(1) A petitioner shall not be entitled to relief based solely on an allegation that a law enforcement agency failed to preserve biological evidence. (2) (a) A court granting a motion for hearing pursuant to section 18-1-412 shall order the appropriate law enforcement agency to preserve existing biological evidence for DNA testing. (b) If a law enforcement agency, through negligence, destroys, loses, or otherwise disposes of biological evidence that is the subject of an order pursuant to this subsection (2) before the evidence may be tested, the court shall set a hearing to determine whether a remedy is warranted. If the court determines that a remedy is warranted, the court may order whatever remedy the court finds is just, equitable, and appropriate. Nothing in this subsection (2) shall be construed to limit or eliminate the court's authority to order any remedy otherwise available under law for the destruction, loss, or disposal of evidence. (c) For the purposes of this subsection (2), "negligence" means a departure from the ordinary standard of care. (d) When a motion for postconviction DNA testing is granted, the primary investigative agency that handled the case shall prepare an inventory of the evidence related to the case and issue a copy of the inventory to the petitioner and the court. (3) Except as provided in subsection (2) of this section, this section does not create a duty to preserve biological evidence. Notwithstanding the provisions of subsection (2) of this section, this section does not create a liability on the part of a law enforcement agency for failing to preserve biological evidence.
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