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Wis­con­sin

Offend­ers No Longer in Cus­tody Or on Super­vi­sion Must Sub­mit Spec­i­mens Attor­ney Gen­eral Van Hollen Advises

The Wis­con­sin Attor­ney Gen­eral issued the fol­low­ing news release:

Attor­ney Gen­eral J.B. Van Hollen sent a let­ter today to Richard Raemisch, Sec­re­tary of the Wis­con­sin Depart­ment of Cor­rec­tions, explain­ing the legal oblig­a­tions of con­victed offend­ers to sub­mit DNA for inclu­sion in the databank.

The let­ter also dis­cussed options for obtain­ing DNA from those who are no longer in DOC cus­tody or on DOC super­vi­sion and rec­om­mends statu­tory changes to strengthen the law gov­ern­ing DNA submissions.

Con­clu­sions of the let­ter include:

* The oblig­a­tion to sub­mit a bio­log­i­cal spec­i­men does not expire. Even if the Depart­ment of Cor­rec­tions did not take a sam­ple when an offender was in prison or require the sub­mis­sion of a sam­ple when the offender was on super­vi­sion, offend­ers ordered or under a statu­tory require­ment to sub­mit a sam­ple are under a legal duty to pro­vide a
sam­ple at the office of the county sheriff.

* If the offender is not under DOC con­trol, DOC may attempt to secure an offender’s vol­un­tary com­pli­ance by direct­ing the offender to the county sher­iff for sub­mis­sion of a bio­log­i­cal specimen.

* The inten­tional fail­ure to pro­vide a bio­log­i­cal spec­i­men con­sti­tutes a mis­de­meanor. See Wis. Stat. 165.765. Because this crime is a con­tin­u­ing offense, the statute of lim­i­ta­tions should not impede pros­e­cu­tions of offend­ers pre­vi­ously required to sub­mit a bio­log­i­cal spec­i­men but who have failed to do so.

* DOC may com­pel the pro­duc­tion of DNA from an offender while the offender is in DOC cus­tody or under DOC super­vi­sion for an offense giv­ing rise to a duty to sub­mit a bio­log­i­cal spec­i­men, and may also use appro­pri­ate sanc­tions for the ongo­ing fail­ure to sub­mit DNA if the offender is on pro­ba­tion for an offense that does not inde­pen­dently give rise to the oblig­a­tion to sub­mit DNA.

Van Hollen’s let­ter noted that the col­lec­tion of a bio­log­i­cal spec­i­men is best per­formed at the onset, when an offender is in Depart­ment of Cor­rec­tions’ cus­tody or under its super­vi­sion for an offense that gives rise to the oblig­a­tion to pro­vide it. At that point, Van Hollen writes, the State’s author­ity to com­pel the sub­mis­sion of a bio­log­i­cal spec­i­men is most effec­tive. When the offender is no longer on super­vi­sion and has failed to sub­mit DNA, the state’s options are more lim­ited. Encour­ag­ing vol­un­tary coop­er­a­tion is appro­pri­ate, Van Hollen concludes.

Absent vol­un­tary coop­er­a­tion, the state may crim­i­nally pros­e­cute offend­ers or seek a con­tempt sanc­tion. Nei­ther option nec­es­sar­ily results in the pro­duc­tion of a sam­ple and both are poten­tially resource-intensive. Van Hollen stated that it would be desir­able for the law to cre­ate a non-criminal mech­a­nism to obtain an order to com­pel DNA sub­mis­sions with­out the need for fur­ther crim­i­nal process. He has been work­ing on these pro­posed changes that would revise and strengthen Wis­con­sin law relat­ing to the col­lec­tion of DNA.

A copy of the let­ter may be found at:
http://www.doj.state.wi.us/news/files/RaemischLetter2-25 – 10.pdf.

Addi­tional Background

The Depart­ment of Jus­tice oper­ates the state’s crime lab­o­ra­to­ries, which includes the State’s DNA data bank.

Cer­tain con­victed offend­ers, such as those in prison for a felony on or after Jan­u­ary 1, 2000, are required by statute or court order to sub­mit DNA sam­ples to the state crime lab­o­ra­to­ries for inclu­sion in the DNA data bank. Bio­log­i­cal spec­i­mens of offend­ers are taken by the Depart­ment of Cor­rec­tions or a county sher­iff. Spec­i­mens are gen­er­ally obtained through a buc­cal swab. Those sam­ples are then sent to the state crime lab­o­ra­to­ries, where a pro­file is gen­er­ated (gen­er­ally through a con­tract lab), the work is reviewed, and then the pro­file is uploaded into the DNA con­victed offender data bank. Pro­files con­tained in a foren­sic data­base (com­prised of DNA from crime scenes) and pro­files gen­er­ated from indi­vid­ual case inves­ti­ga­tions are com­pared against the pro­files in the DNA data bank. A “hit” to the con­victed offender data bank links the case with the con­victed offender, and thus the data bank is a pow­er­ful tool to iden­tify suspects.

Con­tact: William A. Cosh, 608/266‑1221

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