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Due process doesn’t forbid DNA surcharge where no sample taken

State v. Travis J. Manteuffel, 2016AP96-CR, 12/6/16, District 3 (1-judge decision; ineligible for publication); case activity (including briefs)

State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, 866 N.W.2d 756, held it an ex post facto violation to require misdemeanants to pay the $200 DNA surcharge where the law imposing it went into effect after they had committed their crimes. (That law, part of 2013 Wis. Act 20, took effect January 1, 2014.) One of the reasons the Elward court found the surcharge for such defendants to be “punishment”–and thus amenable to ex post facto analysis–is that the Act did not require misdemeanants to actually contribute a DNA sample for convictions entered before April 1, 2015. Because of the lack of connection between the surcharge and the expense to the state it was ostensibly designed to recoup (i.e. the cost of collecting the sample), the Elward court held the surcharge a “fine” rather than a “fee,” and thus punitive, and thus not lawful to impose retroactively. 363 Wis. 2d 628, ¶7.

Manteuffel seeks to extend Elward’s holding to the class of misdemeanants who committed their crimes after January 1, 2014, but were convicted before April 1, 2015. Those defendants, of course, were also not ordered to provide DNA samples. Because these defendants also did not generate any sample-collection expense to the state, the argument goes, they too should be exempt from the surcharge.

The problem with bringing such a claim under the ex post facto clause is obvious: even if the surcharge is “punitive” for defendants who do not give a sample, the state is perfectly free to punish crime, so long as it does not do so retroactively. Manteuffel thus brings his claim as a substantive due process challenge. Because Manteuffel does not argue that the DNA surcharge impinges upon a fundamental right or liberty interest, this claim requires him to show the surcharge is not “rationally related to achieving a legitimate governmental interest.” (¶7). The court of appeals does not think he has done so:

The legislature enacted the changes in the DNA surcharge law to provide greater funding for the state crime laboratory in the interest of more effectively and accurately administering justice in Wisconsin. The legislature has determined that such effective administration requires larger, better-funded crime laboratories to ensure that DNA testing relating to criminal cases is performed quickly and correctly. See 2013 A.B. 40, 1021. Requiring that criminal offenders pay in part for the cost for improving and maintaining the state crime labs is not unreasonable when the need for the database exists due to criminal activity. Assessing the surcharge against all offenders will provide greater funding to attain a more efficient system of justice, regardless of whether a specific DNA profile is tested. See LFB #410 at 2 (estimating surcharges would generate revenue of $1,989,400 in 2013-14, and $3,546,800 in 2014-15).

Manteuffel fails to rebut these legislative findings or explain why the imposition of the surcharge is an irrational means of collecting funds for use in carrying out the functions listed in WIS. STAT. § 165.77. He only contends that the surcharge as applied to him is akin to a criminal fine unrelated to any valid activities because he has provided no DNA sample for analysis. However, the fact the surcharge may be viewed as having some punitive characteristic does not prove the statute requiring its imposition fails to further a legitimate government interest.


{ 2 comments… add one }
  • Peter R Heyne December 6, 2016, 3:47 pm

    Like the also wrongly decided Scruggs case, this case is asking for a petition for review.

    Focusing narrowly on the specific overall constitutional issue in the two published cases Elward and Scruggs, namely ex post facto (which was not the issue here), the CtApp ignored the *rationale* of Radaj and Elward, namely that the DNA surcharge is a targeted expense–for the defendant’s own DNA. It is not just a general tax to fund the overall DNA databank. If it were just a general regulatory cost, then Elward would not have found the surcharge punishment:

    “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), (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.”

    ¶ 7 (spacing added for clarity).

  • Peter Heyne December 6, 2016, 4:00 pm

    The opinion completely ignores the key fact that in an earlier case, the defendant had indeed both submitted a DNA sample and *paid* the surcharge. So his DNA is on file and paid for. So why the need to charge someone every single time, for every future conviction, when the State already got its money?

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