Wisconsin Legislature: DHS 98.17(1)

History: Cr. Register, July, 1992, No. 439, eff. 8-1-92; CR 20-067: r. (2) Register December 2021 No. 792, eff. 1-1-22.

DHS 98.13 Fraternization. No agent or other department employee may have a nonprofessional relationship with a client, except as permitted by the secretary at the request of the employee.

History: Cr. Register, July, 1992, No. 439, eff. 8-1-92.

DHS 98.14 Contraband.

(1) In this section, “contraband” means:

(a) Any item which the client may not possess under the rules or conditions of the client’s supervision; or

(b) Any item whose possession is forbidden by law.

(2) Any field staff member who reasonably believes that an item is contraband may seize the item, whether or not the staff member believes a violation of the client’s rules or conditions of supervision has occurred. The client shall be issued a receipt for the item seized and the supervisor shall be notified in writing of the circumstances of the seizure. Property which is not contraband shall be returned to the owner, if feasible, and a receipt shall be obtained, or disposed of in accordance with this section and a report of the disposal kept.

(3) The supervisor shall dispose of seized contraband after all proceedings in which the contraband may be required have been completed. Disposition shall be as follows:

(a) All confiscated currency, whose true owner cannot be determined, shall be placed in the general fund.

(b) Checks and other negotiable instruments shall be returned to the maker. If it is not possible to determine an address for the maker of the check, the check shall be destroyed.

(c) U.S. bonds and other securities shall be held in the department of corrections cashier’s office, and upon proof of ownership, the item shall be returned to the owner.

(d) Property shall be returned to the owner if the owner is known, or sent at the client’s expense to another, in accordance with the nature of the property, unless the owner transferred the property in an unauthorized manner. Otherwise, items of inherent value shall be sold through the department of corrections purchasing officer and money received shall be placed in the state’s general fund. Items of inconsequential value, that is, having a value of $5.00 or less, shall be destroyed.

(e) Intoxicating substances, such as alcohol, narcotics or dangerous drugs, shall be disposed of by the client’s agent after obtaining supervisory approval or given to a law enforcement agency for use as evidence or for disposal.

(f) Firearms not required for use as evidence shall be disposed of in accordance with s. 968.20, Stats.

(g) Any item originally assigned as property of the state shall be returned to service.

(4) If a client believes that property should be returned or sent out at his or her direction and a decision to dispose of it in a different manner has been made, the client may file a complaint under s. DHS 98.11. The property shall not be disposed of until the complaint is resolved.

History: Cr. Register, July, 1992, No. 439, eff. 8-1-92.

DHS 98.15 Discharge. The department shall inform a client of the individualized objectives and conditions of the client’s supervision so that the client may be aware of the effort and achievement required of him or her, and to encourage discharge of the client at the earliest possible time consistent with the client’s progress in satisfying the objectives and conditions and the protection of the public.

History: Cr. Register, July, 1992, No. 439, eff. 8-1-92.

DHS 98.16 Revocation.

(1) A client committed under s. 971.17 or 980.06, Stats., may have his or her conditional or supervised release revoked only by the releasing court.

(2) A client released on conditional transfer under s. 51.37 (9), Stats., may have his or her conditional transfer revoked only:

(a) On recommendation of the supervising agent who determines that the client presents a risk of physical harm to self or others or has failed to comply with the conditions of conditional transfer;

(b) Following return of the client to the institution for evaluation and detention; and

(c) Following an administrative hearing conducted by the department’s office of administrative hearings to ascertain whether there is a preponderance of evidence to substantiate the necessity for rescinding the conditional transfer and ensuring that the action of the department is consistent with the client’s treatment needs and the protection of the community.

History: Cr. Register, July, 1992, No. 439, eff. 8-1-92; am. (1), Register, April, 1995, No. 472, eff. 5-1-95.

Subchapter III — Use of Force and Related Matters

DHS 98.17 Definitions. In this subchapter:

(1) “Bodily injury” means physical pain or injury, illness, or any impairment of physical condition.

(2) “Deadly force” means force which the user reasonably believes will create a substantial risk of causing death or great bodily injury to another.

(3) “Force” means the exercise of strength or power to overcome resistance or to compel another to act or to refrain from acting in a particular way. It includes the use of mechanical and physical power or strength.

(4) “Great bodily injury” means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ.

(5) “Non-deadly force” means force which the user reasonably believes will not create a substantial risk of causing death or great bodily injury to another.

(6) “Reasonably believes” means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though it may be erroneous.

History: Cr. Register, July, 1992, No. 439, eff. 8-1-92.

DHS 98.18 Use of force.

