Scope Statements
Justice
This scope statement was approved by the governor on July 28, 2014.
Rule No.
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 under ss.
165.76 and
165.77, Stats.
Rule Type
Permanent.
1. Finding / Nature of Emergency (Emergency Rule Only)
Not applicable
2. Description of the Objectives of the Rules
The State of Wisconsin Department of Justice proposes to repeal and recreate Wis. Admin. Code ch.
Jus 9, which governs the procedures for the submission of human biological specimens to the Department of Justice crime laboratories for DNA analysis, the analysis of such 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 current rules also provide penalties for failure to submit a required biological specimen and require the department of corrections, the department of health services, county social services departments, and county sheriffs to cooperate with DOJ in meeting the requirements of the rules.
The proposed rules would repeal Wis. Admin. Code ch.
Jus 9 and recreate that chapter so as to bring it into full compliance and consistency with the provisions in
2013 Wisconsin Act 20 and
2013 Wisconsin 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 rules will cover the following subject areas:
Procedures and time limits for obtaining and submitting biological specimens from persons in multiple statutory categories, including:
• any person arrested for a violent crime or charged with a violent crime and making an initial appearance in criminal court
• any person sentenced or placed on probation by a court for any crime
• any person found to be a sexually violent person under ch.
980, Stats.
• any person found not guilty by reason of mental disease or defect of certain felony or sex-related offenses or of offenses for failing to provide required biological specimens
• any person taken into custody, in custody, or before a court for a juvenile offense that would be a violent crime if committed by an adult
• any person adjudicated delinquent for a juvenile offense that would be a felony if committed by an adult, for certain violent offenses or sex-related non-felony offenses, or for non-felony offenses for failing to provide required biological specimens
• any person involuntarily committed for treatment for a juvenile offense that would be a felony if committed by an adult, for certain violent or sex-related non-felony offenses, or for non-felony offenses for failing to provide required biological specimens
• certain persons on parole, extended supervision, or probation in this state based on violations in another state that, if committed in this state, would constitute a felony or certain non-felony sex-related offenses
• any person required by a court to provide a biological specimen
Procedures and time limits for obtaining and submitting biological specimens from persons in multiple statutory categories, based upon events occurring within a specified range of dates. These categories include:
• any person who is or was in institutional care or sentenced or placed on probation after August 12, 1993, for certain sex-related offenses
• any person who, on or after August 12, 1993, has been found not guilty or not responsible by reason of mental disease or defect and has been committed for certain sex-related offenses
• any person who, based on certain sexual assault offenses, is or was in a juvenile correctional facility, in a secured residential care center for children and youth, or on probation, extended supervision, parole, supervision, or aftercare supervision after August 12, 1993
• any person who, based on certain sexual assault offenses, is or was in prison after August 12, 1993, and before January 1, 2000
• any person found to be a sexually violent person under ch.
980 on or after June 2, 1994
• any person found guilty of a felony or who is or was in prison for a felony on or after January 1, 2000
• any person who, on or after January 1, 2000, has been found not guilty or not responsible by reason of mental disease or defect for certain sex-related offenses or offenses for failing to provide required biological specimens
• any person who is or was in institutional care on or after January 1, 2000, for a felony or for certain sex-related non-felony offenses or non-felony offenses for failing to provide required biological specimens
• any person who, between January 1, 2000, and April 1, 2015, is found guilty of certain sex-related offenses or offenses for failing to provide required biological specimens
• any person found guilty of a misdemeanor on or after April 1, 2015
Procedures and standards under which DOJ will identify and notify individuals who are required to provide a biological specimen and who have not yet done so.
Procedures and standards for determining whether a person required to provide a biological specimen who has previously provided a specimen is required to provide another specimen.
Procedures and standards governing the submission of biological specimens by law enforcement agencies to the Department of Justice crime laboratories.
Procedures and standards governing the DNA analysis of biological specimens, the maintenance of a data bank of DNA analysis data, and the use of data in the data bank by the Department of Justice crime laboratories.
Procedures and standards governing the destruction of biological samples by the Department of Justice crime laboratories.
Procedures and standards for reimbursing law enforcement and tribal law enforcement agencies for the collection and handling of biological specimens.
Procedures and standards governing access to and use of records of the DNA analysis data bank and the confidentiality of some DNA data bank records
Procedures and standards for submitting biological specimens and data for inclusion in one or more national index systems and for ensuring compliance with any applicable requirements for participating in any such national index systems.
Procedures and standards governing requests from an individual for DNA analysis of the individual's own specimen.
Procedures and standards governing requests from an individual for expungement of the individual's biological specimens and DNA analysis data.
The rules will continue to require the department of corrections, the department of health services, county social services departments, county sheriffs, and law enforcement agencies to cooperate with DOJ in meeting the requirements of the rules.
3. 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
2013 Wisconsin Act 20 (“Act 20") and
2013 Wisconsin Act 214 (“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.
4. Statutory Authority for the Rule (Including the Statutory Citation and Language)
The department of justice shall promulgate rules to do all of the following:
(b) Specify whether an individual who is required under this section or ss.
51.20 (13) (cr),
165.84 (7),
938.21 (1m),
938.30 (2m),
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 individual or if data obtained from deoxyribonucleic acid analysis of the individual's biological specimen are already included in the data bank under s.
165.77 (3).
