DNA Test Surcharge Scheme Fought in Wis.

MADISON, Wis. (CN) - Wisconsin has been charging people convicted of misdemeanors for DNA testing that never took place, a class claims in court.

Marcell Ward is the lead plaintiff in the July 20 complaint in Dane County Circuit Court over a $200 surcharge put into effect after they were charged with misdemeanors, but before the court was allowed to require them to submit to a DNA test.

"The act created a period of 14 months between January 1, 2014 and April 1, 2015, where circuit courts were required to impose DNA surcharges, but not permitted to order misdemeanants to actually submit any DNA sample," the complaint states.

Such an ex post facto punishment is not a "civil surcharge" because it "bears no rational connection" to the cost it is meant to offset, Ward and three other named plaintiffs contend.

"The act required circuit courts to impose the DNA surcharge for misdemeanants solely based on whether they were sentenced or placed on probation on or after January 1, 2014," the complaint states. "The act did not address the issue of when the misdemeanor offense occurred, thereby increasing the punishment after the fact."

Such an unconstitutional taking violates the state and U.S. constitutions, the men argue.

The challenge comes two months after the Wisconsin Court of Appeals found that the state had unconstitutionally applied a related provision of the 2013-15 state budget.

In Wisconsin v. Radaj, the court said increasing the DNA surcharge based on the number of convictions - rather than on the cost of analysis - amounted to ex post facto punishment.

Ward's case asks Judge Juan Colas to certify a class of misdemeanants who allegedly committed crimes before 2014 and sentenced or placed on probation between Jan. 1, 2014, and April 1, 2015, and paid the required surcharge.

The class wants the law at issue struck is unconstitutional, plus repayment of the surcharges they paid with interest. They are represented by John Bradley with StrangBradley.

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