(1) Whenever feasible, field staff shall rely on law enforcement authorities to exercise force against clients when force is necessary. When that assistance is not practical, field staff may use force subject to this section. Only so much force may be used as is reasonably necessary to achieve the objective for which it is used.

(2) Corporal punishment of clients is forbidden. This prohibition allows no exceptions and applies to public and private programs.

(3) Non-deadly force may be used by field staff against clients only if the user of force reasonably believes it is immediately necessary to realize one of the following purposes:

(a) To prevent death or bodily injury to oneself or another;

(b) To prevent unlawful damage to property that may result in death or bodily injury to oneself or another;

(d) To change the location of a client; or

(e) To prevent unlawful damage to property.

(4) Non-deadly force may be used to apprehend a client or take a client into custody only in the following manner:

(a) Staff should exhaust all efforts to persuade clients to voluntarily be taken into the custody of field staff prior to using force;

(b) If the client refuses to voluntarily be taken into custody, staff may exercise minimal physical force necessary to apprehend the client. Minimal force should be exercised in the following way:

1. If possible, staff should not attempt to physically handle the client until sufficient staff are present to evidence a show of force;

2. The client should again be asked to voluntarily be taken into custody;

3. If the client refuses to voluntarily be taken into custody, the client may be firmly grasped by one or more staff; and

4. The client shall then be handcuffed behind his or her back or restrained by other appropriate methods;

(c) After use of force, the client and staff should be checked for injury and treated by a physician if necessary. If injury resulted, the regional chief shall be notified and a summary report shall be submitted to the regional chief and the administrator of the division of care and treatment facilities detailing the cause and extent of the injury and the treatment provided for it; and

(d) If force is used, a written report describing the incident including the names of all people who observed the exercise of force shall be submitted to the regional chief and the administrator of the division of care and treatment facilities, and shall be included in the client’s record.

(5) Deadly force may not be used by field staff against clients except to prevent death or great bodily injury to oneself or another.

(6) Deadly force may not be used by field staff if its use creates a substantial danger of harm to innocent third parties, unless the danger created by not using such force is greater than the danger created by using it.

(7) The use of excessive force is forbidden. “Excessive force”means force greater than what is reasonably necessary to achieve the objective for which it is used.

(8) In an emergency, field staff may be used at an institution. In those circumstances, staff shall abide by the use of force rules under ch. DOC 306.

History: Cr. Register, July, 1992, No. 439, eff. 8-1-92.

DHS 98.19 Mechanical restraints.

(1) Mechanical restraints are limited to handcuffs, handcuffs with restraining belt or chain, restraining chain, leg restraints, and leather and plastic restraints. These may be used to restrain and transport a client, but only in accordance with this section.

(2) Mechanical restraints may only be used in the following circumstances:

(a) To protect staff or others from a client who poses an immediate risk of flight or physical injury to others, unless restrained;

(b) To protect a client who poses an immediate threat of physical injury to himself or herself, unless restrained;

(d) To transport a client.

(3) Mechanical restraints shall never be used:

(a) As a method of punishment;

(b) About the head or neck of the client;

(c) In a way that causes undue physical discomfort, inflicts physical pain, or restricts the blood circulation or breathing of the client; or

(d) To restrain a client to a moving vehicle.

(4) When a client is placed in restraints, a staff member shall transport the client to a detention facility, a mental health or medical facility, or to the appropriate law enforcement authorities.

(5) A staff member shall observe a client in restraints at least once every 15 minutes until the restraints are removed, or the client is admitted to a detention facility, mental health facility, or medical facility.

(6) If feasible, a client should be released from restraints to perform bodily functions and for meals.

(7) Except when restraints are used to take a client into custody or transport a client, a report shall be maintained in the client’s record of each time the client is placed in restraints. It shall include:

(a) The client’s full name, number, and the date the client was placed in restraints;

(b) The name of the staff member who placed the client in restraints;

(d) A statement indicating when, and under what circumstances, the restraints were removed.

(8) Field staff shall have access to mechanical restraining devices which shall be periodically examined. Any excessively worn or defective restraining devices shall be removed from the supply. Only commercially manufactured restraining devices may be used.

History: Cr. Register, July, 1992, No. 439, eff. 8-1-92.

DHS 98.20 Chemical agents and firearms.

(1) Chemical agents shall not be used by field staff against clients.

(2) Field staff shall not carry firearms or other weapons during their working hours.

History: Cr. Register, July, 1992, No. 439, eff. 8-1-92.

DHS 98.21 Search and seizure.

(1) General policy. A search of a client or the client’s living quarters or property may be made at any time, but only in accordance with this section.

(2) Personal search.

(a) In this subsection, “personal search” means a search of a client’s person, including but not limited to the client’s pockets, frisking the client’s body, an examination of the client’s shoes and hat, and a visual inspection of the client’s mouth.