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    Appeals Court Clarifies Ex Post Facto DNA Surcharge Issues in Two Cases

    Joe Forward
    Legal Writer

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    May 21, 2015 – A defendant who committed a misdemeanor crime before a new law required persons convicted of misdemeanors to submit DNA samples doesn’t have to pay the $200 DNA surcharge associated with the law, a state appeals court has ruled.

    In addition, a panel ruled that a defendant who committed felony crimes before the effective date of a new law imposing a mandatory DNA surcharge of $250 for each felony conviction was not subject to multiple, mandatory DNA surcharge amounts.

    In both cases, three-judge Wisconsin Appeals Court panels (Districts II and IV) ruled that the new surcharges created an unconstitutional ex post facto punishment against the defendants, who had committed their crimes when different laws applied.

    Misdemeanor DNA Surcharge

    The Wisconsin Legislature enacted 2013 Wisconsin Act 20 on July 1, 2013, imposing a $200 surcharge on those convicted on misdemeanors to pay for DNA samples.  

    Circuit courts were directed to start imposing the DNA surcharge in January 2014, but courts could not start ordering defendants to submit DNA samples until April 2014.

    In July 2013, after Act 20 was enacted, police in Ozaukee County stopped Garrett Elward for a broken headlight. Elward was later arrested for fourth offense drunk driving, a misdemeanor. He pleaded guilty in January 2014 and the court imposed the DNA surcharge, even though the court could not order a DNA sample at that point.

    Elward challenged the surcharge as violating the ex post facto clauses of the U.S. and Wisconsin constitutions – which prohibit retroactive punishments – arguing that he committed the misdemeanor before the law imposed the surcharge. The panel agreed.

    The panel said the “multiphase rollout” led to an ex post facto violation against a class of defendants who committed the crimes before the courts could impose the surcharge, and who were sentenced before the courts could order them to submit DNA samples.

    “As a result, the law made this class of misdemeanants pay to maintain a database of which they could never be a part because they could never be ordered to actually provide a sample,” wrote Chief Appeals Court Judge Richard Brown in State v. Elward, 2014AP2569-CR (May 20, 2015), noting this amounted to a punishment against Elward.

    Felony DNA Surcharge

    Similarly, in State v. Radaj, 2014AP2496 (May 21, 2015), a panel for District IV ruled that a mandatory surcharge of $250 for each felony conviction violated ex post facto protections against a defendant who committed crimes before the surcharge kicked in.

    Gregory Radaj committed crimes in January 2013, and pleaded guilty to four felonies in March 2014. In between that time, Act 20’s surcharge statute became effective. At the time of his crimes, the law allowed judges to impose a discretionary DNA surcharge, but the surcharge amount could not exceed $250 regardless of the number of convictions.

    The new law made the surcharge of $250 mandatory for each felony conviction. Radaj was ordered to pay a $1,000 surcharge. Under the old law, a judge could have ordered him to pay no more than $250. Radaj said the old law should have applied to his crimes.

    The appeals court panel agreed, noting that when new laws are challenged on ex post facto grounds, courts must decide whether a statute is punitive against the defendant.

    Even assuming the legislature intended the surcharge to pay for DNA-analysis-related activities – and not to punish felony convicts – the surcharge had the “effect” of punishing Radaj, and that was an ex post facto violation, the panel explained.

    “[W]e conclude that the $1,000 DNA surcharge assessed against Radaj (four felonies x $250) as required under the new DNA surcharge statute is not rationally connected and is excessive in relation to the surcharge’s intended purpose, and that its effect is to serve traditionally punitive aims,” Judge Lundsten wrote for the panel.

    The panel noted that, although the surcharge may be designed to pay for DNA analysis, a person convicted on more than one felony generally submits only one sample: “[We] fail to see any link between the initial DNA analysis and the number of convictions.”

    The appeals court panel noted that the same result would not apply to defendants who committed their crimes after July 1, 2013, the effective date of the surcharge statute.

    “That is, had Radaj committed his crimes after the DNA surcharge statute’s effective date, he obviously could not assert an ex post facto violation, regardless whether the surcharge is punitive,” Judge Lundsten wrote.