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 AnnotationDNA sampling under this section is constitutional. Shelton v. Grudman,
934 F. Supp. 1048 (1996).
165.765
165.765
Biological specimen; penalty and immunity. 165.765(1)(1) Whoever intentionally fails to comply with a requirement to submit a biological specimen under
s. 165.76,
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.
165.765(2)(a)(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,
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.
165.765(2)(b)
(b) Any employer of the physician, nurse, technologist, assistant or person under
par. (a) or any hospital where blood is withdrawn by that physician, nurse, technologist, assistant or person has the same immunity from liability under
par. (a).
165.765 History
History: 1993 a. 98;
1995 a. 77,
440.
165.765 Cross-reference
Cross-reference: See also ch.
Jus 9, Wis. adm. code.
165.77
165.77
Deoxyribonucleic acid analysis and data bank. 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). The laboratories shall destroy specimens obtained under this paragraph after analysis has been completed and the applicable court proceedings have concluded.
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,
938.34 (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.
165.77(4)
(4) A person whose deoxyribonucleic acid analysis data has been included in the data bank under
sub. (3) may request expungement on the grounds that his or her conviction or adjudication has been reversed, set aside or vacated. The laboratories shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person if it receives all of the following:
165.77(4)(a)
(a) The person's written request for expungement.
165.77(4)(b)
(b) A certified copy of the court order reversing, setting aside or vacating the conviction or adjudication.
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(7)
(7) Whenever a Wisconsin law enforcement agency or a health care professional collects evidence in a case of alleged or suspected sexual assault, the agency or professional shall follow the procedures specified in the department's rules under
sub. (8). The laboratories shall perform deoxyribonucleic acid analysis of specimens provided by law enforcement agencies under
sub. (2). The laboratories shall not include data obtained from deoxyribonucleic acid analysis of those specimens in the data bank under
sub. (3).
165.77(8)
(8) The department shall promulgate rules to administer this section.
165.77 Cross-reference
Cross-reference: See also ch.
Jus 9, Wis. adm. code.
165.77 Annotation
The New Genetic World and the Law. Derse. Wis. Law. April 2001.
165.78
165.78
Information center; training activities. 165.78(1)
(1) The department shall act as a center for the clearance of information between law enforcement officers. In furtherance of this purpose it shall issue bulletins by mail or its telecommunication system. The department shall at all times collaborate and cooperate fully with the F.B.I. in exchange of information.
165.78(2)
(2) The department shall cooperate and exchange information with other similar organizations in other states.
165.78(3)
(3) The department may prepare and conduct informational and training activities for the benefit of law enforcement officers and professional groups.
165.78 History
History: 1977 c. 260;
1985 a. 29.
165.785
165.785
Crime alert network. 165.785(1)
(1) In addition to its duties under
ss. 165.50 and
165.78, the department may develop, administer, and maintain an integrated crime alert network to provide information regarding known or suspected criminal activity, crime prevention, and missing or endangered persons to state agencies, law enforcement officers, and members of the private sector.
165.785(2)
(2) The department may charge a fee to members of the private sector who receive information under
sub. (1).
165.785(3)
(3) The department shall utilize only program revenue amounts credited and expended from the appropriation account under
s. 20.455 (2) (gp) to develop, administer, and maintain the integrated crime alert network under
sub. (1).
165.785 History
History: 2009 a. 358.
165.79
165.79
Evidence privileged. 165.79(1)
(1) Evidence, information and analyses of evidence obtained from law enforcement officers by the laboratories is privileged and not available to persons other than law enforcement officers nor is the defendant entitled to an inspection of information and evidence submitted to the laboratories by the state or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the state at a preliminary hearing and except as provided in
s. 971.23. Upon request of a defendant in a felony action, approved by the presiding judge, the laboratories shall conduct analyses of evidence on behalf of the defendant. No prosecuting officer is entitled to an inspection of information and evidence submitted to the laboratories by the defendant, or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the accused at a preliminary hearing and except as provided in
s. 971.23. Employees who made examinations or analyses of evidence shall attend the criminal trial as witnesses, without subpoena, upon reasonable written notice from either party requesting the attendance.
165.79(2)
(2) Upon the termination or cessation of the criminal proceedings, the privilege of the findings obtained by a laboratory may be waived in writing by the department and the prosecutor involved in the proceedings. The employees may then be subpoenaed in civil actions in regard to any information and analysis of evidence previously obtained in the criminal investigation, but the laboratories shall not engage in any investigation requested solely for the preparation for trial of a civil matter. Upon appearance as a witness or receipt of a subpoena or notice to prepare for trial in a civil action, or appearance either with or without subpoena, the laboratories shall be compensated by the party at whose request the appearance or preparation was made in a reasonable amount to be determined by the trial judge, which fee shall be paid into the state treasury. In fixing the compensation the court may give consideration to the time spent in obtaining and analyzing the evidence for the purposes of criminal proceedings.
165.79 Annotation
Under the facts of the case, the privilege in sub. (1) did not prevent the defendant from obtaining evidence he was entitled to under s. 971.23 when he received the physical evidence that the state intended to offer at trial and a copy of the crime lab report and was granted permission to submit the evidence for testing by his own expert. The defendant was entitled to examine the crime lab analyst at trial but not at an evidentiary hearing. State v. Franszczak, 2002 WI App 141,
256 Wis. 2d 68,
647 N.W.2d 396,
01-1393.
