CORRECTED COPY
LRB-0430/1
CMH:kjf:ph
2011 - 2012 LEGISLATURE
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
1An Act to repeal 165.76 (2m), 165.76 (3) and 165.77 (4) (a) and (b);
to renumber
2and amend 165.765 (1), 165.765 (2) (a) and (b) and 165.77 (4) (intro.);
to
3amend 51.20 (13) (cr), 165.76 (1) (av), 165.76 (1) (br), 165.76 (1) (cr), 165.76 (1)
4(g), 165.76 (1m), 165.76 (2r), 165.76 (4), 165.765 (title), 165.77 (2) (b), 165.77
5(2m) (c), 165.77 (3), 938.34 (15) (b), 971.17 (1m) (a), 973.047 (1f), 973.047 (2) and
6980.063 (2); and
to create 165.77 (4) (am) 1., 2. and 3., 165.84 (7) and 970.02
7(8) of the statutes;
relating to: requiring a person arrested for or charged with
8certain offenses, or a juvenile taken into custody for certain offenses, to provide
9a biological specimen for deoxyribonucleic acid analysis; inclusion of the
10analysis results in the deoxyribonucleic acid data bank; requiring the exercise
11of 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
1Section
1. 51.20 (13) (cr) of the statutes is amended to read:
SB214,2,82
51.20
(13) (cr) If the subject individual is before the court on a petition filed
3under a court order under s. 938.30 (5) (c) 1. and is found to have committed a
4violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085, the court shall
5require the individual to provide a biological specimen to the state crime laboratories
6for deoxyribonucleic acid analysis.
Biological specimens required under this
7paragraph shall be obtained and submitted as specified in rules promulgated by the
8department of justice under s. 165.76 (4).
SB214, s. 2
9Section
2. 165.76 (1) (av) of the statutes is amended to read:
SB214,3,3
1165.76
(1) (av) Is or was found guilty on or after January 1, 2000, of any felony
2or any violation of s. 165.765 (1),
2009 stats., or of s. 940.225 (3m), 944.20,
946.52, 3or 948.10
(1) (b).
SB214, s. 3
4Section
3. 165.76 (1) (br) of the statutes is amended to read:
SB214,3,85
165.76
(1) (br) Has been found not guilty or not responsible by reason of mental
6disease or defect on or after January 1, 2000, and committed under s. 51.20 or 971.17,
7for any felony or a violation of s. 165.765 (1),
2009 stats., or of s. 940.225 (3m), 944.20,
8946.52, or 948.10
(1) (b).
SB214, s. 4
9Section
4. 165.76 (1) (cr) of the statutes is amended to read:
SB214,3,1210
165.76
(1) (cr) Is or was in institutional care on or after January 1, 2000, for
11a felony or any violation of s. 165.765 (1),
2009 stats., or of s. 940.225 (3m), 944.20,
12946.52, or 948.10
(1) (b).
SB214, s. 5
13Section
5. 165.76 (1) (g) of the statutes is amended to read:
SB214,3,1614
165.76
(1) (g) Has been required by a court under s. 51.20 (13) (cr),
165.84 (7), 15938.34
(15m) (15), 970.02 (8), 971.17 (1m) (a), 973.047, or 980.063 to provide a
16biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
SB214, s. 6
17Section
6. 165.76 (1m) of the statutes is amended to read:
SB214,4,218
165.76
(1m) If a person is required to provide a biological specimen under sub.
19(1) (a) to (g) and the department of justice does not have the data obtained from
20analysis of a biological specimen from the person that the department is required to
21maintain in the data bank under s. 165.77 (3), the department may require the
22person to provide a biological specimen, regardless of whether the person previously
23provided a biological specimen under this section or s. 51.20 (13) (cr),
165.84 (7), 24938.34 (15),
970.02 (8), 971.17 (1m) (a), 973.047, or
980.63 980.063. The department
25of justice, the department of corrections, a district attorney, or a county sheriff, shall
1notify any person whom the department of justice requires to provide a biological
2specimen under this subsection.
