SB214: Bill Text

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2011 - 2012 LEGISLATURE

2011 Senate BILL 214

October 5, 2011 - Introduced by Senators Harsdorf, Olsen and Schultz, cosponsored by Representatives Vos, Kerkman, Ballweg, Kaufert, Nerison, Brooks, Endsley, Marklein and A. Ott. Referred to Committee on Judiciary, Utilities, Commerce, and Government Operations.

SB214,1,11 An Act to repeal 165.76 (2m), 165.76 (3) and 165.77 (4) (a) and (b); to renumber and amend 165.765 (1), 165.765 (2) (a) and (b) and 165.77 (4) (intro.); to amend 51.20 (13) (cr), 165.76 (1) (av), 165.76 (1) (br), 165.76 (1) (cr), 165.76 (1) (g), 165.76 (1m), 165.76 (2r), 165.76 (4), 165.765 (title), 165.77 (2) (b), 165.77 (2m) (c), 165.77 (3), 938.34 (15) (b), 971.17 (1m) (a), 973.047 (1f), 973.047 (2) and 980.063 (2); and to create 165.77 (4) (am) 1., 2. and 3., 165.84 (7) and 970.02 (8) of the statutes; relating to: requiring a person arrested for or charged with certain offenses, or a juvenile taken into custody for certain offenses, to provide a biological specimen for deoxyribonucleic acid analysis; inclusion of the analysis results in the deoxyribonucleic acid data bank; requiring the exercise of rule-making authority; and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, certain persons are required to submit biological specimens to the crime laboratories for deoxyribonucleic acid (DNA) analysis. These persons include: a juvenile who has been adjudicated delinquent for certain offenses; a person who is or was in prison for a felony or found guilty of a felony; a person who was found guilty of fourth-degree sexual assault, lewd and lascivious behavior, or exposing genitals to a child for sexual gratification; a person who has been found not guilty by reason of mental disease or defect for certain sexual assaults; a person who has been found to be a sexually violent person; and a person who is required by a court to provide a biological specimen.

This bill requires law enforcement agencies to collect a biological specimen for DNA analysis from every adult who is arrested for a felony or for fourth-degree sexual assault, lewd and lascivious behavior, failure to submit a required biological specimen, or exposing genitals to a child for sexual gratification and from each juvenile taken into custody for certain sexual assault offenses. The bill requires the law enforcement agency to submit the specimen to the crime laboratories for DNA analysis and inclusion of the adult's or minor's DNA profile in the data bank. The bill provides that the crime laboratories must, at the person's request, expunge information about a person who was required to submit a biological specimen in connection only with an arrest if the person is not charged with a crime within one year of the arrest or, if the person is a juvenile, a delinquency petition is not filed; criminal charges are dismissed; or the person is found not guilty of the crime.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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:

SB214, s. 1 Section 1. 51.20 (13) (cr) of the statutes is amended to read:

SB214,2,8 51.20 (13) (cr) If the subject individual is before the court on a petition filed under a court order under s. 938.30 (5) (c) 1. and is found to have committed a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085, the court shall require the individual to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis. Biological specimens required under this paragraph shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

SB214, s. 2 Section 2. 165.76 (1) (av) of the statutes is amended to read:

SB214,3,3 165.76 (1) (av) Is or was found guilty on or after January 1, 2000, of any felony or any violation of s. 165.765 (1), 2009 stats., or of s. 940.225 (3m), 944.20, 946.52, or 948.10 (1) (b).

SB214, s. 3 Section 3. 165.76 (1) (br) of the statutes is amended to read:

SB214,3,8 165.76 (1) (br) Has been found not guilty or not responsible by reason of mental disease or defect on or after January 1, 2000, and committed under s. 51.20 or 971.17, for any felony or a violation of s. 165.765 (1), 2009 stats., or of s. 940.225 (3m), 944.20, 946.52, or 948.10 (1) (b).

SB214, s. 4 Section 4. 165.76 (1) (cr) of the statutes is amended to read:

SB214,3,12 165.76 (1) (cr) Is or was in institutional care on or after January 1, 2000, for a felony or any violation of s. 165.765 (1), 2009 stats., or of s. 940.225 (3m), 944.20, 946.52, or 948.10 (1) (b).

SB214, s. 5 Section 5. 165.76 (1) (g) of the statutes is amended to read:

SB214,3,16 165.76 (1) (g) Has been required by a court under s. 51.20 (13) (cr), 165.84 (7), 938.34 (15m) (15), 970.02 (8), 971.17 (1m) (a), 973.047, or 980.063 to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.

SB214, s. 6 Section 6. 165.76 (1m) of the statutes is amended to read:

SB214,4,2 165.76 (1m) If a person is required to provide a biological specimen under sub. (1) (a) to (g) and the department of justice does not have the data obtained from analysis of a biological specimen from the person that the department is required to maintain in the data bank under s. 165.77 (3), the department may require the person to provide a biological specimen, regardless of whether the person previously provided a biological specimen under this section or s. 51.20 (13) (cr), 165.84 (7), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 973.047, or 980.63 980.063. The department of justice, the department of corrections, a district attorney, or a county sheriff, shall notify any person whom the department of justice requires to provide a biological specimen under this subsection.

SB214, s. 7 Section 7. 165.76 (2m) of the statutes is repealed.

SB214, s. 8 Section 8. 165.76 (2r) of the statutes is amended to read:

SB214,4,9 165.76 (2r) Failure by a person who is required to provide a biological specimen under sub. (1) to provide the biological specimen at the time and place provided under sub. (2m) in accordance with the rules promulgated under sub. (4) does not relieve the person of the obligation to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.

SB214, s. 9 Section 9. 165.76 (3) of the statutes is repealed.

SB214, s. 10 Section 10. 165.76 (4) of the statutes is amended to read:

SB214,4,22 165.76 (4) The department of justice may shall promulgate rules to implement establishing procedures and time limits for obtaining and submitting biological specimens under this section and ss. 51.20 (13) (cr), 165.84 (7), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 973.047, and 980.063, and for carrying out the department's duties under this section. The rules shall specify whether a person who is required under this section or s. 51.20 (13) (cr), 165.84 (7), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 973.047, or 980.063 to provide a biological specimen for deoxyribonucleic acid analysis must provide a new biological specimen if the crime laboratories already have a biological specimen from the person or if data obtained from deoxyribonucleic acid analysis of the person's biological specimen are already included in the data bank under s. 165.77 (3).

SB214, s. 11 Section 11. 165.765 (title) of the statutes is amended to read:

SB214,4,24 165.765 (title) Biological specimen; penalty and immunity.

SB214, s. 12 Section 12. 165.765 (1) of the statutes is renumbered 946.52 and amended to read:

SB214,5,6 946.52 Failure to submit biological specimen. Whoever intentionally fails to comply with a requirement to submit a biological specimen under s. 165.76, 165.84 (7), 938.34 (15), 970.02 (8), 973.047, or 980.063 may be fined not more than $10,000 or imprisoned for not more than 9 months or both is guilty of a Class A misdemeanor.

SB214, s. 13 Section 13. 165.765 (2) (a) and (b) of the statutes are renumbered 165.765 (1m) and (2m) and amended to read:

SB214,5,13 165.765 (1m) Any physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician who obtains a biological specimen under s. 165.76, 165.84 (7), 938.34 (15), 970.02 (8), 973.047, or 980.063 is immune from any civil or criminal liability for the act, except for civil liability for negligence in the performance of the act.

SB214,5,17 (2m) Any employer of the physician, nurse, technologist, assistant, or person under par. (a) sub. (1m) or any hospital where blood is withdrawn by that physician, nurse, technologist, assistant, or person has the same immunity from liability under par. (a) sub. (1m).

SB214, s. 14 Section 14. 165.77 (2) (b) of the statutes is amended to read:

SB214,5,21 165.77 (2) (b) Paragraph (a) does not apply to specimens received under s. 51.20 (13) (cr), 165.76, 165.84 (7), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 973.047, or 980.063.

SB214, s. 15 Section 15. 165.77 (2m) (c) of the statutes is amended to read:

SB214,5,25 165.77 (2m) (c) Paragraph (b) does not apply to specimens received under s. 51.20 (13) (cr), 165.76, 165.84 (7), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 973.047, or 980.063.

SB214, s. 16 Section 16. 165.77 (3) of the statutes is amended to read:

SB214,6,13 165.77 (3) If the laboratories receive a human biological specimen under s. 51.20 (13) (cr), 165.76, 165.84 (7), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 973.047, or 980.063, the laboratories shall analyze the deoxyribonucleic acid in the specimen. The laboratories shall maintain a data bank based on data obtained from deoxyribonucleic acid analysis of those specimens. The laboratories may compare the data obtained from one specimen with the 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 destroy specimens obtained under this subsection after analysis has been completed and the applicable court proceedings have concluded.

SB214, s. 17 Section 17. 165.77 (4) (intro.) of the statutes is renumbered 165.77 (4) (am) (intro.) and amended to read:

SB214,6,19 165.77 (4) (am) (intro.) A person whose deoxyribonucleic acid analysis data has have 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 all of the following conditions are satisfied:

SB214,6,24 (bm) If 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 if it receives all of the following: upon receiving the person's written request for expungement and any documentation required by the department of justice under rules promulgated under sub. (8).

SB214, s. 18 Section 18. 165.77 (4) (a) and (b) of the statutes are repealed.

SB214, s. 19 Section 19. 165.77 (4) (am) 1., 2. and 3. of the statutes are created to read:

SB214,7,4 165.77 (4) (am) 1. All convictions 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.

SB214,7,6 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:

SB214,7,9 a. All charges filed in connection with the arrest and all charges for which the person was required to provide a biological specimen under s. 970.02 (8) have been dismissed.

SB214,7,14 b. The trial court reached final disposition for all charges in connection with the arrest and for any charges for which the person was required to provide a biological specimen under s. 970.02 (8), and the person was not adjudged guilty of a crime in connection with the arrest or any charge for which the person was required to provide a biological specimen under s. 970.02 (8).

SB214,7,17 c. At least one year has passed since the arrest and the person has not been charged with a crime in connection with the arrest, and the person was not required to provide a biological specimen under s. 970.02 (8).

SB214,7,20 d. The person was adjudged guilty of a crime in connection with the arrest or any charge for which the person was required to provide a biological specimen under s. 970.02 (8), and all such convictions have been reversed, set aside, or vacated.

SB214,7,23 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, one of the following applies:

SB214,8,3 a. All criminal complaints or delinquency petitions alleging that the person violated s. 940.225, 946.52, 948.02 (1) or (2), 948.025, or 948.085 (2) in connection with the taking into custody have been dismissed.

SB214,8,8 b. The trial court reached final disposition for all allegations of a violation of s. 940.225, 946.52, 948.02 (1) or (2), 948.025, or 948.085 (2) in connection with the taking into custody and the person was not convicted or adjudged delinquent for a violation of s. 940.225, 946.52, 948.02 (1) or (2), 948.025, or 948.085 (2) in connection with the taking into custody.

SB214,8,12 c. At least one year has passed since the person was taken into custody and no criminal complaint or delinquency petition alleging a violation of s. 940.225, 946.52, 948.02 (1) or (2), 948.025, or 948.085 (2) has been filed against the person in connection with the taking into custody.

SB214,8,16 d. The person was convicted or adjudged delinquent for a violation of s. 940.225, 946.52, 948.02 (1) or (2), 948.025, or 948.085 (2) in connection with the taking into custody and the conviction or delinquency adjudication has been reversed, set aside, or vacated.

SB214, s. 20 Section 20. 165.84 (7) of the statutes is created to read:

SB214,9,2 165.84 (7) (a) Subject to rules promulgated under s. 165.76 (4), all persons in charge of law enforcement and tribal law enforcement agencies shall obtain a biological specimen for deoxyribonucleic acid analysis from each adult arrested for a felony or for an offense under s. 940.225 (3m), 944.20, 946.52, or 948.10 (1) (b) and each minor taken into custody for an offense under 940.225, 946.52, 948.02 (1) or (2), 948.025, or 948.085 (2). The person in charge of the law enforcement or tribal law enforcement agency shall submit the specimen to the crime laboratories for deoxyribonucleic acid analysis and inclusion of the adult or minor's deoxyribonucleic acid profile in the data bank under s. 165.77 (3).

SB214,9,4 (b) Biological samples required under par. (a) shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

SB214,9,6 (c) Biological specimens obtained under this section may be used only as provided under s. 165.77.

SB214, s. 21 Section 21. 938.34 (15) (b) of the statutes is amended to read:

SB214,9,12 938.34 (15) (b) The department of justice shall promulgate rules providing procedures for juveniles to provide specimens Biological samples required under par. (a) and for the transportation of the specimens to the state crime laboratories under s. 165.77 shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

SB214, s. 22 Section 22. 970.02 (8) of the statutes is created to read:

SB214,9,19 970.02 (8) If the offense charged is a felony or an offense under s. 940.225 (3m), 944.20, 946.52, or 948.10 (1) (b), the judge shall determine if a biological specimen has been obtained from the defendant under s. 165.84 (7), and, if not, the judge shall direct that a law enforcement agency or tribal law enforcement agency obtain a biological specimen from the defendant and submit it to the state crime laboratories as specified in rules promulgated by the department of justice under s. 165.76 (4).

SB214, s. 23 Section 23. 971.17 (1m) (a) of the statutes is amended to read:

SB214,9,25 971.17 (1m) (a) If the defendant under sub. (1) is found not guilty by reason of mental disease or defect for a felony or a violation of s. 165.765 (1), 2009 stats., or of s. 940.225 (3m), 944.20, 946.52, or 948.10 (1) (b), the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis. Biological specimens required under this paragraph shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

SB214, s. 24 Section 24. 973.047 (1f) of the statutes is amended to read:

SB214,10,8 973.047 (1f) If a court imposes a sentence or places a person on probation for a felony conviction or for a conviction for a violation of s. 165.765 (1), 2009 stats., or of s. 940.225 (3m), 944.20, or 948.10 (1) (b), the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.

SB214, s. 25 Section 25. 973.047 (2) of the statutes is amended to read:

SB214,10,15 973.047 (2) The department of justice shall promulgate rules providing for procedures for defendants to provide specimens when Biological samples required to do so under this section and for the transportation of those specimens to the state crime laboratories for analysis under s. 165.77 sub. (1f) shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

SB214, s. 26 Section 26. 980.063 (2) of the statutes is amended to read:

SB214,10,21 980.063 (2) The department of justice shall promulgate rules providing for procedures for defendants to provide specimens Biological samples required under sub. (1) and for the transportation of those specimens to the state crime laboratories for analysis under s. 165.77 (a) shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

SB214, s. 27 Section 27 . Nonstatutory provisions.

SB214,10,24 (1) Early submission of biological specimens for persons arrested or taken into custody.

SB214,11,7 (a) Beginning on the effective date of this paragraph, a law enforcement agency or a tribal law enforcement agency may obtain a biological specimen from an adult arrested for a felony or for a violation of section 165.765 (1), 940.225 (3m), 944.20, or 948.10 (1) (b) of the statutes or from a minor taken into custody for an offense under section 165.765 (1), 940.225, 948.02 (1) or (2), 948.025, or 948.085 (2) of the statutes, and submit the specimen to the state crime laboratories for deoxyribonucleic acid analysis.

SB214,11,12 (b) If a law enforcement or tribal law enforcement agency submits a biological specimen to the state crime laboratories under paragraph (a), the crime laboratories shall analyze the deoxyribonucleic acid in the biological specimen and include the deoxyribonucleic acid profile from the biological specimen in the data bank under section 165.77 (3) of the statutes.

SB214,11,13 (c) Paragraph (a) does not apply after the effective date of this paragraph.

SB214, s. 28 Section 28. Initial applicability.