165.76(6)(a)(a) If a person who is required to provide a biological specimen under sub. (1) refuses or fails to provide a biological specimen, a district attorney may file a petition with the circuit court for an order compelling the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis. A petition under this paragraph shall establish reasonable cause to believe that the person is required to provide a biological specimen under sub. (1) and that the person’s biological specimen is not included in the data bank under s. 165.77 (3). 165.76(6)(b)(b) If the court determines that a district attorney’s petition satisfies the conditions under par. (a), the court shall issue an order requiring the person to appear in court at a specified time for a hearing to show cause why he or she is not required to provide a biological specimen under sub. (1) or, instead of appearing at the hearing, to provide a biological specimen at the office of the county sheriff before the time for which the hearing is scheduled. The hearing shall be scheduled for not less than 10 and not more than 45 days after the date the court enters the order. The order, together with a copy of the petition and any supporting material, shall be served upon the person in the manner provided for serving a summons under s. 801.11. The order shall be in substantially the following form: STATE OF WISCONSIN
CIRCUIT COURT: .... County
STATE OF WISCONSIN File No. ......
vs. ORDER
A.B.
Address
City, State, Zip Code
, Respondent
THE STATE OF WISCONSIN, To the Respondent named above:
Unless you choose to contest this Order, by appearing at the time, date, and place set forth below, you are ordered to present yourself to the .... county sheriff, [ADDRESS], no later than ...., between the hours of .... and ...., for the collection of a biological specimen, obtained by buccal swab, for deoxyribonucleic acid (DNA) analysis and inclusion of the results of that analysis in the state crime laboratory’s DNA database. YOU MUST BRING A COPY OF THIS ORDER WITH YOU. YOU MUST ALSO BRING TWO FORMS OF IDENTIFICATION, INCLUDING ONE FORM OF GOVERNMENT-ISSUED, PHOTOGRAPHIC IDENTIFICATION. A copy of the petition submitted to obtain this order is attached.
If you wish to contest this order, you may do so by appearing in person at the time, date, and place set forth below, at which time you will have the opportunity to show cause to the court why you should not be required to provide a biological specimen for DNA analysis:
[Court information]
If you do not appear in person to contest this order at the time, date, and place set forth above, and you do not present yourself for collection of a biological specimen as directed, all of the following apply:
165.76(6)(b)1.1. You may be held in contempt of court and be subject to sanctions as provided in chapter 785 of the Wisconsin Statutes. 165.76(6)(b)2.2. The court will issue an order to facilitate collection of a biological specimen which, in the court’s discretion, may authorize arrest or detention or use of reasonable force against you to collect the biological specimen. Dated: ...., .... (year)
By the Court signed: .... ....
This Order is entered under section 165.76 (6) of the Wisconsin Statutes. A copy of that section is attached.
165.76(6)(c)(c) At a hearing on a petition under par. (a), the person has the burden of rebutting the matters established in the petition by demonstrating that he or she is not required to submit a biological specimen under sub. (1). 165.76(6)(d)(d) If the court determines after the hearing under par. (c) that the person is required to submit a biological specimen under sub. (1) and that the person’s specimen is not included in the data bank under s. 165.77 (3), the court shall issue an order to facilitate collection of a biological specimen from the person, which may authorize arrest or detention of the person or use of reasonable force against the person to collect the biological specimen. 165.76 AnnotationWhen officers make an arrest supported by probable cause for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the 4th amendment. In the context of a valid arrest supported by probable cause, the arrestee’s expectations of privacy were not offended by the minor intrusion of a brief swab of the arrestee’s cheeks for DNA. That same context of arrest gives rise to significant state interests in identifying the arrestee not only so that the proper name can be attached to the arrestee’s charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations, DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. Maryland v. King, 569 U.S. 435, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013). 165.76 AnnotationDNA sampling under this section is constitutional. Shelton v. Gudmanson, 934 F. Supp. 1048 (1996). 165.76 AnnotationDNA Extraction on Arrest: Maryland v. King and Wisconsin’s New Extraction Law. Dupuis. Wis. Law. Sept. 2013.