SB214, s. 7
3Section
7. 165.76 (2m) of the statutes is repealed.
SB214, s. 8
4Section
8. 165.76 (2r) of the statutes is amended to read:
SB214,4,95
165.76
(2r) Failure by a person who is required to provide a biological specimen
6under sub. (1) to provide the biological specimen
at the time and place provided under
7sub. (2m) in accordance with the rules promulgated under sub. (4) does not relieve
8the person of the obligation to provide a biological specimen to the state crime
9laboratories for deoxyribonucleic acid analysis.
SB214, s. 9
10Section
9. 165.76 (3) of the statutes is repealed.
SB214, s. 10
11Section
10. 165.76 (4) of the statutes is amended to read:
SB214,4,2212
165.76
(4) The department of justice
may shall promulgate rules
to implement 13establishing procedures and time limits for obtaining and submitting biological
14specimens under this section and ss. 51.20 (13) (cr), 165.84 (7), 938.34 (15), 970.02
15(8), 971.17 (1m) (a), 973.047, and 980.063, and for carrying out the department's
16duties under this section.
The rules shall specify whether a person who is required
17under this section or s. 51.20 (13) (cr), 165.84 (7), 938.34 (15), 970.02 (8), 971.17 (1m)
18(a), 973.047, or 980.063 to provide a biological specimen for deoxyribonucleic acid
19analysis must provide a new biological specimen if the crime laboratories already
20have a biological specimen from the person or if data obtained from deoxyribonucleic
21acid analysis of the person's biological specimen are already included in the data
22bank under s. 165.77 (3).
SB214, s. 11
23Section
11. 165.765 (title) of the statutes is amended to read:
SB214,4,24
24165.765 (title)
Biological specimen; penalty and immunity.
SB214, s. 12
1Section
12. 165.765 (1) of the statutes is renumbered 946.52 and amended to
2read:
SB214,5,6
3946.52 Failure to submit biological specimen. Whoever intentionally fails
4to comply with a requirement to submit a biological specimen under s. 165.76,
165.84
5(7), 938.34 (15),
970.02 (8), 973.047
, or 980.063
may be fined not more than $10,000
6or imprisoned for not more than 9 months or both is guilty of a Class A misdemeanor.
SB214, s. 13
7Section
13. 165.765 (2) (a) and (b) of the statutes are renumbered 165.765 (1m)
8and (2m) and amended to read:
SB214,5,139
165.765
(1m) Any physician, registered nurse, medical technologist, physician
10assistant or person acting under the direction of a physician who obtains a biological
11specimen under s. 165.76,
165.84 (7), 938.34 (15),
970.02 (8), 973.047
, or 980.063 is
12immune from any civil or criminal liability for the act, except for civil liability for
13negligence in the performance of the act.
SB214,5,17
14(2m) Any employer of the physician, nurse, technologist, assistant
, or person
15under
par. (a) sub. (1m) or any hospital where blood is withdrawn by that physician,
16nurse, technologist, assistant
, or person has the same immunity from liability under
17par. (a) sub. (1m).
SB214, s. 14
18Section
14. 165.77 (2) (b) of the statutes is amended to read:
SB214,5,2119
165.77
(2) (b) Paragraph (a) does not apply to specimens received under s. 51.20
20(13) (cr), 165.76,
165.84 (7), 938.34 (15),
970.02 (8), 971.17 (1m) (a), 973.047
, or
21980.063.
SB214, s. 15
22Section
15. 165.77 (2m) (c) of the statutes is amended to read:
SB214,5,2523
165.77
(2m) (c) Paragraph (b) does not apply to specimens received under s.
2451.20 (13) (cr), 165.76,
165.84 (7), 938.34 (15),
970.02 (8), 971.17 (1m) (a), 973.047,
25or 980.063.
SB214, s. 16
1Section
16. 165.77 (3) of the statutes is amended to read:
SB214,6,132
165.77
(3) If the laboratories receive a human biological specimen under s.
351.20 (13) (cr), 165.76,
165.84 (7), 938.34 (15),
970.02 (8), 971.17 (1m) (a), 973.047
, 4or 980.063, the laboratories shall analyze the deoxyribonucleic acid in the specimen.
