165.77(4)(am) (am) A person whose deoxyribonucleic acid analysis data have been included in the data bank under sub. (3) may request expungement on the grounds that all of the following conditions are satisfied:
165.77(4)(am)1. 1. If the person was required to submit a biological specimen under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047, or 980.063, all convictions, findings, or adjudications for which the person was required to submit a biological specimen under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047, or 980.063 have been reversed, set aside, or vacated.
165.77(4)(am)2. 2. If the person was required to provide a biological specimen under s. 165.84 (7) in connection with an arrest or under s. 970.02 (8), one of the following applies:
165.77(4)(am)2.a. a. All charges for which the person was required to provide a biological specimen under s. 165.84 (7) or 970.02 (8) have been dismissed.
165.77(4)(am)2.b. b. The trial court reached final disposition for all charges for which the person was required to provide a biological specimen under s. 165.84 (7) or 970.02 (8), and the person was not adjudged guilty of a violent crime in connection with any such charge.
165.77(4)(am)2.c. c. At least one year has passed since the arrest and the person has not been charged with a violent crime in connection with the arrest.
165.77(4)(am)2.d. d. The person was adjudged guilty of a violent crime in connection with any charge for which the person was required to provide a biological specimen under s. 165.84 (7) or 970.02 (8), and all such convictions for a violent crime have been reversed, set aside, or vacated.
165.77(4)(am)3. 3. If the person was required to provide a biological specimen under s. 165.84 (7) in connection with being taken into custody under s. 938.19 or under s. 938.21 (1m) or 938.30 (2m), one of the following applies:
165.77(4)(am)3.a. a. All criminal complaints or delinquency petitions that allege that the person committed a violation that would be a violent crime if committed by an adult in this state and that are in connection with the taking into custody have been dismissed.
165.77(4)(am)3.b. b. The trial court reached final disposition for all allegations that the person committed a violation that would be a violent crime if committed by an adult in this state that are in connection with the taking into custody, and the person was not convicted or adjudged delinquent for a violation that would be a violent crime if committed by an adult in this state that is in connection with the taking into custody.
165.77(4)(am)3.c. c. At least one year has passed since the person was taken into custody and no criminal complaint or delinquency petition alleging that the person committed a violation that would be a violent crime if committed by an adult in this state has been filed against the person in connection with the taking into custody.
165.77(4)(am)3.d. d. The person was convicted or adjudged delinquent for a violation that would be a violent crime if committed by an adult in this state and that is in connection with the taking into custody, and the conviction or delinquency adjudication has been reversed, set aside, or vacated.
165.77(4)(bm) (bm) If the department determines that the conditions under par. (am) are satisfied, the laboratories shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receiving the person's written request for expungement and any documentation the department requires under rules promulgated under sub. (8).
Effective date note NOTE: Sub. (4) is shown as affected eff. 4-1-15 by 2013 Wis. Acts 20 and 214. Prior to 4-1-15 it reads:
Effective date text (4) A person whose deoxyribonucleic acid analysis data has been included in the data bank under sub. (3) may request expungement on the grounds that his or her conviction or adjudication has been reversed, set aside or vacated. The laboratories shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person if it receives all of the following:
Effective date text (a) The person's written request for expungement.
Effective date text (b) A certified copy of the court order reversing, setting aside or vacating the conviction or adjudication.
165.77(5) (5) Any person who intentionally disseminates a specimen received under this section or any information obtained as a result of analysis or comparison under this section or from the data bank under sub. (3) in a manner not authorized under this section or the rules under sub. (8) may be fined not more than $500 or imprisoned for not more than 30 days or both.
165.77(6) (6) Except as necessary to administer this section or as provided under the department's rules under sub. (8), the department shall deny access to any record kept under this section.
165.77(7) (7) Whenever a Wisconsin law enforcement agency or a health care professional collects evidence in a case of alleged or suspected sexual assault, the agency or professional shall follow the procedures specified in the department's rules under sub. (8). The laboratories shall perform, in a timely manner, deoxyribonucleic acid analysis of specimens provided by law enforcement agencies under sub. (2). The laboratories shall not include data obtained from deoxyribonucleic acid analysis of those specimens in the data bank under sub. (3).
