Chapter 165

165.77(6) (6) Except as necessary to administer this section or as provided under the department’s rules under sub. (8), the department shall deny access to any record kept under this section.

165.77(7m) (7m) An entry in the data bank that is found to be erroneous does not prohibit the legitimate use of the entry to further a criminal investigation or prosecution. The failure of a law enforcement agency or the laboratories to comply with this section, s. 165.76, 165.765, or 165.84, or any rules or procedures adopted to administer those sections, is not grounds for challenging the validity of the data collection, for challenging the use of the sample as provided in those sections, or for the suppression of evidence based upon or derived from any entry in the data bank.

165.77(8) (8) The department shall promulgate rules to administer this section.

165.77 History History: 1993 a. 16, 98; 1995 a. 77, 440; 2001 a. 16; 2005 a. 60; 2011 a. 32; 2013 a. 20, 214; 2015 a. 55; 2019 a. 90; 2021 a. 23, 116, 131; s. 13.92 (2) (i); s. 35.17 correction in (1) (a).

165.77 Cross-reference Cross-reference: See also ch. Jus 9, Wis. adm. code.

165.77 Annotation The New Genetic World and the Law. Derse. Wis. Law. Apr. 2001.

165.775 165.775 Sexual assault kits.

165.775(1) (1) In this section:

165.775(1)(a) (a) “Department” means the department of justice.

165.775(1)(b) (b) “Health care professional” has the meaning given in s. 154.01 (3).

165.775(1)(c) (c) “Sex offense” has the meaning given in s. 949.20 (7).

165.775(1)(d) (d) “Sexual assault forensic examination” means an examination performed by a health care professional to gather evidence regarding a sex offense.

165.775(1)(e) (e) “Sexual assault kit” means the evidence collected from a sexual assault forensic examination.

165.775(1)(f) (f) “Wisconsin law enforcement agency” has the meaning given in s. 165.77 (1) (c).

165.775(2) (2) Whenever a health care professional conducts a sexual assault forensic examination and collects a sexual assault kit, the health care professional shall do one of the following:

165.775(2)(a) (a) If the victim chooses to report the sexual assault to a Wisconsin law enforcement agency, or if reporting is required under s. 48.981 (2), notify a Wisconsin law enforcement agency within 24 hours after collecting the sexual assault kit.

165.775(2)(b) (b) If the victim chooses not to report the sexual assault to a Wisconsin law enforcement agency, and reporting is not required under s. 48.981 (2), send the sexual assault kit to the state crime laboratories for storage in accordance with the procedures specified in the rules promulgated under sub. (6) within 72 hours after collecting the sexual assault kit.

165.775(3) (3) If a Wisconsin law enforcement agency receives notification under sub. (2) (a), it shall do all of the following:

165.775(3)(a) (a) Take possession of the sexual assault kit from the health care professional within 72 hours after receiving the notification.

165.775(3)(b) (b) Except as provided in par. (c), within 14 days after taking possession of the sexual assault kit, send the sexual assault kit to the state crime laboratories for processing in accordance with sub. (4) (b).

165.775(3)(c) (c) If the Wisconsin law enforcement agency, after taking possession of the sexual assault kit under par. (a) but before sending the sexual assault kit under par. (b), receives notification from the victim that the victim does not want to proceed with the analysis of his or her sexual assault kit, send the sexual assault kit to the state crime laboratories for storage in accordance with the procedures specified in the rules promulgated under sub. (6) within 14 days after taking possession of the sexual assault kit.

165.775(4) (4) 

165.775(4)(a) (a) If the state crime laboratories takes possession of a sexual assault kit and the victim chooses not to report the sexual assault to a Wisconsin law enforcement agency, the state crime laboratories shall securely store the sexual assault kit for a period of 10 years, during which time the sexual assault victim may choose to report the assault to a Wisconsin law enforcement agency.

