(a) Notwithstanding any other provision of law governing postconviction relief, any person who was convicted of a crime and sentenced to incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court requesting the DNA testing of any evidence that is in the possession or control of the Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court. The petitioner shall state under penalties of perjury that the requested testing is related to the investigation or prosecution that resulted in the petitioner's conviction and that the evidence sought to be tested contains biological evidence.

(b) After notice to the prosecutorial official and a hearing, the court shall order DNA testing if it finds that:

(1) A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing;

(2) The evidence is still in existence and is capable of being subjected to DNA testing;

(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and

(4) The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.

(c) After notice to the prosecutorial official and a hearing, the court may order DNA testing if it finds that:

(1) A reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner's sentence if the results had been available at the prior proceedings leading to the judgment of conviction;

(2) The evidence is still in existence and is capable of being subjected to DNA testing;

(3) The evidence, or a specific portion of the evidence identified by the petitioner, was never previously subjected to DNA testing, or the testing requested by the petitioner may resolve an issue that was never previously resolved by previous testing; and

(4) The petition before the Superior Court was filed in order to demonstrate the petitioner's innocence and not to delay the administration of justice.

(d) The costs of DNA testing ordered pursuant to this section shall be borne by the state or the petitioner, as the court may order in the interests of justice, except that DNA testing shall not be denied because of the inability of the petitioner to pay the costs of such testing.

(e) In a proceeding under this section, the petitioner shall have the right to be represented by counsel and, if the petitioner is indigent, the court shall appoint counsel for the petitioner in accordance with section 51-296.

(P.A. 03-242, S. 7.)

Reasonable probability under Subsec. (b)(1) means a probability sufficient to undermine confidence in the outcome; a petitioner may succeed by demonstrating a reasonable probability that he or she would not have been prosecuted or convicted if exculpatory DNA evidence had been available. 295 C. 50. In light of determination that defendant did not establish “reasonable probability” under Subsec. (b), trial court properly denied petition under Subsec. (c). Id., 74. Under Subsec. (b)(1), petitioner was not entitled to DNA testing as there was no reasonable probability that petitioner would not have been prosecuted or convicted if exculpatory DNA test results had been obtained prior to trial because even if the court assumed the most favorable result from DNA testing, it would not have undermined the confidence in the verdict given the strength of the state's case against petitioner. 309 C. 567.

Subsec. (b)(1) requires court to consider the effect of the most favorable result possible from DNA testing of evidence, and in this case, petitioner did not establish a reasonable probability under Subsec. (b)(1) because evidence amply supported conclusion that petitioner, in fact, committed the crimes. 129 CA 833, see also Id., 842. Subsec. (a) requires petitioner to make a preliminary showing supported by a reasonable basis in fact that the evidence sought to be tested likely contains biological material. 131 CA 846.