165.77(7m) (7m) An entry in the data bank that is found to be erroneous does not prohibit the legitimate use of the entry to further a criminal investigation or prosecution. The failure of a law enforcement agency or the laboratories to comply with this section, s. 165.76, 165.765, or 165.84, or any rules or procedures adopted to administer those sections, is not grounds for challenging the validity of the data collection, for challenging the use of the sample as provided in those sections, or for the suppression of evidence based upon or derived from any entry in the data bank.
Effective date note NOTE: Sub. (7m) is created eff. 4-1-15 by 2013 Wis. Act 20.
165.77(8) (8) The department shall promulgate rules to administer this section.
165.77 Cross-reference Cross-reference: See also ch. Jus 9, Wis. adm. code.
165.77 Annotation The New Genetic World and the Law. Derse. Wis. Law. April 2001.
165.78 165.78 Information center; training activities.
165.78(1) (1) The department shall act as a center for the clearance of information between law enforcement officers. In furtherance of this purpose it shall issue bulletins by mail or its telecommunication system. The department shall at all times collaborate and cooperate fully with the F.B.I. in exchange of information.
165.78(2) (2) The department shall cooperate and exchange information with other similar organizations in other states.
165.78(3) (3) The department may prepare and conduct informational and training activities for the benefit of law enforcement officers and professional groups.
165.78 History History: 1977 c. 260; 1985 a. 29.
165.785 165.785 Crime alert network.
165.785(1) (1)
165.785(1)(a)(a) In addition to its duties under ss. 165.50 and 165.78, the department shall develop, administer, and maintain an integrated crime alert network.
165.785(1)(b)1.1. The department may use the network under par. (a) to provide information regarding known or suspected criminal activity, crime prevention, and missing or endangered persons to state agencies, law enforcement officers, and members of the private sector.
165.785(1)(b)2. 2. The department shall ensure that a law enforcement agency may access the network under par. (a) to disseminate a report under s. 175.51 to persons on the list maintained under sub. (2m) (c).
165.785(2) (2) The department may charge a fee to members of the private sector who receive information under sub. (1) (b) 1. The department may not charge a fee to any person who receives information under sub. (1) (b) 2.
165.785(2m) (2m)
165.785(2m)(a)1.1. The department shall provide a form for reports of missing adults at risk under s. 175.51 that law enforcement agencies can access through the integrated crime alert network.
165.785(2m)(a)2. 2. The department shall train law enforcement officers on identifying reports of adults at risk that are appropriate for dissemination under sub. (1) (b) 2., using the form provided under subd. 1., and accessing the network to disseminate the report.
165.785(2m)(b) (b) The department shall work directly with persons on the list maintained under par. (c) and with government agencies, broadcasters, and public and private organizations with missions focused on adults at risk to develop criteria for law enforcement officers to use to identify reports of missing adults at risk that are appropriate to disseminate under s. 175.51, to determine the most effective methods and guidelines for the persons on the list maintained under par. (c) to use to broadcast or make public reports of missing adults at risk, and to receive feedback on the forms provided under par. (a) 1. and on the list maintained under par. (c).
165.785(2m)(c) (c) The department shall maintain a list of persons that are engaged in broadcasting or outdoor advertising, that have agreed to be on the list, and that would be appropriate recipients of reports disseminated under sub. (1) (b) 2.
165.785(3) (3) The department shall utilize only program revenue amounts credited and expended from the appropriation account under s. 20.455 (2) (gp) to develop, administer, and maintain the integrated crime alert network under sub. (1).
165.785 History History: 2009 a. 358; 2013 a. 264.
165.79 165.79 Evidence privileged.
165.79(1) (1) Evidence, information and analyses of evidence obtained from law enforcement officers by the laboratories is privileged and not available to persons other than law enforcement officers nor is the defendant entitled to an inspection of information and evidence submitted to the laboratories by the state or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the state at a preliminary hearing and except as provided in s. 971.23. Upon request of a defendant in a felony action, approved by the presiding judge, the laboratories shall conduct analyses of evidence on behalf of the defendant. No prosecuting officer is entitled to an inspection of information and evidence submitted to the laboratories by the defendant, or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the accused at a preliminary hearing and except as provided in s. 971.23. Employees who made examinations or analyses of evidence shall attend the criminal trial as witnesses, without subpoena, upon reasonable written notice from either party requesting the attendance.