165.765165.765 Biological specimen; force and immunity. 165.765(1m)(1m) A law enforcement officer; a jail officer; a tribal officer; a correctional officer; a probation, extended supervision, or parole officer; or an employee of the department of health services may use reasonable force to obtain a biological specimen from a person who intentionally refuses to provide a biological specimen that is required under s. 165.76 (1), 165.84 (7), 938.21 (1m), 938.30 (2m), 938.34 (15), or 970.02 (8). 165.765(2)(a)1.1. Any physician, registered nurse, medical technologist, physician assistant, or person acting under the direction of a physician who obtains a biological specimen under s. 51.20 (13) (cr), 165.76, 165.84 (7), 938.21 (1m), 938.30 (2m), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 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. 165.765(2)(a)2.2. Any employer of the physician, nurse, technologist, assistant, or person under subd. 1. or any hospital where blood is withdrawn by that physician, nurse, technologist, assistant, or person is immune from any civil or criminal liability for the act, except for civil liability for negligence in the performance of the act. 165.765(2)(bm)(bm) A law enforcement officer; a jail officer; a tribal officer; a correctional officer; a probation, extended supervision, or parole officer; or an employee of the department of health services, who is authorized to collect biological specimens, is immune from civil or criminal liability for collecting a biological specimen if the collection is in compliance with sub. (1m) and s. 165.76 and performed in good faith and in a reasonable manner. 165.765 Cross-referenceCross-reference: See also ch. Jus 9, Wis. adm. code. 165.77165.77 Deoxyribonucleic acid analysis and data bank. 165.77(1)(a)(a) “Health care professional” means a person who is licensed, certified, or registered under ch. 441, 448, or 455; a person who holds a compact privilege under subch. XI of ch. 448; or a person who is exercising the temporary authorization to practice, as defined in s. 455.50 (2) (o), in this state, or who is practicing under the authority to practice interjurisdictional telepsychology, as defined in s. 455.50 (2) (b). 165.77 NoteNOTE: Par. (a) is shown as amended by 2021 Wis. Acts 23 and 131 and as merged by the legislative reference bureau under s. 13.92 (2) (i). The cross-reference to subch. XI of ch. 448 was changed from subch. X of ch. 448 by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of subch. X of ch. 448. 165.77(1)(b)(b) “Law enforcement agency” means a governmental unit of one or more persons employed full time by the federal government, a state or a political subdivision of a state for the purpose of preventing and detecting crime and enforcing federal or state laws or local ordinances, employees of which unit are authorized to make arrests for crimes while acting within the scope of their authority. 165.77(1)(c)(c) “Wisconsin law enforcement agency” means a governmental unit of one or more persons employed full time by this state or a political subdivision of this state for the purpose of preventing and detecting crime and enforcing state laws or local ordinances, employees of which unit are authorized to make arrests for crimes while acting within the scope of their authority. 165.77(2)(a)1.1. If the laboratories receive a human biological specimen pursuant to any of the following requests, the laboratories shall analyze the deoxyribonucleic acid in the specimen: 165.77(2)(a)1.a.a. A request from a law enforcement agency regarding an investigation. 165.77(2)(a)1.b.b. A request, pursuant to a court order, from a defense attorney regarding his or her client’s specimen. 165.77(2)(a)1.c.c. A request, subject to the department’s rules under sub. (8), from an individual regarding his or her own specimen. 165.77(2)(a)2.2. The laboratories may compare the data obtained from the specimen with 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 not include data obtained from deoxyribonucleic acid analysis of those specimens received under this paragraph in the data bank under sub. (3). 165.77(2m)(b)(b) If the laboratories analyze biological material pursuant to an order issued under s. 974.07 (8), the laboratories may compare the data obtained from the material with 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 not include data obtained from deoxyribonucleic acid analysis of material that is tested pursuant to an order under s. 974.07 (8) in the data bank under sub. (3). 165.77(3)(3) If the laboratories receive a human biological specimen under s. 51.20 (13) (cr), 165.76, 938.21 (1m), 938.30 (2m), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 973.047, or 980.063, the laboratories shall analyze the deoxyribonucleic acid in the specimen. If the laboratories receive a human biological specimen under s. 165.84 (7) (ah), the laboratories shall analyze the deoxyribonucleic acid in the specimen as provided under s. 165.84 (7) (am) 1m. 