Most post-conviction relief proceedings in Utah are subject to a strict one-year filing deadline. DNA testing petitions are the exception. Under Utah Code § 78B-9-301, an individual convicted of a felony may file a petition for post-conviction DNA testing at any time after the judgment of conviction. There is no filing deadline. A petitioner convicted in 1995 and still incarcerated in 2025 can petition for DNA testing today.

This exception exists because DNA evidence is qualitatively different from other newly discovered evidence: the biological material was collected at the time of the crime, the technology to analyze it has improved dramatically over time, and results that exclude the defendant can definitively establish innocence in ways that other evidence cannot.

What the DNA Testing Petition Requires

Under § 78B-9-301, a petition for post-conviction DNA testing must assert:

1. Evidence exists that is suitable for DNA testing. The evidence must still be in existence, must be in a condition that allows DNA testing to be conducted, and must have a chain of custody sufficient to establish that it has not been altered in any material respect.

2. The evidence has not previously been subjected to DNA testing. Or, if it has been tested previously, either the technology used was not the best available, the evidence was not tested with a probe or method reasonably likely to produce probative results, or newer technology can produce results that the prior testing could not.

3. The petitioner identifies the specific evidence to be tested. A petition that asks for “all biological evidence” without identifying what specific items are sought for testing is legally insufficient. The petitioner must identify each specific item and explain why testing of that item would be probative.

4. The petitioner states a theory of defense not inconsistent with prior trial theories. The DNA testing petition must explain how the DNA results could support an exculpatory defense theory. Testing cannot be requested simply on the hope that something useful might appear — the petitioner must articulate a specific way the DNA results could support a defense.

5. The petitioner identifies the theory the DNA testing would support. The petition must state that it asserts a theory of defense — not previously asserted at trial is acceptable, but the theory cannot contradict positions the defense already took.

The Court’s Analysis: Ordering the Test

Under Utah Code § 78B-9-303, the court shall order DNA testing if:

The evidence sought to be tested exists and is in a condition suitable for testing
A chain of custody adequate to establish that the evidence has not been materially altered exists
The evidence was not previously tested, or can now be tested with more probative methods
The identity of the perpetrator was or is in issue in the trial
The DNA testing could produce results that are materially relevant to the assertion of actual innocence — meaning there is a reasonable probability that the results would have altered at least one juror’s vote to convict

The last requirement is the critical gatekeeping test: the court evaluates whether DNA results — if they exclude the defendant — would create a reasonable probability of a different verdict. This is not a guarantee that testing will be ordered in every case, but the standard is favorable compared to many other post-conviction hurdles.

What Happens After Testing

If the court orders testing and the results are produced, the analysis shifts to whether those results support a PCRA petition on actual innocence or newly discovered evidence grounds.

Exclusion results. If DNA testing excludes the petitioner as the contributor of biological evidence that the prosecution attributed to the perpetrator at trial — and that exclusion is inconsistent with the prosecution’s theory of the case — the results may be powerful enough to support an actual innocence claim. The standard, as discussed in Actual Innocence Claims in Utah Post-Conviction Proceedings, requires establishing by clear and convincing evidence that no reasonable juror would have voted to convict. DNA exclusion from key biological evidence often meets this standard.

Inconclusive results. DNA testing sometimes produces inconclusive results — the evidence was too degraded, the sample too small, or the locus tested not informative in the specific case. Inconclusive results do not support a PCRA petition on their own but do not bar further proceedings on other grounds.

Inclusion results. If DNA testing confirms the prosecution’s attribution of biological evidence to the defendant, those results will generally be introduced by the State in any subsequent PCRA proceeding and will make actual innocence claims significantly more difficult to establish.

Database comparison. Under § 78B-9-301(5), when DNA testing is ordered, any resulting profile is run through the national DNA database for comparison against known offender profiles. If another individual’s profile matches the biological evidence from the crime scene, that match may provide powerful additional evidence for the actual innocence petition.

The Waiver Provision: A Critical Caution

Under § 78B-9-301(5)(a)(ii), by filing a petition for DNA testing, the petitioner waives any statute of limitations in all jurisdictions as to any felony offense the petitioner has committed that is identified through DNA database comparison. This means that if DNA testing identifies the petitioner as having committed a different crime — one otherwise time-barred — that crime can be prosecuted despite the limitations period.

This waiver provision requires careful consideration before a DNA testing petition is filed. A petitioner with exposure to other uncharged criminal conduct should evaluate this risk before initiating the testing process.

KEY RULE

Utah Code § 78B-9-301 — Post-Conviction DNA Testing

Any person convicted of a felony may petition for post-conviction DNA testing at any time — no filing deadline applies. The petition must identify specific evidence to be tested, establish it still exists in testable condition, and articulate a defense theory the DNA results could support. The court orders testing if there is a reasonable probability that DNA results would have altered at least one juror’s vote. If exclusion results are produced, they may support an actual innocence petition under the clear-and-convincing standard. Filing a DNA testing petition waives the statute of limitations for other felony offenses identified through database comparison.

If Biological Evidence Was Collected in Your Case

The first question is whether the biological evidence still exists and is in testable condition — evidence is sometimes lost or destroyed, but law enforcement agencies are required to preserve evidence for specific periods. If the evidence exists, the second question is whether testing it could produce results that would change the verdict analysis. Lotus Appellate Law handles post-conviction DNA testing petitions throughout Utah. Contact us to evaluate whether DNA testing is a viable path in your case.

Lotus Appellate Law — Post-Conviction Relief

A conviction is not always permanent. When trial counsel performed deficiently, when evidence was withheld, or when new facts have come to light, Utah’s Post-Conviction Remedies Act may still provide a path to relief — but the one-year filing deadline is strict, and missing it permanently bars claims that could have succeeded. Lotus Appellate Law is a boutique Utah appellate firm built for exactly this work: evaluating the trial record, identifying every available ground for relief, and litigating the evidentiary hearing that can change the outcome.

If you or someone you care about believes a conviction was the product of legal error, contact Lotus Appellate Law to discuss your options.

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DNA Testing Petitions Under the Utah PCRA: No Deadline, No Limits on When You Can File