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Craig Mastantuono Nov. 29, 2012

DNA Testing Rules May ChangeFebruary 15, 2010By Wisconsin Law Journal Staff

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.”