3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
This statute expressly confers on DOJ the general power to determine whether administrative rules interpreting statutory provisions that are to be enforced or administered by DOJ are necessary to effectuate the purpose of those statutory provisions and, if such necessity is found, to promulgate such administrative rules, as long as those rules do not exceed the bounds of correct interpretation of the governing statutes.
DOJ finds that the rules here proposed are necessary to effectuate the statutory objective described in detail above.
DOJ further finds that the rules here proposed:
do not exceed the bounds of correct interpretation of the pertinent statutes;
are authorized by those statutes and are not based on authority derived from any other statutory or non-statutory statements or declarations of legislative intent, purpose, findings, or policy;
are authorized as necessary interpretations of specific statutory requirements and are not based on authority derived from any other general powers or duties of DOJ; and
do not impose any standards or requirements that are more restrictive than the standards and requirements contained in the pertinent statutes. For these reasons, those portions of the proposed rules that are not specifically authorized ss. 165.76(4) and 165.77(8), Stats., are authorized by s. 227.11(2)(a), Stats. Related statutes or rules: Prior to the enactment of Acts 20 and 214, ss. 165.76, 165.77, and 165.84, Stats., and Wis. Admin. Code ch. Jus 9 already governed matters related to the collection, handling, and analysis of human biological specimens for law enforcement purposes. The proposed rules will bring Wis. Admin. Code ch. Jus 9 into compliance and consistency with the revisions to ss. 165.76, 165.77, and 165.84, Stats., made by Acts 20 and 214. Plain language analysis: In Acts 20 and 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.
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.
Section by section analysis:
Proposed s. Jus 9.02 specifies to whom, by statute, the requirements of ch. Jus 9 apply. Proposed s. Jus 9.03(2m) incorporates into the rules the definition of “juvenile” used in Wisconsin’s Juvenile Justice Code, ch. 938, Stats. Proposed s. Jus. 9.03(5) incorporates into the rules the definition of “tribal law enforcement agency” used for purposes of criminal identification, records, and statistics in s. 165.83(1)(e), Stats.
Proposed s. Jus 9.03(6) incorporates into the rules the definition of “violent crime” created by Act 214 and codified at s. 165.84(7)(ab), Stats. Proposed s. Jus 9.04(1)(a) sets forth what persons are required to submit biological specimens. Proposed s. Jus 9.04(1)(b) provides that a person required to provide a specimen shall do so upon the occurrence of the underlying event that triggers the requirement, without need for a court order. Proposed s. Jus 9.04(2) sets forth the locations and times at which different categories of persons shall provide required biological specimens. Proposed s. Jus 9.04(3) supplies procedures for the collection of human biological specimens by law enforcement agencies and for the submission of those specimens to the state crime laboratories. Proposed s. Jus 9.04(3)(a) indicates who may perform the collection of biological specimens and prescribes that specimens shall be collected by the oral swab method. Proposed s. Jus 9.04(3)(b) provides that the collection of a human biological specimen may include the collection of any source of DNA approved by the state crime laboratories. Proposed s. Jus 9.04(3)(c)1. and 2. provides a method for avoiding the collection of unnecessary duplicate specimens from the same person. Before a specimen is collected, the person’s criminal history must be checked to determine if conviction DNA data for the person is already on file. If such data is on file, no additional specimen shall be collected. If the specimen is being collected at a time other than the time of arrest, then the collecting law enforcement agency must also determine whether a biological specimen for the person was already collected at the time of arrest. If so, no additional specimen shall be collected. Proposed s. Jus 9.04(c)3. requires the collecting law enforcement agency to complete a submission form that indicates the reason for the submission of each biological specimen submitted to the state crime laboratories. The form shall be prescribed and provided by the state crime laboratories. Proposed s. Jus 9.04(c)5. requires the collecting law enforcement agency to obtain a full set of fingerprints from the person whose biological specimen is being collected. Proposed s. Jus 9.04(d) requires the collecting agency to submit each specimen and the fingerprints of the person to a state crime laboratory within 24 hours of collection and further provides that procedures for making such submissions shall be supplied by the state crime laboratories. Proposed s. Jus 9.05 governs the use of human biological specimens by the state crime laboratories for the creation and maintenance of a DNA data bank. If a law enforcement agency submits to the crime laboratories a biological specimen obtained from a person at any time other than when the person is arrested for a violent crime or taken into custody for a juvenile offense that would be a violent crime, the crime laboratories shall analyze the DNA in the biological specimen and maintain the resulting DNA data in a data bank. If a biological specimen is submitted to the crime laboratories when a person is arrested for a violent crime or taken into custody for a juvenile offense that would be a violent crime, the crime laboratories shall analyze the DNA in the specimen and maintain the resulting DNA data in a data bank only if the crime laboratories receive statutorily required notice from a court within one year of the date on which the biological specimen was submitted. If the statutorily required notice from a court is not received within the one year period, the crime laboratories shall destroy the biological specimen. Proposed s. Jus 9.06(1) authorizes the state crime laboratories to compare the DNA data from different biological specimens and to share DNA data and comparison data with law enforcement agencies or with the FBI’s combined DNA identification system. Such sharing of data may take place in connection with criminal or delinquency investigations or upon the request of any prosecutor, any defense attorney, or the subject of the data. This subsection further provides