Nebraska Revised Statutes
Neb. Rev. Stat. § 29-4120 (2026)
DNA testing; procedure
✓ current as of July 2026
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(1) Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court that entered the judgment requesting forensic DNA testing of any biological material that:
(a) Is related to the investigation or prosecution that resulted in such judgment;
(b) Is in the actual or constructive possession or control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity of the biological material's original physical composition; and
(c) Was not previously subjected to DNA testing or can be subjected to retesting with more current DNA techniques that provide a reasonable likelihood of more accurate and probative results.
(2) Notice of such motion shall be served by the person in custody upon the county attorney of the county in which the prosecution was held.
(3) Upon receiving notice of a motion filed pursuant to subsection (1) of this section, the county attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured by the state or a political subdivision in connection with the case is preserved pending the completion of proceedings under the DNA Testing Act.
(4) The county attorney shall prepare an inventory of all evidence that was secured by the state or a political subdivision in connection with the case and shall submit a copy of the inventory to the person or the person's counsel and to the court. If evidence is intentionally destroyed after notice of a motion filed pursuant to this section, the court shall impose appropriate sanctions, including criminal contempt.
(5) Upon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion filed under subsection (1) of this section upon a determination that (a)(i) the biological material was not previously subjected to DNA testing or (ii) the biological material was tested previously, but current technology could provide a reasonable likelihood of more accurate and probative results, (b) the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, and (c) such testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced.
(6) All forensic DNA tests shall be performed by a laboratory which is accredited by the American Society of Crime Laboratory Directors-LAB-Laboratory Accreditation Board or the National Forensic Science Technology Center or by any other national accrediting body or public agency which has requirements that are substantially equivalent to or more comprehensive than those of the society or center.
Notes of Decisions
Cited in 44
cases (5 in the last 5 years), 2003–2022 · leading case: State v. Myers, 301 Neb. 756 (Neb. 2018).
State v. Myers, 301 Neb. 756 (Neb. 2018). “Myers asked the court to consider his motion along with the supplemental amendment and to take judicial notice of § 29-4120(5). He presented no evidence. The State likewise presented no evidence, but it requested that the court review the bill of exceptions from the trial, along…”
State v. Betancourt-Garcia, 299 Neb. 775 (Neb. 2018). “11 The type of biological material subject to testing under the act is identified in § 29-4120(1). A person in custody can only request forensic DNA testing of biological material that (a) Is related to the investigation or prosecution that resulted in such judgment; (b) Is in…”
State v. Lotter, 669 N.W.2d 438 (Neb. 2003). “DNA Testing Act Section 29-4120, which sets forth the procedure for obtaining postconviction DNA testing, provides in relevant part: (1) Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a…”
State v. Buckman, 675 N.W.2d 372 (Neb. 2004). “Buckman’s motions for relief are brought pursuant to § 29-4123, which provides: (1) The results of the final DNA or other forensic testing ordered under subsection (5) of section 29-4120 shall be disclosed to the county attorney, to the person filing the motion, and to the…”
State v. Winslow, 740 N.W.2d 794 (Neb. 2007). “In this regard, we note that § 29-4120(1) of the DNA Testing Act provides, “Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court…”
State v. Pratt, 287 Neb. 455 (Neb. 2014). “After a proper motion seeking forensic DNA testing has been filed, the State is required by Neb. Rev. Stat. § 29-4120 (4) (Reissue 2008) to file an inventory of all evidence that was secured by the State or a political subdivision in connection with the case.”
State v. Pratt, 733 N.W.2d 868 (Neb. 2007). “[4] It is therefore clear that under § 29-4120, all three threshold requirements must be met; unless all three requirements are met, no testing is permitted.”
State v. Myers, 304 Neb. 789 (Neb. 2020). “If the criteria set forth in Neb. Rev. Stat. § 29-4120 (1) (Reissue 2016) are met and if the court further determines that the requirements of § 29-4120(5) have been met, then the court must order testing.”
State v. Marrs, 888 N.W.2d 721 (Neb. 2016). “The Act does not specifically address under what cir- cumstances a successive motion under the Act is procedurally barred, and thus, such issues are governed by common law and any other generally applicable statutes.”
State v. Amaya, 305 Neb. 36 (Neb. 2020). “8 Section 29-4120 sets out what a defendant must do to obtain DNA testing.”
