Section 165.76(4), Stats., authorizes the portions of the proposed rules that establish procedures and time limits for obtaining and submitting biological specimens, specify whether particular individuals are required to provide a biological specimen, provide for the analysis of biological specimens by the state crime laboratories, provide for the submission of DNA profile data for inclusion in the Federal Bureau of Investigation’s National DNA Identification System, provide for state reimbursement to law enforcement agencies for costs incurred in collecting and submitting biological specimens, and provide for DOJ to carry out any other duties under s. 165.76, Stats. Section 165.76(4), Stats., states as follows: The department of justice shall promulgate rules to do all of the following:
(a) Establish procedures and time limits for obtaining and submitting biological specimens under this section and ss. 51.20(13)(cr), 165.84(7), 938.21(1m), 938.30(2m), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 973.047, and 980.063.
(b) Specify whether an individual who is required under this section or s. 51.20(13)(cr), 165.84(7), 938.21(1m), 938.30(2m), 938.34(15), 970.02(8), 971.17(1m)(a), 973.047, or 980.063 to provide a biological specimen for deoxyribonucleic acid analysis must provide a new biological specimen if the crime laboratories already have a biological specimen from the individual or if data obtained from deoxyribonucleic acid analysis of the individual's biological specimen are already included in the data bank under s. 165.77(3). (c) Allow a biological specimen, or data obtained from analysis of a biological specimen, obtained under this section, under s. 51.20(13)(cr), 938.21(1m), 938.30(2m), 938.34(15), 970.02(8), 971.17(1m)(a), 973.047, or 980.063, or, if the specimen is required to be analyzed under s. 165.84(7)(am)1m., under s. 165.84(7)(ah), to be submitted for inclusion in an index established under 42 USC 14132(a) or in another national index system. (d) Provide reimbursement from s. 20.455(2)(Lm) to a person in charge of a law enforcement agency or tribal law enforcement agency at a rate of $10 per specimen except that, if the department already has a biological specimen, or data obtained from analysis of a biological specimen, from the individual, the department may not reimburse the person in charge of the agency.
(e) Carry out the department's duties under this section.
Acts 20 and 214 also revised some of the statutory requirements related to DNA analysis and the maintenance of the DNA data bank in s. 165.77, Stats. Section 165.77(8), Stats., says: “The department shall promulgate rules to administer this section.” That statute thus authorizes those portions of the proposed rules that provide for DOJ to carry out its duties under s. 165.77, Stats., Those portions of the proposed rules that are not specifically authorized by ss. 165.76(4) and 165.77(8), Stats., as described above, are authorized by s. 227.11(2)(a), Stats., which provides:
(2) Rule-making authority is expressly conferred as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
This statute expressly confers on DOJ the general power to determine whether administrative rules interpreting statutory provisions that are to be enforced or administered by DOJ are necessary to effectuate the purpose of those statutory provisions and, if such necessity is found, to promulgate such administrative rules, as long as those rules do not exceed the bounds of correct interpretation of the governing statutes.
DOJ finds that the rules here proposed are necessary to effectuate the statutory objective described in detail above.
DOJ further finds that the rules here proposed:
do not exceed the bounds of correct interpretation of the pertinent statutes;
are authorized by those statutes and are not based on authority derived from any other statutory or non-statutory statements or declarations of legislative intent, purpose, findings, or policy;
are authorized as necessary interpretations of specific statutory requirements and are not based on authority derived from any other general powers or duties of DOJ; and
do not impose any standards or requirements that are more restrictive than the standards and requirements contained in the pertinent statutes. For these reasons, those portions of the proposed rules that are not specifically authorized ss. 165.76(4) and 165.77(8), Stats., are authorized by s. 227.11(2)(a), Stats. Related statutes or rules: Prior to the enactment of Acts 20 and 214, ss. 165.76, 165.77, and 165.84, Stats., and Wis. Admin. Code ch. Jus 9 already governed matters related to the collection, handling, and analysis of human biological specimens for law enforcement purposes. The proposed rules will bring Wis. Admin. Code ch. Jus 9 into compliance and consistency with the revisions to ss. 165.76, 165.77, and 165.84, Stats., made by Acts 20 and 214. Plain language analysis: In Acts 20 and 214, the State of Wisconsin substantially revised existing statutes related to the requirement that certain persons submit biological specimens to the crime laboratories in DOJ for DNA analysis and that the resulting data be included in a DNA data bank. Acts 20 and 214 expanded the range of categories of persons who are required to submit DNA samples to law enforcement, required courts to order the submission of DNA samples by persons from whom samples were not obtained at the time of arrest or custody, expanded the categories of persons immune from civil or criminal liability arising out of the statutorily-mandated acquisition of DNA samples, authorized certain officials to use reasonable force in obtaining a DNA sample in some circumstances, and expanded the circumstances in which specimens and information in the data bank may or must be expunged.
