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Rules governing the pretrial detention hearing
Current law specifies that in a pretrial hearing “the evidence shall be presented in
open court with the right of confrontation, right to call witnesses, right to
cross-examination and right to representation of counsel.” Current law also provides
that the rules of evidence in criminal trials govern the admissibility of evidence at a
pretrial detention hearing.
This bill provides that the defendant has the right to be represented by counsel and
shall be afforded an opportunity to testify, to present witnesses, to cross-examine
witnesses, and to present information by proffer or otherwise. This bill provides that the
rules concerning admissibility of evidence in criminal trials do not apply to the
presentation and consideration of information at a pretrial detention hearing.
Required showings
Current law provides that, at the pretrial detention hearing, the state has the
burden of going forward and proving both of the following by clear and convincing

evidence: (1) that the defendant committed an offense for which pretrial detention is
available; and (2) that available conditions of release will not adequately protect
members of the community from serious bodily harm or prevent the intimidation of
witnesses.
This bill eliminates the requirement that the state prove by clear and convincing
evidence that the defendant committed the predicate offense. It replaces this with a
requirement that the state shall establish probable cause that the defendant committed
the offense for which he or she has been charged.
This bill creates a rebuttable presumption that available conditions of release will
not adequately protect members of the community from serious bodily harm, prevent the
intimidation of witnesses, or assure the defendant's appearance when required when the
defendant is eligible for pretrial detention because he or she is accused of committing or
attempting to commit one of several enumerated offenses or is accused of committing or
attempting to commit a violent crime and has previously been convicted of a violent crime.
The standard of proof for rebutting the presumption is the preponderance of the evidence.
If the defendant rebuts the presumption, the state may proceed to seek pretrial
detention by proving by clear and convincing evidence, that the available conditions of
release will not adequately protect members of the community from serious bodily harm,
prevent the intimidation of witnesses, or assure the defendant's appearance in court
when required. For defendants to whom the presumption does not apply, the state must
prove by clear and convincing evidence that the available conditions of release will not
adequately protect members of the community from serious bodily harm or prevent the
intimidation of witnesses.
Pretrial detention time limits
Current law allows a court to detain a defendant for 10 days prior to a pretrial
detention hearing if the district attorney has met the requirements for initiating the
pretrial detention process and for 60 days following a pretrial detention hearing if the
state makes the required showing.
This bill provides that if the state makes the required showings at a pretrial
detention hearing, a defendant may be held for an additional period of time following the
hearing not to exceed 60 days, with respect to a defendant accused of a misdemeanor, and
not to exceed 90 days with respect to a defendant accused of a felony. It also provides that
the court may extend this period, upon its own motion or the motion of any party, if it finds
that the ends of justice are best served by extending that period.
Reopening pretrial detention hearing
This bill provides that the pretrial hearing may be reopened at any time before trial
if the court finds that information exists that was not known to the district attorney or
the defendant at the time of the hearing and that has a material bearing on the issue of
whether there are conditions of release that adequately protect members of the
community from serious bodily harm, prevent the intimidation of witnesses, or assure the
defendant's appearance in court when required.
Determining whether delay is caused by defendant
Current law provides that in calculating the time periods for which a defendant
may be detained, the court shall omit any period of time found by the court to result from
a delay caused by the defendant or a continuance granted which was initiated by the
defendant. Current law provides that delay is caused by the defendant only if the delay
is “expressly requested” by the defendant. The bill removes the provision providing that
delay is caused by the defendant only if the delay is expressly requested by the defendant.
AB609,1
1Section 1. 757.69 (1) (b) of the statutes is amended to read:
AB609,4,102 757.69 (1) (b) In criminal matters issue summonses, arrest warrants or search
3warrants, determine probable cause to support a warrantless arrest, conduct initial
4appearances of persons arrested, set bail, inform the defendant in accordance with
5s. 970.02 (1), conduct pretrial detention hearings under s. 969.035, refer the person
6to the authority for indigency determinations specified under s. 977.07 (1), conduct
7the preliminary examination and arraignment, and, with the consent of both the
8state and the defendant, accept a guilty plea. If a court refers a disputed restitution
9issue under s. 973.20 (13) (c) 4., the circuit court commissioner shall conduct the
10hearing on the matter in accordance with s. 973.20 (13) (c) 4.
AB609,2 11Section 2. 969.035 (2) (intro.) of the statutes is amended to read:
AB609,4,1412 969.035 (2) (intro.) A circuit court may deny person is eligible for denial of
13release from custody under this section to any of the following persons if any of the
14following applies
:
AB609,3 15Section 3. 969.035 (2) (a) of the statutes is amended to read:
AB609,4,1716 969.035 (2) (a) A The person is accused of committing an offense under s.
17940.01, 940.225 (1), 948.02 (1) or (2), 948.025, or 948.085.
AB609,4 18Section 4. 969.035 (2) (b) of the statutes is amended to read:
AB609,4,2119 969.035 (2) (b) A The person is accused of committing or attempting to commit
20a violent crime, and the person has a previous conviction for committing or
21attempting to commit a violent crime.
AB609,5 22Section 5. 969.035 (2) (c) of the statutes is created to read:
AB609,4,2423 969.035 (2) (c) The person is accused of committing or attempting to commit
24any other offense and any of the following applies:
AB609,5,2
11. There is a serious risk that the person poses a danger of inflicting serious
2bodily harm on a member of the community.
AB609,5,33 2. There is a serious risk that the person will intimidate a witness.
AB609,5,44 3. There is a serious risk that the person will not appear in court as required.
AB609,6 5Section 6 . 969.035 (3) (intro.) of the statutes is amended to read:
AB609,5,66 969.035 (3) (intro.) A court may proceed under this section if as follows:
AB609,5,8 7(am) Upon motion by the district attorney alleges alleging to the court and
8provides the court with documents
as follows:
AB609,7 9Section 7 . 969.035 (3) (a) of the statutes is renumbered 969.035 (3) (am) 1. and
10amended to read:
AB609,5,1211 969.035 (3) (am) 1. Alleges that That the defendant is eligible for denial of
12release under sub. (2) (a) or (b) to (c).
AB609,8 13Section 8 . 969.035 (3) (b) of the statutes is repealed.
AB609,9 14Section 9 . 969.035 (3) (bm) of the statutes is created to read:
AB609,5,1615 969.035 (3) (bm) Upon its own motion if the defendant is eligible for denial of
16release under sub. (2) (c).
AB609,10 17Section 10 . 969.035 (3) (c) of the statutes is renumbered 969.035 (3) (am) 2.
18and amended to read:
AB609,5,2219 969.035 (3) (am) 2. Alleges that That no available conditions of release will not
20adequately protect members of the community from serious bodily harm or, prevent
21the intimidation of witnesses, or reasonably assure the defendant's appearance in
22court when required
.
AB609,11 23Section 11 . 969.035 (4) of the statutes is amended to read:
AB609,6,524 969.035 (4) If the court determines that the district attorney has complied with
25sub. (3), the court may order that the detention of a person who is currently in custody

1be continued or may issue a warrant commanding any law enforcement officer to
2bring the defendant without unnecessary delay before the court. When the
3defendant is brought before the court, he or she shall be given a copy of the documents
4specified in sub. (3) and
informed of his or her rights under this section and s. 970.02
5(1) and (6).
AB609,12 6Section 12. 969.035 (5) of the statutes is amended to read:
AB609,6,157 969.035 (5) A pretrial detention hearing is a hearing before a court for the
8purpose of determining if the continued detention of the defendant is justified
9whether any available conditions of release would reasonably protect members of the
10community from serious bodily harm, prevent the intimidation of witnesses, and
11reasonably assure the defendant's appearance in court when required
. A pretrial
12detention hearing may be held in conjunction with a preliminary examination under
13s. 970.03 or a conditional release revocation hearing under s. 969.08 (5) (b), but
14separate findings shall be made by the court relating to the pretrial detention,
15preliminary examination, and conditional release revocation.
AB609,6,19 16(5m) The pretrial detention hearing shall be commenced within 10 days from
17the date the defendant is detained or brought before the court under sub. (4). The
18defendant may not be denied release from custody in accordance with s. ss. 969.02
19and
969.03 for more than 10 days prior to the hearing required by this subsection.
AB609,13 20Section 13. 969.035 (6) (a) of the statutes is amended to read:
AB609,6,2521 969.035 (6) (a) The state has the burden of going forward and proving by clear
22and convincing evidence that the defendant committed an offense specified under
23sub. (2) (a), or that the defendant committed or attempted to commit a violent crime
24subsequent to a prior conviction for a violent crime
shall establish probable cause
25that the defendant committed the offense for which he or she has been charged
.