165.79 Annotation
Cross-examination of a highly qualified witness who is familiar with the procedures used in performing the tests whose results are offered as evidence, who supervises or reviews the work of the testing analyst, and who renders his or her own expert opinion is sufficient to protect a defendant's right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. State v. Williams, 2002 WI 58,
253 Wis. 2d 99,
644 N.W.2d 919,
00-3065.
165.79 Annotation
Under Crawford,
541 U.S. 36, analysts' affidavits that certified that evidence was in fact cocaine were testimonial statements, and the analysts were "witnesses" for purposes of the 6th amendment confrontation clause. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial. Melendez-Diaz v. Massachusetts, 557 U.S. ___,
174 L. Ed. 2d 314,
129 S. Ct. 2527 (2009).
165.80
165.80
Cooperation with other state departments. For the purpose of coordinating the work of the crime laboratories with the research departments located in the University of Wisconsin, the attorney general and the University of Wisconsin may agree for the use of university laboratories and university physical facilities and the exchange and utilization of personnel between the crime laboratories and the university.
165.80 History
History: 1985 a. 29;
1997 a. 27.
165.81
165.81
Disposal of evidence. 165.81(1)
(1) Whenever the department is informed by the submitting officer or agency that physical evidence in the possession of the laboratories is no longer needed the department may, except as provided in
sub. (3) or unless otherwise provided by law, destroy the evidence, retain it in the laboratories, return it to the submitting officer or agency, or turn it over to the University of Wisconsin upon the request of the head of any department of the University of Wisconsin. If the department returns the evidence to the submitting officer or agency, any action taken by the officer or agency with respect to the evidence shall be in accordance with
s. 968.20. Except as provided in
sub. (3), whenever the department receives information from which it appears probable that the evidence is no longer needed, the department may give written notice to the submitting agency and the appropriate district attorney, by registered mail, of the intention to dispose of the evidence. If no objection is received within 20 days after the notice was mailed, it may dispose of the evidence.
165.81(2)
(2) Any electric weapon, as defined in
s. 941.295 (4), in the possession of the laboratories shall either be destroyed or turned over to an agency authorized to have electric weapons under
s. 941.295 (2).
165.81(3)(b)
(b) Except as provided in
par. (c), if physical evidence that is in the possession of the laboratories includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, a delinquency adjudication, or commitment under
s. 971.17 or
980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the laboratories shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.
165.81(3)(bm)
(bm) The laboratories shall retain evidence to which
par. (b) applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in
s. 939.74 (2d) (a), from the biological material contained in or included on the evidence.
165.81(3)(c)
(c) Subject to
par. (e), the department may destroy evidence that includes biological material before the expiration of the time period specified in
par. (b) if all of the following apply:
165.81(3)(c)1.
1. The department sends a notice of its intent to destroy the evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.
165.81(3)(c)2.
2. No person who is notified under
subd. 1. does either of the following within 90 days after the date on which the person received the notice:
165.81(3)(c)2.b.
b. Submits a written request for retention of the evidence to the department.
165.81(3)(c)3.
3. No other provision of federal or state law requires the department to retain the evidence.
165.81(3)(d)
(d) A notice provided under
par. (c) 1. shall clearly inform the recipient that the evidence will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the evidence is filed under
s. 974.07 (2) or a written request for retention of the evidence is submitted to the department.
165.81(3)(e)
(e) If, after providing notice under
par. (c) 1. of its intent to destroy evidence, the department receives a written request for retention of the evidence, the department shall retain the evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under
s. 974.07 (7),
(9) (a), or
(10) (a) 5., unless the court orders destruction or transfer of the evidence under
s. 974.07 (9) (b) or
(10) (a) 5.
165.81(3)(f)
(f) Unless otherwise provided in a court order issued under
s. 974.07 (9) (a) or
(b) or
(10) (a) 5., nothing in this subsection prohibits the laboratories from returning evidence that must be preserved under
par. (b) or
(e) to the agency that submitted the evidence to the laboratories. If the laboratories return evidence that must be preserved under
par. (b) or
(e) to a submitting agency, any action taken by the agency with respect to the evidence shall be in accordance with
s. 968.205.
165.82
165.82
Criminal history search fee. 165.82(1)
(1) Notwithstanding
s. 19.35 (3), the department of justice shall impose the following fees, plus any surcharge required under
sub. (1m), for criminal history searches for purposes unrelated to criminal justice or to
s. 175.35:
165.82(1)(a)
(a) For each record check, except a fingerprint card record check, requested by a nonprofit organization, or by a governmental agency, $7.
Effective date note
NOTE: Par. (a) is amended eff. 7-1-11 by
2009 Wis. Act 28 to read:
Effective date text
(a) For each record check, except a fingerprint card record check, requested by a nonprofit organization, $2.
165.82(1)(am)
(am) For each record check, except a fingerprint card record check, requested by a governmental agency, $7.
165.82(1)(ar)
(ar) For each fingerprint card record check requested by a governmental agency or nonprofit organization, $15.
165.82(1)(b)
(b) For each record check by any other requester, $13.
165.82(1m)
(1m) The department of justice shall impose a $5 surcharge if a person requests a paper copy of the results of a criminal history search requested under
sub. (1).