165.775(4)(b) (b) Except as provided in par. (a), if the state crime laboratories takes possession of a sexual assault kit, the state crime laboratories shall begin processing the kit in accordance with the procedures specified in the rules promulgated under sub. (6) and shall complete processing the kit within 6 months after the state crime laboratories receives it, except that the state crime laboratories shall begin processing the kit within 5 business days of taking possession and shall complete processing the kit within 60 calendar days after the processing has begun if any of the following applies:

165.775(4)(b)1. 1. The victim chooses to report the sexual assault to a Wisconsin law enforcement agency, the identity of the person who perpetrated the sexual assault is unknown, and there is a threat to public safety. For purposes of this subsection, a victim’s report to a law enforcement agency shall be considered consent for the analysis of his or her sexual assault kit.

165.775(4)(b)2. 2. The sexual assault kit contains evidence collected from a sexual assault forensic examination that was performed as part of an investigation of a death that involves unexplained, unusual, or suspicious circumstances, as determined by a law enforcement agency.

165.775(5) (5) If a law enforcement agency takes possession of a sexual assault kit after it has been processed by the state crime laboratories, notwithstanding s. 968.205, it shall securely store the sexual assault kit for a period of 50 years, or until the date of the expiration of the statute of limitations, or until the end of the term of imprisonment or probation of a person who was convicted in the sexual assault case, whichever is longest.

165.775(6) (6) The department shall promulgate rules to administer this section.

165.775 History History: 2021 a. 116; 2023 a. 58; s. 35.17 correction in (5).

165.776 165.776 Sexual assault kit tracking system.

165.776(1) (1) In this section:

165.776(1)(a) (a) “Health care professional” has the meaning given in s. 154.01 (3).

165.776(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.

165.776(1)(c) (c) “Sexual assault forensic examination” means an examination performed by a health care professional to gather evidence regarding a sex offense.

165.776(1)(d) (d) “Sexual assault kit” means the evidence collected from a sexual assault forensic examination.

165.776(1)(e) (e) “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.

165.776(2) (2) The department shall establish a database, which shall be known as the Wisconsin Sexual Assault Kit Tracking System, for the purpose of providing victims of sexual assault access to information about the status of any sexual assault kit the victim has provided. The database shall use electronic technologies to allow continuous, ongoing access to do all of the following:

165.776(2)(a) (a) Allow health care professionals collecting sexual assault kits, forensic laboratories, law enforcement agencies, prosecutors, and the department to update and track the location and status of sexual assault kits, including the initial collection of evidence, receipt and storage at law enforcement agencies, receipt and analysis at forensic laboratories, and destruction.

165.776(2)(b) (b) Allow a victim of sexual assault to anonymously track the location and status of the victim’s sexual assault kit. Notwithstanding s. 165.79 (1), a victim may receive information relating to the location and status of the victim’s sexual assault kit.

165.776(3) (3) 

165.776(3)(a) (a) Whenever a Wisconsin law enforcement agency or a health care professional collects evidence in a case of sexual assault, the agency or professional shall enter the information required in the department’s rules under sub. (4) into the Wisconsin Sexual Assault Kit Tracking System.

165.776(3)(b) (b) Whenever the crime laboratories perform deoxyribonucleic acid analysis of a sexual assault kit, the crime laboratories shall enter the information required in the department’s rules under sub. (4) into the Wisconsin Sexual Assault Kit Tracking System.

165.776(4) (4) The department shall promulgate rules to administer this section.

165.776 Note NOTE: This section was created as s. 165.775 by 2021 Wis. Act 117 and renumbered to s. 165.776 by the legislative reference bureau under s. 13.92 (1) (bm) 2.

165.776 History History: 2021 a. 117 s. 1; s. 13.92 (1) (bm) 2.

165.78 165.78 Information center; training activities.

165.78(1) (1) The department shall act as a center for the clearance of information between law enforcement officers. In furtherance of this purpose it shall issue bulletins by mail or its telecommunication system. The department shall at all times collaborate and cooperate fully with the F.B.I. in exchange of information.

165.78(2) (2) The department shall cooperate and exchange information with other similar organizations in other states.

165.78(3) (3) The department may prepare and conduct informational and training activities for the benefit of law enforcement officers and professional groups.

165.78 History History: 1977 c. 260; 1985 a. 29.

165.785 165.785 Crime alert network.

