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Appeals court invalidates portion of DNA surcharge (UPDATE)

Associated Press

MADISON, Wis. (AP) — An appeals court invalidated a section of state law Wednesday that requires judges to impose a a DNA surcharge on misdemeanor convictions without submitting an actual sample, a ruling that could affect potentially thousands of criminals caught up in a wrinkle of budgetary timing.

State law prior to 2013 required anyone convicted of a felony and certain sex-related misdemeanors such as fourth-degree sexual assault or lewd behavior to submit DNA for inclusion in state and federal databases. The 2013-15 state budget expanded collection dramatically, requiring anyone arrested for a violent felony or convicted of a misdemeanor to submit a sample, too.

The budget rolled out the expansion in phases, however. Judges began imposing a $200 DNA surcharge on misdemeanor convictions on Jan. 1, 2014, but couldn’t order defendants to submit biological samples until April 1.

Enter Garett Elward. The Cedarburg man was pulled over for misdemeanor fourth-offense drunken driving on July, 25, 2013, and convicted Jan. 14, 2014. Ozaukee County Circuit Judge Sandy Williams ordered him to pay the DNA surcharge as part of his sentence.

Elward appealed, arguing the surcharge amounted to an unconstitutional after-the-fact application of the law since the surcharge didn’t exist when he committed his offense.

The 2nd District Court of Appeals found Elward was ordered to pay the surcharge without a parallel order to submit a sample. Therefore, the court said, the state essentially received the money for nothing, making the surcharge a fine that was improperly applied after the fact.

The ruling applies to anyone else who committed a misdemeanor before the law took effect and was convicted between the beginning of the surcharge and the beginning of sample submissions, the court said. The number of people in a similar situation to Elward is unknown, the court noted, but Elward’s attorney, public defender Dustin Haskell, guessed they may number in the thousands.

State attorneys had conceded that the surcharge shouldn’t apply to people who committed a misdemeanor offense before Jan. 1, 2014, and were sentenced and convicted before April 1.

Ozaukee County Assistant District Attorney Jeffrey Sisley, who handled the appeal, didn’t immediately return a message Wednesday.

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