State v. Robbins, 297 Neb. 503 (Neb. 2017). “Shortly after oral arguments, we directed the parties to submit supplemental briefs addressing (1) whether the DNA test utilized by Robbins met the requirements set forth in § 29-4120(1)(b), (2) whether the Act allows testing of this type, and (3) whether the evidence regarding…”
State v. Phelps, 727 N.W.2d 224 (Neb. 2007). “The court determined that Phelps had satisfied the threshold requirements of § 29-4120(1) for obtaining DNA testing. It concluded, however, that the statute’s further conditions for DNA testing had not been met because the handling of the clothing since its recovery made it…”
— Neb. Rev. Stat. § 29-4120(1) — 16 cases
State v. Betancourt-Garcia, 299 Neb. 775 (Neb. 2018). “11 The type of biological material subject to testing under the act is identified in § 29-4120(1). A person in custody can only request forensic DNA testing of biological material that (a) Is related to the investigation or prosecution that resulted in such judgment; (b) Is in…”
State v. Pratt, 733 N.W.2d 868 (Neb. 2007). “[4] It is therefore clear that under § 29-4120, all three threshold requirements must be met; unless all three requirements are met, no testing is permitted.”
State v. Winslow, 740 N.W.2d 794 (Neb. 2007). “In this regard, we note that § 29-4120(1) of the DNA Testing Act provides, “Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court…”
State v. Phelps, 727 N.W.2d 224 (Neb. 2007). “The court determined that Phelps had satisfied the threshold requirements of § 29-4120(1) for obtaining DNA testing. It concluded, however, that the statute’s further conditions for DNA testing had not been met because the handling of the clothing since its recovery made it…”
State v. Myers, 304 Neb. 789 (Neb. 2020). “If the criteria set forth in Neb. Rev. Stat. § 29-4120 (1) (Reissue 2016) are met and if the court further determines that the requirements of § 29-4120(5) have been met, then the court must order testing.”
— Neb. Rev. Stat. § 29-4120(1)(a) — 2 cases
State v. Pratt, 733 N.W.2d 868 (Neb. 2007). “[4] It is therefore clear that under § 29-4120, all three threshold requirements must be met; unless all three requirements are met, no testing is permitted.”
State v. Valdez (Neb. Ct. App. 2022).
— Neb. Rev. Stat. § 29-4120(1)(b) — 6 cases
State v. Betancourt-Garcia, 299 Neb. 775 (Neb. 2018). “11 The type of biological material subject to testing under the act is identified in § 29-4120(1). A person in custody can only request forensic DNA testing of biological material that (a) Is related to the investigation or prosecution that resulted in such judgment; (b) Is in…”
State v. Robbins, 297 Neb. 503 (Neb. 2017). “Shortly after oral arguments, we directed the parties to submit supplemental briefs addressing (1) whether the DNA test utilized by Robbins met the requirements set forth in § 29-4120(1)(b), (2) whether the Act allows testing of this type, and (3) whether the evidence regarding…”
Blake v. State, 909 A.2d 1020 (Md. 2006).
State v. Hale, 306 Neb. 725 (Neb. 2020).
State v. Betancourt-Garcia, 299 Neb. 775 (Neb. 2018).
— Neb. Rev. Stat. § 29-4120(1)(c) — 1 case
State v. Valdez (Neb. Ct. App. 2022).
— Neb. Rev. Stat. § 29-4120(2) — 2 cases
State v. Betancourt-Garcia, 299 Neb. 775 (Neb. 2018). “11 The type of biological material subject to testing under the act is identified in § 29-4120(1). A person in custody can only request forensic DNA testing of biological material that (a) Is related to the investigation or prosecution that resulted in such judgment; (b) Is in…”
State v. Betancourt-Garcia, 299 Neb. 775 (Neb. 2018).
— Neb. Rev. Stat. § 29-4120(3) — 2 cases
State v. Betancourt-Garcia, 299 Neb. 775 (Neb. 2018). “11 The type of biological material subject to testing under the act is identified in § 29-4120(1). A person in custody can only request forensic DNA testing of biological material that (a) Is related to the investigation or prosecution that resulted in such judgment; (b) Is in…”
State v. Betancourt-Garcia, 299 Neb. 775 (Neb. 2018).
