Proposed s. Jus 9.06(2)(a)2. and 3. provide that a person who has been required to submit a biological specimen at the time of arrest or initial appearance before a judge for a violent crime or at the time of being taken into juvenile custody for conduct which would be a violent crime if committed by an adult may request expungement of his or her DNA analysis data if all relevant charges against the person have been dismissed, if a trial court has reached a final disposition for all such charges and the person has not been adjudged guilty of a violent crime or equivalent juvenile conduct, if the person has not been charged with a violent crime or equivalent juvenile conduct within one year of the arrest or juvenile custody in question, or if all of the person’s pertinent convictions or delinquency adjudications for violent crimes or equivalent juvenile conduct have been reversed, set aside, or vacated. Proposed s. Jus 9.06(2)(b) provides that all expungement requests must be made in writing on a form provided by the state crime laboratories and, if the expungement request is based on a court order reversing, setting aside, or vacating a criminal conviction, adjudication of delinquency, or other specified court findings, then the request must be accompanied by a certified copy of that court order. Proposed s. Jus 9.06(2)(c) requires the state crime laboratories, upon receipt of a proper and complete expungement request, to destroy all human biological specimens from the person making the request and to purge from the databank all records and identifiable information related to the person that are required to be expunged under s. 165.77(4)(bm), Stats. Proposed s. Jus 9.06(2)(d) requires the state crime laboratories to destroy a biological specimen obtained on the basis of a person’s being arrested for a violent crime or taken into juvenile custody for equivalent juvenile conduct if, within one year after the sample is submitted, the pertinent court has not notified the state crime laboratories that the person was arrested or taken into custody under a warrant, that the court has found probable cause that the individual committed a violent crime or equivalent juvenile conduct, that the person failed to appear at his or her initial appearance or preliminary examination or waived the preliminary examination, or that the person failed to appear for a delinquency proceeding. Proposed s. Jus 9.06(2)(e) provides that a fingerprint expungement request made by a person who has been required to provide a biological specimen at the time the person was arrested or taken into juvenile custody for a violent crime, will be granted only under the same conditions that apply to a request for expungement of the person’s biological specimen. This prevents a person’s fingerprints from being expunged prior to the time when the person’s biological specimen could be expunged—which, if not prevented, would result in the creation of a biological specimen with no accompanying identifying fingerprints. Proposed s. Jus 9.06(2)(f) provides for the expungement of information and biological specimens obtained from a person if the administrator of DOJ’s division of law enforcement services or his or her designee determines that the specimen was collected by mistake and that the person was not statutorily required to provide a specimen. Proposed s. Jus 9.06(3) provides for the confidentiality of all DNA analysis data, except for the uses specified in these rules and in s. 165.77, Stats. However, information concerning the fact that a person has provided a specimen for the DNA data bank is not confidential. Proposed s. Jus 9.07 provides that, in addition to any statutory criminal penalties, failure to provide a biological specimen as required under these rules may constitute a disciplinary offense or probation or parole violation. Proposed s. Jus 9.08(1) requires a court that imposes a sentence or places a person on probation to impose a DNA analysis surcharge of $250 for each felony conviction and $200 for each misdemeanor conviction, as provided under s. 973.046, Stats. Proposed s. Jus 9.08(2) requires the department of corrections to collect any unpaid DNA surcharges owed by an inmate and to transmit any amount collected to the secretary of administration. Proposed s. Jus 9.09 requires the department of corrections, the department of health services, county departments of social or human services, law enforcement agencies, tribal law enforcement agencies, and county sheriffs to cooperate fully with DOJ in meeting the requirements of these rules. Proposed s. Jus 9.10 provides for DOJ, pursuant to s. 165.76(4)(d), Stats., to reimburse law enforcement and tribal law enforcement agencies for each biological specimen collected and sent to the state crime laboratories, with the exception of duplicate specimens. Summary of, and comparison with, existing or proposed federal regulation: The activities regulated by the proposed rules are also affected by the federal statutes and regulations that govern the Combined DNA Index System (“CODIS”), which is the program of support for state and local criminal justice DNA databases operated by the Federal Bureau of Investigation, pursuant to 42 U.S.C. § 14132 and 28 C.F.R. Part 28. CODIS includes the National DNA Index System (“NDIS”), a national database that contains DNA analysis data contributed by forensic laboratories at the federal, state, and local levels. Under s. 165.76(4)(c), Stats., DOJ is expressly authorized to submit biological specimens or DNA analysis data for inclusion in NDIS. Forensic laboratories participating in NDIS are required to be accredited by a nationally recognized forensic science association, to undergo an external audit every two years to demonstrate compliance with quality assurance standards established by the FBI, and to disclose DNA samples or analyses only in accordance with federal privacy requirements. See 42 U.S.C. § 14132(b)(2) and (3). Access to NDIS is subject to cancellation if the quality control and privacy requirements are not met. 42 U.S.C. § 14132(c).
