Chapter DOC 328

DOC 328.26 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.27 DOC 328.27 Custody and detention. Whenever feasible, an employee shall rely on law enforcement authorities to take an offender into custody. When law enforcement assistance is not available, the employee shall decide whether to disengage and issue an apprehension request or take the offender into custody in accordance with this section.

DOC 328.27(1) (1) Custody order. An agent shall order an offender into custody if the offender is alleged to have been involved in assaultive or dangerous conduct. A regional chief may permit exceptions to this subsection.

DOC 328.27(2) (2) Detention. An offender may be taken into custody and detained for one of the following purposes:

DOC 328.27(2)(a) (a) For investigation of an alleged violation of a rule or condition of supervision.

DOC 328.27(2)(b) (b) After an alleged violation to determine whether to commence revocation proceedings.

DOC 328.27(2)(c) (c) For disciplinary purposes.

DOC 328.27(2)(d) (d) To prevent a possible violation by the offender.

DOC 328.27(2)(e) (e) Pending placement in a program as an alternative to revocation.

DOC 328.27(3) (3) Length of detention. An offender may be detained in accordance with one or more of the following:

DOC 328.27(3)(a) (a) Except as provided in sub. (6) and (7), an agent may authorize the detention of an offender under sub. (1) or (2) for a maximum of 5 working days.

DOC 328.27(3)(b) (b) A supervisor may approve additional detention for a maximum of 5 working days.

DOC 328.27(3)(c) (c) A regional chief may approve detention for an additional 5 working days.

DOC 328.27(3)(d) (d) The administrator may authorize detention beyond the foregoing time limits.

DOC 328.27(3)(e) (e) An offender detained under sub. (2) (c) may be detained with supervisory approval for only a maximum of 5 working days.

DOC 328.27(3)(f) (f) This subsection does not apply to detentions pending final revocation which are authorized by an agent’s immediate supervisor under s. DOC 331.05 (7) when a preliminary hearing is not held pursuant to s. DOC 331.05 (2).

DOC 328.27(4) (4) Custody decisions. Custody decisions during revocation proceedings shall be made in accordance with s. DOC 331.05 (7).

DOC 328.27(5) (5) Detention in a state correctional facility. The department may detain an offender on parole, extended supervision, or on felony probation with an imposed and stayed sentence in a state correctional institution including a probation and parole holding facility pending revocation proceedings.

DOC 328.27(5)(a) (a) For placement of an offender in a state correctional facility other than a probation and parole holding facility, the regional chief shall make a detention request to the director of the bureau of offender classification and movement in the division of adult institutions. The request shall include both of the following:

DOC 328.27(5)(a)1. 1. Court case information that permits legal admission for detention under this subsection.

DOC 328.27(5)(a)2. 2. Reason for requested detention in a state correctional institution rather than a county facility.

DOC 328.27(5)(b) (b) The director of the bureau of offender classification and movement shall review the request and determine whether admission for detention in a state correctional institution will be authorized.

DOC 328.27(6) (6) Custody of an offender on lifetime supervision. The department may take an offender on lifetime supervision into custody under sub. (1) or (2) (a) for as long as reasonably necessary to investigate a possible violation of a condition or regulation of lifetime supervision. The department may hold an offender in custody for a maximum of 72 hours following completion of the investigation in order to refer the offender to the appropriate prosecuting agency for commencement of prosecution under s. 939.615 (7), Stats.

DOC 328.27(7) (7) Short-term sanctions.

DOC 328.27(7)(a) (a) The department may confine an offender on probation, parole, or extended supervision beyond the time limits provided under sub. (3) as a sanction when both of the following occur:

DOC 328.27(7)(a)1. 1. The offender admits to the violation in writing.

DOC 328.27(7)(a)2. 2. The regional chief or designee approves of the sanction.

DOC 328.27(7)(b) (b) The sanction may be served within a county jail if the sheriff approves.

DOC 328.27(7)(c) (c) Confinement under the sanction will not exceed 90 days.

DOC 328.27(7)(d) (d) Consistent with goals and requirements set forth in s. 301.03 (3) (b), Stats., the department will adopt an evidence-based response to violations.

DOC 328.27 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13; CR 18-062: am. (7) (title), (a) (intro.), cr. (7) (d) Register October 2019 No. 766, eff. 11-1-19.

DOC 328.28 DOC 328.28 Psychotropic medication as a condition of supervision. The purpose of this section is to provide a process for imposing a condition of supervision that requires compliance with prescribed psychotropic medications.

