State v. Elward
866 N.W.2d 756
Wis. Ct. App.2015Background
- On July 1, 2013 the Wisconsin Legislature enacted 2013 Wis. Act 20, which created a $200 DNA surcharge for defendants convicted of misdemeanors and set a staggered rollout for implementation.
- The Act required circuit courts to begin imposing the surcharge on January 1, 2014, but prohibited ordering a defendant to provide a biological specimen for DNA analysis until April 1, 2015.
- Garett Elward was arrested July 25, 2013 and pled guilty to OWI—Fourth Offense (a misdemeanor) on January 14, 2014.
- At sentencing the court ordered Elward to pay court costs that included the $200 DNA surcharge, even though the State could not yet require him to provide a DNA sample.
- Elward challenged the surcharge as an ex post facto violation because the surcharge was not part of the law when he committed the offense and, as applied to him, bore no relation to DNA database costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the $200 DNA surcharge, as applied to misdemeanants like Elward, violates the Ex Post Facto Clause | Elward: surcharge was imposed after the offense and, because specimens could not yet be collected, the surcharge was a punitive fine unrelated to DNA costs — thus ex post facto | State: (conceded in this case) the surcharge is lawful | Court: The surcharge, as applied to defendants sentenced between the surcharge-imposition date and the specimen-collection date, is a fine (not a regulatory fee) and violates the Ex Post Facto Clause |
Key Cases Cited
- Mueller v. Raemisch, 740 F.3d 1128 (7th Cir. 2014) (fee may be recharacterized as a fine if it bears no relation to the stated regulatory cost)
- State v. Haines, 261 Wis. 2d 139 (Wis. 2003) (ex post facto question is reviewed de novo)
- State ex rel. Singh v. Kemper, 353 Wis. 2d 520 (Wis. Ct. App. 2014) (defendant bears burden to establish ex post facto violation)
- State v. Post, 197 Wis. 2d 279 (Wis. Ct. App. 1995) (defendant must prove ex post facto violation beyond a reasonable doubt)
- State v. Carpenter, 197 Wis. 2d 252 (Wis. Ct. App. 1995) (threshold inquiry: whether a statute is punitive or regulatory)
By the Court: judgment and order reversed; cause remanded with directions.