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Mandatory DNA surcharge for certain misdemeanors violates ex post facto prohibition

State v. Garett T. Elward, 2015 WI App 51; case activity (including briefs)

Defendants who committed a misdemeanor offense before April 1, 2015 January 1, 2014, cannot be made to pay the mandatory $200 DNA surcharge that is supposed to be imposed for each misdemeanor conviction beginning January 1, 2014, because imposition of the surcharge on that class of defendants violates the ex post facto clauses of the state and federal constitutions. [See UPDATE below regarding the date change.]

The state budget act enacted in July 2013 amended § 973.046 to impose a $200 DNA surcharge for defendants found guilty of misdemeanors and require circuit courts to begin imposing the surcharge on January 1, 2014. See 2013 Wis. Act 20, §§ 2355, 9426(1)(am). At the same time, however, circuit courts had to wait until April 1, 2015, before they could actually order misdemeanants to provide a biological specimen for DNA analysis. 2013 Wis. Act 20, §§ 2356, 9426(1)(bm).

Elward was sentenced on January 14, 2014, for an offense he committed in July 2013. The circuit court imposed the $200 DNA surcharge. Elward argues that making him pay the surcharge violates the constitutional prohibitions against ex post facto laws. The state conceded Elward’s argument and the court of appeals, applying the reasoning in Mueller v. Raemisch, 740 F.3d 1128 (7th Cir. 2014), agrees:

¶7        …[T]he timing of Elward’s offense with relation to the rollout of the statutory scheme made the $200 DNA surcharge a fine instead of a fee. Elward committed a misdemeanor before the law imposed the surcharge. When the circuit court sentenced Elward, the law required the surcharge, but did not permit the State to actually collect a DNA sample. See 2013 Wis. Act 20, § 9426(1)(am) and (bm). As a result, the $200 surcharge bore no relation to the cost of a DNA test because he never had to submit to a test. The State received money for nothing. This served only to punish Elward without pursuing any type of regulatory goal. Therefore, the surcharge as applied to Elward was a fine, not a fee, and violated the Constitution’s ex post facto clause. ….

The budget also required imposition of a DNA surcharge for all felonies, not just the limited class of sex offenses for which imposition of a DNA surcharge was mandatory under prior law, § 973.046(1r) (2011-12). If you’re wondering whether mandating the surcharge in all felony cases also violates the ex post facto clauses, stay tuned: District 4 is issuing a decision on that question on May 21, in State v. Gregory Mark Radaj, 2014AP2496-CR. The state does not concede the ex post facto violation in Radaj’s case, but the logic in this case suggests District 4 should reach the same result as District 2 unless the trial court exercised its discretion to order the DNA surcharge, which is something it could do for any felony under prior law, § 973.046(1g) (2011-12). CORRECTION: We struck the last part of the preceding comment because it overlooked the fact that, since the 1999 budget act, the statute has mandated collection of a biological specimen from anyone convicted of a felony. See § 973.047(1f) (1999-00), as amended by 1999 Wis. Act 9, § 3202k. Thus, the logic of this case doesn’t help the challenge to the mandatory DNA surcharge in felony cases because the existing requirement that all felons provide a specimen supports an argument that the surcharge on felons bears a relation to the cost of the DNA database.

UPDATE (5/21/15): Two points. First, our post on Radaj is here.

Second, a very astute reader pointed out that the very first line of this post overstates the court’s holding. Because Elward committed his crimes before the mandatory surcharge took effect on January 1, 2014, the court doesn’t explicitly address cases in which the crimes were committed after January 1, 2014, but before April 1, 2015, when the specimen collection law took effect. Indeed, the state’s concession was limited to misdemeanants who committed their offense before January 1, 2014, and the language quoted above from ¶7 refers to the fact that “Elward committed a misdemeanor before the law imposed the surcharge.” Thus, this case doesn’t decide the question of whether the DNA surcharge can be imposed on misdemeanors committed during that 15-month period, and we’ll have to wait for another case that squarely addresses that question.

In the meantime, however, as a commentator below already noted, the decision does provide a basis for arguing that the ex post facto clauses also prohibit imposing a surcharge on a misdemeanor committed between January 1, 2014, and April 1, 2015. In brief, the argument is this: The court finds the surcharge punitive because it bears no relation to the purpose of paying for the collection and testing of a specimen and entry of the data into the DNA database. The lack of relationship is due to the fact that no misdemeanant has to provide a specimen till April 1, 2015. Because that lack of relationship obtains for any misdemeanor committed before April 1, 2015, it should likewise be unlawful to impose the mandatory surcharge on misdemeanors committed between January 1, 2014, and April 1, 2015.

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{ 4 comments… add one }
  • Peter Heyne May 21, 2015, 5:10 am

    The key issue in Radaj, IMHO, is not the permissible imposition of a single surcharge for a felony, but the multiplicity of 4 surcharges (four convictions) for only 1 DNA sample–$1,000 that is clearly punitive. The attorney general’s office blithely dismisses this amount as just 1 percent of the max statutory fine, without realizing of course that the vast majority of defendants are indigent and other than drunk driving usually don’t get fines, just court costs. And these non-dischargeable fines are just one more burden on the poor. One more reason to have probation extended etc. So I would suggest that the better argument is not ex post facto but violation of substantive due process.

  • Peter Heyne May 21, 2015, 5:15 am

    Also, the language from the new case quoted above should also apply to all those defendants who committed misdemeanors in 2014 but were sentenced before April of this year. With no DNA sample allowed to be collected there is nothing for the surcharge to pay for. It is a sham. And per the multiplicity argument laid out in my last post, even for offenses sentenced after April there should be one lifetime surcharge, not for every single stupid conviction.

  • Mary December 6, 2017, 9:16 am

    My son had a violation on 10/19/2013, felony, and DNA Analysis surcharge was imposed of $250. Another violation on 7/28/14 with another DNA surcharge of $200. Finally, Violations on 3/6/17 for resisting and possession of THC, there were 2 DNA surcharges imposed on the same day of $200 each. Total $850, how can this be legal? The violations on 3/6/17 got his probation revoked and now he has just entered the prison system for the next 5 years. On top of the other restitution costs the total is substantial and while in prison interest will continue to accrue. Is there no way out of these excessive DNA surcharges? It places another financial hardship on people already burdened with fines.

  • rpsabq September 21, 2020, 12:31 am

    So imposing a “fine” is considered punishment “with no regulatory purpose” (protecting children from sex offenders?) but imposing laws enacted post-sentencing calling for harsher restrictions on sex offenders is NOT considered punishment because it DOES serve a regulatory purpose, that of protecting children from sex offenders? Ok….. that makes NO sense and the Courts are going to be forced very soon to come clean on this issue and account for their flawed reasoning regarding sex offender laws. What they are really saying is you CAN punish sex offenders using laws which restrict their freedom by violating the ex post facto clause, but you can’t charge them money, that’s just over the line?

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