DNA Surcharge Case Analysis

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Although the court’s decision is a plausible interpretation of the statutes at issue, it is not unambiguously required by the plain language of the statutes, as the court believes it to be.

It is true that the original language of statutes sec. 973.046 and 973.047 were interconnected, such that a DNA surcharge under sec. 973.046 could not be imposed unless a DNA sample was required to be provided pursuant to sec. 973.047. And the current statutes are no longer "expressly" intertwined, as the court correctly notes.

However, the court’s conclusion, that the express intertwining of the statutes is "the reason that [the court of appeals in State v. Trepanier, 204 Wis.2d 505, 555 n.W.2d 394 (Ct.App.1996)] construed these statutes together," is patently insupportable.

The statutes were construed together for a host of reasons in Trepanier, besides the express reference to sec. 973.047 in sec. 973.046.

The former version of sec. 973.046 required that a DNA sample be taken from, and that a DNA surcharge be imposed on, all persons convicted of a sex crime, and those that the court ordered to provide a sample, because of a felony conviction, pursuant to sec. 973.047. The statute also required that those convicted of burglary pay the DNA surcharge, regardless of whether the trial court ordered them to provide a DNA sample.

Trepanier was convicted of burglary, challenged the statutes on equal protection grounds, and the court of appeals agreed. The court found that, although there are sound reasons that would justify requiring only sexual assault offenders to provide a DNA sample and pay the surcharge, there was no rational reason to require burglars, but no other non-sex offender felons, as the only ones besides sex offenders, who must pay the surcharge regardless of whether they are ordered to provide a DNA sample in all cases.

Subsequently, in State v. Ward, 228 Wis.2d 301, 596 N.W.2d 887 (Ct.App.1999), a woman who acquiesced while her husband sexually assaulted little girls in the neighborhood was convicted of failing to protect a child from sexual assault. The court of appeals held that she could not be required to pay the DNA surcharge, when she was not required to provide a DNA sample.

In the wake of Trepanier and Ward, the legislature amended the statutes to their current version. Under that version, all convicted felons must provide a DNA sample; all sex offenders must pay the DNA surcharge; but it is discretionary with the court whether to impose the surcharge on felons convicted of non-sex offenses. There is no express cross-reference between secs. 973.046 and 973.047.

Nevertheless, the statutes must still be interpreted together. When the court in Trepanier interpreted the two together, it did not do so solely because sec. 973.046 expressly referenced 973.047. It did so because, "The statutes at issue here were passed together to establish the funding and the creation of the DNA bank."

Trepanier, 204 Wis.2d at 508.

After making this finding, the court in Trepanier immediately noted the express cross-reference in the statutes, but this merely supports the finding; it is not essential to it.

The statutes were passed at the same time; they deal with the same issue, one with the collection of DNA database, and the other with funding it; and they were amended together. The fact that they no longer expressly cross-reference each other cannot reasonably be interpreted as meaning that the legislature intended they be read in complete isolation from eachother.

It is long-established law in Wisconsin that "the entire section of a statute and related sections are to be considered in [a statute’s] construction; we do not read statutes out of context (emphasis added)." Brandt v. LIRC, 160 Wis.2d 353, 362, 466 n.W.2d 673, 676 (Ct.App.1991), aff’d, 166 Wis.2d 623, 480 N.W.2d 494 (1992). No direct cross-reference has ever been required for statutes to be deemed "related."

As noted, under the new statutory scheme, all felons must provide a DNA sample, but only sex offenders must pay for it. However, the court’s decision turns the subset inside out. Felons can be required to pay the surcharge, even if they don’t have to provide a sample.

In doing so, the court inconsistently refuses to read into sec. 973.046, a condition that it finds implicit in sec. 973.047. Because the database only needs one sample per felon, the court has no difficulty reading into sec. 973.047, a condition that a defendant shall provide a sample, "unless a sample has already been provided."

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There is no sound reason why the same implicit condition could not be read into sec. 973.046, such that the court may order the surcharge, "unless a sample has already been provided."

Two questions will arise in the wake of the decision.

First, must a convicted sex offender pay the surcharge every time he is convicted, even if he paid the surcharge the first time. Applying the court’s reasoning, the answer is clearly yes. The statute provides that sex offenders "shall" be ordered to pay the surcharge. Given the court’s decision to completely divorce the two statutes, trial courts have no discretion not to or
der the surcharge, even if the defendant has already provided a sample, and paid the surcharge.

The second question is the breadth of the trial court’s discretion to order a surcharge on non-sex offenders. A trial court properly exercises its discretion when it employs a rational thought process based on an examination of the facts and application of the correct standard of law. State v. Julie A.B., 2002 WI 95, 255 Wis.2d 170, 193, 648 N.W.2d 402, 413.

In the case at bar, the court gave a reasoned explanation for ordering the surcharge: he had never paid it before, when he provided a DNA sample. The question is whether there are any other reasons that would justify requiring a defendant to pay the surcharge, even if no sample need be provided.

– David Ziemer

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David Ziemer can be reached by email.