HA 2.05(6)(c)
(c) Evidence to support or rebut the allegation may be offered. Evidence gathered by means not consistent with
ch. DOC 328 or in violation of the law may be admitted as evidence at the hearing.
HA 2.05(6)(d)
(d) The administrative law judge may accept hearsay evidence.
HA 2.05(6)(e)
(e) The rules of evidence other than
ch. 905, Stats., with respect to privileges do not apply except that unduly repetitious or irrelevant questions may be excluded.
HA 2.05(6)(f)
(f) The department has the burden of proof to establish, by a preponderance of the evidence, that the client violated the rules or conditions of supervision. A violation is proven by a judgment of conviction arising from conduct underlying an allegation.
HA 2.05(6)(g)
(g) The administrative law judge may take an active role to elicit facts not raised by the client or the client's attorney, if any, or the department's representative.
HA 2.05(6)(h)
(h) Alternatives to revocation and any alibi defense offered by the client or the client's attorney, if any, shall be considered only if the administrative law judge and the department's representative have received notice of them at least 5 days before the hearing, unless the administrative law judge allows a shorter notice for cause.
HA 2.05(6)(i)
(i) The administrative law judge may issue any necessary recommendation to give the department's representative and the client reasonable opportunity to present a full and fair record.
HA 2.05(7)(a)(a) The administrative law judge shall consider only the evidence presented in making the decision.
HA 2.05(7)(b)1.
1. Decide whether the client committed the conduct underlying the alleged violation;
HA 2.05(7)(b)2.
2. Decide, if the client committed the conduct, whether the conduct constitutes a violation of the rules or conditions of supervision;
HA 2.05(7)(b)3.
3. Decide, if the client violated the rules or conditions of supervision, whether revocation should result or whether there are appropriate alternatives to revocation. Violation of a rule or condition is both a necessary and a sufficient ground for revocation of supervision. Revocation may not be the disposition, however, unless the administrative law judge finds on the basis of the original offense and the intervening conduct of the client that:
HA 2.05(7)(b)3.a.
a. Confinement is necessary to protect the public from further criminal activity by the client; or
HA 2.05(7)(b)3.b.
b. The client is in need of correctional treatment which can most effectively be provided if confined; or
HA 2.05(7)(b)3.c.
c. It would unduly depreciate the seriousness of the violation if supervision were not revoked.
HA 2.05(7)(b)4.
4. Decide, if the client violated the rules or conditions of supervision, whether or not the department should toll all or any part of the period of time between the date of the violation and the date an order is entered, subject to credit according to s.
973.155, Stats.
HA 2.05(7)(b)5.
5. Decide, if supervision is revoked, whether the client is entitled to any sentence credits under s.
973.155, Stats.
HA 2.05(7)(c)
(c) If the administrative law judge finds that the client did not violate the rules or conditions of supervision, revocation shall not result and the client shall continue with supervision under the established rules and conditions.
HA 2.05(7)(d)
(d) The administrative law judge shall issue a written decision based upon the evidence with findings of fact and conclusions of law stating the reasons to revoke or not revoke the client's supervision. The administrative law judge may, but is not required to, announce the decision at the hearing.
HA 2.05(7)(e)
(e) If an administrative law judge decides to revoke the offender's parole, the decision shall apply the criteria established in
s. HA 2.06 (6) (b) and shall include a determination of:
HA 2.05(7)(e)1.
1. Good time forfeited, if any, under
ch. 302, Stats., and, for mandatory release parolees, whether the offender may earn additional good time; or
HA 2.05(7)(f)
(f) If an administrative law judge decides to revoke a period of extended supervision under s.
302.113 (9) (am), Stats., the administrative law judge shall include a determination of the period of reconfinement taking into consideration the following criteria:
HA 2.05(7)(f)3.
3. The offender's conduct and behavior while on community supervision;
HA 2.05(7)(f)4.
4. The amount of reconfinement that is necessary to protect the public from the risk of further criminal activity, to prevent the undue depreciation of the seriousness of the violation or to provide confined correctional treatment.
HA 2.05(7)(g)
(g) If an administrative law judge decides to revoke a period of extended supervision for a person serving a life sentence under s.
302.114 (9) (am), Stats., the decision shall consider the criteria established in
s. HA 2.05 (7) (f), and shall include a determination of the period of time for which the person shall be incarcerated before being eligible for release to extended supervision.
HA 2.05(7)(h)
(h) The administrative law judge's decision shall be written and forwarded within 10 days after the hearing to the client, the client's attorney, if any, and the department's representative. An extension of 5 days is permitted if there is cause for the extension and the administrative law judge notifies the parties of the reasons for it.
HA 2.05(7)(i)
(i) The administrative law judge's decision shall take effect and be final 10 days after the date it is issued unless the client or the client's attorney, if any, or the department's representative files an appeal under
sub. (8).
HA 2.05(8)(a)(a) The client, the client's attorney, if any, or the department representative may appeal the administrative law judge's decision by filing a written appeal with arguments and supporting materials, if any, with the administrator within 10 days of the date of the administrative law judge's written decision.
HA 2.05(8)(b)
(b) The appellant shall submit a copy of the appeal to the other party who has 7 days to respond. An appeal may be dismissed if the other party does not receive a timely copy of the appeal.
HA 2.05(9)(a)(a) The administrator may modify, sustain, reverse, or remand the administrative law judge's decision based upon the evidence presented at the hearing and the materials submitted for review.
HA 2.05(9)(b)
(b) The administrator shall forward a written appeal decision to the client, the client's attorney, if any, and the department's representative within 21 days after receipt of the appeal, unless the time is extended by the administrator.
