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  • WisBar News
    June 03, 2013

    High Court Acceptance of DNA at Arrest Law Paves Way for Wisconsin Plan

    June 3, 2013 – The U.S. Supreme Court today upheld a law allowing police to take DNA samples at arrest for serious offenses, meaning Wisconsin’s plans for a DNA at arrest law can proceed with greater constitutional certainty.

    In Maryland v. King, the nation’s high court upheld Maryland’s DNA Collection Act, which allowed police to take Alonzo King’s DNA at arrest, before he was convicted of any crime. The DNA collected allowed police to implicate King in a cold case rape.

    In a 5-4 decision, the majority held:

    “When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

    However, the majority noted that if police analyze samples for a purpose unrelated to identification, such as a “predisposition for a particular disease or other hereditary factors, that case would present additional privacy concerns not present here.”

    Justice Anthony Kennedy wrote the majority opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, and Samuel Alito.

    The Wisconsin Supreme Court usually interprets Article I, Section 11 of the Wisconsin Constitution, which protects individuals from unreasonable searches and seizures, in accord with the U.S. Supreme Court’s interpretations of the Fourth Amendment.

    That means Wisconsin’s plans to implement a DNA at arrest law, which Gov. Walker announced in April of 2012 and included in his proposed state budget for 2013-15, can go forward with a greater sense of certainty.

    Current Wisconsin law lets police take DNA samples from individuals convicted of felonies or certain sex-related crimes. But many states, including Maryland and the federal government, have passed laws letting law enforcement take DNA at arrest.

    Wisconsin’s proposed DNA at Arrest law would require DNA samples from a juvenile adjudged delinquent, and from adults and juveniles taken into custody for:

    • any felony, or for juveniles, an offense that would be a felony if committed by an adult;

    • fourth-degree sexual assault;

    • endangering safety by the use of a dangerous weapon;

    • lewd and lascivious behavior;

    • prostitution or patronizing prostitutes;

    • pandering;

    • failure to submit a biological specimen; and

    • exposing genitals to a child for sexual gratification.

    Under Wisconsin’s plan, courts would be required to impose a $250 DNA surcharge against convicted felons and a $200 surcharge for any misdemeanor conviction. Currently, courts have discretion to impose DNA surcharges against convicted felons.

    Related Article

    Wisconsin, U.S. Supreme Court Will Consider DNA at Arrest LawWisBar InsideTrack, Nov. 21, 2012 (login required).

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