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 or any hospital where blood is withdrawn by that physician, nurse, technologist, assistant, or person is immune from any civil or criminal liability for the act, except for civil liability for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-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).
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(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.
165.785(1)(b)2.
2. The department shall ensure that a law enforcement agency may access the network under
par. (a) to disseminate a report under
s. 175.51 (1m) to persons on the list maintained under
sub. (2m) (c).
165.785(1)(b)3.
3. The department shall ensure that a law enforcement agency may access the network under
par. (a) to disseminate a report under
s. 175.51 (2m) to persons on the list maintained under
sub. (2r).
165.785(2)
(2) The department may charge a fee to members of the private sector who receive information under
sub. (1) (b) 1. The department may not charge a fee to any person who receives information under
sub. (1) (b) 2. or
3.
165.785(2m)(a)1.1. The department shall provide a form for reports of missing adults at risk under
s. 175.51 (1m) that law enforcement agencies can access through the integrated crime alert network.
165.785(2m)(a)2.
2. The department shall train law enforcement officers on identifying reports of adults at risk that are appropriate for dissemination under
sub. (1) (b) 2., using the form provided under
subd. 1., and accessing the network to disseminate the report.
165.785(2m)(b)
(b) The department shall work directly with persons on the list maintained under
par. (c) and with government agencies, broadcasters, and public and private organizations with missions focused on adults at risk to develop criteria for law enforcement officers to use to identify reports of missing adults at risk that are appropriate to disseminate under
s. 175.51 (1m), to determine the most effective methods and guidelines for the persons on the list maintained under
par. (c) to use to broadcast or make public reports of missing adults at risk, and to receive feedback on the forms provided under
par. (a) 1. and on the list maintained under
par. (c).
165.785(2m)(c)
(c) The department shall maintain a list of persons that are engaged in broadcasting or outdoor advertising, that have agreed to be on the list, and that would be appropriate recipients of reports disseminated under
sub. (1) (b) 2.
165.785(2r)
(2r) The department shall maintain a list of persons that can effectively broadcast or make public reports disseminated under
s. 175.51 (2m). The department shall ensure that the list includes persons engaged in broadcasting or outdoor advertising.
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).
165.79
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. 305,
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 (1c) (a), in the possession of the laboratories shall either be destroyed or be turned over to an agency authorized to have electric weapons under
s. 941.295 (2).
