Virginia Code

Va. Code Ann. § 19.2-327.1 (2026)

Motion by a convicted felon or person adjudicated delinquent for scientific analysis of newly discovered or previously untested scientific evidence; procedure

✓ current as of May 2026

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A. Notwithstanding any other provision of law or rule of court, any person convicted of a felony or any person who was adjudicated delinquent by a circuit court of an offense that would be a felony if committed by an adult may, by motion to the circuit court that entered the original conviction or the adjudication of delinquency, apply for a new scientific investigation of any human biological evidence related to the case that resulted in the felony conviction or adjudication of delinquency if (i) the evidence was not known or available at the time the conviction or adjudication of delinquency became final in the circuit court or the evidence was not previously subjected to testing; (ii) the evidence is subject to a chain of custody sufficient to establish that the evidence has not been altered, tampered with, or substituted in any way; (iii) the testing is materially relevant, noncumulative, and necessary and may prove the actual innocence of the convicted person or the person adjudicated delinquent; (iv) the testing requested involves a scientific method generally accepted within the relevant scientific community; and (v) the person convicted or adjudicated delinquent has not unreasonably delayed the filing of the petition after the evidence or the test for the evidence became available.

B. The petitioner shall assert categorically and with specificity, under oath, the facts to support the items enumerated in subsection A and (i) the crime for which the person was convicted or adjudicated delinquent, (ii) the reason or reasons the evidence was not known or tested by the time the conviction or adjudication of delinquency became final in the circuit court, and (iii) the reason or reasons that the newly discovered or untested evidence may prove the actual innocence of the person convicted or adjudicated delinquent. Such motion shall contain all relevant allegations and facts that are known to the petitioner at the time of filing and shall enumerate and include all previous records, applications, petitions, and appeals and their dispositions.

C. The petitioner shall serve a copy of such motion upon the attorney for the Commonwealth. The Commonwealth shall file its response to the motion within 30 days of the receipt of service. The court shall, no sooner than 30 and no later than 90 days after such motion is filed, hear the motion.

D. The court shall, after a hearing on the motion, set forth its findings specifically as to each of the items enumerated in subsections A and B and either (i) dismiss the motion for failure to comply with the requirements of this section or (ii) dismiss the motion for failure to state a claim upon which relief can be granted or (iii) order that the testing be done.

E. The court shall order the tests to be performed by:

1. A laboratory mutually selected by the Commonwealth and the applicant; or

2. A laboratory selected by the court that ordered the testing if the Commonwealth and the applicant are unable to agree on a laboratory.

If the testing is conducted by the Department of Forensic Science, the court shall prescribe in its order, pursuant to standards and guidelines established by the Department, the method of custody, transfer, and return of evidence submitted for scientific investigation sufficient to insure and protect the Commonwealth's interest in the integrity of the evidence. The results of any such testing shall be furnished simultaneously to the court, the petitioner and his attorney of record and the attorney for the Commonwealth. The results of any tests performed and any hearings held pursuant to this section shall become a part of the record.

If the testing is not conducted by the Department of Forensic Science, it shall be conducted by a laboratory that is accredited by an accrediting body that requires conformance to forensic-specific requirements and that is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement with a scope of accreditation that covers the testing being performed and follows the appropriate Quality Assurance Standards issued by the Federal Bureau of Investigation.

F. An action under this section or the performance of any attorney representing the petitioner under this section shall not form the basis for relief in any habeas corpus proceeding or any other appeal. Nothing in this section shall create any cause of action for damages against the Commonwealth or any of its political subdivisions or any officers, employees or agents of the Commonwealth or its political subdivisions.

G. In any petition filed pursuant to this chapter, the petitioner is entitled to representation by counsel subject to the provisions of Article 3 (§ 19.2-157 et seq.) of Chapter 10.

2001, cc. 873, 874; 2005, cc. 868, 881; 2013, c. 170; 2020, c. 1282; 2021, Sp. Sess. I, cc. 344, 345.

Notes of Decisions

Cited in 44 cases (6 in the last 5 years), 2002–2025 · leading case: In Re: Brown, 810 S.E.2d 444 (Va. 2018).

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In Re: Brown, 810 S.E.2d 444 (Va. 2018). · cites it 12× “In 2016, Brown filed a petition seeking a writ of actual innocence pursuant to Code §§ 19.2-327.1 to -327.6, which govern writs of actual innocence based on biological evidence.”

Blake v. State, 909 A.2d 1020 (Md. 2006). · cites it 3× “§ 78 -35a-301 (2002); Va.Code Ann. § 19.2-327.1 (2004 & Supp. 2006); Wash.”

Darnell Phillips v. Commonwealth of Virginia, 820 S.E.2d 892 (Va. Ct. App. 2018). · cites it 6× “In that case, after reviewing Code § 19.2-327.1, the statute which provides authority for testing of newly discovered or previously untested scientific evidence, the Supreme Court concluded, "We have no authority to go outside the boundaries of the statutory scheme to grant a…”

Dist. Attorney's Off. for the Third Jud. Dist. v. Osborne, 557 U.S. 52 (2009). “2008); Va. Code Ann. § 19.2-327.1 (Lexis 2008); Wash.”