Comparison with rules in adjacent states:
A. Illinois
Illinois requires the collection of DNA samples from a person convicted of, found guilty of, or who received a disposition of court supervision for a felony, an offense requiring registration as a sex offender, or any other statutorily enumerated qualifying offense. The collection requirement also applies to a person found guilty or given supervision for the same offenses under the state’s juvenile court act. Any person arrested for first degree murder, home invasion, predatory criminal sexual assault of a child, aggravated criminal sexual assault, or criminal sexual assault must submit a DNA sample once a judge finds that there was probable cause for the arrest. It does not appear that juvenile arrestees are subject to DNA testing. DNA records of convicted offenders are expunged upon receipt of notification of a reversal of conviction based on actual innocence or the granting of a pardon based on actual innocence. DNA records of arrestees are expunged upon receipt of a court order stating that the charge was dismissed, the person was acquitted, or the charge was not filed within the applicable time period. See 730 Ill. Comp. Stat. 5/5-4-3 and Ill. Admin. Code tit. 20, §§ 1285.10 through 1285.90.
B. Iowa
Iowa requires the collection of DNA samples from sexually violent predators, sex offenders, persons convicted of felonies, and persons convicted of aggravated misdemeanors other than those related to gambling, hazardous waste, agricultural production, and certain traffic offenses. The collection requirement also applies to juveniles adjudicated delinquent for an offense that requires DNA profiling of an adult offender. Iowa does not require the collection of DNA samples from arrestees who have not been convicted of a crime. A person may request expungement of DNA records by submitting a certified copy of a court order showing that the conviction, adjudication or civil commitment that caused the submission of the person’s DNA sample has been reversed on appeal and the case dismissed. See Iowa Code §§ 81.1 through 81.10 and Iowa Admin Code 61‑8.1 through 61-8.5.
C. Michigan
Michigan requires the collection of DNA samples from offenders who are arrested or convicted of a qualifying offense, inmates who have not already provided a sample, juvenile offenders who are found responsible for a qualifying offense, and juvenile offenders who are public wards and have not already provided a sample. Qualifying offenses include felony assault, first or second degree murder, manslaughter, kidnapping, hostage taking, certain offenses against children, mayhem, certain sex offenses, carjacking, and robbery. A person may request expungement by submitting a written request accompanied by a certified copy of a final court order stating that the charge was dismissed, the person was acquitted, or the charge was not filed. See Mich. Comp. Laws §§ 28.171 through 28.176 and Mich. Admin. Code R. 28.5051through 28.5059.
D. Minnesota
Minnesota requires the collection of DNA samples from adults or juveniles who have had a judicial probable cause determination on a charge of committing a qualifying offense or persons who have been convicted of committing or attempting to commit a qualifying offense. Qualifying offenses include murder, manslaughter, assault, robbery or aggravated robbery, kidnapping, false imprisonment, criminal sexual conduct, incest, burglary, and indecent exposure. DNA samples are also collected from persons sentences as patterned sex offenders. A person may request expungement if acquitted or if the charges are dismissed. See Minn. Stat. § 299C.105.
