Chapter Jus 19

Jus 19.07   Conditions of deferred prosecution.

Jus 19.08   Conditions post-conviction.

Jus 19.09   Volunteers.

Jus 19.10   Testing.

Jus 19.11   Compliance and sanctions.

Jus 19.12   Fees.

Jus 19.13   Reporting requirements and data collection system.

Jus 19.14   Reimbursement for lost or damaged equipment.

Jus 19.15   Discharge from the program.

Jus 19.16   Repeat participant.

Ch. Jus 19 Note Note: Chapter Jus 19 was created by emergency rule, EmR1805, effective February 6, 2018 through July 5, 2018.

Jus 19.01 Jus 19.01 Purpose. The purpose of this chapter is to establish, as required by s. 165.957 (3), Stats., standards, timelines, and procedures for a frequent sobriety testing pilot program in the state of Wisconsin, and to effectuate the purpose of s. 165.957, Stats.

Jus 19.01 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.

Jus 19.02 Jus 19.02 Applicability. This chapter applies to the department of justice, the department of corrections, participating counties, circuit courts, and district attorneys, and participants in the frequent sobriety testing pilot program.

Jus 19.02 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.

Jus 19.03 Jus 19.03 Definitions. In this chapter:

Jus 19.03(1) (1) “Agency” means a sheriff’s office or an entity designated by a sheriff of a county selected by the department to participate in the frequent sobriety testing pilot program.

Jus 19.03(2) (2) “Alcohol concentration” means the alcohol content of blood, breath, or urine by weight.

Jus 19.03(3) (3) “Breath test” means the collection of a breath sample to measure breath alcohol concentration.

Jus 19.03(4) (4) “Continuous monitoring” means breath or transdermal testing for the presence of alcohol that is conducted at least once every hour.

Jus 19.03(5) (5) “Controlled substance” has the meaning given in s. 961.01 (4), Stats.

Jus 19.03(6) (6) “Court” means a circuit court in the state of Wisconsin.

Jus 19.03(7) (7) “Data collection system” means a computer application providing for the entry of specific, structured variables into a database to track key data elements for analysis and reporting.

Jus 19.03(8) (8) “Deferred prosecution agreement” means a written agreement between a criminal defendant and a district attorney in which the district attorney agrees to suspend the prosecution for a specified period provided that the defendant complies with conditions included in the agreement.

Jus 19.03(9) (9) “Department” means the department of justice.

Jus 19.03(10) (10) “District attorney” means the district attorney of a county participating in the program who has jurisdiction over the prosecution of a participant.

Jus 19.03(11) (11) “Drug patch” means any type of device affixed to a person’s skin to test for the presence of controlled substances in the person’s body.

Jus 19.03(12) (12) “Non-OWI offense” means an offense that is not an OWI offense.

Jus 19.03(13m) (13m) “OWI conviction” means a conviction under s. 940.09 (1) or 940.25, Stats., or a suspension, revocation, or other conviction as enumerated in s. 343.307 (1), Stats.

Jus 19.03(14m) (14m) “OWI offense” means a violation of s. 940.09 (1) or 940.25, Stats., or the statutes, laws, and local ordinances enumerated in s. 343.307 (1), Stats.

Jus 19.03(15) (15) “Participant” means an adult person who has been ordered by a court or the department of corrections to refrain from using alcohol or controlled substances, or both, as a condition of release and has been ordered by a court or the department of corrections to participate in the program. “Participant” also means an adult person who has agreed to participate in the program as a condition of a deferred prosecution agreement or who volunteers to participate in the program.

Jus 19.03(16) (16) “Participation agreement” means an agreement between a participant and an agency in which the participant agrees to comply with the program requirements.

Jus 19.03(17) (17) “Program” means the frequent sobriety testing pilot program, which requires a participant to abstain from the use of alcohol or a controlled substance, or both, for a specified period of time, during which the participant shall submit to twice-a-day or continuous testing of the participant’s blood, breath, urine, or other bodily substance, in order to determine if alcohol or a controlled substance, or both, is present in the participant’s body.

Jus 19.03(18) (18) “Sanction” means a consequence imposed for a violation of the participation agreement and may include arrest.

Jus 19.03(19) (19) “Testing” has the meaning given in s. 165.957 (1) (b), Stats.

Jus 19.03(20) (20) “Testing site” means the facility designated by the agency and approved by the department where the program shall be administered including testing, installation of remote transdermal alcohol monitoring equipment, collection of fees from participants, and entry of participant information into the data collection system. An agency may designate more than one testing site.

Jus 19.03(21) (21) “Transdermal alcohol monitoring” means the use of a device to detect alcohol in a person’s body by measuring ethanol vapors released through the skin.

Jus 19.03(22) (22) “Twice-a-day testing” means testing a participant for the use of alcohol at least twice daily, with testing times approximately 12 hours apart.

Jus 19.03(23) (23) “Urinalysis testing” means collecting and analyzing urine specimens to detect the presence of alcohol or controlled substances, or both.

Jus 19.03 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.; correction in (13), (14) made under s. 13.92 (4) (b) 7., Stats., and renum. (13) and (14) to (14m) and (13m) under s. 13.92 (4) (b) 1., Stats., Register April 2019 No. 760.

Jus 19.04 Jus 19.04 Program participation and enrollment.

Jus 19.04(1) (1) Before commencing participation in the program, a participant shall sign a written participation agreement with the agency using a form approved by the department. The agreement shall include the initial duration of the person’s participation in the program as ordered by the court or department of corrections, or provided in a deferred prosecution agreement, and shall include all of the following:

Jus 19.04(1)(a) (a) The type and frequency of testing.

Jus 19.04(1)(b) (b) The location of the testing site.

Jus 19.04(1)(c) (c) Fee schedule, listing fee types enumerated in s. Jus 19.12 (1) (a) and amount of each fee.

Jus 19.04(1)(d) (d) Payment procedures, including time within which each type of fee shall be paid.

Jus 19.04(1)(e) (e) The participant’s obligations and responsibilities.

Jus 19.04(1)(f) (f) Potential sanctions for the participant’s noncompliance, up to and including termination, as determined by the agency.

Jus 19.04(2) (2) A participant shall sign the agreement in the presence of a person designated by the agency, acknowledging and agreeing to the terms and conditions imposed by the court or department of corrections or provided in a deferred prosecution agreement. The agency shall deliver a copy of the signed participation agreement to the participant.

Jus 19.04(3) (3) In conjunction with the participation agreement, the participant shall sign a consent form allowing the release of personal and testing information to the agency and department for enforcement and reporting purposes. The personal information may include name, date of birth, state identification number, address, telephone, and other information deemed necessary or appropriate by the agency and department and outlined in the consent form. The format of the consent form shall be approved by the department. The participant shall receive a copy of the signed consent form.

Jus 19.04(4) (4) A participant shall be enrolled in the program for a minimum initial enrollment period of 90 days and a maximum initial enrollment period of 365 days except when ordered as a condition of pretrial release.

Jus 19.04(5) (5) Program participation may be extended beyond the initial enrollment period at the discretion of the court, the department of corrections, or the district attorney, according to whether program participation is a pretrial, postconviction, or deferred prosecution condition. Before an individual’s program participation may be extended, the individual shall sign an amended written participation agreement using a form approved by the department. An individual’s participation in the program may not exceed 18 months.

Jus 19.04(6) (6) A participant may not be enrolled in the program while in physical custody.

Jus 19.04(7) (7) A person on work release may be ordered to participate in the program or may volunteer to participate in the program.

Jus 19.04(8) (8) Participation in the program may not replace a participant’s statutory obligations or any other condition imposed by the court or the department of corrections or as part of a deferred prosecution agreement.

Jus 19.04 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.

Jus 19.05 Jus 19.05 Agency agreement with the department.

Jus 19.05(1) (1) Each agency participating in the program shall sign a written agreement with the department outlining the respective responsibilities of the agency and the department.

Jus 19.05(2) (2) By signing the agreement, the agency agrees to abide by this chapter and any other guidelines and procedures established by the department for the administration of the program.

Jus 19.05(3) (3) The agreement shall require the agency to provide an accounting to the department of all fees, costs, and other payments collected from participants, in a manner directed by the department.

Jus 19.05(4) (4) The agreement shall list the data collection and reporting requirements outlined in s. Jus 19.13 and s. 165.957 (6), Stats.

Jus 19.05(5) (5) The agreement shall direct the agency to remit to the department a portion of all program fee amounts collected from its participants. The department shall use these payments to recoup its expenditures for administering the program and installing, maintaining, and administering the data collection system. The department shall return to the agency any fees paid under the agreement not used to support the program.

