Section 138.700 - Entry of unidentified profile into DNA databases; motion for laboratory evaluation; court order(1) If DNA testing ordered under ORS 138.692 produces an unidentified DNA profile, upon motion of a party the court may order an NDIS-participating laboratory within this state to: (a) Enter the DNA profile into the National DNA Index System; or(b) Enter the DNA profile into the State DNA Index System if the profile meets all applicable requirements.(2) Notwithstanding subsection (1)(a) of this section, the DNA profile shall only be compared to the National DNA Index System if the state administrator of the Combined DNA Index System determines that:(a) The forensic sample has a nexus to the crime scene, is probative, and was suitable for analysis;(b) The DNA profile was generated through a technology that complies with all requirements in the NDIS manual and federal standards; and(c) The DNA profile meets all requirements in the NDIS manual for entry.(3)(a) If a party to post-conviction DNA testing proceedings seeks to conduct the testing at a nonparticipating laboratory and intends to have any DNA profile resulting from the testing submitted to the National DNA Index System or the State DNA Index System, the party may identify an NDIS-participating laboratory within this state and request the court, by motion, to order the NDIS-participating laboratory to evaluate whether the nonparticipating laboratory is in compliance with federal standards for the purpose of uploading DNA profiles to CODIS. The party shall provide notice of the requested order to the opposing party and to the NDIS-participating laboratory identified in the motion.(b) The state may appear on the motion as a party to post-conviction DNA testing proceedings or on behalf of the NDIS-participating laboratory if the laboratory is a public entity.(4) The court may order the NDIS-participating laboratory to conduct an evaluation pursuant to subsection (3) of this section if the moving party demonstrates and the court finds that: (a)(A) The NDIS-participating laboratory is not able to, or for practical reasons has determined not to, perform the specific testing and analysis sought by the moving party;(B) The NDIS-participating laboratory's testing and analysis would not be substantially equivalent to testing and analysis by the nonparticipating laboratory; or(C) Testing and analysis by the NDIS-participating laboratory would not otherwise be appropriate;(b) The evaluation will not delay investigations or unduly burden the resources of the NDIS-participating laboratory; and(c) There is a reasonable likelihood that the evaluation would result in a finding that: (A) The nonparticipating laboratory is in compliance with federal standards; and(B) If a DNA profile is generated from testing by the nonparticipating laboratory, the profile would meet all requirements in the NDIS manual and federal standards.(5) If the court orders an evaluation of a nonparticipating laboratory under subsection (4) of this section, within 120 days of receiving the court order, the NDIS-participating laboratory shall comply with the order as follows: (a) The NDIS-participating laboratory may conduct the evaluation by obtaining and reviewing the records of an on-site visit and assessment of the nonparticipating laboratory previously conducted by the Federal Bureau of Investigation or an NDIS-participating laboratory.(b) If a previously conducted on-site visit and assessment were not conducted within a time frame required by federal law, the results of the previously conducted on-site visit and assessment are unavailable, or the nonparticipating laboratory is not in compliance with other applicable standards, the NDIS-participating laboratory may:(A) Evaluate the nonparticipating laboratory by conducting a new on-site visit and assessment, provided that: (i) The ability to conduct the new on-site visit and assessment is within the limits of available resources of the NDIS-participating laboratory;(ii) The nonparticipating laboratory agrees to cooperate with the new on-site visit and assessment; and(iii) The moving party bears the costs associated with the new on-site visit and assessment; or(B) Notify the court of the inability to evaluate the nonparticipating laboratory by conducting a new on-site visit and assessment due to the available resources of the NDIS-participating laboratory, a refusal by the nonparticipating laboratory to cooperate with the on-site visit and assessment or the refusal by the moving party to bear the costs associated with the new on-site visit and assessment.(6) A determination by the NDIS-participating laboratory as to whether the nonparticipating laboratory is in compliance with federal standards is not subject to judicial review.(7) Should any provision of a court order under this section be determined to violate federal law, the NDIS manual, or any memorandum of understanding between the Federal Bureau of Investigation and the Department of State Police concerning forensic laboratories, that portion of the order shall be considered unenforceable and the remaining portions of the order remain in effect.