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.
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(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).
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(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. 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.
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NOTE: This section is shown as affected eff. 4-1-15 by
2013 Wis. Act 20. Prior to 4-1-15 it reads:
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165.765 Biological specimen; penalty and immunity. (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.
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(2) (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.
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(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 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).
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NOTE: Subd. 2. is shown as amended eff. 4-1-15 by
2013 Wis. Act 20. Prior to 4-1-15 it reads:
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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.
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NOTE: Par. (b) is shown as amended eff. 4-1-15 by
2013 Wis. Act 20. Prior to 4-1-15 it reads:
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(b) Paragraph (a) does not apply to specimens received under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047 or 980.063.
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).
Effective date note
NOTE: Par. (c) is shown as amended eff. 4-1-15 by
2013 Wis. Act 20. Prior to 4-1-15 it reads:
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(c) Paragraph (b) does not apply to specimens received under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047, or 980.063.
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.
Effective date note
NOTE: Sub. (3) is shown as amended eff. 4-1-15 by
2013 Wis. Acts 20 and
214. Prior to 4-1-15 it reads:
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(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)(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 all of the following conditions 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).
Effective date note
NOTE: Sub. (4) is shown as affected eff. 4-1-15 by
2013 Wis. Acts 20 and
214. Prior to 4-1-15 it reads:
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(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:
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(a) The person's written request for expungement.
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(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, in a timely manner, 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(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-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)(a)(a) In addition to its duties under
ss. 165.50 and
165.78, the department shall develop, administer, and maintain an integrated crime alert network.
165.785(1)(b)1.1. The department may use the network under
par. (a) 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.
