Oct. 18, 2011 – A Wisconsin appeals court recently clarified a circuit court’s authority to order a DNA surcharge against criminal defendants who have not previously submitted one.

Scott Long, who pled guilty to multiple charges after he fleeing police while driving drunk, appealed a circuit court order demanding he provide a DNA sample and pay a surcharge of $250 if he had not previously provided a DNA sample. Long had not previously provided a DNA sample.

But in State v. Long, 2010AP1377 (Oct. 18, 2011), the District I Wisconsin Court of Appeals denied Long’s motion for post-conviction relief, concluding the circuit court correctly followed State v. Cherry, 2008 WI App 80, 312 Wis. 2d 203, 752 N.W.2d 393, by imposing the surcharge.

Under Wis. Stat. section 973.047, circuit courts must order anyone convicted of a felony to provide a DNA sample for the state’s DNA database. Circuit courts have discretion to impose a DNA surcharge, but must explain in the record its reasons for doing so.

Under Cherry, circuit courts should consider all factors pertinent to the case and set forth the factors it considered and the rationale underlying its decision for imposing the DNA surcharge in that case. Long argued the circuit court did not properly exercise its discretion in imposing the surcharge under Cherry.

The appeals court disagreed. “By ordering Long to pay the DNA surcharge if, and only if, a DNA sample had not previously been provided, the circuit court considered factors that we suggested in Cherry could be pertinent to the reasoned exercise of discretion,” wrote Judge Joan Kessler.