2005 WISCONSIN ACT 60
An Act to repeal 165.77 (2m) (a); to amend 165.77 (2m) (b), 165.81 (3) (b), 165.81 (3) (c) (intro.), 165.81 (3) (c) 1., 165.81 (3) (c) 2. a. and b., 165.81 (3) (c) 3., 165.81 (3) (d), 165.81 (3) (e), 165.85 (3) (d), 757.05 (1) (a), 757.54 (2) (b), 757.54 (2) (c) (intro.), 757.54 (2) (c) 1., 757.54 (2) (c) 2. a. and b., 757.54 (2) (c) 3., 757.54 (2) (d), 757.54 (2) (e), 939.74 (2d) (b) and (c), 968.205 (2), 968.205 (3) (intro.), 968.205 (3) (a), 968.205 (3) (b) 1. and 2., 968.205 (3) (c), 968.205 (4), 968.205 (5), 974.07 (8), 978.08 (2), 978.08 (3) (intro.), 978.08 (3) (a), 978.08 (3) (b) 1. and 2., 978.08 (3) (c), 978.08 (4) and 978.08 (5); and to create 16.964 (10), 20.455 (2) (i) 16., 20.505 (6) (kc), 165.75 (3) (g), 165.81 (3) (bm), 175.50, 757.54 (2) (bm), 938.195, 938.31 (3), 939.74 (2d) (am), 968.073, 968.205 (2m), 972.115, 974.07 (12) (c) and 978.08 (2m) of the statutes; relating to: retention and testing of evidence that includes biological material, time limits for prosecuting a crime that is related to a sexual assault, law enforcement procedures for using an eyewitness to identify a person suspected of committing a crime, making audio or audio and visual recordings of custodial interrogations, limitations on admitting unrecorded statements into evidence in juvenile delinquency and criminal proceedings, and creating a grant program for digital recording equipment and training for digital recording of custodial interrogations.
The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:
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1. 16.964 (10) of the statutes is created to read:
16.964 (10) (a) In this subsection:
1. "Custodial interrogation" has the meaning given in s. 968.073 (1) (a).
2. "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).
(b) From the appropriation under s. 20.505 (6) (kc), the office shall provide grants to law enforcement agencies for the purchase, installation, or maintenance of digital recording equipment for making audio or audio and visual recordings of custodial interrogations or for training personnel to use such equipment. Grants awarded under this subsection may be used to reimburse law enforcement agencies for expenses incurred or payments made on or after July 7, 2005. Grants awarded under this subsection may be used to support recording of custodial interrogations of either juveniles or adults and of interrogations related to either misdemeanor or felony offenses. The office may award more than one grant under this subsection to a law enforcement agency. The office shall develop criteria and procedures to administer this subsection. Notwithstanding s. 227.10 (1), the criteria and procedures need not be promulgated as rules under ch. 227.
(c) A law enforcement agency shall include the following information in an application for a grant under this subsection:
1. How the agency proposes to use the grant funds.
2. Procedures to be followed when recording equipment fails to operate correctly, including procedures for reporting failures, using alternative recording equipment, and repairing or replacing the equipment.
3. Procedures for storing recordings of custodial interrogations, including storage format, storage location, and indexing of recordings for retrieval.
4. Measures to prevent or detect tampering with recordings of custodial interrogations.
5. Any other information required by the office.
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2. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated:
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3. 20.455 (2) (i) 16. of the statutes is created to read:
20.455 (2) (i) 16. The amount transferred to s. 20.505 (6) (kc) shall be the amount in the schedule under s. 20.505 (6) (kc).
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4. 20.505 (6) (kc) of the statutes is created to read:
20.505 (6) (kc) Grants for digital recording of custodial interrogations. The amounts in the schedule for grants to law enforcement agencies under s. 16.964 (10) for equipment or training used to digitally record custodial interrogations. All moneys transferred from the appropriation account under s. 20.455 (2) (i) 16. shall be credited to this appropriation account.
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5. 165.75 (3) (g) of the statutes is created to read:
165.75 (3) (g) Deoxyribonucleic acid testing ordered under s. 974.07 shall have priority, consistent with the right of a defendant or the state to a speedy trial and consistent with the right of a victim to the prompt disposition of a case.
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6. 165.77 (2m) (a) of the statutes is repealed.
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7. 165.77 (2m) (b) of the statutes is amended to read:
165.77 (2m) (b) The If the laboratories analyze biological material pursuant to an order issued under s. 974.07 (8), the laboratories may compare the data obtained from the material received under par. (a) with data obtained from other specimens. The laboratories may make data obtained from any analysis and comparison available to law enforcement agencies in connection with criminal or delinquency investigations and, upon request, to any prosecutor, defense attorney, or subject of the data. The data may be used in criminal and delinquency actions and proceedings. The laboratories shall not include data obtained from deoxyribonucleic acid analysis of material received under par. (a) that is tested pursuant to an order under s. 974.07 (8) in the data bank under sub. (3).
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8. 165.81 (3) (b) of the statutes is amended to read:
165.81 (3) (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.
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9. 165.81 (3) (bm) of the statutes is created to read:
165.81 (3) (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.
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10. 165.81 (3) (c) (intro.) of the statutes is amended to read:
165.81 (3) (c) (intro.) 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:
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11. 165.81 (3) (c) 1. of the statutes is amended to read:
165.81 (3) (c) 1. The department sends a notice of its intent to destroy the biological material 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.
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12. 165.81 (3) (c) 2. a. and b. of the statutes are amended to read:
165.81 (3) (c) 2. a. Files a motion for testing of the biological material evidence under s. 974.07 (2).
b. Submits a written request to preserve the biological material for retention of the evidence to the department.
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13. 165.81 (3) (c) 3. of the statutes is amended to read:
165.81 (3) (c) 3. No other provision of federal or state law requires the department to preserve retain the biological material evidence.
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14. 165.81 (3) (d) of the statutes is amended to read:
165.81 (3) (d) A notice provided under par. (c) 1. shall clearly inform the recipient that the biological material 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 material evidence is filed under s. 974.07 (2) or a written request to preserve
for retention of the material evidence is submitted to the department.
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15. 165.81 (3) (e) of the statutes is amended to read:
165.81 (3) (e) If, after providing notice under par. (c) 1. of its intent to destroy biological material evidence, the department receives a written request to preserve
for retention of the material evidence, the department shall preserve retain the material 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 biological material evidence under s. 974.07 (9) (b) or (10) (a) 5.
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16. 165.85 (3) (d) of the statutes is amended to read:
165.85 (3) (d) Establish minimum curriculum requirements for preparatory courses and programs, and recommend minimum curriculum requirements for recertification and advanced courses and programs, in schools operated by or for this state or any political subdivision of the state for the specific purpose of training law enforcement recruits, law enforcement officers, tribal law enforcement recruits, tribal law enforcement officers, jail officer recruits, jail officers, secure detention officer recruits, or secure detention officers in areas of knowledge and ability necessary to the attainment of effective performance as an officer, and ranging from traditional subjects such as first aid, patrolling, statutory authority, techniques of arrest and, firearms, and recording custodial interrogations to subjects designed to provide a better understanding of ever-increasing complex problems in law enforcement such as human relations, civil rights, constitutional law, and supervision, control, and maintenance of a jail or secure detention facility. The board shall appoint a 13-member advisory curriculum committee consisting of 6 chiefs of police and 6 sheriffs to be appointed on a geographic basis of not more than one chief of police and one sheriff from any one of the 8 state administrative districts together with the director of training of the Wisconsin state patrol. This committee shall advise the board in the establishment of the curriculum requirements.
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17. 175.50 of the statutes is created to read:
175.50 Eyewitness identification procedures. (1) In this section:
(a) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).
(b) "Suspect" means a person suspected of committing a crime.
(2) Each law enforcement agency shall adopt written policies for using an eyewitness to identify a suspect upon viewing the suspect in person or upon viewing a representation of the suspect. The policies shall be designed to reduce the potential for erroneous identifications by eyewitnesses in criminal cases.
(3) A law enforcement agency shall biennially review policies adopted under this section.
(4) In developing and revising policies under this section, a law enforcement agency shall consider model policies and policies adopted by other jurisdictions.
(5) A law enforcement agency shall consider including in policies adopted under this section practices to enhance the objectivity and reliability of eyewitness identifications and to minimize the possibility of mistaken identifications, including the following:
(a) To the extent feasible, having a person who does not know the identity of the suspect administer the eyewitness' viewing of individuals or representations.
(b) To the extent feasible, showing individuals or representations sequentially rather than simultaneously to an eyewitness.
(c) Minimizing factors that influence an eyewitness to identify a suspect or overstate his or her confidence level in identifying a suspect, including verbal or nonverbal reactions of the person administering the eyewitness' viewing of individuals or representations.
(d) Documenting the procedure by which the eyewitness views the suspect or a representation of the suspect and documenting the results or outcome of the procedure.
757.05 (1) (a) Whenever a court imposes a fine or forfeiture for a violation of state law or for a violation of a municipal or county ordinance except for a violation of s. 101.123 (2) (a), (am) 1., (ar), (bm), (br), or (bv) or (5), or for a first violation of s. 23.33 (4c) (a) 2., 30.681 (1) (b) 1., 346.63 (1) (b), or 350.101 (1) (b), if the person who committed the violation had a blood alcohol concentration of 0.08 or more but less than 0.1 at the time of the violation, or for a violation of state laws or municipal or county ordinances involving nonmoving traffic violations or safety belt use violations under s. 347.48 (2m), there shall be imposed in addition a penalty surcharge under ch. 814 in an amount of 25% 26 percent of the fine or forfeiture imposed. If multiple offenses are involved, the penalty surcharge shall be based upon the total fine or forfeiture for all offenses. When a fine or forfeiture is suspended in whole or in part, the penalty surcharge shall be reduced in proportion to the suspension.
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19. 757.54 (2) (b) of the statutes is amended to read:
757.54 (2) (b) Except as provided in par. (c), if an exhibit in a criminal action or a delinquency proceeding under ch. 938 includes any biological material that was collected in connection with the action or proceeding and that is either from a victim of the offense that was the subject of the action or proceeding or may reasonably be used to incriminate or exculpate any person for the offense, the court presiding over the action or proceeding shall ensure that the exhibit is preserved retained until every person in custody as a result of the action or proceeding, or as a result of commitment under s. 980.06 that is based on a judgment of guilty or not guilty by reason of mental disease or defect in the action or proceeding, has reached his or her discharge date.
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20. 757.54 (2) (bm) of the statutes is created to read:
757.54 (2) (bm) The court shall ensure that an exhibit to which par. (b) applies is retained 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 exhibit.
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21. 757.54 (2) (c) (intro.) of the statutes is amended to read:
757.54 (2) (c) (intro.) Subject to par. (e), the court may destroy an exhibit that includes biological material before the expiration of the time period specified in par. (b) if all of the following apply:
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22. 757.54 (2) (c) 1. of the statutes is amended to read:
757.54 (2) (c) 1. The court sends a notice of its intent to destroy the biological material exhibit to all persons who remain in custody as a result of the criminal action, delinquency proceeding, or commitment under s. 980.06 and to either the attorney of record for each person in custody or the state public defender.
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23. 757.54 (2) (c) 2. a. and b. of the statutes are amended to read:
757.54 (2) (c) 2. a. Files a motion for testing of the biological material exhibit under s. 974.07 (2).
b. Submits a written request to preserve the biological material for retention of the exhibit to the court.
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24. 757.54 (2) (c) 3. of the statutes is amended to read:
757.54 (2) (c) 3. No other provision of federal or state law requires the court to preserve
retention of the biological material exhibit.
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25. 757.54 (2) (d) of the statutes is amended to read:
757.54 (2) (d) A notice provided under par. (c) 1. shall clearly inform the recipient that the biological material exhibit will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material exhibit is filed under s. 974.07 (2) or a written request to preserve for retention of the material exhibit is submitted to the court.
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26. 757.54 (2) (e) of the statutes is amended to read: