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Effective date text (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. ___ , ___ S. Ct. ___ ___ L. Ed. 2d ___, (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(1g)(1g) In this section:
165.765(1g)(a) (a) "Correctional officer" has the meaning given in s. 301.28 (1).
165.765(1g)(b) (b) "Jail officer" has the meaning given in s. 165.85 (2) (bn).
165.765(1g)(c) (c) "Law enforcement officer" has the meaning given in s. 165.85 (2) (c).
165.765(1g)(d) (d) "Tribal officer" has the meaning given in s. 165.85 (2) (g).
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) (2)
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.
Effective date note NOTE: This section is shown as affected eff. 4-1-15 by 2013 Wis. Act 20. Prior to 4-1-15 it reads:
Effective date text 165.765Biological 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.
Effective date text (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.
Effective date text (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; 2013 a. 20.
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)(1) In this section:
165.77(1)(a) (a) "Health care professional" has the meaning given in s. 154.01 (3).
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) (2)
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).
Effective date note NOTE: Subd. 2. is shown as amended eff. 4-1-15 by 2013 Wis. Act 20. Prior to 4-1-15 it reads:
Effective date text 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(2)(b) (b) Paragraph (a) does not apply to specimens received 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.
Effective date note NOTE: Par. (b) is shown as amended eff. 4-1-15 by 2013 Wis. Act 20. Prior to 4-1-15 it reads:
Effective date text (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) (2m)
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(2m)(c) (c) Paragraph (b) does not apply to specimens received 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.
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:
Effective date text (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:
Effective date text (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)
165.77(4)(ag)(ag) In this subsection, "violent crime" has the meaning given in s. 165.84 (7) (ab).
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.a. a. All charges for which the person was required to provide a biological specimen under s. 165.84 (7) or 970.02 (8) have been dismissed.
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. 3. If the person was required to provide a biological specimen under s. 165.84 (7) in connection with being taken into custody under s. 938.19 or under s. 938.21 (1m) or 938.30 (2m), one of the following applies:
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:
Effective date text (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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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)