165.755(6)
(6) If an inmate in a state prison or a person sentenced to a state prison has not paid the crime laboratories and drug law enforcement surcharge under
sub. (1) (a), the department shall assess and collect the amount owed from the inmate's wages or other moneys. Any amount collected shall be transmitted to the secretary of administration.
165.755(7)
(7) All moneys collected from crime laboratories and drug law enforcement surcharges under this section shall be deposited by the secretary of administration and used as specified in
s. 20.455 (2) (kd) and
(Lm).
165.755 History
History: 1997 a. 27;
1999 a. 9,
72;
1999 a. 150 s.
672;
2001 a. 16;
2003 a. 30,
33,
139,
268,
326,
327;
2005 a. 25,
455;
2009 a. 12,
28,
100,
276;
2011 a. 260.
165.76
165.76
Submission of human biological specimen. 165.76(1)(1) A person shall provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis if he or she meets any of the following criteria:
165.76(1)(a)
(a) Is or was in a juvenile correctional facility, as defined in
s. 938.02 (10p), or a secured residential care center for children and youth, as defined in
s. 938.02 (15g), or on probation, extended supervision, parole, supervision, or aftercare supervision on or after August 12, 1993, for any violation of
s. 940.225 (1) or
(2),
948.02 (1) or
(2),
948.025, or
948.085.
165.76(1)(ar)
(ar) Is or was in prison on or after January 1, 2000, for a felony committed in this state.
165.76(1)(d)
(d) Has been found to be a sexually violent person under
ch. 980 on or after June 2, 1994.
165.76(1)(e)
(e) Is or was released on parole or extended supervision or placed on probation in another state before January 1, 2000, and is or was on parole, extended supervision, or probation in this state from the other state under
s. 304.13 (1m),
304.135, or
304.16 on or after July 9, 1996, for a violation of the law of the other state that the department of corrections determines, under
s. 304.137 (1), is comparable to a violation of
s. 940.225 (1) or
(2),
948.02 (1) or
(2),
948.025, or
948.085.
165.76(1)(f)
(f) Is or was released on parole or extended supervision or placed on probation in another state on or after January 1, 2000, and is or was on parole, extended supervision, or probation in this state from the other state under
s. 304.13 (1m),
304.135, or
304.16 for a violation of the law of the other state that the department of corrections determines, under
s. 304.137 (2), would constitute a felony if committed by an adult in this state.
165.76 Note
NOTE: The correct cross-reference is shown in brackets. Corrective legislation is pending.
165.76(1)(h)
(h) Is notified by the department of justice, the department of corrections, a district attorney, or a county sheriff under
sub. (1m) that the person is required to provide a biological specimen.
165.76(1m)
(1m) If a person is required to provide a biological specimen under
sub. (1) (a) to
(g) and the department of justice does not have the data obtained from analysis of a biological specimen from the person that the department is required to maintain in the data bank under
s. 165.77 (3), the department may require the person to provide a biological specimen, regardless of whether the person previously provided a biological specimen under this section or
s. 51.20 (13) (cr),
938.34 (15),
971.17 (1m) (a),
973.047, or
980.063. The department of justice, the department of corrections, a district attorney, or a county sheriff, shall notify any person whom the department of justice requires to provide a biological specimen under this subsection.
165.76(2m)
(2m) Unless otherwise provided by rule under
sub. (4), a person who is required to provide a biological specimen under
sub. (1) shall provide the biological specimen at the following time and place:
165.76(2m)(a)
(a) If the person has been placed on probation by a court in this state, as soon as practicable after placement at the office of a county sheriff, except, if directed otherwise by the person's probation, extended supervision, and parole agent, then as directed by the agent.
165.76(2m)(b)
(b) If the person has been on probation, parole, or extended supervision in this state from another state and the department of corrections directs the person to provide a biological specimen, as soon as practicable after placement at the office of a county sheriff, except, if directed otherwise by the person's probation, extended supervision, and parole agent, then as directed by the agent.
165.76(2m)(c)
(c) If the person has been placed on supervision as a juvenile, as soon as practicable after placement at the office of a county sheriff, except, if directed otherwise by the agency providing supervision, then as directed by the agency.
165.76(2m)(d)
(d) If the person has been sentenced to prison, while in prison as directed by the department of corrections; and if the person does not provide the biological sample while in prison, then as soon as practicable after release from the prison at the office of a county sheriff, except, if directed otherwise by his or her probation, parole, and extended supervision agent, then as directed by the agent.
165.76(2m)(e)
(e) If the person has been placed in a juvenile correctional facility or a secured residential care center for children and youth, while in the facility or center as directed by the department of corrections; and if the juvenile does not provide the biological specimen while in the facility or center, then as soon as practicable after release from the facility or center, at the office of a county sheriff, except, if directed otherwise by the agency providing supervision, then as directed by the agency.
165.76(2m)(f)
(f) If the person has been sentenced to a county jail or county house of corrections, as directed by the office of the county sheriff as soon as practicable after sentencing; and if the person does not provide the biological specimen while in the county jail or county house of corrections, as soon after release from the county jail or county house of corrections as practicable, at the office of a county sheriff.
165.76(2m)(g)
(g) If the person has been committed to the department of health services under
s. 51.20 or
971.17 or found to be a sexually violent person under
ch. 980, as directed by the department of health services.
165.76(2m)(h)
(h) If
pars. (a) to
(g) do not apply, as soon as practicable after the obligation to provide a biological specimen accrues at the office of a county sheriff, except, if directed otherwise by the agent or agency providing supervision or having legal or physical custody of the person.
165.76(2r)
(2r) Failure by a person who is required to provide a biological specimen under
sub. (1) to provide the biological specimen at the time and place provided under
sub. (2m) does not relieve the person of the obligation to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
165.76(3)
(3) Notwithstanding
sub. (1), if a county sheriff, the department of corrections, or the department of health services determines that a person who is required to submit a biological specimen under
sub. (1) has submitted a biological specimen and that data obtained from analysis of the person's biological specimen is included in the data bank under
s. 165.77 (3), the person is not required to submit another biological specimen.
165.76(4)
(4) The department of justice may promulgate rules to implement this section.
165.76(5)
(5) The departments of corrections and health services, county departments under
ss. 46.215,
46.22 and
46.23 and county sheriffs shall cooperate with the department of justice in obtaining specimens under this section.
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 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.
