138.692 Motion
for DNA testing; declaration; court order; costs. (1) After a person files a
petition under ORS 138.690, the person may file a motion requesting the
performance of DNA testing on evidence. The motion must be supported by:
(a) A declaration
by the person made under penalty of perjury that the person is innocent of the
offense for which the person was convicted; and
(b) A statement
that:
(A) Identifies
the evidence to be tested with as much specificity as is reasonably
practicable. The evidence must have been secured in connection with the
prosecution, including the investigation, that resulted in the conviction of
the person;
(B) Includes the
results of any previous DNA test of the evidence if a previous DNA test was
conducted by either the prosecution or the defense;
(C)(i) The
identity of the individual who committed the crime or conduct was at issue in
the underlying prosecution; or
(ii) No crime
occurred; and
(D) Explains, in
light of all the evidence, how there is a reasonable probability that, had
exculpatory results been available at the time of the underlying prosecution:
(i) The person
would not have been prosecuted or convicted of the offense; or
(ii) There would
have been a more favorable outcome to the underlying prosecution.
(2) Concurrently
with the filing of a motion under this section, the person shall serve the
district attorney with:
(a) A copy of any
prior sworn testimony by the person concerning the underlying prosecution,
including but not limited to affidavits, declarations, depositions and any
testimony from the person in a prior post-conviction relief action challenging
the conviction; or
(b) A document
affirming that there are no prior sworn statements.
(3) A person may
file a motion under this section notwithstanding the fact that the person
pleaded guilty or no contest to the underlying conviction or, before or after
conviction, made a confession or admission.
(4) Upon being
served as described in subsection (2) of this section, the state shall answer
the motion requesting the performance of DNA testing and may refute the basis
for the motion.
(5) Upon the
motion of a party or the court’s own motion, the court may allow the testimony
of witnesses if the testimony will assist the court in making its determination
to grant or deny the motion requesting the performance of DNA testing. The
court may not allow testimony from the victim of the offense without the
consent of the victim.
(6) The court
shall order the DNA testing requested in a motion under subsection (1) of this
section if the court finds that:
(a) Unless the
parties stipulate otherwise, the evidence to be tested has been subject to a
chain of custody sufficient to establish that the evidence has not been altered
in any material aspect;
(b) The motion is
made for the purpose of demonstrating the innocence of the person of the
offense and not to delay the execution of the sentence or administration of
justice;
(c)(A) The
identity of the individual who committed the crime or conduct was at issue in
the underlying prosecution; or
(B) If the person
alleges that no crime occurred, the testing could not have been obtained during
the criminal proceedings with the exercise of reasonable diligence; and
(d) In light of
all the evidence, there is a reasonable probability that, had exculpatory
results been available at the time of the underlying prosecution, the person
would not have been prosecuted or convicted of the offense.
(7) The court may
order the DNA testing requested in a motion under subsection (1) of this
section if the court finds that:
(a) Unless the
parties stipulate otherwise, the evidence to be tested has been subject to a
chain of custody sufficient to establish that the evidence has not been altered
in any material aspect;
(b) The motion is
made for the purpose of demonstrating the innocence of the person of the
offense and not to delay the execution of the sentence or administration of
justice;
(c)(A) The
identity of the individual who committed the crime or conduct was at issue in
the underlying prosecution; or
(B) If the person
alleges that no crime occurred, the testing could not have been obtained during
the criminal proceedings with the exercise of reasonable diligence; and
(d) In light of
all the evidence, there is a reasonable probability that, had exculpatory
results been available at the time of the underlying prosecution, there would
have been a more favorable outcome to the underlying prosecution.
(8) In granting a
motion under this section, the court may impose reasonable conditions designed
to protect the interests of the state in the integrity of the evidence and the
testing process.
(9)(a) If a
motion is granted under this section, the district attorney shall notify the
victim if the name and address of the victim are known to the district
attorney.
(b) The district
attorney may notify the victim of the results of DNA testing ordered under this
section.
