Ohio's Innocence Protection Act Expands Access to DNA Testing after Conviction

Q: What does Ohio law say about DNA testing?
A: Senate Bill 77 became effective on July 6, 2010, and was hailed as one of the nation’s most comprehensive criminal justice reform packages. Its goal was to help prevent wrongful convictions and make it easier to obtain post-conviction DNA testing when testing might undermine confidence in a “guilty” verdict. The provisions related to post-conviction DNA testing are as follows: 1) a requirement that DNA evidence be preserved for all “serious crimes”; and 2) expansion of Ohio’s post-conviction DNA testing law to include those released from prison but still under state supervision. The legislature also re-defined “definitive DNA test” to allow applicants to request post-conviction DNA testing, even if testing was already done, in case new DNA technology might reveal new information. This article addresses only the provisions of the law regarding DNA evidence.

Q: How might DNA testing help expose a wrongful conviction?
A: A wrongful conviction might be exposed if, for example, a piece of evidence that contains or is highly likely to contain biological evidence from the perpetrator(s) of the crime is subjected to post-conviction DNA testing.  
Post-conviction DNA testing can also expose a wrongful conviction if the prosecutor linked incriminating evidence to a defendant at trial and DNA testing can disprove the purported link. DNA testing can sometimes expose a wrongful conviction by simply excluding the defendant from the DNA profile found on a piece or pieces of evidence. In other cases, the presence of an alternate suspect’s DNA on any item from the crime scene may help exonerate the defendant and point to the alternate suspect as the perpetrator. This can be done by directly comparing the DNA profile from the evidence to that of a known alternate suspect. This can also be accomplished by running the DNA profile from the evidence through CODIS to compare it with DNA profiles in state and national databases.

Finally, a wrongful conviction might also be exposed in a case if DNA testing is conducted on items from the crime scene that the perpetrator likely touched and the results reveal the same profile across multiple items. If the profile does not match the defendant’s, then the defendant’s innocence may be established and the perpetrator’s guilt revealed.
Q: What “serious crimes” qualify for preservation of DNA evidence?
A: “Serious crimes” such as murders or aggravated murder require that biological evidence be kept as long as the crime remains unsolved. Biological evidence must be kept for 30 years in unsolved cases involving: voluntary manslaughter; involuntary manslaughter; aggravated vehicular homicide, vehicular homicide, and vehicular manslaughter when they are felonies of the first or second degree; rape; attempted rape; sexual battery; and gross sexual imposition where the victim is underage.

Biological evidence must be kept for 30 years or until incarceration or supervision expires (whichever is shorter) for someone who has been convicted of or pleads guilty to a “serious crime,” or is adjudicated a delinquent child. If, after 30 years, the person remains incarcerated, the biological evidence is kept until the person is released or dies. If someone pleads guilty or no contest and appeals have been exhausted, the state may destroy the evidence five years after the plea unless the person who pled asks the court to keep the evidence and the court agrees. These requirements apply to evidence the state possessed when Senate Bill 77 was enacted, and to evidence gathered since.

Q: Who must submit DNA to the state?
A: Anyone who is at least 18 years old and was arrested on or after July 1, 2011 for a felony offense, and anyone presently incarcerated or under community control sanctions for a felony offense, must submit to DNA collection. DNA also must be collected from individuals who commit these misdemeanor offenses: 1) attempt to commit, or complicity in committing, unlawful sexual conduct with a minor; 2) a misdemeanor offense arising from a charge of aggravated murder, murder, kidnapping, rape, sexual battery, unlawful sexual conduct with a minor, gross sexual imposition, aggravated burglary; 3) a misdemeanor offense of interference with child custody that would have been considered kidnapping or extortion before July 1, 1996; and/or 4) a sexually oriented or child-victim misdemeanor offense.

Q: I was convicted of a felony offense. Can I request DNA testing to challenge my conviction?
A: You may request state-funded DNA testing if a judge or jury convicted you of a felony offense, and one of the following applies: 1) you are serving a prison term, have been paroled, are on probation or post-release control, or you have been released from prison under a term of community control sanction for that felony; 2) you were sentenced to and are under community control sanction for that felony; 3) the felony was a sexually oriented offense or child-victim oriented offense, and you must register as a sex offender. You are not eligible to apply for state-funded DNA testing if you pled guilty or no contest. However, if you do not qualify for state-funded testing, you can seek post-conviction DNA testing through other means. 


This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Carrie Wood of the Ohio Public Defender’s Office.

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.



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