that DNA data and comparison data may be used in criminal and delinquency actions and proceedings, subject to applicable statutory requirements. Proposed s. Jus 9.06(2) governs the expungement of DNA analysis data and the destruction of biological samples collected pursuant to these rules. Proposed s. Jus 9.06(2)(a)1. provides that a person who has been required to submit a biological specimen pursuant to specified statutory provisions based on a criminal conviction, adjudication of delinquency, or certain court findings may request expungement of his or her DNA analysis data if the relevant convictions, adjudications or findings have been reversed, set aside, or vacated. Proposed s. Jus 9.06(2)(a)2. and 3. provide that a person who has been required to submit a biological specimen at the time of arrest or initial appearance before a judge for a violent crime or at the time of being taken into juvenile custody for conduct which would be a violent crime if committed by an adult may request expungement of his or her DNA analysis data if all relevant charges against the person have been dismissed, if a trial court has reached a final disposition for all such charges and the person has not been adjudged guilty of a violent crime or equivalent juvenile conduct, if the person has not been charged with a violent crime or equivalent juvenile conduct within one year of the arrest or juvenile custody in question, or if all of the person’s pertinent convictions or delinquency adjudications for violent crimes or equivalent juvenile conduct have been reversed, set aside, or vacated. Proposed s. Jus 9.06(2)(b) provides that all expungement requests must be made in writing on a form provided by the state crime laboratories and, if the expungement request is based on a court order reversing, setting aside, or vacating a criminal conviction, adjudication of delinquency, or other specified court findings, then the request must be accompanied by a certified copy of that court order. Proposed s. Jus 9.06(2)(c) requires the state crime laboratories, upon receipt of a proper and complete expungement request, to destroy all human biological specimens from the person making the request and to purge from the databank all records and identifiable information related to the person that are required to be expunged under s. 165.77(4)(bm), Stats. Proposed s. Jus 9.06(2)(d) requires the state crime laboratories to destroy a biological specimen obtained on the basis of a person’s being arrested for a violent crime or taken into juvenile custody for equivalent juvenile conduct if, within one year after the sample is submitted, the pertinent court has not notified the state crime laboratories that the person was arrested or taken into custody under a warrant, that the court has found probable cause that the individual committed a violent crime or equivalent juvenile conduct, that the person failed to appear at his or her initial appearance or preliminary examination or waived the preliminary examination, or that the person failed to appear for a delinquency proceeding. Proposed s. Jus 9.06(2)(e) provides that a fingerprint expungement request made by a person who has been required to provide a biological specimen at the time the person was arrested or taken into juvenile custody for a violent crime, will be granted only under the same conditions that apply to a request for expungement of the person’s biological specimen. This prevents a person’s fingerprints from being expunged prior to the time when the person’s biological specimen could be expunged—which, if not prevented, would result in the creation of a biological specimen with no accompanying identifying fingerprints. Proposed s. Jus 9.06(2)(f) provides for the expungement of information and biological specimens obtained from a person if the administrator of DOJ’s division of law enforcement services or his or her designee determines that the specimen was collected by mistake and that the person was not statutorily required to provide a specimen. Proposed s. Jus 9.06(3) provides for the confidentiality of all DNA analysis data, except for the uses specified in these rules and in s. 165.77, Stats. However, information concerning the fact that a person has provided a specimen for the DNA data bank is not confidential. Proposed s. Jus 9.07 provides that, in addition to any statutory criminal penalties, failure to provide a biological specimen as required under these rules may constitute a disciplinary offense or probation or parole violation. Proposed s. Jus 9.08(1) requires a court that imposes a sentence or places a person on probation to impose a DNA analysis surcharge of $250 for each felony conviction and $200 for each misdemeanor conviction, as provided under s. 973.046, Stats. Proposed s. Jus 9.08(2) requires the department of corrections to collect any unpaid DNA surcharges owed by an inmate and to transmit any amount collected to the secretary of administration. Proposed s. Jus 9.09 requires 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. Proposed s. Jus 9.10 provides for DOJ, pursuant to s. 165.76(4)(d), Stats., to reimburse law enforcement and tribal law enforcement agencies for each biological specimen collected and sent to the state crime laboratories, with the exception of duplicate specimens. Summary of, and comparison with, existing or proposed federal regulation: The activities regulated by the proposed rules are also affected by the federal statutes and regulations that govern the Combined DNA Index System (“CODIS”), which is the program of support for state and local criminal justice DNA databases operated by the Federal Bureau of Investigation, pursuant to 42 U.S.C. § 14132 and 28 C.F.R. Part 28. CODIS includes the National DNA Index System (“NDIS”), a national database that contains DNA analysis data contributed by forensic laboratories at the federal, state, and local levels. Under s. 165.76(4)(c), Stats., DOJ is expressly authorized to submit biological specimens or DNA analysis data for inclusion in NDIS. Forensic laboratories participating in NDIS are required to be accredited by a nationally recognized forensic science association, to undergo an external audit every two years to demonstrate compliance with quality assurance standards established by the FBI, and to disclose DNA samples or analyses only in accordance with federal privacy requirements. See 42 U.S.C. § 14132(b)(2) and (3). Access to NDIS is subject to cancellation if the quality control and privacy requirements are not met. 42 U.S.C. § 14132(c).