Summary of factual data and analytical methodologies: The proposed rules are predicated on (1) analysis by DOJ legal staff of the language and requirements of the relevant statutes, as amended by Acts 20 and 214; and (2) analysis by DOJ law enforcement staff of the existing procedures for the collecting, handling, and analysis of biological specimens and what is needed to make those procedures compliant and consistent with the changes in the relevant statutes made by Acts 20 and 214. Based on the above analyses, DOJ has determined that the proposed rules are necessary for DOJ to carry out its responsibilities under ss. 165.76, 165.77, and 165.84, Stats., as amended by Acts 20 and 214. Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: DOJ does not anticipate any economic or fiscal impact on specific businesses, business sectors, public utility rate payers, or the State’s economy as a whole. There is minimal affect on local governmental units, as the new law requires law enforcement to collect more biological specimens than it has collected in previous years—from approximately 12,000 specimens to an estimated 65,000 specimens. However, the collections require minimal additional time—approximately 3-5 minutes—and law enforcement will be reimbursed, pursuant to s. 165.76(4)(d), Stats. Fiscal and economic costs associated with implementing the program are not driven by the proposed administrative rules, but rather are driven by the statutory requirements established in Acts 20 and 214. DOJ does not believe the proposed rules impose additional costs beyond those necessary to fulfill the requirements of Acts 20 and 214.
Act 20 requires that if a court imposes a sentence or places a person on probation, the court shall impose a DNA analysis surcharge of $200 for each misdemeanor conviction and $250 for each felony conviction. All moneys received are utilized to pay for costs of the program, to include: (1) DNA analysis; (2) program administration; (3) costs of mailing and materials for the submission of biological specimens by the departments of corrections and health services and by persons in charge of law enforcement and tribal law enforcement agencies; and (4) law enforcement reimbursement.
DOJ performed an analysis of prior year data and estimated that there are approximately 43,000 misdemeanor convictions and 12,000 felony convictions annually for persons who do not currently have DNA in the data bank. Based on a conservative analysis, DOJ projects surcharge revenue of 2.7 million in FY 2016 and 4.7 million in FY 2017-2020.
From November 14 through November 28, 2014, DOJ also solicited comments on the economic impact of its corresponding proposed permanent rules, pursuant to s. 227.137, Stats., and Executive Order 50. One comment was provided in response to DOJ’s solicitation. The comment was made by a law enforcement officer who was concerned about the requirement in the proposed rules that biological specimens be sent to a state crime laboratory within 24 hours of collection and feared that this requirement might be cost prohibitive. DOJ reviewed and discussed this issue and concluded that the requirement in question should have minimal economic impact on law enforcement agencies. As discussed above, the collection of biological specimens requires only a small amount of time and DOJ anticipates that costs associated with sending samples to a state crime laboratory will be adequately reimbursed, pursuant to s. 165.76(4)(d), Stats. Based on all of the considerations discussed above, DOJ concludes that the proposed emergency rules will not have any adverse material impact on the economy, a sector of the economy, productivity, jobs, private businesses, public utilities, or the overall economic competitiveness of the state.
Effect on small business: Based on agency staff analysis and the comment and review process discussed above and in the economic impact report that is being simultaneously submitted by DOJ, pursuant to s. 227.137, Stats., DOJ has concluded that the proposed emergency rules will not have a significant effect on small business. Other reporting requirements: The requirements of s. 227.116, Stats., are not applicable here because the proposed emergency rules do not include any permit requirements for businesses. The requirements of s. 227.137(6), Stats., are not applicable here because the implementation and compliance costs of the proposed emergency rules do not exceed $20,000,000.
