Chapter 165

165.76 165.76 Submission of human biological specimen.

165.76(1) (1) A person shall provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis if he or she meets any of the following criteria:

165.76(1)(a) (a) Is or was in a juvenile correctional facility, as defined in s. 938.02 (10p), or a secured residential care center for children and youth, as defined in s. 938.02 (15g), or on probation, extended supervision, parole, supervision, or aftercare supervision on or after August 12, 1993, for any violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085.

165.76(1)(ag) (ag) Is or was in prison on or after August 12, 1993, and before January 1, 2000, for any violation of s. 940.225 (1) or (2), 948.02 (1) or (2), or 948.025.

165.76(1)(am) (am) Is or was adjudicated delinquent for an act that if committed by an adult in this state would be a felony or for a violation of s. 940.225 (3m), 941.20 (1), 944.20, 944.30 (1m), 944.31 (1), 944.33, 946.52, or 948.10 (1) (b).

165.76(1)(ar) (ar) Is or was in prison on or after January 1, 2000, for a felony committed in this state.

165.76(1)(as) (as) Is or was found guilty of any misdemeanor on or after April 1, 2015.

165.76(1)(av) (av) Is or was found guilty on or after January 1, 2000, of any of the following:

165.76(1)(av)1. 1. Any felony.

165.76(1)(av)2. 2. Before April 1, 2015, any violation of s. 165.765 (1), 2011 stats., or of s. 940.225 (3m), 944.20, or 948.10 (1) (b).

165.76(1)(aw) (aw) Is or was found guilty on or after January 1, 2000, and before April 1, 2015, of any violation of s. 940.225 (3m), 944.20, or 948.10.

165.76(1)(bg) (bg) Is or was sentenced or placed on probation on or after August 12, 1993, for a violation of s. 940.225, 948.02 (1) or (2), or 948.025.

165.76(1)(bm) (bm) Has been found not guilty or not responsible by reason of mental disease or defect on or after August 12, 1993, and committed under s. 51.20 or 971.17 for any violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085.

165.76(1)(br) (br) Has been found not guilty or not responsible by reason of mental disease or defect on or after January 1, 2000, and committed under s. 51.20 or 971.17, for any felony or a violation of s. 165.765 (1), 2011 stats., or of s. 940.225 (3m), 944.20, 946.52, or 948.10 (1) (b).

165.76(1)(c) (c) Is or was in institutional care on or after August 12, 1993, for any violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085.

165.76(1)(cr) (cr) Is or was in institutional care on or after January 1, 2000, for a felony or any violation of s. 165.765 (1), 2011 stats., or of s. 940.225 (3m), 944.20, 946.52, or 948.10 (1) (b).

165.76(1)(d) (d) Has been found to be a sexually violent person under ch. 980 on or after June 2, 1994.

165.76(1)(e) (e) Is or was released on parole or extended supervision or placed on probation in another state before January 1, 2000, and is or was on parole, extended supervision, or probation in this state from the other state under s. 304.13 (1m), 304.135, or 304.16 on or after July 9, 1996, for a violation of the law of the other state that the department of corrections determines, under s. 304.137 (1), is comparable to a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085.

165.76(1)(f) (f) Is or was released on parole or extended supervision or placed on probation in another state on or after January 1, 2000, and before April 1, 2015, and is or was on parole, extended supervision, or probation in this state from the other state under s. 304.13 (1m), 304.135, or 304.16 for a violation of the law of the other state that the department of corrections determines, under s. 304.137 (2), would constitute a felony if committed by an adult in this state.

165.76(1)(fm) (fm) Is or was released on parole or extended supervision or placed on probation in another state on or after April 1, 2015, and is or was on parole, extended supervision, or probation in this state from the other state under s. 304.13 (1m), 304.135, or 304.16.

165.76(1)(g) (g) Has been required by a court 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 to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.

165.76(1)(gm) (gm) Is arrested for a violent crime, as defined in s. 165.84 (7) (ab), or is taken into custody for a juvenile offense that would be a violent crime, as defined in s. 165.84 (7) (ab), if committed by an adult in this state.

165.76(1)(h) (h) Is notified by the department of justice, the department of corrections, a district attorney, or a county sheriff under sub. (1m) that the person is required to provide a biological specimen.

165.76(1m) (1m) If a person is required to provide a biological specimen under sub. (1) (a) to (gm) and the department of justice does not have the data obtained from analysis of a biological specimen from the person that the department is required to maintain in the data bank under s. 165.77 (3), the department may require the person to provide a biological specimen, regardless of whether the person previously provided a biological specimen 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. The department of justice, the department of corrections, a district attorney, or a county sheriff, shall notify any person whom the department of justice requires to provide a biological specimen under this subsection.

165.76(2r) (2r) Failure by a person who is required to provide a biological specimen under sub. (1) to provide the biological specimen in accordance with the rules promulgated under sub. (4) does not relieve the person of the obligation to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.

165.76(4) (4) The department of justice shall promulgate rules to do all of the following:

165.76(4)(a) (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.

165.76(4)(b) (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).

165.76(4)(c) (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.

165.76(4)(d) (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.

165.76(4)(e) (e) Carry out the department’s duties under this section.

165.76(5) (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.

165.76(6) (6) 

165.76(6)(a) (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).

165.76(6)(b) (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:

STATE OF WISCONSIN

CIRCUIT COURT: .... County

STATE OF WISCONSIN File No. ......

vs. ORDER

A.B.

Address

City, State, Zip Code

, Respondent

THE STATE OF WISCONSIN, To the Respondent named above:

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.

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 History History: 1993 a. 16, 98, 227; 1995 a. 27 s. 9126 (19); 1995 a. 77, 440; 1997 a. 35, 283; 1999 a. 9; 2001 a. 96; 2005 a. 277, 344; 2007 a. 20 s. 9121 (6) (a); 2007 a. 97; 2009 a. 261; 2011 a. 257; 2011 a. 260 s. 81; 2013 a. 20, 166, 214, 362; 2015 a. 195; 2017 a. 131; 2021 a. 53; 2021 a. 238 s. 45; 2021 a. 240 s. 30.

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 the arrestee’s cheeks for DNA. That same context of arrest gives rise to significant state interests in identifying the arrestee not only so that the proper name can be attached to the arrestee’s 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 Annotation DNA sampling under this section is constitutional. Shelton v. Gudmanson, 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) (a)

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 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” means a person who is licensed, certified, or registered under ch. 441, 448, or 455; a person who holds a compact privilege under subch. XI of ch. 448; or a person who is exercising the temporary authorization to practice, as defined in s. 455.50 (2) (o), in this state, or who is practicing under the authority to practice interjurisdictional telepsychology, as defined in s. 455.50 (2) (b).

165.77 Note NOTE: Par. (a) is shown as amended by 2021 Wis. Acts 23 and 131 and as merged by the legislative reference bureau under s. 13.92 (2) (i). The cross-reference to subch. XI of ch. 448 was changed from subch. X of ch. 448 by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of subch. X of ch. 448.

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) (a)

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(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.

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).