138.696 Test
results; motion for new trial.
(1) If DNA testing ordered under ORS 138.692 produces inconclusive evidence or
evidence that is unfavorable to the person requesting the testing:
(a) The court
shall forward the results to the State Board of Parole and Post-Prison
Supervision; and
(b) The
Department of State Police shall compare the evidence to DNA evidence from
unsolved crimes in the Combined DNA Index System.
(2) If DNA
testing ordered under ORS 138.692 produces exculpatory evidence, the person who
requested the testing may file in the court that ordered the testing a motion
for a new trial based on newly discovered evidence. Notwithstanding the time
limit established in ORCP 64 F, a person may file a motion under this
subsection at any time during the 60-day period that begins on the date the
person receives the test results.
(3) Upon receipt
of a motion filed under subsection (2) of this section and notwithstanding the
time limits in ORCP 64 F, the court shall hear the motion pursuant to ORCP 64.
(4) If the court
orders a new trial in response to a motion described in this section, the
district attorney shall notify the victim. [2001 c.697 §3; 2003 c.288 §3; 2015
c.564 §4; 2019 c.368 §6]
Note: See note under 138.688.
Notes of Decisions
Cited in
9
cases (
2 in the last 5 years), 2013–2025 · leading case:
State v. Nefstad, 456 P.3d 294 (Or. Ct. App. 2019).
State v. Nefstad, 456 P.3d 294 (Or. Ct. App. 2019).
· cites it 11× “According to defendant, the DNA testing results were “exculpatory” in the sense that they were “favorable” to his case, and he was therefore entitled to file a motion for a new trial under ORS 138.696 (2013). The state disagrees, arguing that defendant misinterprets the term…”
State v. Johnson, 374 P.3d 998 (Multnomah Cty. Cir. Ct., O.R. 2016).
· cites it 4× “ORS 138.696. If the evidence is inconclusive or unfavorable to the person who requested the testing, the Department of State Police compares the results to DNA evidence from unsolved crimes, and the court forwards the results of the testing to the State Board of Parole and…”
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
· cites it 5× “” ORS 138.696(1). However, if the DNA testing “produces exculpatory evidence, the person who requested the testing may file in the court that ordered the testing a motion for a new trial based on newly discovered evidence.”
State v. Hobbs, 2020 NMCA 044 (N.M. Ct. App. 2020).
“§ 29-4119 (2001) (defining “exculpatory evidence” as used in its DNA Testing Act as “evidence which is favorable to the person in custody and material to the issue of the guilt of the person in custody”); Or. Rev. Stat. Ann. § 138.696 (2) (West 2020) (stating that if the DNA…”
State v. Harris, 358 P.3d 313 (Or. Ct. App. 2015).
· cites it 3× “694 or denying a petition for a new trial under ORS 138.696. “(2) The state may appeal to the Court of Appeals from a circuit court’s final order or judgment granting a motion for DNA testing under ORS 138.”
Perkins v. Fhuere, 374 Or. 575 (Or. 2025).
“The legislature has addressed the issue of actual innocence in two statutes: ORS 138.696, which authorizes courts to set aside a conviction based on exonerating DNA evidence, and ORS 30.”
State v. Couch, 371 P.3d 1240 (Or. Ct. App. 2016).
“694, or denying a motion for a new trial under ORS 138.696. As subtext to ORS 138.697 (2013), the legislature also established a 90-day window permitting defendants previously denied DNA testing or the appointment of counsel to appeal from those orders.”
State v. Mendoza, 386 P.3d 671 (Or. Ct. App. 2016).
“694 or denying a motion for a new trial under ORS 138.696.” SB 42 also provided that, “if the circuit court has entered a final order * * * before the effective date of this 2013 Act, a party may appeal to the Court of Appeals * * * not later than 90 days after the effective…”
Perkins v. Fhuere, 374 Or. 575 (Or. 2025).
“The legislature has addressed the issue of actual innocence in two statutes: ORS 138.696, which authorizes courts to set aside a conviction based on exonerating DNA evidence, and ORS 30.”
— Or. Rev. Stat. § 138.696(1) — 2 cases
State v. Johnson, 374 P.3d 998 (Multnomah Cty. Cir. Ct., O.R. 2016).
“ORS 138.696. If the evidence is inconclusive or unfavorable to the person who requested the testing, the Department of State Police compares the results to DNA evidence from unsolved crimes, and the court forwards the results of the testing to the State Board of Parole and…”
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
“” ORS 138.696(1). However, if the DNA testing “produces exculpatory evidence, the person who requested the testing may file in the court that ordered the testing a motion for a new trial based on newly discovered evidence.”
— Or. Rev. Stat. § 138.696(2) — 3 cases
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
“” ORS 138.696(1). However, if the DNA testing “produces exculpatory evidence, the person who requested the testing may file in the court that ordered the testing a motion for a new trial based on newly discovered evidence.”
State v. Johnson, 374 P.3d 998 (Multnomah Cty. Cir. Ct., O.R. 2016).
“ORS 138.696. If the evidence is inconclusive or unfavorable to the person who requested the testing, the Department of State Police compares the results to DNA evidence from unsolved crimes, and the court forwards the results of the testing to the State Board of Parole and…”
State v. Harris, 358 P.3d 313 (Or. Ct. App. 2015).
“694 or denying a petition for a new trial under ORS 138.696. “(2) The state may appeal to the Court of Appeals from a circuit court’s final order or judgment granting a motion for DNA testing under ORS 138.”
— Or. Rev. Stat. § 138.696(3) — 1 case
State v. Johnson, 295 P.3d 677 (Or. Ct. App. 2013).
“” ORS 138.696(1). However, if the DNA testing “produces exculpatory evidence, the person who requested the testing may file in the court that ordered the testing a motion for a new trial based on newly discovered evidence.”
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