165.79(2) (2) Upon the termination or cessation of the criminal proceedings, the privilege of the findings obtained by a laboratory may be waived in writing by the department and the prosecutor involved in the proceedings. The employees may then be subpoenaed in civil actions in regard to any information and analysis of evidence previously obtained in the criminal investigation, but the laboratories shall not engage in any investigation requested solely for the preparation for trial of a civil matter. Upon appearance as a witness or receipt of a subpoena or notice to prepare for trial in a civil action, or appearance either with or without subpoena, the laboratories shall be compensated by the party at whose request the appearance or preparation was made in a reasonable amount to be determined by the trial judge, which fee shall be paid into the state treasury. In fixing the compensation the court may give consideration to the time spent in obtaining and analyzing the evidence for the purposes of criminal proceedings.
165.79 Annotation Whether to grant a defendant's request under sub. (1) that the crime lab perform tests on the defendant's behalf is a discretionary decision. State v. Lee, 192 Wis. 2d 260, 531 N.W.2d 351 (Ct. App. 1995). But see also State v. Lee, 197 Wis. 2d 960, 542 N.W.2d 143 (1996).
165.79 Annotation Under the facts of the case, the privilege in sub. (1) did not prevent the defendant from obtaining evidence he was entitled to under s. 971.23 when he received the physical evidence that the state intended to offer at trial and a copy of the crime lab report and was granted permission to submit the evidence for testing by his own expert. The defendant was entitled to examine the crime lab analyst at trial but not at an evidentiary hearing. State v. Franszczak, 2002 WI App 141, 256 Wis. 2d 68, 647 N.W.2d 396, 01-1393.
165.79 Annotation Cross-examination of a highly qualified witness who is familiar with the procedures used in performing the tests whose results are offered as evidence, who supervises or reviews the work of the testing analyst, and who renders his or her own expert opinion is sufficient to protect a defendant's right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, 00-3065.
165.79 Annotation Under Crawford, 541 U.S. 36, analysts' affidavits that certified that evidence was in fact cocaine were testimonial statements, and the analysts were "witnesses" for purposes of the 6th amendment confrontation clause. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009).
165.80 165.80 Cooperation with other state departments. For the purpose of coordinating the work of the crime laboratories with the research departments located in the University of Wisconsin, the attorney general and the University of Wisconsin may agree for the use of university laboratories and university physical facilities and the exchange and utilization of personnel between the crime laboratories and the university.
165.80 History History: 1985 a. 29; 1997 a. 27.
165.81 165.81 Disposal of evidence.
165.81(1) (1) Whenever the department is informed by the submitting officer or agency that physical evidence in the possession of the laboratories is no longer needed the department may, except as provided in sub. (3) or unless otherwise provided by law, destroy the evidence, retain it in the laboratories, return it to the submitting officer or agency, or turn it over to the University of Wisconsin upon the request of the head of any department of the University of Wisconsin. If the department returns the evidence to the submitting officer or agency, any action taken by the officer or agency with respect to the evidence shall be in accordance with s. 968.20. Except as provided in sub. (3), whenever the department receives information from which it appears probable that the evidence is no longer needed, the department may give written notice to the submitting agency and the appropriate district attorney, by registered mail, of the intention to dispose of the evidence. If no objection is received within 20 days after the notice was mailed, it may dispose of the evidence.
165.81(2) (2) Any electric weapon, as defined in s. 941.295 (1c) (a), in the possession of the laboratories shall either be destroyed or be turned over to an agency authorized to have electric weapons under s. 941.295 (2).
165.81(3) (3)
165.81(3)(a)(a) In this subsection:
165.81(3)(a)1. 1. "Custody" has the meaning given in s. 968.205 (1) (a).
165.81(3)(a)2. 2. "Discharge date" has the meaning given in s. 968.205 (1) (b).
165.81(3)(b) (b) Except as provided in par. (c), if physical evidence that is in the possession of the laboratories includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, a delinquency adjudication, or commitment under s. 971.17 or 980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the laboratories shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.
165.81(3)(bm) (bm) The laboratories shall retain evidence to which par. (b) applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a), from the biological material contained in or included on the evidence.
165.81(3)(c) (c) Subject to par. (e), the department may destroy evidence that includes biological material before the expiration of the time period specified in par. (b) if all of the following apply:
165.81(3)(c)1. 1. The department sends a notice of its intent to destroy the evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.
165.81(3)(c)2. 2. No person who is notified under subd. 1. does either of the following within 90 days after the date on which the person received the notice:
165.81(3)(c)2.a. a. Files a motion for testing of the evidence under s. 974.07 (2).
165.81(3)(c)2.b. b. Submits a written request for retention of the evidence to the department.
165.81(3)(c)3. 3. No other provision of federal or state law requires the department to retain the evidence.
165.81(3)(d) (d) A notice provided under par. (c) 1. shall clearly inform the recipient that the evidence will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the evidence is filed under s. 974.07 (2) or a written request for retention of the evidence is submitted to the department.
165.81(3)(e) (e) If, after providing notice under par. (c) 1. of its intent to destroy evidence, the department receives a written request for retention of the evidence, the department shall retain the evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court orders destruction or transfer of the evidence under s. 974.07 (9) (b) or (10) (a) 5.
165.81(3)(f) (f) Unless otherwise provided in a court order issued under s. 974.07 (9) (a) or (b) or (10) (a) 5., nothing in this subsection prohibits the laboratories from returning evidence that must be preserved under par. (b) or (e) to the agency that submitted the evidence to the laboratories. If the laboratories return evidence that must be preserved under par. (b) or (e) to a submitting agency, any action taken by the agency with respect to the evidence shall be in accordance with s. 968.205.
165.82 165.82 Criminal history search fee.
165.82(1) (1) Notwithstanding s. 19.35 (3), the department of justice shall impose the following fees, plus any surcharge required under sub. (1m), for criminal history searches for purposes unrelated to criminal justice or to s. 175.35, 175.49, or 175.60:
165.82(1)(am) (am) For each record check, except a fingerprint card record check, $7.
165.82(1)(ar) (ar) For each fingerprint card record check requested by a governmental agency or nonprofit organization, $15.
165.82(1m) (1m) The department of justice shall impose a $5 surcharge if a person requests a paper copy of the results of a criminal history search requested under sub. (1).
165.82(2) (2) The department of justice shall not impose fees for criminal history searches for purposes related to criminal justice.
165.825 165.825 Information link. The department of justice shall cooperate with the departments of safety and professional services, health services, and financial institutions in developing and maintaining a computer linkup to provide access to the information obtained from a criminal history search.
165.825 History History: 1997 a. 27; 2007 a. 20 s. 9121 (6) (a); 2011 a. 32; 2013 a. 20.
165.827 165.827 Transaction information for the management of enforcement system; fees. The department of justice shall administer a transaction information for the management of enforcement system to provide access to information concerning law enforcement. The department of justice may impose fees on law enforcement agencies and tribal law enforcement agencies, as defined in s. 165.83 (1) (e), for rentals, use of terminals and related costs and services associated with the system. All moneys collected under this section shall be credited to the appropriation account under s. 20.455 (2) (h).
165.827 History History: 1991 a. 39; 1993 a. 407; 1995 a. 27.
165.8285 165.8285 Transaction information for management of enforcement system; department of corrections records.
165.8285(1)(1) The department of justice shall, through the transaction information for management of enforcement system, provide local law enforcement agencies with access to the registry of sex offenders maintained by the department of corrections under s. 301.45.
165.8285(2) (2) The department of justice shall provide the department of corrections with access to the transaction information for management of enforcement system administrative message process.
Loading...
Loading...
2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Dec. 13, 2014. Published and certified under s. 35.18. Changes effective after Dec. 13, 2014 are designated by NOTES. (Published 12-13-14)