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DNA testing rules may change


When a person is convicted of a felony in Wisconsin, a DNA sample is taken and stored in a state database.

But legislators are proposing a change that would require police to collect DNA from every adult who is arrested for a felony and every juvenile who is taken into custody for sexual assault offenses that would be felonies if committed by an adult.

Senate Bill 336 received a public hearing in December. Its companion, Assembly Bill 336, is still waiting to be scheduled by the Assembly Committee on Criminal Justice.

Some criminal defense attorneys argue that the proposed change would violate the Fourth Amendment and could result in innocent people’s DNA being on file with the Department of Justice.

Hurley, Burish & Stanton SC attorney Erik R. Guenther said that the current process of having a judge determine whether to grant an order for DNA is preferable.

“The legislature is looking at allowing highly intrusive searches without any judicial oversight,” he said.

Guenther is a board member of the State Bar of Wisconsin’s Individual Rights and Responsibilities Section, which is opposing the bills on the grounds that they violate the Fourth Amendment and are unconstitutional.

The basis of that opposition, said Guenther, is that DNA analysis provides much more information about a person than just fingerprints or a photograph.

Further, he argued, “for situations in which there was no finding of probable cause to continue with criminal prosecution, access to someone’s DNA sample would be of no benefit to anyone in the legal system.”

Under the provisions of the bill, a person who intentionally fails to submit a sample is subject to a fine of up to $10,000, up to nine months in prison or both.

Destroying DNA

Once an arrestee provides a sample, criminal attorneys worry that it may be difficult to have that sample destroyed later.

The bills provide that crime labs must expunge DNA analysis from the databank if a person is not charged with a crime within one year of arrest, criminal charges are dismissed, the person is found not guilty or a conviction is later reversed, set aside or vacated.

But it is up to the individual to request that DNA be removed, something which could be problematic for some clients, said Milwaukee criminal defense attorney Craig A. Mastantuono of Mastantuono Law Office SC.

“For private lawyers, whether or not the resources are there [for a client] to cover that will be answered on case by case basis,” he said. “I doubt it will become a routine part of practice.”

Such work wouldn’t be statutorily mandated for State Public Defenders and would likely be considered post-conviction work, noted Mastantuono.

“For all of those people, forget it,” he said.

And given the tedious process for having a person’s fingerprints removed from the state database, which includes a written request and response from the DOJ, Mastantuono expects an equally “onerous” process to destroy DNA samples.

Some say a beefed-up database could benefit the criminal justice system.

Attorney John A. Pray helps coordinate the Wisconsin Innocence Project, which seeks to exonerate wrongfully convicted individuals.

He said that collecting DNA from arrestees could reduce the likelihood that the wrong person is convicted of a crime.

“In theory, having more DNA on file is a helpful thing for the Innocence Project, so we support that,” Pray said. But “we would want them to go slow so any problems are ironed out.”

One concern he has is if “pretext arrests” are made just to get a specific person’s DNA sample.

Guenther and Mastantuono also expressed skepticism as to whether the DOJ could effectively store the samples, given the recent mismanagement of several hundred DNA samples of convicted felons in Milwaukee County.

“The state of Wisconsin failed to preserve the DNA samples it already has,” Guenther said. “So dramatically increasing the database to include thousands of innocent people isn’t something the state has demonstrated an ability to handle.”


  1. Given the high level of criminality by members of the Wisconsin legislature (Burke, Wood, Jensen, et al) the best place to start collecting DNA samples is with our 33 senators and 99 members of the assembly. Then the governor and all members of the Wisconsin Supreme Court. If they are all innocent they have nothing to fear.

  2. What they are proposing is taking someones DNA, who has not been convicted of a crime, and putting in a database. They will then do a search with this database through many other databases. Which is essentially a fishing expedition to see if they can charge you with something else.

    This, my friends, is an illegal seach, a violation of the fourth and fifth ammendments. It would be no different than them doing a search of your home with no warrant.

    This IS facist, police state tyrrany that our founding fathers warned us about. The criminals we need to worry about are the ones in the legislature, judiciary and executive brance of government. They are shoing that they are nothing but a corrupt bunch of individuals hell bent on treating the citizens of this state as their serfs.

    This whole proposal makes me sick. What’s next, tatooing a number on peoples arms when they are born? Better yet, lets just collect DNA from everyone (Like we are cattle with a number in our ear) when they are born, renew a drivers license, etc.

    Sick, this is just sick.

  3. I really don’t see what the whole hubla is so they want a sample of dna so what . and its only for people who commit felonies if you ask me they deserve it.

  4. Ok. I get the DNA testing for people that have committed violent and sexual crimes if convicted. I feel this is a direct violation of your constitutional rights under the 4th amendment. And a direct violation of fair due process. I thought in the United States of America you are innocent until proven guilty?? Under a conviction of the the 980 statute you should be DNA tested for DNA.. But if you have never committed a violent crime how does DNA apply?? We now live in a society we’re we are guilty until proven innocent. How does this happen in a free America???

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