(10) Unless both
parties agree or the court finds compelling circumstances otherwise, the court
shall order the Department of State Police to conduct the DNA testing. The
court may order a second test upon a showing that the state police failed to
follow appropriate DNA protocols and that failure reasonably affected the
accuracy of the DNA test.
(11) A party
seeking entry into the National DNA Index System or State DNA Index System of
any unknown DNA profile generated through DNA testing ordered under this
section shall comply with ORS 138.700.
(12) The costs of
DNA testing ordered under this section must be paid by:
(a) The person
making the motion for DNA testing if the person is not incarcerated or, if the
person is incarcerated, if the person is financially able to pay; or
(b) The state if
counsel at state expense has been appointed under ORS 138.694.
(13) The
laboratory conducting the DNA test shall provide access to the results of the
test and to any other written materials related to the testing, including
reports, underlying data, notes and protocols, to the person filing the motion
and to the state.
(14)
Notwithstanding the fact that an appeal of the conviction or a petition for
post-conviction relief in the underlying case is pending at the time a motion
is filed under this section, the circuit court shall consider the motion. If
the court grants the motion, the court shall notify the court considering the
appeal or post-conviction petition of that fact. When a court receives notice
under this subsection, the court shall stay the appeal or post-conviction
proceedings pending the outcome of the motion filed under this section and any
further proceedings resulting from the motion.
(15) The court
shall make written findings when issuing an order under this section. [2001
c.697 §2; 2005 c.759 §2; 2007 c.800 §2; 2015 c.564 §2; 2019 c.368 §4]
Note: See note under 138.688.
Notes of Decisions
Cited in
20
cases (
4 in the last 5 years), 2013–2025 · leading case:
State v. Jenkins, 393 P.3d 1184 (Or. Ct. App. 2017).
State v. Jenkins, 393 P.3d 1184 (Or. Ct. App. 2017).
· cites it 15× “Defendant appeals an order denying his motion for DNA testing, arguing that the trial court erroneously concluded that he had not met the requirements set out in ORS 138.692 and, in particular, that he had failed to present a prima facie showing that DNA testing would, assuming…”
State v. Romero, 360 P.3d 1275 (Or. Ct. App. 2015).
· cites it 9× “Defendant appeals an order denying his motion for DNA testing under ORS 138.692. 1 He contends that the trial court erred in denying his motion for DNA testing for failure to present a prima facie case of actual innocence.”
State v. Nefstad, 456 P.3d 294 (Or. Ct. App. 2019).
· cites it 5× “690; ORS 138.692. The person filing a motion under ORS 138.”
Reeves v. Nooth, 432 P.3d 1105 (Or. Ct. App. 2018).
· cites it 2× “The first is that the Oregon authorities cited by the superintendent are not directly controlling with regard to the availability of an actual-innocence claim. Our observation in Romero about a judicial mechanism for determining innocence was part of an effort to ascribe meaning…”
State v. Johnson, 374 P.3d 998 (Multnomah Cty. Cir. Ct., O.R. 2016).
· cites it 9× “698 (establishing procedures for requesting and obtaining testing of DNA evidence by people convicted of certain crimes).”
State v. Templeton, 364 P.3d 6 (Or. Ct. App. 2015).
· cites it 6× “690 and ORS 138.692 and petitioned the trial court for appointed counsel related to the DNA-testing motion under ORS 138.”
State v. Harris, 358 P.3d 313 (Or. Ct. App. 2015).
· cites it 13× “2 In 2004, defendant filed a motion under ORS 138.692 seeking DNA testing. The parties discovered that, in 1999, the Medford Police Department destroyed all of the evidence gathered during the investigation leading to defendant’s conviction.”
Jackson v. State, 139 A.3d 976 (Md. 2016).
“2 (2016); Or. Rev. Stat. Ann. § 138.692 (West 2016); 42 Pa.”
State v. Diaz-Avalos, 428 P.3d 932 (Or. Ct. App. 2018).
· cites it 9× “" Subsection (1) of ORS 138.692 set out requirements that a person seeking DNA testing had to meet, including that the motion be supported by an affidavit identifying "the specific evidence to be tested and a theory of defense that the DNA testing would support.”
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
· cites it 6× “Pursuant to ORS 138.692(2), the court “shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that: “(a) The requirements of subsection (1) of this section have been met; “(b) Unless the parties stipulate otherwise, the evidence…”
Baker v. State of Oregon, 344 Or. App. 140 (Or. Ct. App. 2025).
· cites it 6× “Petitioner filed a motion under ORS 138.692 for DNA testing on evidence from that underlying criminal case.”
State v. Rogers, 386 P.3d 666 (Or. Ct. App. 2016).
· cites it 20× “Defendant appeals an order denying his motion for forensic testing pursuant to ORS 138.692 (2007). 1 ORS 138.697(1). 2 Specifically, defendant contends that, in *890 denying the motion, the trial court erroneously concluded that defendant had failed to “present a prima facie…”
— Or. Rev. Stat. § 138.692(1) — 3 cases
State v. Jenkins, 393 P.3d 1184 (Or. Ct. App. 2017).
“Defendant appeals an order denying his motion for DNA testing, arguing that the trial court erroneously concluded that he had not met the requirements set out in ORS 138.692 and, in particular, that he had failed to present a prima facie showing that DNA testing would, assuming…”
State v. Romero, 360 P.3d 1275 (Or. Ct. App. 2015).
“Defendant appeals an order denying his motion for DNA testing under ORS 138.692. 1 He contends that the trial court erred in denying his motion for DNA testing for failure to present a prima facie case of actual innocence.”
State v. Templeton, 364 P.3d 6 (Or. Ct. App. 2015).
“690 and ORS 138.692 and petitioned the trial court for appointed counsel related to the DNA-testing motion under ORS 138.”
— Or. Rev. Stat. § 138.692(1)(a) — 1 case
— Or. Rev. Stat. § 138.692(1)(a)(A)(ii) — 1 case
State v. Diaz-Avalos, 428 P.3d 932 (Or. Ct. App. 2018).
“" Subsection (1) of ORS 138.692 set out requirements that a person seeking DNA testing had to meet, including that the motion be supported by an affidavit identifying "the specific evidence to be tested and a theory of defense that the DNA testing would support.”
— Or. Rev. Stat. § 138.692(1)(b) — 5 cases
State v. Nefstad, 456 P.3d 294 (Or. Ct. App. 2019).
“690; ORS 138.692. The person filing a motion under ORS 138.”
State v. Diaz-Avalos, 428 P.3d 932 (Or. Ct. App. 2018).
“" Subsection (1) of ORS 138.692 set out requirements that a person seeking DNA testing had to meet, including that the motion be supported by an affidavit identifying "the specific evidence to be tested and a theory of defense that the DNA testing would support.”
Baker v. State of Oregon, 344 Or. App. 140 (Or. Ct. App. 2025).
“Petitioner filed a motion under ORS 138.692 for DNA testing on evidence from that underlying criminal case.”
— Or. Rev. Stat. § 138.692(1)(b)(A) — 1 case
State v. Diaz-Avalos, 428 P.3d 932 (Or. Ct. App. 2018).
“" Subsection (1) of ORS 138.692 set out requirements that a person seeking DNA testing had to meet, including that the motion be supported by an affidavit identifying "the specific evidence to be tested and a theory of defense that the DNA testing would support.”
— Or. Rev. Stat. § 138.692(1)(b)(C)(i) — 2 cases
— Or. Rev. Stat. § 138.692(2) — 4 cases
State v. Romero, 360 P.3d 1275 (Or. Ct. App. 2015).
“Defendant appeals an order denying his motion for DNA testing under ORS 138.692. 1 He contends that the trial court erred in denying his motion for DNA testing for failure to present a prima facie case of actual innocence.”