The requirements of § 227.117 are not applicable here because the proposed emergency rules will have no impact on energy availability. Public hearings and public comments: Pursuant to s. 227.18, Stats., DOJ held a public hearing on the corresponding proposed permanent rules on February 16, 2015, in Madison. The public hearing notice also solicited written public comments via mail, email, fax, or electronic submission at http://adminrules.wisconsin.gov. Pursuant to s. 227.19(3)(b), Stats., a summary of the public comments received and DOJ’s response to those comments is included in DOJ’s Report to the Legislature regarding the proposed permanent rules. DOJ has not made any modifications to the proposed permanent rules or to these proposed emergency rules in response to public comments. Recommendations of the Legislative Council Staff: On January 8, 2015, DOJ received the Wisconsin Legislative Council Clearinghouse Report on the proposed permanent rules. Modifications to the proposed permanent rules recommended by the Legislative Council staff and adopted by DOJ have been incorporated into the text of those permanent rules and of these proposed emergency rules. Pursuant to s. 227.19(3)(d), a written response by DOJ to the recommendations of the Legislative Council Staff is included in DOJ’s Report to the Legislature regarding the proposed permanent rules. Other germane modifications to proposed rules: Under s. 227.19(4)(b)3., Stats., an agency may, on its own initiative, submit a germane modification to a proposed rule to be considered during legislative committee review under s. 227.19(4), Stats. DOJ has made two such modifications to the corresponding proposed permanent rules and those modifications are also reflected in these proposed emergency rules. First, in s. Jus 9.04(1)(a), which enumerates the categories of persons who are required to submit biological specimens, the categories have been broken down into a larger number of categories that track the corresponding statutory provisions in a way that will be easier to follow for readers of the rules. This modification only rearranges the categories that were in the draft of the permanent rules that was submitted to the Legislative Council staff and does not make any substantive change to that draft. Second, an error in s. Jus 9.04(3)(c)1. has been corrected. Proposed s. Jus 9.04(3)(c)1. and 2. provides a method for avoiding the collection of unnecessary duplicate specimens from the same person. In the draft of the proposed permanent rules that was submitted to the Legislative Council staff, s. Jus 9.04(3)(c)1. omitted the circumstances under which a law enforcement agency is to proceed under s. Jus 9.04(3)(c)2. Accordingly, s. Jus 9.04(3)(c)1. has now been modified to make it clear that a law enforcement agency is to proceed under s. Jus 9.04(3)(c)2. if “conviction DNA” is not on file and the specimen is being collected pursuant to a conviction under s. Jus 9.04(1)(a)6. This modification was necessary to enable s. Jus 9.04(3)(c)1. to perform its intended function. Agency contact person: Assistant Attorney General Thomas C. Bellavia, Wisconsin Department of Justice, 17 West Main Street, P.O. Box 7857, Madison, Wisconsin 53707‑7857; phone (608) 266-8690; email: bellaviatc@doj.state.wi.us. ______________________________________________________________________________
FINDING OF EMERGENCY
These emergency rules are necessary because s. 9426 of 2013 Wisconsin Act 20 established an effective date of April 1, 2015, for the new requirements related to DNA specimen collection created by that act. Those requirements include requirements that DOJ promulgate administrative rules for carrying out its duties under ss. 165.76 and 165.77, Stats. In order to comply with those rulemaking requirements, DOJ must have administrative rules in place for carrying out those statutory duties by the effective date of April 1, 2015. DOJ is in the process of promulgating permanent administrative rules for that purpose. See Clearinghouse Rule 14-070. On February 25, 2015, the final draft of the proposed permanent rules and accompanying reports were submitted for the Governor’s review and approval, pursuant to Wis. Stat. § 227.185. The permanent rulemaking process, however, is not likely to be completed prior to the statutory deadline of April 1, 2015. The public welfare thus requires that emergency rules be promulgated, in order to ensure that there is no interruption in DOJ’s ability to carry out all of its statutory responsibilities related to the collection, analysis, and handling of DNA specimens for law enforcement purposes. The emergency rules proposed here will correspond to and have the same scope as the proposed permanent rules. the promulgation of these emergency rules will would prevent discontinuity and ensure timely, continuous, and uniform operation of the DNA program through the completion of the permanent rulemaking process that is under way.