Jus 19.05 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.

Jus 19.06 Jus 19.06 Conditions of bond or pretrial release. The court may require a defendant to participate in the program as a condition of bond or pretrial release if any of the following apply:

Jus 19.06(1) (1) The defendant has 2 or more OWI convictions and is currently charged with a non-OWI offense.

Jus 19.06(2) (2) The defendant is charged with a 3rd or subsequent OWI offense.

Jus 19.06 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.

Jus 19.07 Jus 19.07 Conditions of deferred prosecution. A district attorney may require a defendant to participate in the program as a condition of a deferred prosecution agreement if the defendant has 2 or more OWI convictions and the deferred prosecution agreement is based on a non-OWI offense.

Jus 19.07 Note Note: Under s. 967.055 (3), Stats., a prosecutor may not place a person in a deferred prosecution program if the person is accused of or charged with an OWI offense. Neither s. 165.957, Stats., nor this rule allow the use of deferred prosecution agreements in OWI cases.

Jus 19.07 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.

Jus 19.08 Jus 19.08 Conditions post-conviction. The court or department of corrections may order a defendant convicted of an offense to participate in the program as a condition of probation, parole, or extended supervision if any of the following applies:

Jus 19.08(1) (1) The defendant is being or has been sentenced for a 2nd or subsequent OWI offense.

Jus 19.08(2) (2) The defendant has 2 or more OWI convictions and is being or has been sentenced for a non-OWI offense.

Jus 19.08 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.

Jus 19.09 Jus 19.09 Volunteers. A defendant with 2 or more OWI convictions may voluntarily participate in the program. A voluntary participant shall agree to abstain from alcohol and controlled substances while released on bond, on release under s. 969.01 (1), Stats., on probation, while participating in a deferred prosecution agreement, or on parole or extended supervision. Volunteers shall adhere to all program requirements.

Jus 19.09 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.

Jus 19.10 Jus 19.10 Testing.

Jus 19.10(1) (1) Testing may include any combination of breath testing, drug patch testing, blood testing, urinalysis, or transdermal alcohol monitoring, provided that the method selected supports either continuous monitoring or twice-a-day testing. Other testing methods or schedules may be used if approved by the agency and the department. The testing methods at each testing site shall be determined by the agency in collaboration with the department.

Jus 19.10(2) (2) An ignition interlock device, as defined in s. 340.01 (23v), Stats., is not an acceptable testing method for the program.

Jus 19.10(3) (3) The agency shall provide the testing equipment and may enter into a contract with a private vendor to obtain the equipment needed to carry out the program.

Jus 19.10 History History: EmR1805: emerg cr., eff. 2-6-18; CR 18-068: cr. Register April 2019 No. 760, eff. 5-1-19.

Jus 19.11 Jus 19.11 Compliance and sanctions.

Jus 19.11(1) (1) Enrollment. The court, department of corrections, or district attorney’s office shall inform the agency when a participant is ordered to participate in the program as a pretrial or postconviction condition, or agrees to participate in the program under a deferred prosecution agreement. A new participant shall contact the agency, within a time specified by the court, department of corrections, or district attorney, to enroll in the program. Enrollment commences when the participant signs the participation agreement and consent form as provided in s. Jus 19.04 (1) to (3). If the participant fails to enroll, the agency shall notify the court, the department of corrections, or the district attorney, according to whether program participation is a pretrial, postconviction, or deferred prosecution condition. A court may issue a bench warrant directing law enforcement to take the participant into custody and ordering the participant to appear before the court. Volunteers may enroll by contacting a testing site.

Jus 19.11(2) (2) Failing a test.

Jus 19.11(2)(a) (a) A test that reveals the presence of alcohol or a controlled substance is a violation of the participation agreement and shall result in a sanction.

Jus 19.11(2)(b) (b) If a test reveals the presence of alcohol or a controlled substance, the agency may conduct a confirmation test.

Jus 19.11(2)(c) (c) If a test reveals the presence of alcohol or a controlled substance, the agency may take the participant into custody for a violation of the participation agreement.

Jus 19.11(2)(d) (d) According to whether program participation is a pretrial, postconviction, or deferred prosecution condition, the agency shall immediately notify the court, the department of corrections, or the district attorney that the participant has violated the participation agreement by failing a test.