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
“Pursuant to ORS 138.692(2), the court “shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that: “(a) The requirements of subsection (1) of this section have been met; “(b) Unless the parties stipulate otherwise, the evidence…”
State v. Harris, 358 P.3d 313 (Or. Ct. App. 2015).
“2 In 2004, defendant filed a motion under ORS 138.692 seeking DNA testing. The parties discovered that, in 1999, the Medford Police Department destroyed all of the evidence gathered during the investigation leading to defendant’s conviction.”
— Or. Rev. Stat. § 138.692(2)(a) — 1 case
State v. Diaz-Avalos, 428 P.3d 932 (Or. Ct. App. 2018).
“" Subsection (1) of ORS 138.692 set out requirements that a person seeking DNA testing had to meet, including that the motion be supported by an affidavit identifying "the specific evidence to be tested and a theory of defense that the DNA testing would support.”
— Or. Rev. Stat. § 138.692(2)(b) — 1 case
State v. Harris, 358 P.3d 313 (Or. Ct. App. 2015).
“2 In 2004, defendant filed a motion under ORS 138.692 seeking DNA testing. The parties discovered that, in 1999, the Medford Police Department destroyed all of the evidence gathered during the investigation leading to defendant’s conviction.”
— Or. Rev. Stat. § 138.692(2)(d) — 2 cases
State v. Romero, 360 P.3d 1275 (Or. Ct. App. 2015).
“Defendant appeals an order denying his motion for DNA testing under ORS 138.692. 1 He contends that the trial court erred in denying his motion for DNA testing for failure to present a prima facie case of actual innocence.”
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
“Pursuant to ORS 138.692(2), the court “shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that: “(a) The requirements of subsection (1) of this section have been met; “(b) Unless the parties stipulate otherwise, the evidence…”
— Or. Rev. Stat. § 138.692(2)(d)(A) — 1 case
State v. Johnson, 374 P.3d 998 (Multnomah Cty. Cir. Ct., O.R. 2016).
“698 (establishing procedures for requesting and obtaining testing of DNA evidence by people convicted of certain crimes).”
— Or. Rev. Stat. § 138.692(4)(c) — 1 case
Reeves v. Nooth, 432 P.3d 1105 (Or. Ct. App. 2018).
“The first is that the Oregon authorities cited by the superintendent are not directly controlling with regard to the availability of an actual-innocence claim. Our observation in Romero about a judicial mechanism for determining innocence was part of an effort to ascribe meaning…”
— Or. Rev. Stat. § 138.692(6) — 3 cases
State v. Johnson, 374 P.3d 998 (Multnomah Cty. Cir. Ct., O.R. 2016).
“698 (establishing procedures for requesting and obtaining testing of DNA evidence by people convicted of certain crimes).”
Baker v. State of Oregon, 344 Or. App. 140 (Or. Ct. App. 2025).
“Petitioner filed a motion under ORS 138.692 for DNA testing on evidence from that underlying criminal case.”
— Or. Rev. Stat. § 138.692(6)(d) — 2 cases
Baker v. State of Oregon, 344 Or. App. 140 (Or. Ct. App. 2025).
“Petitioner filed a motion under ORS 138.692 for DNA testing on evidence from that underlying criminal case.”
— Or. Rev. Stat. § 138.692(7) — 2 cases
Baker v. State of Oregon, 344 Or. App. 140 (Or. Ct. App. 2025).
“Petitioner filed a motion under ORS 138.692 for DNA testing on evidence from that underlying criminal case.”
— Or. Rev. Stat. § 138.692(l)(a) — 2 cases
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
“Pursuant to ORS 138.692(2), the court “shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that: “(a) The requirements of subsection (1) of this section have been met; “(b) Unless the parties stipulate otherwise, the evidence…”
— Or. Rev. Stat. § 138.692(l)(a)(A)(i) — 3 cases
State v. Jenkins, 393 P.3d 1184 (Or. Ct. App. 2017).
