Jus 9.05Jus 9.05 Use of human biological specimens for DNA data bank. Upon receiving a human biological specimen under any provision of this chapter other than s. Jus 9.04 (1) (a) 17., the state crime laboratories shall analyze the DNA in the specimen and shall maintain a data bank based on the data obtained from the DNA analysis of those specimens. Jus 9.05(2)(2) If the state crime laboratories, within one year after receiving a human biological specimen under s. Jus 9.04 (1) (a) 17., receive notice from a court under s. 165.84 (7) (bm), Stats., the state crime laboratories shall analyze the DNA in the specimen and shall maintain a data bank based on the data obtained from the DNA analysis of those specimens. Jus 9.05(3)(3) If the state crime laboratories, within one year after receiving a human biological specimen under s. Jus 9.04 (1) (a) 17., do not receive notice from a court under s. 165.84 (7) (bm), Stats., the state crime laboratories shall destroy the biological specimen. Jus 9.05 HistoryHistory: Cr. Register, July, 1997, No. 499, eff. 8-1-97; EmR1510: emerg. r. and recr., eff. 4-1-15; CR 14-070: r. and recr. Register September 2015 No. 717, eff. 10-1-15; correction in (2), (3) made under s. 13.92 (4) (b) 7., Stats., Register September 2015 No. 717. Jus 9.06(1)(1) Use. The state crime laboratories may compare the data obtained from one human biological specimen with the data obtained from other specimens. The laboratories may make data obtained from any analysis and comparison available to law enforcement agencies and the combined DNA identification system 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, subject to s. 971.23 (9), Stats. Jus 9.06(2)(a)(a) A person may request expungement of his or her DNA analysis data submitted under this chapter on any of the following grounds: Jus 9.06(2)(a)1.1. The DNA analysis data was included in the data bank pursuant to s. 165.77 (4) (am) 1., Stats., and all convictions, findings, or adjudications for which the person was required to submit a biological sample have been reversed, set aside or vacated. Jus 9.06(2)(b)(b) A request for expungement of DNA analysis data under par. (a) must be made in writing on a form provided by the state crime laboratories. If par. (a) 1. applies to the person making the request, then the request must be accompanied by a certified copy of the court order reversing, setting aside or vacating the person’s conviction or adjudication. Jus 9.06(2)(c)(c) Upon receipt of a complete expungement request meeting the requirements of pars. (a) and (b), the state crime laboratories shall expunge all records and identifiable information in the databank pertaining to the person that are required to be purged under s. 165.77 (4) (bm), Stats., and destroy all human biological specimens from the person. Jus 9.06(2)(f)(f) If the administrator of the department’s division of law enforcement services or his or her designee determines that a human biological specimen was collected from a person by mistake and that the person is not subject to the submission requirements of this chapter, the state crime laboratories shall expunge all records and identifiable information in the databank pertaining to the person that are required to be purged under s. 165.77 (4) (bm), Stats., and destroy all human biological specimens from the person. Jus 9.06(3)(3) Confidentiality. Except for the uses listed in this chapter and s. 165.77, Stats., DNA analysis data collected under this chapter for the DNA data bank shall remain confidential. Information concerning the fact that a person has submitted a human biological specimen for the DNA data bank is not confidential and may be released. Jus 9.06 HistoryHistory: Cr. Register, July, 1997, No. 499, eff. 8-1-97; EmR1510: emerg. r. and recr., eff. 4-1-15; CR 14-070: r. and recr. Register September 2015 No. 717, eff. 10-1-15; correction in (2) (e) made under s. 35.17, Stats., Register September 2015 No. 717. Jus 9.07Jus 9.07 Compliance and penalties. In addition to any criminal penalties under s. 946.52, Stats., failure to provide a human biological specimen under this chapter may also constitute a disciplinary offense or probation or parole violation. Jus 9.07 HistoryHistory: Cr. Register, July, 1997, No. 499, eff. 8-1-97; EmR1510: emerg. r. and recr., eff. 4-1-15; CR 14-070: r. and recr. Register September 2015 No. 717, eff. 10-1-15. Jus 9.08Jus 9.08 DNA analysis surcharge. Jus 9.08(1)(1) If a court imposes a sentence or places a person on probation, the court shall impose a DNA analysis surcharge of $250 for each felony conviction and $200 for each misdemeanor conviction as provided under s. 973.046, Stats. Jus 9.08(2)(2) If a court imposes a DNA surcharge under sub. (1) on a person who is an inmate in a state prison and the inmate has not paid the surcharge, the department of corrections shall collect the amount owed from the income earned by or received for the benefit of the inmate. The department of corrections shall transmit any amount collected to the secretary of administration. Jus 9.08 HistoryHistory: Cr. Register, July, 1997, No. 499, eff. 8-1-97; correction in (1) (b) made under s. 13.93 (2m) (b) 7., Stats., Register September 2001 No. 549; EmR1510: emerg. r. and recr., eff. 4-1-15; CR 14-070: r. and recr. Register September 2015 No. 717, eff. 10-1-15. Jus 9.08 NoteNote: In State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, the court held that the DNA surcharge imposed on misdemeanants under s. 973.046, Stats., as applied to a defendant who was sentenced after the surcharge was legally required (January 1, 2014) but before DNA samples could be collected from misdemeanants (April 1, 2015), does not correspond to the cost of DNA analysis activities and thus is a punitive fine, rather than a fee; therefore, such an application of the DNA surcharge to a misdemeanant who committed the underlying offense before January 1, 2014, is an unconstitutional ex post facto violation. Jus 9.08 Note In State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, the court held that the imposition on a single defendant of multiple DNA surcharges for multiple felony or misdemeanor convictions under s. 973.046, Stats., does not correspond to the cost of DNA analysis activities and thus is a punitive fine, rather than a fee; therefore, the application of the multiple DNA surcharge requirement to a defendant who committed the underlying offenses before that requirement was in effect (January 1, 2014) is an unconstitutional ex post facto violation. Jus 9.09Jus 9.09 Cooperation. The department of corrections, department of health services, county departments under ss. 46.215, 46.22, and 46.23, Stats., law enforcement agencies, tribal law enforcement agencies, and county sheriffs shall cooperate fully with the department to meet the requirements of this chapter. Jus 9.09 HistoryHistory: Cr. Register, July, 1997, No. 499, eff. 8-1-97; correction made under s. 13.92 (4) (b) 6., Stats., Register March 2013 No. 687; EmR1510: emerg. am., eff. 4-1-15; CR 14-070: am. Register September 2015 No. 717, eff. 10-1-15. Jus 9.10Jus 9.10 Reimbursements to law enforcement agencies. The department shall reimburse law enforcement and tribal law enforcement agencies for each human biological specimen collected and received by the state crime laboratories as provided in s. 165.76 (4) (d), Stats. The department shall not reimburse for duplicate biological specimens. The department shall make payment on an annual basis or more often as it deems necessary. Jus 9.10 HistoryHistory: EmR1510: emerg. cr., eff. 4-1-15; CR 14-070: cr. Register September 2015 No. 717, eff. 10-1-15.
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