DOC 328.28(1) (1) Psychotropic medication as a condition of supervision. Psychotropic medication may be made a condition of supervision only when one of the following applies:

DOC 328.28(1)(a) (a) Following commitment proceedings during which the offender has been found not competent to refuse psychotropic medication.

DOC 328.28(1)(b) (b) With the consent of a guardian who is able to authorize treatment of the offender with psychotropic medication.

DOC 328.28(1)(c) (c) Following a department hearing under this section, approving a condition requiring the offender’s compliance with prescribed psychotropic medication.

DOC 328.28(1)(d) (d) When the offender waives a department psychotropic medication hearing under this section.

DOC 328.28(1)(e) (e) When ordered by a court of law.

DOC 328.28(2) (2) Criteria for requesting a hearing. An agent shall request approval for a hearing from a regional chief to determine the need for requiring psychotropic medication as a condition of supervision when all of the following apply:

DOC 328.28(2)(a) (a) The use of psychotropic medication is medically indicated.

DOC 328.28(2)(b) (b) The offender refuses to take psychotropic medication.

DOC 328.28(2)(c) (c) The offender does not waive the hearing.

DOC 328.28(3) (3) Notice of hearing. The offender shall receive written notice of the hearing at least 24 hours in advance. The notice shall include all of the following:

DOC 328.28(3)(a) (a) The basis for the allegations that use of psychotropic medication is medically indicated and necessary.

DOC 328.28(3)(b) (b) The date, time, place, and purpose of the hearing.

DOC 328.28(3)(c) (c) The right to be represented by an advocate.

DOC 328.28(3)(d) (d) The right to be heard and present evidence and relevant witnesses.

DOC 328.28(3)(e) (e) The right to cross-examine department witnesses.

DOC 328.28(3)(f) (f) The right to a written decision within 10 working days of the hearing, including the reason for the decision.

DOC 328.28(4) (4) Access to departmental offender health care records. Department employees directly involved in the decision regarding psychotropic medication as a condition of supervision shall have access to the minimum necessary amount of protected health care information to enable them to make an informed decision relating to whether compliance with psychotropic medications should be required as a condition of supervision.

DOC 328.28(5) (5) Psychotropic medication hearing. When an offender does not waive the hearing and refuses to take prescribed psychotropic medication, the department shall hold a hearing. The hearing may be conducted in person or by telephone.

DOC 328.28(5)(a) (a) The department has the burden of proof to establish, by a preponderance of the evidence, that treatment with psychotropic medication is medically indicated and necessary to accomplish the goals of supervision.

DOC 328.28(5)(b) (b) The hearing examiner is not bound by common law or statutory rules of evidence other than attorney-client privilege. The hearing examiner shall admit all evidence, including testimony, which has reasonable probative value and is not unduly repetitious or cumulative.

DOC 328.28(5)(c) (c) The hearing examiner shall do all of the following:

DOC 328.28(5)(c)1. 1. Administer oaths or affirmations.

DOC 328.28(5)(c)2. 2. Take an active role in questioning witnesses and eliciting testimony as necessary.

DOC 328.28(5)(c)3. 3. Regulate the course of the hearing.

DOC 328.28(5)(c)4. 4. Keep summary notes of the hearing.

DOC 328.28(5)(c)5. 5. Render a written decision whether to impose a condition of supervision requiring compliance with prescribed psychotropic medication upon a finding that psychotropic medication is medically indicated and necessary to accomplish the goals of supervision.

DOC 328.28(6) (6) Appeal of decision. The offender may appeal a decision ordering compliance with prescribed psychotropic medication to the secretary within 10 days of the written decision. The decision of the hearing examiner shall remain in effect while the appeal is pending.

DOC 328.28(7) (7) Annual review. A hearing examiner shall review the decision ordering compliance with prescribed psychotropic medication on an annual basis.

DOC 328.28(7)(a) (a) A different hearing examiner from the examiner who made the original determination may perform the annual review.

DOC 328.28(7)(b) (b) The hearing examiner under par. (a) shall give the offender notice of the date of the annual review, what evidence is being considered, and the offender’s right to respond.

DOC 328.28(7)(c) (c) The hearing examiner may continue the order requiring compliance with prescribed psychotropic medication if evidence since the time of the last review shows that psychotropic medication is medically indicated and necessary to accomplish the goals of supervision.

DOC 328.28 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.