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 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. 435,
133 S. Ct. 1958,
186 L. Ed. 2d 1 (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.
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)(a)
(a) “Health care professional" means a person licensed, certified, or registered under ch.
441,
448, or
455 [or a person who holds a compact privilege under subch.
IX of ch. 448].
165.77 Note
NOTE: Language intended under
2019 Wis. Act 100 is shown in brackets. Corrective legislation is pending.
2019 Wis. Act 100 added physical therapists who hold a compact privilege under subch. IX of ch. 448 (the Physical Therapy Licensure Compact) to numerous parts of the statutes that referred to physical therapists licensed under ch. 448, but did not take cognizance of
2019 Wis. Act 90.
2019 Wis. Act 90 changed the definition of “health care professional” to exclude physical therapists and others.
2019 Wis. Act 90 also deleted a cross-reference to the definition of “health care professional” and substituted the previous definition of “health care professional” (i.e., “persons licensed, certified, or registered under ch. 441, 448, or 455”) in s. 165.77 (1) (a). Acts 90 and 100, taken together, thereby unintentionally excluded physical therapists who hold a compact privilege from s. 165.77 (1) (a). The inclusion of compact privilege physical therapists was intended under
2019 Wis. Act 100.
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. Apr. 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) or
(1v) 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) and missing veterans at risk under s.
175.51 (1v) 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 or veterans at risk to develop criteria for law enforcement officers to use to identify reports of missing adults or veterans at risk that are appropriate to disseminate under s.
175.51 (1m) or
(1v), 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 or veterans 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.