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. 165.77(4)(am)(am) A person whose deoxyribonucleic acid analysis data have been included in the data bank under sub. (3) may request expungement on the grounds that any of the following conditions that apply to the person are satisfied: 165.77(4)(am)1.1. If 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, all convictions, findings, 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. 165.77(4)(am)2.2. If the person was required to provide a biological specimen under s. 165.84 (7) in connection with an arrest or under s. 970.02 (8), one of the following applies: 165.77(4)(am)2.b.b. The trial court reached final disposition for all charges for which the person was required to provide a biological specimen under s. 165.84 (7) or 970.02 (8), and the person was not adjudged guilty of a violent crime in connection with any such charge. 165.77(4)(am)2.c.c. At least one year has passed since the arrest and the person has not been charged with a violent crime in connection with the arrest. 165.77(4)(am)2.d.d. The person was adjudged guilty of a violent crime in connection with any charge for which the person was required to provide a biological specimen under s. 165.84 (7) or 970.02 (8), and all such convictions for a violent crime have been reversed, set aside, or vacated. 165.77(4)(am)3.a.a. All criminal complaints or delinquency petitions that allege that the person committed a violation that would be a violent crime if committed by an adult in this state and that are in connection with the taking into custody have been dismissed. 165.77(4)(am)3.b.b. The trial court reached final disposition for all allegations that the person committed a violation that would be a violent crime if committed by an adult in this state that are in connection with the taking into custody, and the person was not convicted or adjudged delinquent for a violation that would be a violent crime if committed by an adult in this state that is in connection with the taking into custody. 165.77(4)(am)3.c.c. At least one year has passed since the person was taken into custody and no criminal complaint or delinquency petition alleging that the person committed a violation that would be a violent crime if committed by an adult in this state has been filed against the person in connection with the taking into custody. 165.77(4)(am)3.d.d. The person was convicted or adjudged delinquent for a violation that would be a violent crime if committed by an adult in this state and that is in connection with the taking into custody, and the conviction or delinquency adjudication has been reversed, set aside, or vacated. 165.77(4)(bm)(bm) If the department determines that the conditions under par. (am) are satisfied, the laboratories shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receiving the person’s written request for expungement and any documentation the department requires under rules promulgated under sub. (8). 165.77(5)(5) Any person who intentionally disseminates a specimen received under this section or any information obtained as a result of analysis or comparison under this section or from the data bank under sub. (3) in a manner not authorized under this section or the rules under sub. (8) may be fined not more than $500 or imprisoned for not more than 30 days or both. 165.77(6)(6) Except as necessary to administer this section or as provided under the department’s rules under sub. (8), the department shall deny access to any record kept under this section. 165.77(7m)(7m) An entry in the data bank that is found to be erroneous does not prohibit the legitimate use of the entry to further a criminal investigation or prosecution. The failure of a law enforcement agency or the laboratories to comply with this section, s. 165.76, 165.765, or 165.84, or any rules or procedures adopted to administer those sections, is not grounds for challenging the validity of the data collection, for challenging the use of the sample as provided in those sections, or for the suppression of evidence based upon or derived from any entry in the data bank. 165.77(8)(8) The department shall promulgate rules to administer this section. 165.77 Cross-referenceCross-reference: See also ch. Jus 9, Wis. adm. code. 165.77 AnnotationThe New Genetic World and the Law. Derse. Wis. Law. Apr. 2001.
165.775165.775 Sexual assault kits. 165.775(1)(d)(d) “Sexual assault forensic examination” means an examination performed by a health care professional to gather evidence regarding a sex offense. 165.775(1)(e)(e) “Sexual assault kit” means the evidence collected from a sexual assault forensic examination.