AB609,14
1Section 14. 969.035 (6) (am) of the statutes is created to read:
AB609,7,102 969.035 (6) (am) If sub. (2) (a) or (b) applies, there is a rebuttable presumption
3that available conditions of release will not adequately protect members of the
4community from serious bodily harm, prevent the intimidation of witnesses, or
5assure the defendant's appearance in court when required. The standard of proof for
6a rebuttal of the presumption of pretrial detention is a preponderance of the
7evidence. If the defendant cannot establish proof to rebut this presumption, the court
8may order the defendant's detention in accordance with sub. (8). If the defendant has
9rebutted the presumption by a preponderance of the evidence or if the presumption
10does not apply, the state may proceed to seek pretrial detention under par. (b).
AB609,15 11Section 15. 969.035 (6) (b) of the statutes is amended to read:
AB609,7,1612 969.035 (6) (b) The state has the burden of going forward and proving shall
13prove
by clear and convincing evidence that available conditions of release will not
14adequately protect members of the community from serious bodily harm or, prevent
15the intimidation of witnesses, or assure the defendant's appearance in court when
16required unless the presumption under par. (am) applies and has not been rebutted
.
AB609,16 17Section 16 . 969.035 (6) (c) of the statutes is repealed.
AB609,17 18Section 17 . 969.035 (6) (cm) of the statutes is created to read:
AB609,7,2319 969.035 (6) (cm) The defendant has the right to be represented by counsel. The
20defendant shall be afforded an opportunity to testify, to present witnesses, to
21cross-examine witnesses who appear at the hearing, and to present information by
22proffer or otherwise. The rules concerning admissibility of evidence in criminal trials
23do not apply to the presentation and consideration of information at the hearing.
AB609,18 24Section 18 . 969.035 (7) of the statutes is amended to read:
AB609,8,3
1969.035 (7) If the court does not make the findings under sub. (6) (a) and (b)
2and the defendant is otherwise eligible, the defendant shall be released from custody
3with or without conditions in accordance with s. ss. 969.02 and 969.03.
AB609,19 4Section 19. 969.035 (8) of the statutes is renumbered 969.035 (8) (a) and
5amended to read:
AB609,8,96 969.035 (8) (a) If the The court makes the findings may deny release if it finds
7probable cause
under sub. (6) (a) and (b), finds that either the defendant has not
8rebutted the presumption under sub. (6) (am) or that the state has made the required
9showing under sub. (6) (b).
AB609,8,19 10(b) If the court may deny bail denies release to the defendant under par. (a), it
11may be
for an additional period not to exceed 60 days following the hearing if the
12defendant is accused of a misdemeanor or 90 days if the defendant is accused of a
13felony, except that the court may extend the period, upon its own motion or the
14motion of any party, if it finds that the ends of justice are best served by extending
15that period. An extension may not be granted under this paragraph unless the court
16sets forth in the record of the case, either orally or in writing, its reasons for finding
17that the ends of justice are best served by extending the period of confinement
. If the
18time period passes and the defendant is otherwise eligible, he or she shall be released
19from custody with or without conditions in accordance with s. ss. 969.02 and 969.03.
AB609,20 20Section 20 . 969.035 (9) of the statutes is amended to read:
AB609,8,2521 969.035 (9) In computing the 10-day periods under sub. (5) (5m) and the
2260-day period and 90-day periods under sub. (8) (b), the court shall omit any period
23of time found by the court to result from a delay caused by the defendant or a
24continuance granted which that was initiated by the defendant. Delay is caused by
25the defendant only if the delay is expressly requested by the defendant.
AB609,21
1Section 21. 969.035 (10) of the statutes is amended to read:
AB609,9,32 969.035 (10) The defendant may petition the court to be released from custody
3with or without conditions in accordance with s. ss. 969.02 and 969.03 at any time.
AB609,22 4Section 22. 969.035 (12) of the statutes is created to read:
AB609,9,115 969.035 (12) The pretrial detention hearing may be reopened, before or after
6a determination by the court, at any time before trial if the court finds that
7information exists that was not known to the district attorney or the defendant at
8the time of the hearing and that has a material bearing on the issue of whether there
9are conditions of release that adequately protect members of the community from
10serious bodily harm, prevent the intimidation of witnesses, or assure the defendant's
11appearance in court when required.
AB609,23 12Section 23 . Effective date.
AB609,9,1613 (1) This act takes effect only if, on or after the effective date of this subsection,
14an amendment to article I, section 8 (3), of the Wisconsin Constitution is ratified. The
15elections commission shall notify the legislature of the effective date of the
16amendment under s. 7.70 (3) (h).
AB609,9,1717 (End)
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