The rules proposed here will not themselves establish new policies, but rather will carry into effect the legislative directives set forth in Acts 20 and 214 by providing specific procedures, time limits, and standards for carrying out various statutorily prescribed policy objectives.
Section by section analysis:
Proposed s. Jus 9.02 specifies to whom, by statute, the requirements of ch. Jus 9 apply. Proposed s. Jus 9.03(2m) incorporates into the rules the definition of “juvenile” used in Wisconsin’s Juvenile Justice Code, ch. 938, Stats. Proposed s. Jus. 9.03(5) incorporates into the rules the definition of “tribal law enforcement agency” used for purposes of criminal identification, records, and statistics in s. 165.83(1)(e), Stats.
Proposed s. Jus 9.03(6) incorporates into the rules the definition of “violent crime” created by Act 214 and codified at s. 165.84(7)(ab), Stats. Proposed s. Jus 9.04(1)(a) sets forth what persons are required to submit biological specimens. Proposed s. Jus 9.04(1)(b) provides that a person required to provide a specimen shall do so upon the occurrence of the underlying event that triggers the requirement, without need for a court order. Proposed s. Jus 9.04(2) sets forth the locations and times at which different categories of persons shall provide required biological specimens. Proposed s. Jus 9.04(3) supplies procedures for the collection of human biological specimens by law enforcement agencies and for the submission of those specimens to the state crime laboratories. Proposed s. Jus 9.04(3)(a) indicates who may perform the collection of biological specimens and prescribes that specimens shall be collected by the oral swab method. Proposed s. Jus 9.04(3)(b) provides that the collection of a human biological specimen may include the collection of any source of DNA approved by the state crime laboratories. 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. Before a specimen is collected, the person’s criminal history must be checked to determine if conviction DNA data for the person is already on file. If such data is on file, no additional specimen shall be collected. If the specimen is being collected at a time other than the time of arrest, then the collecting law enforcement agency must also determine whether a biological specimen for the person was already collected at the time of arrest. If so, no additional specimen shall be collected. Proposed s. Jus 9.04(c)3. requires the collecting law enforcement agency to complete a submission form that indicates the reason for the submission of each biological specimen submitted to the state crime laboratories. The form shall be prescribed and provided by the state crime laboratories. Proposed s. Jus 9.04(c)5. requires the collecting law enforcement agency to obtain a full set of fingerprints from the person whose biological specimen is being collected. Proposed s. Jus 9.04(d) requires the collecting agency to submit each specimen and the fingerprints of the person to a state crime laboratory within 24 hours of collection and further provides that procedures for making such submissions shall be supplied by the state crime laboratories. Proposed s. Jus 9.05 governs the use of human biological specimens by the state crime laboratories for the creation and maintenance of a DNA data bank. If a law enforcement agency submits to the crime laboratories a biological specimen obtained from a person at any time other than when the person is arrested for a violent crime or taken into custody for a juvenile offense that would be a violent crime, the crime laboratories shall analyze the DNA in the biological specimen and maintain the resulting DNA data in a data bank. If a biological specimen is submitted to the crime laboratories when a person is arrested for a violent crime or taken into custody for a juvenile offense that would be a violent crime, the crime laboratories shall analyze the DNA in the specimen and maintain the resulting DNA data in a data bank only if the crime laboratories receive statutorily required notice from a court within one year of the date on which the biological specimen was submitted. If the statutorily required notice from a court is not received within the one year period, the crime laboratories shall destroy the biological specimen. Proposed s. Jus 9.06(1) authorizes the state crime laboratories to compare the DNA data from different biological specimens and to share DNA data and comparison data with law enforcement agencies or with the FBI’s combined DNA identification system. Such sharing of data may take place in connection with criminal or delinquency investigations or upon the request of any prosecutor, any defense attorney, or the subject of the data. This subsection further provides that DNA data and comparison data may be used in criminal and delinquency actions and proceedings, subject to applicable statutory requirements. Proposed s. Jus 9.06(2) governs the expungement of DNA analysis data and the destruction of biological samples collected pursuant to these rules. Proposed s. Jus 9.06(2)(a)1. provides that a person who has been required to submit a biological specimen pursuant to specified statutory provisions based on a criminal conviction, adjudication of delinquency, or certain court findings may request expungement of his or her DNA analysis data if the relevant convictions, adjudications or findings have been reversed, set aside, or vacated.