Lovitt v. Warden, Sussex I State Prison, 585 S.E.2d 801 (Va. 2003). · cites it 2× “With regard to such human biological evidence, Code § 19.2-327.1 provides, in relevant part: A.”

James Harvey v. Robert F. Horan, Jr., Commonwealth's Attorney, Cnty. of Fairfax, Jennifer Thompson Karen R. Pomer Jeri Elster, Amici Curiae, 285 F.3d 298 (4th Cir. 2002). · cites it 2× “” Va.Code Ann. § 19.2-327.1 (Michie Supp. 2001).”

Derek LaMar v. Paul Ebert, 681 F. App'x 279 (4th Cir. 2017). · cites it 3× “” See Va. Code § 19.2-327.1(A). Specifically, the person must satisfy the five-part tesjt specified in the DNA statute: [1] the evidence was not known or available at the time the conviction .”

Powers v. State, 343 S.W.3d 36 (Tenn. 2011). “Assembly); Va.Code Ann. § 19.2-327.1 (West, Westlaw through End of 2010 Reg.”

Virginia Emp. Comm'n v. Cmty. Alternatives, Inc., 705 S.E.2d 530 (Va. Ct. App. 2011). · cites it 2× “” Code § 19.2-327.1(A) addresses the “chain of custody” showing necessary for a felon seeking a new post-conviction scientific investigation of any human biological evidence.”

State v. Riofta, 209 P.3d 467 (Wash. 2009). “§ 651 -D:2(III) (2007); Va. Code Ann. § 19.2-327.1 (Supp. 2007)).”

Harvey v. Warden of Coffeewood Corr. Ctr., 597 S.E.2d 58 (Va. 2004). · cites it 8× “In January 2002, after exhausting his opportunities for state and federal direct and collateral review of his convictions, Harvey filed a motion in the Circuit Court of Fairfax County, pursuant to Code § 19.2-327.1, seeking post-trial scientific analysis of certain evidence.”

Gaston v. Commonwealth, 585 S.E.2d 596 (Va. 2003). · cites it 8× “*176 PER CURIAM John Fitzgerald Gaston filed a motion in the Circuit Court of the City of Norfolk, pursuant to Code § 19.2-327.1, seeking post-trial scientific analysis of certain evidence.”

Show all 44 citing cases →

— Va. Code Ann. § 19.2-327.1(A) — 6 cases

In Re: Brown, 810 S.E.2d 444 (Va. 2018). “In 2016, Brown filed a petition seeking a writ of actual innocence pursuant to Code §§ 19.2-327.1 to -327.6, which govern writs of actual innocence based on biological evidence.”

Virginia Emp. Comm'n v. Cmty. Alternatives, Inc., 705 S.E.2d 530 (Va. Ct. App. 2011). “” Code § 19.2-327.1(A) addresses the “chain of custody” showing necessary for a felon seeking a new post-conviction scientific investigation of any human biological evidence.”

Derek LaMar v. Paul Ebert, 681 F. App'x 279 (4th Cir. 2017). “” See Va. Code § 19.2-327.1(A). Specifically, the person must satisfy the five-part tesjt specified in the DNA statute: [1] the evidence was not known or available at the time the conviction .”

Crews v. Johnson, 702 F. Supp. 2d 618 (W.D. Va. 2010).

In Re: Hargrove (Va. 2025).

— Va. Code Ann. § 19.2-327.1(C) — 2 cases

Arey v. State, 929 A.2d 501 (Md. 2007).

— Va. Code Ann. § 19.2-327.1(D) — 1 case

Blake v. State, 909 A.2d 1020 (Md. 2006). “§ 78 -35a-301 (2002); Va.Code Ann. § 19.2-327.1 (2004 & Supp. 2006); Wash.”

— Va. Code Ann. § 19.2-327.1(G) — 6 cases

Crews v. Johnson, 702 F. Supp. 2d 618 (W.D. Va. 2010).

Harvey v. Warden of Coffeewood Corr. Ctr., 597 S.E.2d 58 (Va. 2004). “In January 2002, after exhausting his opportunities for state and federal direct and collateral review of his convictions, Harvey filed a motion in the Circuit Court of Fairfax County, pursuant to Code § 19.2-327.1, seeking post-trial scientific analysis of certain evidence.”

Gaston v. Commonwealth, 585 S.E.2d 596 (Va. 2003). “*176 PER CURIAM John Fitzgerald Gaston filed a motion in the Circuit Court of the City of Norfolk, pursuant to Code § 19.2-327.1, seeking post-trial scientific analysis of certain evidence.”

Commonwealth v. McClelland, 60 Va. Cir. 436 (2003).

— Va. Code Ann. § 19.2-327.1(H) — 2 cases

Blake v. State, 909 A.2d 1020 (Md. 2006). “§ 78 -35a-301 (2002); Va.Code Ann. § 19.2-327.1 (2004 & Supp. 2006); Wash.”

Berry v. Commonwealth of Virginia (E.D. Va. 2021).

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