— Neb. Rev. Stat. § 29-4120(4) — 9 cases
State v. Betancourt-Garcia, 299 Neb. 775 (Neb. 2018). “11 The type of biological material subject to testing under the act is identified in § 29-4120(1). A person in custody can only request forensic DNA testing of biological material that (a) Is related to the investigation or prosecution that resulted in such judgment; (b) Is in…”
State v. Marrs, 888 N.W.2d 721 (Neb. 2016). “The Act does not specifically address under what cir- cumstances a successive motion under the Act is procedurally barred, and thus, such issues are governed by common law and any other generally applicable statutes.”
State v. Pratt, 287 Neb. 455 (Neb. 2014). “After a proper motion seeking forensic DNA testing has been filed, the State is required by Neb. Rev. Stat. § 29-4120 (4) (Reissue 2008) to file an inventory of all evidence that was secured by the State or a political subdivision in connection with the case.”
State v. Phelps, 727 N.W.2d 224 (Neb. 2007). “The court determined that Phelps had satisfied the threshold requirements of § 29-4120(1) for obtaining DNA testing. It concluded, however, that the statute’s further conditions for DNA testing had not been met because the handling of the clothing since its recovery made it…”
State v. Winslow, 740 N.W.2d 794 (Neb. 2007). “In this regard, we note that § 29-4120(1) of the DNA Testing Act provides, “Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court…”
— Neb. Rev. Stat. § 29-4120(5) — 26 cases
State v. Myers, 301 Neb. 756 (Neb. 2018). “Myers asked the court to consider his motion along with the supplemental amendment and to take judicial notice of § 29-4120(5). He presented no evidence. The State likewise presented no evidence, but it requested that the court review the bill of exceptions from the trial, along…”
State v. Lotter, 669 N.W.2d 438 (Neb. 2003). “DNA Testing Act Section 29-4120, which sets forth the procedure for obtaining postconviction DNA testing, provides in relevant part: (1) Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a…”
State v. Buckman, 675 N.W.2d 372 (Neb. 2004). “Buckman’s motions for relief are brought pursuant to § 29-4123, which provides: (1) The results of the final DNA or other forensic testing ordered under subsection (5) of section 29-4120 shall be disclosed to the county attorney, to the person filing the motion, and to the…”
State v. Pratt, 287 Neb. 455 (Neb. 2014). “After a proper motion seeking forensic DNA testing has been filed, the State is required by Neb. Rev. Stat. § 29-4120 (4) (Reissue 2008) to file an inventory of all evidence that was secured by the State or a political subdivision in connection with the case.”
State v. Winslow, 740 N.W.2d 794 (Neb. 2007). “In this regard, we note that § 29-4120(1) of the DNA Testing Act provides, “Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court…”
— Neb. Rev. Stat. § 29-4120(5)(c) — 6 cases
State v. Myers, 301 Neb. 756 (Neb. 2018). “Myers asked the court to consider his motion along with the supplemental amendment and to take judicial notice of § 29-4120(5). He presented no evidence. The State likewise presented no evidence, but it requested that the court review the bill of exceptions from the trial, along…”
State v. Amaya, 305 Neb. 36 (Neb. 2020). “8 Section 29-4120 sets out what a defendant must do to obtain DNA testing.”
State v. Myers, 304 Neb. 789 (Neb. 2020). “If the criteria set forth in Neb. Rev. Stat. § 29-4120 (1) (Reissue 2016) are met and if the court further determines that the requirements of § 29-4120(5) have been met, then the court must order testing.”
State v. Jacob, 309 Neb. 401 (Neb. 2021).
State v. Hale, 306 Neb. 725 (Neb. 2020).
— Neb. Rev. Stat. § 29-4120(6) — 1 case
State v. Fernando-Granados, 682 N.W.2d 266 (Neb. 2004).
— Neb. Rev. Stat. § 29-4120(l)(a) — 1 case
State v. Poe, 665 N.W.2d 654 (Neb. 2003).
— Neb. Rev. Stat. § 29-4120(l)(b) — 2 cases
State v. Buckman, 311 Neb. 304 (Neb. 2022).
State v. Buckman, 311 Neb. 304 (Neb. 2022).
— Neb. Rev. Stat. § 29-4120(l)(c) — 1 case
State v. Lotter, 669 N.W.2d 438 (Neb. 2003). “DNA Testing Act Section 29-4120, which sets forth the procedure for obtaining postconviction DNA testing, provides in relevant part: (1) Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a…”
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