Emergency testing of a criminal defendant for certain diseases, the official text

2025 - 2026 LEGISLATURE
LRB-4401/1
MJW:wlj

2025 SENATE BILL 419
September 4, 2025 - Introduced by Senators Feyen and Marklein, cosponsored by Representatives Melotik, Behnke, Dittrich, Kaufert, Kreibich, Murphy, Mursau, Piwowarczyk, Sheehan and Wichgers. Referred to Committee on Judiciary and Public Safety.

An Act to repeal 968.38 (5) (a) and 968.38 (5) (b); to renumber 968.38 (1) (a); to amend 146.81 (4), 252.11 (5m), 252.15 (2m) (b) 3., 252.15 (3m) (d) 14., 252.15 (4) (c), 901.05 (3), 968.38 (2m) (intro.), 968.38 (2m) (a), 968.38 (2m) (b), 968.38 (5) (intro.) and 968.38 (5) (c); to create 968.38 (1) (ag), 968.38 (1) (br), 968.38 (1) (bv), 968.38 (2s), 968.38 (5) (am), 968.38 (5) (bm), 968.38 (6) and 973.20 (4r) of the statutes; relating to: emergency testing of a criminal defendant for certain diseases.

Analysis by the Legislative Reference Bureau
Under current law, in a criminal case for throwing or expelling bodily substances at a public safety worker or prosecutor or at specified individuals in a prison, if the district attorney has probable cause to believe that the act carried a potential for transmitting a communicable disease to the victim and involved the defendant’s blood, semen, vomit, saliva, urine, or feces or other bodily substance of the defendant, the district attorney must apply to the circuit court for an order to require the defendant to submit to testing to detect the presence of communicable diseases, and those results must be disclosed to the victim if certain criteria are met.
This bill amends the process under current law to apply to any crime if the district attorney has probable cause to believe that the act carried a potential for transmitting a communicable disease to a public safety worker, prosecutor, or correctional staff member and involved the defendant’s blood, semen, vomit, saliva, urine, or feces or other bodily substance of the defendant.
The bill also creates an expedited process for testing when it is requested by a public safety worker, prosecutor, or correctional staff member. Under the bill, the district attorney may, at any time, regardless of whether criminal proceedings have commenced, apply to the circuit court for a waiver of the normal hearing requirement and for an emergency order to require the defendant to immediately submit to testing. Under the bill, the district attorney may make such an application only if the district attorney has probable cause to believe that waiving the hearing and expediting a defendant to submit to testing will prevent a public safety worker, prosecutor, or correctional staff member from experiencing bodily harm that could result from delaying the test. Under the bill, the court must immediately hear the application for an emergency order and grant the order if it finds that the existing requirements for such an order are met and also finds that waiving the hearing and expediting the defendant to submit to testing will prevent a public safety worker, prosecutor, or correctional staff member from experiencing bodily harm that could result from delaying the test.
The bill also provides that if a defendant is found guilty of a crime for which the court has required the defendant to submit to communicable disease testing, the defendant must be required to pay, as restitution, the costs of any communicable disease testing that was ordered.
For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Section 1. 146.81 (4) of the statutes is amended to read:
146.81 (4) “Patient health care records” means all records related to the health of a patient prepared by or under the supervision of a health care provider; and all records made by an ambulance service provider, as defined in s. 256.01 (3), an emergency medical services practitioner, as defined in s. 256.01 (5), or an emergency medical responder, as defined in s. 256.01 (4p), in administering emergency care procedures to and handling and transporting sick, disabled, or injured individuals. “Patient health care records” includes billing statements and
invoices for treatment or services provided by a health care provider and includes health summary forms prepared under s. 302.388 (2). “Patient health care records” does not include those records subject to s. 51.30, reports collected under s. 69.186, records of tests administered under s. 252.15 (5g) or (5j), 343.305, 938.296 (4) or (5) or 968.38 (4) or, (5), or (6), records related to sales of pseudoephedrine products, as defined in s. 961.01 (20c), that are maintained by pharmacies under s. 961.235, fetal monitor tracings, as defined under s. 146.817 (1), or a pupil’s physical health records maintained by a school under s. 118.125.
Section 2. 252.11 (5m) of the statutes is amended to read:
252.11 (5m) A health care professional, as defined in s. 968.38 (1) (a) (ar), acting under an order of a court under s. 938.296 (4) or 968.38 (4) may, without first obtaining informed consent to the testing, subject an individual to a test or a series of tests to ascertain whether that individual is infected with a sexually transmitted disease. No sample used for performance of a test under this subsection may disclose the name of the test subject.
Section 3. 252.15 (2m) (b) 3. of the statutes is amended to read:
252.15 (2m) (b) 3. HIV testing by a health care professional acting under an order of the court under sub. (5j) or s. 938.296 (4) or (5) or 968.38 (4) or, (5), or (6). No sample used for laboratory test purposes under this subdivision may disclose the name of the HIV test subject, and the HIV test results may not be made part of the individual’s permanent medical record.
Section 4. 252.15 (3m) (d) 14. of the statutes is amended to read:
252.15 (3m) (d) 14. To a person under s. 938.296 (4) (a) to (e) as specified in s. 938.296 (4); to a person under s. 938.296 (5) (a) to (e) as specified in s. 938.296 (5); to
a person under s. 968.38 (4) (a) to (c) as specified in s. 968.38 (4); or to a person under s. 968.38 (5) (a) (am) to (c) as specified in s. 968.38 (5); or to a person under s. 968.38 (6) (a) to (c) as specified in s. 968.38 (6).
Section 5. 252.15 (4) (c) of the statutes is amended to read:
252.15 (4) (c) A record of the results of an HIV test administered to the person, except that results of an HIV test administered under sub. (5g) or (5j) or s. 938.296 (4) or (5) or 968.38 (4) or, (5), or (6) that include the identity of the test subject may not be maintained without the consent of the test subject.
Section 6. 901.05 (3) of the statutes is amended to read:
901.05 (3) The results of a test or tests under s. 938.296 (4) or (5) or 968.38 (4) or, (5), or (6) and the fact that a person has been ordered to submit to such a test or tests under s. 938.296 (4) or (5) or 968.38 (4) or, (5), or (6) are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding.
Section 7. 968.38 (1) (a) of the statutes is renumbered 968.38 (1) (ar).
Section 8. 968.38 (1) (ag) of the statutes is created to read:
968.38 (1) (ag) “Correctional staff member” has the meaning given in s. 940.225 (5) (ad).
Section 9. 968.38 (1) (br) of the statutes is created to read:
968.38 (1) (br) “Prosecutor” has the meaning given in s. 941.375 (1) (am).
Section 10. 968.38 (1) (bv) of the statutes is created to read:
968.38 (1) (bv) “Public safety worker” has the meaning given in s. 941.375 (1) (b).
Section 11. 968.38 (2m) (intro.) of the statutes is amended to read:

968.38 (2m) (intro.) In Except as provided in sub. (2s), in a criminal action under s. 941.375 (2) or 946.43 (2m), the district attorney shall apply to the circuit court for his or her county for an order requiring the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (a) (am) to (c), if all of the following apply:
Section 12. 968.38 (2m) (a) of the statutes is amended to read:
968.38 (2m) (a) The district attorney has probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 941.375 (2) or 946.43 (2m) crime carried a potential for transmitting a communicable disease to the victim or alleged victim a public safety worker, prosecutor, or correctional staff member and involved the defendant’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant.
Section 13. 968.38 (2m) (b) of the statutes is amended to read:
968.38 (2m) (b) The alleged victim or victim who is not a minor, or the parent or guardian of the alleged victim or victim who is a minor A public safety worker, prosecutor, or correctional staff member or a person who is authorized to make health care decisions on behalf of a public safety worker, prosecutor, or correctional staff member requests the district attorney to apply for an order.
Section 14. 968.38 (2s) of the statutes is created to read:
968.38 (2s) Regardless of whether criminal proceedings have commenced, the district attorney may, at any time, apply to the circuit court for his or her county for a waiver of the hearing under sub. (5) and for an emergency order requiring the defendant to immediately submit to a test or a series of tests administered by a
health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (am) to (c), if all of the following apply:
(a) The requirements under sub. (2m) (a) and (b) are met.
(b) A public safety worker, prosecutor, or correctional staff member or a person who is authorized to make health care decisions on behalf of a public safety worker, prosecutor, or correctional staff member requests the district attorney to apply for an emergency order.
(c) The district attorney has probable cause to believe that waiving the hearing under sub. (5) and expediting the defendant to submit to testing will prevent a public safety worker, prosecutor, or correctional staff member from experiencing bodily harm that could result from delaying the test.
Section 15. 968.38 (5) (intro.) of the statutes is amended to read:
968.38 (5) (intro.) The court shall set a time for a hearing on the matter under sub. (2m) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 941.375 (2) or 946.43 (2m) crime carried a potential for transmitting a communicable
disease to the victim or alleged victim a public safety worker, prosecutor, or correctional staff member and involved the defendant’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the defendant. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain from making the test results part of the defendant’s permanent medical record and to disclose the results of the test to any of the following:
Section 16. 968.38 (5) (a) of the statutes is repealed.
Section 17. 968.38 (5) (am) of the statutes is created to read:
968.38 (5) (am) A public safety worker, prosecutor, or correctional staff member who requested the test.
Section 18. 968.38 (5) (b) of the statutes is repealed.
Section 19. 968.38 (5) (bm) of the statutes is created to read:
968.38 (5) (bm) A person who is authorized to make health care decisions on behalf of a public safety worker, prosecutor, or correctional staff member who requested the test.
Section 20. 968.38 (5) (c) of the statutes is amended to read:
968.38 (5) (c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim
a public safety worker, prosecutor, or correctional staff member, upon request of the public safety worker, prosecutor, or correctional staff member or a person authorized to make health care decisions on behalf of a public safety worker, prosecutor, or correctional staff member.
Section 21. 968.38 (6) of the statutes is created to read:
968.38 (6) The court shall immediately hear an application for an emergency order under sub. (2s). If the court finds probable cause to believe that the act or alleged act of the defendant that constitutes a crime carried a potential for transmitting a communicable disease to a public safety worker, prosecutor, or correctional staff member and involved the defendant’s blood, semen, vomit, saliva, urine, or feces or other bodily substance of the defendant, and that waiving the hearing under sub. (5) and expediting the defendant to submit to testing will prevent a public safety worker, prosecutor, or correctional staff member from experiencing bodily harm that could result from delaying the test, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the defendant. The court shall require the health care professional who performs the test to immediately disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain from making the test results part of the defendant’s permanent medical record and to disclose the results of the test to any of the following: