LRB-4251/3
RLR&RPN:nwn&kjf:rs
2009 - 2010 LEGISLATURE
March 18, 2010 - Introduced by Senators Taylor and Cowles, cosponsored by
Representatives Staskunas and Bies, by request of Attorney General JB Van
Hollen. Referred to Committee on Judiciary, Corrections, Insurance,
Campaign Finance Reform, and Housing.
SB631,1,7
1An Act to repeal 165.76 (2);
to amend 165.76 (1) (intro.), 165.76 (1) (a), 165.76
2(1) (ag), 165.76 (1) (ar), 165.76 (1) (b), 165.76 (1) (c), 165.76 (1) (d), 165.76 (1) (e),
3165.76 (1) (f), 165.76 (3), 165.76 (4), 911.01 (4) (c), 971.17 (1m) (a) and 973.047
4(1f); and
to create 165.76 (1) (av), 165.76 (1) (br), 165.76 (1) (cr), 165.76 (1) (g),
5165.76 (1) (h), 165.76 (1m), 165.76 (2m), 165.76 (2r), 165.76 (6), 801.50 (5v) and
6814.61 (1) (c) 7. of the statutes;
relating to: submission of biological specimens
7for deoxyribonucleic acid analysis.
Analysis by the Legislative Reference Bureau
Under current law, certain people are required to provide a deoxyribonucleic
acid (DNA) sample to the Department of Justice (DOJ), and DOJ is required to
analyze the sample and include results of the analysis in a DNA data bank. Since
1993, persons sentenced, or in prison, for certain sexual assaults have been required
to provide DNA samples. Since 2000, persons sentenced, or in prison, for any felony
and several specified misdemeanors have been required to provide DNA samples.
In addition, persons committed as sexually violent persons, persons found not guilty
by reason of mental disease or defect for certain sexual assaults, and juveniles
adjudicated delinquent for certain sexual assaults or, at the discretion of the court,
certain other offenses, are required to provide a DNA sample. A person who
intentionally fails to comply with a requirement to provide a DNA sample is guilty
of a misdemeanor.
Current statutes specify when and where each category of people required to
provide a DNA sample must provide the DNA sample. Administrative rules also
specify when and where people must provide DNA samples, although the rule
requirements are somewhat different than the statutory requirements for certain
categories. For example, under both the statute and the rule, a person sentenced to
prison must provide a DNA sample while in prison if directed to do so by the
Department of Corrections (DOC). If the person does not provide the DNA sample
while in prison, under the statute, the person must provide the sample at the sheriff's
office as soon as practicable after release, as directed by a supervising agent; and
under the rule, the person must provide the sample at the sheriff's office or as
directed by his or her supervising agent. Under the statutes, a person placed on
probation must provide the DNA sample at the office of a county sheriff as soon after
placement as practicable, as directed by his or her supervising agent. Under the rule,
a person placed on probation must provide the DNA sample at the office of a county
sheriff as soon after the placement as practicable, or as directed by his or her
supervising agent.
This bill specifies that a requirement to provide a DNA sample does not expire
when a person completes serving probation, a sentence, or a delinquency disposition
or is released from commitment. For example, if a person is required to provide a
DNA sample because he or she was in prison for a felony on or after January 1, 2000,
and the person does not provide the DNA sample before leaving prison, he or she is
still required to provide a DNA sample. In addition, the bill provides that regardless
of whether a person already provided a DNA sample, if DOJ does not have DNA
analysis results for the person, DOJ may require the person to provide another DNA
sample.
The bill establishes a process under which a district attorney may petition the
court to compel a person to provide a DNA sample if the person is required to provide
a DNA sample but refuses or fails to do so. Under the bill, if the district attorney
demonstrates reasonable cause to believe that a person is required to provide a DNA
sample and that DOJ does not have DNA analysis results from the person, the court
must order the person to appear for a hearing to show cause why he or she is not
required to provide a DNA sample or to provide a DNA sample before the hearing
date. If the person does not provide a DNA sample before the hearing and, at the
hearing, the person does not disprove the district attorney's claim that the person is
required to provide a DNA sample, the court must issue an order to facilitate
collection of a DNA sample from the person, which may include arrest or detention
of the person or use of reasonable force. Under the bill, the rules of evidence, other
than rules for admissibility and privileges, do not apply to proceedings on a petition
to compel a person to provide a DNA sample.
The bill provides that people who are required to provide a DNA sample must
provide it as follows:
1. A person sentenced to prison or a juvenile correctional facility must provide
the DNA sample while in prison or the facility, as directed by DOC; and if the person
does not provide the DNA sample while in prison or the facility, then as soon as
practicable after release at a sheriff's office, except if directed otherwise by the
person's supervising agent.
2. A person placed on probation by a court in this state must provide the DNA
sample as soon as practicable after placement at the sheriff's office, except if directed
otherwise by the person's supervising agent.
3. A person placed on parole or probation in this state from another state, if
directed by DOC to provide a DNA sample, must provide the DNA sample, as soon
as practicable after release at the office of the county sheriff, except if directed
otherwise by the person's supervising agent.
4. A juvenile placed on supervision shall provide the DNA sample as soon as
practicable after placement at the sheriff's office, except if directed otherwise by the
agency providing supervision.
5. A person sentenced to jail or a county house of corrections must provide the
DNA sample as directed by the sheriff as soon as practicable after sentencing; and
if the person does not provide the biological specimen while in jail or the house of
corrections, as soon as practicable after release at a sheriff's office.
6. A person committed to the Department of Health Services (DHS) must
provide the DNA sample as directed by DHS.
7. If none of the above applies, the person must provide the DNA sample as soon
as practicable after the obligation to provide a DNA sample arises at the sheriff's
office, except if directed otherwise by the agency providing supervision or having
custody of the person.
Finally, the bill provides that a person found not guilty by reason of mental
disease or defect, or in institutional care, on or after January 1, 2000, for a felony or
certain specified misdemeanors must provide a DNA sample. In addition a person
convicted, found not guilty by reason or mental disease or defect, or placed in
institutional care on or after January 1, 2000 for failure to provide a DNA sample
must provide a DNA sample as a result of the conviction, finding, or placement.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB631, s. 1
1Section
1. 165.76 (1) (intro.) of the statutes is amended to read:
SB631,3,52
165.76
(1) (intro.)
Except as provided in sub. (3), a A person shall
comply with
3the requirements under this section provide a biological specimen to the state crime
4laboratories for deoxyribonucleic acid analysis if he or she meets any of the following
5criteria:
SB631, s. 2
6Section
2. 165.76 (1) (a) of the statutes is amended to read:
SB631,4,5
1165.76
(1) (a) Is
or was in a juvenile correctional facility, as defined in s. 938.02
2(10p), or a secured residential care center for children and youth, as defined in s.
3938.02 (15g), or on probation, extended supervision, parole, supervision, or aftercare
4supervision on or after August 12, 1993, for any violation of s. 940.225 (1) or (2),
5948.02 (1) or (2), 948.025, or 948.085.
SB631, s. 3
6Section
3. 165.76 (1) (ag) of the statutes is amended to read:
SB631,4,87
165.76
(1) (ag) Is
or was in prison on or after August 12, 1993, and before
8January 1, 2000, for any violation of s. 940.225 (1) or (2), 948.02 (1) or (2)
, or 948.025.
SB631, s. 4
9Section
4. 165.76 (1) (ar) of the statutes is amended to read:
SB631,4,1110
165.76
(1) (ar) Is
or was in prison on or after January 1, 2000, for a felony
11committed in this state.
SB631, s. 5
12Section
5. 165.76 (1) (av) of the statutes is created to read:
SB631,4,1413
165.76
(1) (av) Is or was found guilty on or after January 1, 2000, of any felony
14or any violation of s. 165.765 (1), 940.225 (3m), 944.20, or 948.10.
SB631, s. 6
15Section
6. 165.76 (1) (b) of the statutes is amended to read:
SB631,4,1816
165.76
(1) (b)
Is Has been found not guilty or not responsible by reason of
17mental disease or defect on or after August 12, 1993, and committed under s. 51.20
18or 971.17 for any violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085.
SB631, s. 7
19Section
7. 165.76 (1) (br) of the statutes is created to read:
SB631,4,2220
165.76
(1) (br) Has been found not guilty or not responsible by reason of mental
21disease or defect on or after January 1, 2000, and committed under s. 51.20 or 971.17,
22for any felony or a violation of s. 165.765 (1), 940.225 (3m), 944.20, or 948.10.
SB631, s. 8
23Section
8. 165.76 (1) (c) of the statutes is amended to read:
SB631,4,2524
165.76
(1) (c) Is
or was in institutional care on or after August 12, 1993, for any
25violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085.
SB631, s. 9
1Section
9. 165.76 (1) (cr) of the statutes is created to read:
SB631,5,32
165.76
(1) (cr) Is or was in institutional care on or after January 1, 2000, for
3a felony or any violation of s. 165.765 (1), 940.225 (3m), 944.20, or 948.10.
SB631, s. 10
4Section
10. 165.76 (1) (d) of the statutes is amended to read:
SB631,5,65
165.76
(1) (d)
Is Has been found to be a sexually violent person under ch. 980
6on or after June 2, 1994.
SB631, s. 11
7Section
11. 165.76 (1) (e) of the statutes is amended to read:
SB631,5,138
165.76
(1) (e) Is
or was released on parole or extended supervision or placed on
9probation in another state before January 1, 2000, and is
or was on parole, extended
10supervision, or probation in this state from the other state under s. 304.13 (1m),
11304.135, or 304.16 on or after July 9, 1996, for a violation of the law of the other state
12that the department of corrections determines, under s. 304.137 (1), is comparable
13to a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085.
SB631, s. 12
14Section
12. 165.76 (1) (f) of the statutes is amended to read:
SB631,5,2015
165.76
(1) (f) Is
or was released on parole or extended supervision or placed on
16probation in another state on or after January 1, 2000, and is
or was on parole,
17extended supervision, or probation in this state from the other state under s. 304.13
18(1m), 304.135, or 304.16 for a violation of the law of the other state that the
19department of corrections determines, under s. 304.137 (2), would constitute a felony
20if committed by an adult in this state.
SB631, s. 13
21Section
13. 165.76 (1) (g) of the statutes is created to read:
SB631,5,2422
165.76
(1) (g) Has been required by a court under s. 51.20 (13) (cr), 938.34
23(15m), 971.17 (1m) (a), 973.047, or 980.063 to provide a biological specimen to the
24state crime laboratories for deoxyribonucleic acid analysis.
SB631, s. 14
25Section
14. 165.76 (1) (h) of the statutes is created to read:
SB631,6,3
1165.76
(1) (h) Is notified by the department of justice, the department of
2corrections, a district attorney, or a county sheriff under sub. (1m) that the person
3is required to provide a biological specimen.