5The laboratories shall maintain a data bank based on data obtained from
6deoxyribonucleic acid analysis of those specimens. The laboratories may compare
7the data obtained from one specimen with the data obtained from other specimens.
8The laboratories may make data obtained from any analysis and comparison
9available to law enforcement agencies in connection with criminal or delinquency
10investigations and, upon request, to any prosecutor, defense attorney or subject of
11the data. The data may be used in criminal and delinquency actions and proceedings.
12The laboratories shall destroy specimens obtained under this subsection after
13analysis has been completed and the applicable court proceedings have concluded.
SB214, s. 17
14Section
17. 165.77 (4) (intro.) of the statutes is renumbered 165.77 (4) (am)
15(intro.) and amended to read:
SB214,6,1916
165.77
(4) (am) (intro.) A person whose deoxyribonucleic acid analysis data
has 17have been included in the data bank under sub. (3) may request expungement on the
18grounds that
his or her conviction or adjudication has been reversed, set aside or
19vacated. The all of the following conditions are satisfied:
SB214,6,24
20(bm) If the conditions under par. (am) are satisfied, the laboratories shall purge
21all records and identifiable information in the data bank pertaining to the person and
22destroy all samples from the person
if it receives all of the following: upon receiving
23the person's written request for expungement and any documentation required by
24the department of justice under rules promulgated under sub. (8).
SB214, s. 18
25Section
18. 165.77 (4) (a) and (b) of the statutes are repealed.
SB214, s. 19
1Section
19. 165.77 (4) (am) 1., 2. and 3. of the statutes are created to read:
SB214,7,42
165.77
(4) (am) 1. All convictions or adjudications for which the person was
3required to submit a biological specimen under s. 51.20 (13) (cr), 165.76, 938.34 (15),
4971.17 (1m) (a), 973.047, or 980.063 have been reversed, set aside, or vacated.
SB214,7,65
2. If the person was required to provide a biological specimen under s. 165.84
6(7) in connection with an arrest or under s. 970.02 (8), one of the following applies:
SB214,7,97
a. All charges filed in connection with the arrest and all charges for which the
8person was required to provide a biological specimen under s. 970.02 (8) have been
9dismissed.
SB214,7,1410
b. The trial court reached final disposition for all charges in connection with
11the arrest and for any charges for which the person was required to provide a
12biological specimen under s. 970.02 (8), and the person was not adjudged guilty of a
13crime in connection with the arrest or any charge for which the person was required
14to provide a biological specimen under s. 970.02 (8).
SB214,7,1715
c. At least one year has passed since the arrest and the person has not been
16charged with a crime in connection with the arrest, and the person was not required
17to provide a biological specimen under s. 970.02 (8).
SB214,7,2018
d. The person was adjudged guilty of a crime in connection with the arrest or
19any charge for which the person was required to provide a biological specimen under
20s. 970.02 (8), and all such convictions have been reversed, set aside, or vacated.
SB214,7,2321
3. If the person was required to provide a biological specimen under s. 165.84
22(7) in connection with being taken into custody under s. 938.19, one of the following
23applies:
SB214,8,3
1a. All criminal complaints or delinquency petitions alleging that the person
2violated s. 940.225, 946.52, 948.02 (1) or (2), 948.025, or 948.085 (2) in connection
3with the taking into custody have been dismissed.
SB214,8,84
b. The trial court reached final disposition for all allegations of a violation of
5s. 940.225, 946.52, 948.02 (1) or (2), 948.025, or 948.085 (2) in connection with the
6taking into custody and the person was not convicted or adjudged delinquent for a
7violation of s. 940.225, 946.52, 948.02 (1) or (2), 948.025, or 948.085 (2) in connection
8with the taking into custody.
SB214,8,129
c. At least one year has passed since the person was taken into custody and no
10criminal complaint or delinquency petition alleging a violation of s. 940.225, 946.52,
11948.02 (1) or (2), 948.025, or 948.085 (2) has been filed against the person in
12connection with the taking into custody.