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165.76 AnnotationDNA sampling under this section is constitutional. Shelton v. Grudman, 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)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 or any hospital where blood is withdrawn by that physician, nurse, technologist, assistant, or person is immune from any civil or criminal liability for the act, except for civil liability for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. X 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).
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)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).
165.77(2m)(c) (c) Paragraph (b) 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(3) (3)If the laboratories receive a human biological specimen under s. 51.20 (13) (cr), 165.76, 938.21 (1m), 938.30 (2m), 938.34 (15), 970.02 (8), 971.17 (1m) (a), 973.047, or 980.063, the laboratories shall analyze the deoxyribonucleic acid in the specimen. If the laboratories receive a human biological specimen under s. 165.84 (7) (ah), the laboratories shall analyze the deoxyribonucleic acid in the specimen as provided under s. 165.84 (7) (am) 1m. The laboratories shall maintain a data bank based on data obtained from deoxyribonucleic acid analysis of those specimens. The laboratories may compare the data obtained from one specimen with the 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.
165.77(4) (4)
165.77(4)(ag)(ag) In this subsection, “violent crime" has the meaning given in s. 165.84 (7) (ab).
165.77(4)(am) (am) A person whose deoxyribonucleic acid analysis data have been included in the data bank under sub. (3) may request expungement on the grounds that any of the following conditions that apply to the person are satisfied:
165.77(4)(am)1. 1. If the person was required to submit a biological specimen under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047, or 980.063, all convictions, findings, or adjudications for which the person was required to submit a biological specimen under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047, or 980.063 have been reversed, set aside, or vacated.
165.77(4)(am)2. 2. If the person was required to provide a biological specimen under s. 165.84 (7) in connection with an arrest or under s. 970.02 (8), one of the following applies:
165.77(4)(am)2.a. a. All charges for which the person was required to provide a biological specimen under s. 165.84 (7) or 970.02 (8) have been dismissed.
165.77(4)(am)2.b. b. The trial court reached final disposition for all charges for which the person was required to provide a biological specimen under s. 165.84 (7) or 970.02 (8), and the person was not adjudged guilty of a violent crime in connection with any such charge.
165.77(4)(am)2.c. c. At least one year has passed since the arrest and the person has not been charged with a violent crime in connection with the arrest.
165.77(4)(am)2.d. d. The person was adjudged guilty of a violent crime in connection with any charge for which the person was required to provide a biological specimen under s. 165.84 (7) or 970.02 (8), and all such convictions for a violent crime have been reversed, set aside, or vacated.
165.77(4)(am)3. 3. If the person was required to provide a biological specimen under s. 165.84 (7) in connection with being taken into custody under s. 938.19 or under s. 938.21 (1m) or 938.30 (2m), one of the following applies:
165.77(4)(am)3.a. a. All criminal complaints or delinquency petitions that allege that the person committed a violation that would be a violent crime if committed by an adult in this state and that are in connection with the taking into custody have been dismissed.
165.77(4)(am)3.b. b. The trial court reached final disposition for all allegations that the person committed a violation that would be a violent crime if committed by an adult in this state that are in connection with the taking into custody, and the person was not convicted or adjudged delinquent for a violation that would be a violent crime if committed by an adult in this state that is in connection with the taking into custody.
165.77(4)(am)3.c. c. At least one year has passed since the person was taken into custody and no criminal complaint or delinquency petition alleging that the person committed a violation that would be a violent crime if committed by an adult in this state has been filed against the person in connection with the taking into custody.
165.77(4)(am)3.d. d. The person was convicted or adjudged delinquent for a violation that would be a violent crime if committed by an adult in this state and that is in connection with the taking into custody, and the conviction or delinquency adjudication has been reversed, set aside, or vacated.
165.77(4)(bm) (bm) If the department determines that the conditions under par. (am) are satisfied, the laboratories shall purge all records and identifiable information in the data bank pertaining to the person and destroy all samples from the person upon receiving the person's written request for expungement and any documentation the department requires under rules promulgated under sub. (8).
165.77(5) (5)Any person who intentionally disseminates a specimen received under this section or any information obtained as a result of analysis or comparison under this section or from the data bank under sub. (3) in a manner not authorized under this section or the rules under sub. (8) may be fined not more than $500 or imprisoned for not more than 30 days or both.
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(7) (7)Whenever a Wisconsin law enforcement agency or a health care professional collects evidence in a case of alleged or suspected sexual assault, the agency or professional shall follow the procedures specified in the department's rules under sub. (8). The laboratories shall perform, in a timely manner, deoxyribonucleic acid analysis of specimens provided by law enforcement agencies under sub. (2). The laboratories shall not include data obtained from deoxyribonucleic acid analysis of those specimens in the data bank under sub. (3).
Effective date note NOTE: Sub. (7) is repealed eff. 7-1-22 by 2021 Wis. Act 116.
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).
Effective date note NOTE: Sub. (1) is created eff. 7-1-22 by 2021 Wis. Act 116.
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.
Effective date note NOTE: Sub. (2) is created eff. 7-1-22 by 2021 Wis. Act 116.
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), send the sexual assault kit to the state crime laboratories for processing 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(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.
Effective date note NOTE: Sub. (3) is created eff. 7-1-22 by 2021 Wis. Act 116.
165.775(4) (4)If the state crime laboratories takes possession of a sexual assault kit, it shall do all of the following:
165.775(4)(a) (a) If the victim chooses not to report the sexual assault to a Wisconsin law enforcement agency and thus has not consented to the analysis of his or her sexual assault kit, 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) If the victim chooses to report the sexual assault to a Wisconsin law enforcement agency and thus has consented to the analysis of his or her sexual assault kit, process the kit in accordance with the procedures specified in the rules promulgated under sub. (6).
Effective date note NOTE: Sub. (4) is created eff. 7-1-22 by 2021 Wis. Act 116.
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.
Effective date note NOTE: Sub. (5) is created eff. 7-1-22 by 2021 Wis. Act 116.
165.775(6) (6)The department shall promulgate rules to administer this section.
165.775 History History: 2021 a. 116; 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.
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2019-20 Wisconsin Statutes updated through 2021 Wis. Act 192 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on April 13, 2022. Published and certified under s. 35.18. Changes effective after April 13, 2022, are designated by NOTES. (Published 4-13-22)