STATE OF WISCONSINDepartment of Justice
STATEMENT OF SCOPE OF PROPOSED EMERGENCY RULES
Rule No.: The proposed emergency rules will amend Jus 9.01, 9.05, and 9.09; repeal and recreate Jus 9.04, 9.06, 9.07, and 9.08; and create Jus 9.03(2m), (5) and (6) and 9.10.
Relating to: Procedures and standards for the submission of human biological specimens, the analysis of DNA in those specimens, the maintenance of a data bank of DNA analysis data, and the use and disposition of specimens and data in the data bank.
1. Description of the objectives of the rules:
The State of Wisconsin Department of Justice (“DOJ”) proposes to promulgate emergency administrative rules relating to the collection of human biological specimens, the submission of such specimens to the Department of Justice crime laboratories for DNA analysis, the analysis of specimens, the maintenance of a data bank of DNA analysis data, the use of the DNA data bank, the expungement of biological specimens and DNA analysis data, the confidentiality of some DNA data bank records, and the imposition of a DNA analysis surcharge in certain cases
The proposed rules will bring Wis. Admin. Code ch. Jus 9 into compliance and consistency with the provisions in 2013 Wisconsin Act 20 (“Act 20”) and 2013 Wisconsin Act 214 (“Act 214”) that amended various statutes related to the collection and handling of biological samples, the conduct of DNA analysis, and the handling of DNA analysis data. The proposed emergency rules will correspond to and have the same scope as the proposed permanent rules that are in the process of being promulgated by DOJ. The scope of the proposed permanent rules was described in a scope statement that was approved by the Governor on July 28, 2014, published in the Administrative Register on August 15, 2014, and given final written approval by the Attorney General on August 25, 2014. The proposed permanent rules are being simultaneously submitted for the Governor’s approval under s. 227.185, Stats., on February 25, 2015. These emergency rules are necessary because s. 9426 of Act 20 established an effective date of April 1, 2015, for the new requirements related to DNA specimen collection created by that act. Those requirements include requirements that DOJ promulgate administrative rules for carrying out its duties under ss. 165.76 and 165.77, Stats. In order to comply with those rulemaking requirements, DOJ must have administrative rules in place for carrying out those statutory duties by the effective date of April 1, 2015. DOJ is in the process of promulgating permanent administrative rules for that purpose. On February 25, 2015, the final draft of the proposed permanent rules and accompanying reports are being simultaneously submitted for the governor’s review and approval, pursuant to Wis. Stat. § 227.185. The permanent rulemaking process, however, is not likely to be completed prior to the statutory deadline of April 1, 2015. The public welfare thus requires that emergency rules be promulgated, in order to ensure that there is no interruption in DOJ’s ability to carry out all of its statutory responsibilities related to the collection, analysis, and handling of DNA specimens for law enforcement purposes. The rules proposed here would prevent such a discontinuity and ensure timely, continuous, and uniform operation of the DNA program through the completion of the permanent rulemaking process that is under way.
The proposed emergency rules will cover the same subject areas covered by the proposed permanent rules. The rules proposed here will not themselves establish new policies, but rather will carry into effect the legislative directives set forth in Acts 20 and 214 by providing specific procedures, time limits, and standards for carrying out various statutorily prescribed policy objectives. The such subject areas that will be covered by the proposed emergency rules are:
Specifying to whom, by statute, the requirements of ch. Jus 9 apply.
Setting forth what persons are required to submit biological specimens.
Providing that a person required to supply a specimen shall do so upon the occurrence of the underlying event that triggers the requirement, without need for a court order.
Setting forth the locations and times at which different categories of persons shall provide required biological specimens.
Supplying procedures for the collection of human biological specimens by law enforcement agencies and for the timely submission of those specimens to the state crime laboratories.
Providing procedures for avoiding the collection of unnecessary duplicate specimens from the same person.
Requiring the collecting law enforcement agency to obtain a full set of fingerprints from the person whose biological specimen is being collected.
Requiring the state crime laboratories to analyze the DNA in biological specimens submitted by law enforcement agencies and to maintain the resulting DNA data in a data bank.
Authorizing the state crime laboratories to compare the DNA data from different biological specimens and to share DNA data and comparison data with the FBI and other law enforcement agencies, and providing that DNA data and comparison data may be used in criminal and delinquency actions and proceedings, subject to applicable statutory requirements.
Procedures and standards governing the expungement of DNA analysis data and the destruction of biological samples collected pursuant to these rules.
Providing for the confidentiality of all DNA analysis data, except for the uses specified in these rules and in s. 165.77, Stats.
Governing the administration of the DNA analysis surcharge as provided under s. 973.046, Stats.
Requiring the department of corrections, the department of health services, county departments of social or human services, law enforcement agencies, tribal law enforcement agencies, and county sheriffs to cooperate fully with DOJ in meeting the requirements of these rules.
Providing for reimbursing law enforcement and tribal law enforcement agencies for the collection and handling of biological specimens.2. Description of existing policies relevant to the rule and of new policies proposed to be included in the rule and an analysis of policy alternatives; the history, background and justification for the proposed rule:
In Act 20 and Act 214, the State of Wisconsin substantially revised existing statutes related to the requirement that certain persons submit biological specimens to the crime laboratories in DOJ for DNA analysis and that the resulting data be included in a DNA data bank. Acts 20 and 214 expanded the range of categories of persons who are required to submit DNA samples to law enforcement, required courts to order the submission of DNA samples by persons from whom samples were not obtained at the time of arrest or custody, expanded the categories of persons immune from civil or criminal liability arising out of the statutorily-mandated acquisition of DNA samples, authorized certain officials to use reasonable force in obtaining a DNA sample in some circumstances, and expanded the circumstances in which specimens and information in the data bank may or must be expunged.
Acts 20 and 214 also revised the administrative rulemaking requirements imposed on DOJ under s. 165.76(4), Stats. As revised, the statute requires DOJ to promulgate rules that accomplish a variety of enumerated tasks and that carry out all of DOJ’s other duties under s. 165.76, Stats. Acts 20 and 214 also revised some of the statutory requirements related to DNA analysis and the maintenance of the DNA data bank in s. 165.77, Stats. Under s. 165.77(8), Stats., DOJ is required to promulgate rules to administer that statute, including its revised provisions. The rules proposed here will not themselves establish new policies, but rather will carry into effect the legislative directives set forth in Acts 20 and 214 by providing specific procedures, time limits, and standards for carrying out various statutorily prescribed policy objectives.
3. Statutory authority for the rule (including the statutory citation and language):