“Defendant appeals an order denying his motion for DNA testing, arguing that the trial court erroneously concluded that he had not met the requirements set out in ORS 138.692 and, in particular, that he had failed to present a prima facie showing that DNA testing would, assuming…”
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
“Pursuant to ORS 138.692(2), the court “shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that: “(a) The requirements of subsection (1) of this section have been met; “(b) Unless the parties stipulate otherwise, the evidence…”
State v. Rogers, 386 P.3d 666 (Or. Ct. App. 2016).
“Defendant appeals an order denying his motion for forensic testing pursuant to ORS 138.692 (2007). 1 ORS 138.697(1). 2 Specifically, defendant contends that, in *890 denying the motion, the trial court erroneously concluded that defendant had failed to “present a prima facie…”
— Or. Rev. Stat. § 138.692(l)(a)(B) — 3 cases
State v. Jenkins, 393 P.3d 1184 (Or. Ct. App. 2017).
“Defendant appeals an order denying his motion for DNA testing, arguing that the trial court erroneously concluded that he had not met the requirements set out in ORS 138.692 and, in particular, that he had failed to present a prima facie showing that DNA testing would, assuming…”
State v. Rogers, 386 P.3d 666 (Or. Ct. App. 2016).
“Defendant appeals an order denying his motion for forensic testing pursuant to ORS 138.692 (2007). 1 ORS 138.697(1). 2 Specifically, defendant contends that, in *890 denying the motion, the trial court erroneously concluded that defendant had failed to “present a prima facie…”
— Or. Rev. Stat. § 138.692(l)(a)(C) — 1 case
State v. Jenkins, 393 P.3d 1184 (Or. Ct. App. 2017).
“Defendant appeals an order denying his motion for DNA testing, arguing that the trial court erroneously concluded that he had not met the requirements set out in ORS 138.692 and, in particular, that he had failed to present a prima facie showing that DNA testing would, assuming…”
— Or. Rev. Stat. § 138.692(l)(b) — 5 cases
State v. Romero, 360 P.3d 1275 (Or. Ct. App. 2015).
“Defendant appeals an order denying his motion for DNA testing under ORS 138.692. 1 He contends that the trial court erred in denying his motion for DNA testing for failure to present a prima facie case of actual innocence.”
State v. Jenkins, 393 P.3d 1184 (Or. Ct. App. 2017).
“Defendant appeals an order denying his motion for DNA testing, arguing that the trial court erroneously concluded that he had not met the requirements set out in ORS 138.692 and, in particular, that he had failed to present a prima facie showing that DNA testing would, assuming…”
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
“Pursuant to ORS 138.692(2), the court “shall order the DNA testing requested in a motion under subsection (1) of this section if the court finds that: “(a) The requirements of subsection (1) of this section have been met; “(b) Unless the parties stipulate otherwise, the evidence…”
State v. Rogers, 386 P.3d 666 (Or. Ct. App. 2016).
“Defendant appeals an order denying his motion for forensic testing pursuant to ORS 138.692 (2007). 1 ORS 138.697(1). 2 Specifically, defendant contends that, in *890 denying the motion, the trial court erroneously concluded that defendant had failed to “present a prima facie…”
— Or. Rev. Stat. § 138.692(l)(b)(A) — 2 cases
State v. Jenkins, 393 P.3d 1184 (Or. Ct. App. 2017).
“Defendant appeals an order denying his motion for DNA testing, arguing that the trial court erroneously concluded that he had not met the requirements set out in ORS 138.692 and, in particular, that he had failed to present a prima facie showing that DNA testing would, assuming…”
State v. Rogers, 386 P.3d 666 (Or. Ct. App. 2016).
“Defendant appeals an order denying his motion for forensic testing pursuant to ORS 138.692 (2007). 1 ORS 138.697(1). 2 Specifically, defendant contends that, in *890 denying the motion, the trial court erroneously concluded that defendant had failed to “present a prima facie…”
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