165.76(4)(c)
(c) Allow a biological specimen, or data obtained from analysis of a biological specimen, obtained under this section, under
s. 51.20 (13) (cr),
938.21 (1m),
938.30 (2m),
938.34 (15),
970.02 (8),
971.17 (1m) (a),
973.047, or
980.063, or, if the specimen is required to be analyzed under
s. 165.84 (7) (am) 1m., under
s. 165.84 (7) (ah), to be submitted for inclusion in an index established under
42 USC 14132 (a) or in another national index system.
165.76(4)(d)
(d) Provide reimbursement from
s. 20.455 (2) (Lm) to a person in charge of a law enforcement agency or tribal law enforcement agency at a rate of $10 per specimen except that, if the department already has a biological specimen, or data obtained from analysis of a biological specimen, from the individual, the department may not reimburse the person in charge of the agency.
165.76(4)(e)
(e) Carry out the department's duties under 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.
Effective date note
NOTE: This section is shown as affected eff. 4-1-15 by
2013 Wis. Acts 20,
214, and
362. Prior to 4-1-15 it reads:
Effective date text
165.76 Submission of human biological specimen. (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:
Effective date text
(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.
Effective date text
(ag) Is or was in prison on or after August 12, 1993, and before January 1, 2000, for any violation of s. 940.225 (1) or (2), 948.02 (1) or (2), or 948.025.
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(ar) Is or was in prison on or after January 1, 2000, for a felony committed in this state.
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(av) Is or was found guilty on or after January 1, 2000, of any felony or any violation of s. 165.765 (1), 940.225 (3m), 944.20, or 948.10.
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(b) Has been found not guilty or not responsible by reason of mental disease or defect on or after August 12, 1993, and committed under s. 51.20 or 971.17 for any violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085.
Effective date text
(br) Has been found not guilty or not responsible by reason of mental disease or defect on or after January 1, 2000, and committed under s. 51.20 or 971.17, for any felony or a violation of s. 165.765 (1), 940.225 (3m), 944.20, or 948.10.
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(c) Is or was in institutional care 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.
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(cr) Is or was in institutional care on or after January 1, 2000, for a felony or any violation of s. 165.765 (1), 940.225 (3m), 944.20, or 948.10.
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(d) Has been found to be a sexually violent person under ch. 980 on or after June 2, 1994.
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(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.
Effective date text
(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.
Effective date text
(g) Has been required by a court under s. 51.20 (13) (cr), 938.34 (15), 971.17 (1m) (a), 973.047, or 980.063 to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
Effective date text
(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.
Effective date text
(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.
Effective date text
(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:
Effective date text
(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.
Effective date text
(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.
Effective date text
(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.
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(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.
Effective date text
(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.
Effective date text
(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.
Effective date text
(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.
Effective date text
(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.
Effective date text
(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.
Effective date text
(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.
Effective date text
(4) The department of justice may promulgate rules to implement this section.
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(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.
Effective date text
(6) (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).
Effective date text
(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:
165.76 Annotation
STATE OF WISCONSIN
165.76 Annotation
CIRCUIT COURT: .... County
165.76 Annotation
165.76 Annotation
STATE OF WISCONSIN File No. ......
165.76 Annotation
vs. ORDER
165.76 Annotation
A.B.
165.76 Annotation
Address
165.76 Annotation
City, State, Zip Code
165.76 Annotation
, Respondent
165.76 Annotation
165.76 Annotation
THE STATE OF WISCONSIN, To the Respondent named above:
165.76 Annotation
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.
165.76 Annotation
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:
165.76 Annotation
[Court information]
165.76 Annotation
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 Annotation
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 Annotation
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.
165.76 Annotation
Dated: ...., .... (year)
165.76 Annotation
By the Court signed: .... ....
165.76 Annotation
This Order is entered under section 165.76 (6) of the Wisconsin Statutes. A copy of that section is attached.
Effective date text
(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).
Effective date text
(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 Annotation
When 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 his cheeks for DNA. That same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his 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. ___ ,
133 S. Ct. 1236 185 L. Ed. 2d 171, (2013).
165.76 AnnotationDNA sampling under this section is constitutional. Shelton v. Grudman,
934 F. Supp. 1048 (1996).
165.76 Annotation
DNA Extraction on Arrest: Maryland v. King and Wisconsin's New Extraction Law. Dupuis. Wis. Law. Sept. 2013.
165.765
165.765
Biological specimen; force and immunity.