165.785(1) (1) 

165.785(1)(a) (a) In addition to its duties under ss. 165.50 and 165.78, the department shall develop, administer, and maintain an integrated crime alert network.

165.785(1)(b) (b)

165.785(1)(b)1. 1. The department may use the network under par. (a) to provide information regarding known or suspected criminal activity, crime prevention, and missing or endangered persons to state agencies, law enforcement officers, and members of the private sector.

165.785(1)(b)2. 2. The department shall ensure that a law enforcement agency may access the network under par. (a) to disseminate a report under s. 175.51 (1m) or (1v) to persons on the list maintained under sub. (2m) (c).

165.785(1)(b)3. 3. The department shall ensure that a law enforcement agency may access the network under par. (a) to disseminate a report under s. 175.51 (2m) to persons on the list maintained under sub. (2r).

165.785(2) (2) The department may charge a fee to members of the private sector who receive information under sub. (1) (b) 1. The department may not charge a fee to any person who receives information under sub. (1) (b) 2. or 3.

165.785(2m) (2m) 

165.785(2m)(a) (a)

165.785(2m)(a)1. 1. The department shall provide a form for reports of missing persons at risk under s. 175.51 (1m) and missing veterans at risk under s. 175.51 (1v) that law enforcement agencies can access through the integrated crime alert network.

165.785(2m)(a)2. 2. The department shall train law enforcement officers on identifying reports of persons at risk that are appropriate for dissemination under sub. (1) (b) 2., using the form provided under subd. 1., and accessing the network to disseminate the report.

165.785(2m)(b) (b) The department shall work directly with persons on the list maintained under par. (c) and with government agencies, broadcasters, and public and private organizations with missions focused on persons or veterans at risk to develop criteria for law enforcement officers to use to identify reports of missing persons or veterans at risk that are appropriate to disseminate under s. 175.51 (1m) or (1v), to determine the most effective methods and guidelines for the persons on the list maintained under par. (c) to use to broadcast or make public reports of missing persons or veterans at risk, and to receive feedback on the forms provided under par. (a) 1. and on the list maintained under par. (c).

165.785(2m)(c) (c) The department shall maintain a list of persons that are engaged in broadcasting or outdoor advertising, that have agreed to be on the list, and that would be appropriate recipients of reports disseminated under sub. (1) (b) 2.

165.785(2r) (2r) The department shall maintain a list of persons that can effectively broadcast or make public reports disseminated under s. 175.51 (2m). The department shall ensure that the list includes persons engaged in broadcasting or outdoor advertising.

165.785(3) (3) The department shall utilize only program revenue amounts credited and expended from the appropriation account under s. 20.455 (2) (gp) to develop, administer, and maintain the integrated crime alert network under sub. (1).

165.785 History History: 2009 a. 358; 2013 a. 264; 2015 a. 315; 2017 a. 175; 2023 a. 272.

165.79 165.79 Evidence privileged.

165.79(1) (1) Evidence, information and analyses of evidence obtained from law enforcement officers by the laboratories is privileged and not available to persons other than law enforcement officers nor is the defendant entitled to an inspection of information and evidence submitted to the laboratories by the state or of a laboratory’s findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the state at a preliminary hearing and except as provided in s. 971.23. Upon request of a defendant in a felony action, approved by the presiding judge, the laboratories shall conduct analyses of evidence on behalf of the defendant. No prosecuting officer is entitled to an inspection of information and evidence submitted to the laboratories by the defendant, or of a laboratory’s findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the accused at a preliminary hearing and except as provided in s. 971.23. Employees who made examinations or analyses of evidence shall attend the criminal trial as witnesses, without subpoena, upon reasonable written notice from either party requesting the attendance.

165.79(2) (2) Upon the termination or cessation of the criminal proceedings, the privilege of the findings obtained by a laboratory may be waived in writing by the department and the prosecutor involved in the proceedings. The employees may then be subpoenaed in civil actions in regard to any information and analysis of evidence previously obtained in the criminal investigation, but the laboratories shall not engage in any investigation requested solely for the preparation for trial of a civil matter. Upon appearance as a witness or receipt of a subpoena or notice to prepare for trial in a civil action, or appearance either with or without subpoena, the laboratories shall be compensated by the party at whose request the appearance or preparation was made in a reasonable amount to be determined by the trial judge, which fee shall be paid into the state treasury. In fixing the compensation the court may give consideration to the time spent in obtaining and analyzing the evidence for the purposes of criminal proceedings.

