Code
Title 18 - Criminal Code
Article 1 - Provisions Applicable to Offenses Generally
Part 4 - Rights of Defendant
§ 18-1-413. Content of Application for Dna Testing

1. A court shall not order DNA testing unless the petitioner demonstrates by a preponderance of the evidence that:
   1. Favorable results of the DNA testing will demonstrate the petitioner's actual innocence;
   2. A law enforcement agency collected biological evidence pertaining to the offense and retains actual or constructive possession of the evidence that allows for reliable DNA testing;
   3. 1. Conclusive DNA results were not available prior to the petitioner's conviction; and (c) (I) Conclusive DNA results were not available prior to the petitioner's conviction; and
      2. The petitioner did not secure DNA testing prior to his or her conviction because DNA testing was not reasonably available or for reasons that constitute justifiable excuse, ineffective assistance of counsel, or excusable neglect; and

   4. The petitioner consents to provide a biological sample for DNA testing.

History. Source: L. 2003: Entire section added, p. 816, § 1, effective August 6.

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 , __ P.3d __.