HA 2.05 History
History: Cr.
Register, December, 1991, No. 432, eff. 1-1-92; am. (8) (a),
Register, August, 1995, No. 476, eff. 9-1-95;
CR 01-018: cr. (1) (g) and (h) and (7) (f) and (g), am. (7) (d), renum. (7) (f) and (g) to be (7) (h) and (i),
Register September 2001 No. 549, eff. 10-1-01;
CR 09-101: am. (1) (intro.), (b), (d) (intro.), 1. to 7., (f) 1., 2., (g), (h), (3) (intro.) to (h), (6) (a), (7) (e), (f), (h), (8) (b), cr. (1) (d) 8., r. (3) (i)
Register May 2010 No. 653, eff. 6-1-10; correction in (7) (g) made under s.
13.92 (4) (b) 7., Stats.,
Register May 2010 No. 653;
correction in (1) (h) made under s. 13.92 (4) (b) 7., Stats., Register March 2017 No. 735.
HA 2.06
HA 2.06
Good time forfeiture, reconfinement and reincarceration hearings. HA 2.06(1)
(1)
Applicability. This section applies to good time forfeiture hearings, reconfinement and reincarceration hearings when the offender has waived his or her right to a final revocation hearing.
HA 2.06(2)
(2) Hearing. Following receipt of a request from the department for a good time forfeiture, reconfinement or reincarceration hearing, the division shall conduct a hearing at the offender's assigned correctional institution. The administrative law judge may conduct the hearing in person or by telephone or video conference to determine the amount of good time to be forfeited or the period of reincarceration or reconfinement. In the case of good time forfeitures for mandatory release parolees, the division shall also determine whether or not good time may be earned on the forfeited good time.
HA 2.06(3)(a)(a) Notice of the hearing shall be sent to the offender, the offender's agent and the correctional institution.
HA 2.06(3)(b)1.
1. The date, time, place of the hearing and the amount of time available for forfeiture, reconfinement or reincarceration, and;
HA 2.06(4)
(4) Offender's rights. The offender has the following rights at the hearing:
HA 2.06(4)(a)
(a) To be present at the hearing in person or by telephone or video conference;
HA 2.06(4)(b)
(b) To speak and respond to questions from the administrative law judge, and;
HA 2.06(5)(a)(a) The hearing shall be closed to the public and may be conducted by video conference. The hearing may also be conducted by telephone conference.
HA 2.06(5)(b)
(b) The administrative law judge shall read aloud the department's recommendation and may admit into evidence the offender's institutional conduct record, any documents submitted by the department and any written, oral or documentary evidence presented by the offender.
HA 2.06(6)(a)(a) The administrative law judge shall consider only the evidence presented at the hearing in making the decision.
HA 2.06(6)(b)
(b) The following criteria shall be considered by the administrative law judge in determining the amount of good time forfeited or the period of reincarceration:
HA 2.06(6)(b)4.
4. The amount of good time forfeiture or the period of reincarceration that is necessary to protect the public from the risk of further criminal activity, to prevent the undue depreciation of the seriousness of the violation or to provide confined correctional treatment.
HA 2.06(6)(c)1.
1. Whether good time should be forfeited, the amount of such forfeiture and, for mandatory release parolees, whether or not good time may be earned on the amount forfeited, or;
HA 2.06(6)(c)2.
2. In the case of reincarceration hearings, the period of reincarceration.
HA 2.06(6)(d)
(d) The administrative law judge's decision shall be written and forwarded within 10 days after the closing of the record to the offender, the department's representative and the correctional institution.
HA 2.06(6)(e)
(e) The administrative law judge's decision shall take effect and be final 10 days after the date it is issued unless the client or the department files an appeal under
sub. (7).
HA 2.06(7)
(7) Appeal. The offender or the department may appeal the administrative law judge's decision by filing a written appeal with arguments and supporting materials, if any, with the administrator within 10 days of the date of the administrative law judge's written decision. The appellant shall submit a copy of the appeal to the other party who has 7 days to respond.
HA 2.06(8)(a)(a) The administrator may modify, sustain, reverse, or remand the administrative law judge's decision based upon the evidence presented at the hearing and the materials submitted for review.
HA 2.06(8)(b)
(b) The administrator shall forward a written appeal decision to the client and the department's representative within 21 days after receipt of the appeal, unless the time is extended by the administrator.
HA 2.06 History
History: Cr.
Register, December, 1991, No. 432, eff. 1-1-92;
CR 09-101: am. (title), (1), (2), (3) (a), (b) 1., 2., (4) (intro.), (a), (5), (6) (c) 1., 2., (d), (7)
Register May 2010 No. 653, eff. 6-1-10.
HA 2.07
HA 2.07
Transcripts. Hearings shall be recorded electronically. The division shall prepare a transcript of the testimony only at the request of a judge who has granted a petition for certiorari review of a revocation decision or upon prepayment of the cost of transcription of the record. The amount charged for each page of transcribed material shall be determined by the administrator and will be published in the public notice for access to records displayed at all division offices and on the internet at
http://dha.state.wi.us/home/RecordsPolicy.htm. Any party may also record the hearing at his or her own expense.
HA 2.08
HA 2.08
Harmless error. If any requirement of this chapter or
ch. DOC 328 or
331 is not met, the administrative law judge or administrator may deem it harmless and disregard it if the error does not affect the client's substantive rights. Substantive rights are affected when a variance tends to prejudice a fair proceeding or disposition.
HA 2.08 History
History: Cr.
Register, December, 1991, No. 432, eff. 1-1-92.