165.79 History History: 1977 c. 260; 1979 c. 221; 1981 c. 20; 1983 a. 459; 1985 a. 29, 267; 1995 a. 387.

165.79 Annotation Whether to grant a defendant’s request under sub. (1) that the crime lab perform tests on the defendant’s behalf is a discretionary decision. State v. Lee, 192 Wis. 2d 260, 531 N.W.2d 351 (Ct. App. 1995).

165.79 Annotation Vacated in part. 197 Wis. 2d 959, 542 N.W.2d 143 (1996).

165.79 Annotation Cross-examination of a highly qualified witness who is familiar with the procedures used in performing the tests whose results are offered as evidence, who supervises or reviews the work of the testing analyst, and who renders the witness’s own expert opinion is sufficient to protect a defendant’s right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests. State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, 00-3065.

165.79 Annotation Under the facts of this case, the privilege in sub. (1) did not prevent the defendant from obtaining evidence the defendant was entitled to under s. 971.23 when the defendant received the physical evidence that the state intended to offer at trial and a copy of the crime lab report and was granted permission to submit the evidence for testing by the defendant’s own expert. The defendant was entitled to examine the crime lab analyst at trial but not at an evidentiary hearing. State v. Franszczak, 2002 WI App 141, 256 Wis. 2d 68, 647 N.W.2d 396, 01-1393.

165.79 Annotation Under Crawford, 541 U.S. 36 (2004), analysts’ affidavits that certified that evidence was in fact cocaine were testimonial statements, and the analysts were “witnesses” for purposes of the 6th amendment confrontation clause. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to be confronted with the analysts at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).

165.80 165.80 Cooperation with other state departments. For the purpose of coordinating the work of the crime laboratories with the research departments located in the University of Wisconsin, the attorney general and the University of Wisconsin may agree for the use of university laboratories and university physical facilities and the exchange and utilization of personnel between the crime laboratories and the university.

165.80 History History: 1985 a. 29; 1997 a. 27.

165.81 165.81 Disposal of evidence.

165.81(1) (1) Whenever the department is informed by the submitting officer or agency that physical evidence in the possession of the laboratories is no longer needed the department may, except as provided in sub. (3) or unless otherwise provided by law, destroy the evidence, retain it in the laboratories, return it to the submitting officer or agency, or turn it over to the University of Wisconsin upon the request of the head of any department of the University of Wisconsin. If the department returns the evidence to the submitting officer or agency, any action taken by the officer or agency with respect to the evidence shall be in accordance with s. 968.20. Except as provided in sub. (3), whenever the department receives information from which it appears probable that the evidence is no longer needed, the department may give written notice to the submitting agency and the appropriate district attorney, by registered mail, of the intention to dispose of the evidence. If no objection is received within 20 days after the notice was mailed, it may dispose of the evidence.

165.81(2) (2) Any electric weapon, as defined in s. 941.295 (1c) (a), in the possession of the laboratories shall either be destroyed or be turned over to an agency authorized to have electric weapons under s. 941.295 (2).

165.81(3) (3) 

165.81(3)(a) (a) In this subsection:

165.81(3)(a)1. 1. “Custody” has the meaning given in s. 968.205 (1) (a).

165.81(3)(a)2. 2. “Discharge date” has the meaning given in s. 968.205 (1) (b).

165.81(3)(b) (b) Except as provided in par. (c), if physical evidence that is in the possession of the laboratories includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, a delinquency adjudication, or commitment under s. 971.17 or 980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the laboratories shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

165.81(3)(bm) (bm) The laboratories shall retain evidence to which par. (b) applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a), from the biological material contained in or included on the evidence.

165.81(3)(c) (c) Subject to par. (e), the department may destroy evidence that includes biological material before the expiration of the time period specified in par. (b) if all of the following apply:

165.81(3)(c)1. 1. The department sends a notice of its intent to destroy the evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.