SB336: Bill Text

2009 - 2010 LEGISLATURE

2009 Senate BILL 336

October 8, 2009 - Introduced by Senators Harsdorf, Plale, Vinehout, Kreitlow, Darling and Sullivan, cosponsored by Representatives Hraychuck, Sinicki, Krusick, Vos, Lothian, Townsend, A. Ott, Zepnick, Petrowski, Bies and Strachota. Referred to Committee on Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing.

SB336,1,7 An Act to amend 165.76 (3), 165.76 (4), 165.765 (1), 165.765 (2) (a) and 165.77 (3); to repeal and recreate 165.77 (4); and to create 165.84 (7) of the statutes; relating to: requiring a person arrested for a felony or a juvenile taken into custody for certain sexual assault offenses to provide a biological specimen for deoxyribonucleic acid analysis, inclusion of the analysis results in the Department of Justice deoxyribonucleic acid data bank, requiring the exercise of rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, the following people are required to submit biological specimens to the crime laboratories for deoxyribonucleic acid (DNA) analysis: a person sentenced or placed on probation in Wisconsin for a felony (a crime for which a person may be sentenced to prison) or one of the several specified misdemeanors; a person found to be a sexually violent person; a person on probation, parole, or extended supervision in Wisconsin for a crime committed in another state that would be a felony if committed in Wisconsin; and a person found not guilty by reason of mental disease or defect or adjudicated delinquent for certain felony sexual assaults. In addition, a court may order a juvenile who is adjudicated delinquent for certain other offenses to provide a biological specimen for DNA analysis. The crime laboratories are required to analyze the DNA in the biological specimens and maintain a DNA data bank of information obtained from the analyses. The crime laboratories may compare data obtained from the analysis of specimens and may share the results of analyses or comparisons with law enforcement agencies, prosecutors, the person who submitted a specimen, and defense attorneys. The crime laboratories must expunge all data relating to a person from the data bank if the person's conviction or adjudication is reversed, set aside, or vacated and the person requests that the data be expunged. A person who is required to submit a biological specimen for DNA analysis, except a person who is committed for mental health reasons, and intentionally fails to provide a specimen is subject to a criminal penalty.

This bill requires law enforcement agencies to collect a biological specimen for DNA analysis from every adult who is arrested for a felony and every juvenile who is taken into custody for certain sexual assault offenses that would be felonies if committed by an adult. The bill further requires the crime laboratories to analyze the specimens and include information obtained from the analyses in the DNA data bank. Under the bill, the crime laboratories must expunge information about a person from the DNA data bank, at the person's request, if the person was required to submit a biological specimen only in connection with an arrest and the person is not charged with a crime within one year after the arrest, criminal charges are dismissed, or the court reaches final disposition with respect to charges in connection with the arrest and the person is not found guilty of a crime or, if found guilty of a crime, the conviction is later reversed, set aside, or vacated. Similarly, the crime laboratories must expunge information about a person from the DNA data bank, at the person's request, if the person was required to submit a biological specimen only in connection with being taken into custody as a juvenile and the state does not file a criminal complaint or delinquency petition alleging certain sexual assault offenses within a year after taking the juvenile into custody, sexual assault allegations are dismissed, or the court reaches final disposition with respect to allegations in connection with the taking into custody and the person is not found to have committed certain sexual offenses or, if found to have committed such an offense, the finding is later reversed, set aside, or vacated. A person who is required under the bill to provide a biological specimen for DNA analysis and intentionally fails to do so is subject to a fine not to exceed $10,000 or imprisonment not to exceed nine months or both.

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:

SB336, s. 1 Section 1. 165.76 (3) of the statutes is amended to read:

SB336,3,4 165.76 (3) If a person is required to submit a biological specimen under s. 51.20 (13) (cr), 165.84 (7), 938.34 (15), 971.17 (1m) (a), 973.047, or 980.063, he or she shall comply with that requirement and is not required to comply with this section.

SB336, s. 2 Section 2. 165.76 (4) of the statutes is amended to read:

SB336,3,13 165.76 (4) The department of justice shall promulgate rules necessary to carry out its duties under this section, including rules specifying whether a person who is required under this section or s. 51.20 (13) (cr), 165.84 (7), 938.34 (15), 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 is already included in the data bank under s. 165.77 (3).

SB336, s. 3 Section 3. 165.765 (1) of the statutes is amended to read:

SB336,3,18 165.765 (1) Whoever intentionally fails to comply with a requirement to submit a biological specimen under s. 165.76, 165.84 (7), 938.34 (15), 973.047, or 980.063 may be fined not more than $10,000 or imprisoned for not more than 9 months or both.

SB336, s. 4 Section 4. 165.765 (2) (a) of the statutes is amended to read:

SB336,3,24 165.765 (2) (a) 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), 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.

SB336, s. 5 Section 5. 165.77 (3) of the statutes is amended to read:

SB336,4,12 165.77 (3) If the laboratories receive a human biological specimen under s. 51.20 (13) (cr), 165.76, 165.84 (7), 938.34 (15), 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.

SB336, s. 6 Section 6. 165.77 (4) of the statutes is repealed and recreated to read:

SB336,4,16 165.77 (4) (a) A person whose deoxyribonucleic acid analysis data has been included in the data bank under sub. (3) may request expungement on the grounds that all of the following conditions are satisfied:

SB336,4,19 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.

SB336,4,21 2. If the person was required to provide a biological specimen under s. 165.84 (7) in connection with an arrest for a felony, one of the following applies:

SB336,4,22 a. All charges filed in connection with the arrest have been dismissed.

SB336,4,25 b. The trial court reached final disposition for all charges in connection with the arrest and the person was not adjudged guilty of a crime in connection with the arrest.

SB336,5,2 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.

SB336,5,4 d. The person was adjudged guilty of a crime in connection with the arrest and the conviction has been reversed, set aside, or vacated.

SB336,5,7 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:

SB336,5,10 a. All criminal complaints or delinquency petitions alleging that the person violated s. 940.225, 948.02 (1) or (2), 948.025, or 948.085 (2) in connection with the taking into custody have been dismissed.

SB336,5,15 b. The trial court reached final disposition for all allegations of a violation of s. 940.225, 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, 948.02 (1) or (2), 948.025, or 948.085 (2) in connection with the taking into custody.

SB336,5,19 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, 948.02 (1) or (2), 948.025, or 948.085 (2) has not been filed against the person in connection with the taking into custody.

SB336,5,23 d. The person was convicted or adjudged delinquent for a violation of s. 940.225, 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.

SB336,6,3 (b) If the conditions under par. (a) are satisfied, the laboratories shall purge all records and identifiable information in the data bank pertaining to the person and destroy all specimens from the person upon receiving the person's written request for expungement and any documentation required by the department of justice under rules promulgated under sub. (8).

SB336, s. 7 Section 7. 165.84 (7) of the statutes is created to read:

SB336,6,12 165.84 (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, or cause to be obtained, a biological specimen for deoxyribonucleic acid analysis from each adult arrested for a felony and each minor taken into custody for an offense under s. 940.225, 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).

SB336,6,15 (b) The department of justice shall promulgate rules establishing procedures and time limits for providing, collecting, and submitting biological specimens under this section.

SB336,6,17 (c) Biological specimens collected under this section may only be used as provided under s. 165.77.

SB336, s. 8 Section 8. Initial applicability.

SB336,6,20 (1) This act first applies to persons arrested or taken into custody on the effective date of this subsection.

SB336, s. 9 Section 9. Effective date.

SB336,6,22 (1) This act takes effect on January 1, 2011.

SB336,6,23 (End)