Rule 33.17 - Post-Conviction Deoxyribonucleic Acid Testing(a) Generally. Any person who has been convicted and sentenced for a felony offense may petition the court at any time for forensic deoxyribonucleic acid (DNA) testing of any evidence: (1) in the possession or control of the court or the State;(2) related to the investigation or prosecution that resulted in the judgment of conviction; and(3) that may contain biological evidence.(b) Manner of Filing; Response. The defendant must file the petition under the same criminal cause number as the felony conviction, and the clerk must distribute it in the manner provided in Rule 33.4(b)(4). The State must respond to the petition no later than 45 days after it is served.(c) Appointment of Counsel. The court may appoint counsel for an indigent defendant at any time during proceedings under this rule.(d) Court Orders.(1)DNA Testing. After considering the petition and the State's response, the court must order DNA testing if the court finds that: (A) a reasonable probability exists that the defendant would not have been prosecuted, or the defendant's sentence would have been more favorable, if DNA testing would produce exculpatory evidence;(B) the evidence is still in existence; and(C) the evidence was not previously subjected to DNA testing, or the evidence was not subjected to the type of DNA testing that defendant now requests and the requested testing may resolve an issue not resolved by previous testing.(2)Laboratory; Costs. If the court orders testing, the court must select an accredited laboratory to conduct the testing. The court may require the defendant to pay the costs of testing.(3)Other Orders. The court may enter any other appropriate orders, including orders requiring elimination samples from third parties and designating: (A) the type of DNA analysis to be used;(B) the procedures to be followed during the testing; and(C) the preservation of some of the sample for replicating the testing.(e) Test Results.(1)Earlier Testing. If the State or defense counsel has previously subjected evidence to DNA testing, the court may order the party to provide all other parties and the court with access to the laboratory reports prepared in connection with that testing, including underlying data and laboratory notes.(2)Testing Under this Rule. If the court orders DNA testing under this rule, the court must order the production to all parties of any laboratory reports prepared in connection with the testing and may order the production of any underlying data and laboratory notes.(f) Preservation of Evidence. If a defendant files a petition for post-conviction DNA testing, the court must order the State to preserve during the pendency of the proceeding all evidence in the State's possession or control that could be subjected to DNA testing. The State must prepare an inventory of the evidence and submit a copy of the inventory to the defendant and the court. If evidence is destroyed after the court orders its preservation, the court may impose appropriate sanctions.(g) Unfavorable Test Results. If the results of the post-conviction DNA testing are not favorable to the defendant, the court must dismiss without a hearing any DNA-related claims asserted under Rule 33.1. The court may make further orders as it deems appropriate, including orders: (1) notifying the Board of Executive Clemency or a probation department;(2) requesting to add the defendant's sample to the federal combined DNA index system offender database; or(3) notifying the victim or the victim's family.(h)Favorable Test Results. Notwithstanding any other provision of law that would bar a hearing as untimely, the court must order a hearing and make any further orders that are required by statute or the Arizona Rules of Criminal Procedure if the results of the post-conviction DNA testing are favorable to the defendant. If there are no material issues of fact, the hearing need not be an evidentiary hearing, but the court must give the parties an opportunity to argue why the defendant should or should not be entitled to relief under Rule 33.1 as a matter of law. If requested, a victim must be given notice of this hearing.Adopted August 29, 2019, effective 1/1/2020.