Convicted Offenders' Obligation to Submit a DNA Specimen Does Not Expire, Offenders No Longer in Custody or on Supervision Must Submit Specimens Attorney General Van Hollen Advises

Van Hollen's Letter to Corrections: Those Who Fail To Submit DNA May Be Referred For Criminal Prosecution; Further Recommends Legislation To Create A Non-Criminal Process For Compelling DNA Specimens From Those No Longer On Supervision

MADISON - 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.

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.