(1) Abstain totally from alcohol or drugs for a period of time; and
(2) Be subject to testing for alcohol or drugs at least twice per day by continuous transdermal alcohol monitoring via an electronic monitoring device, or by an alternative method approved by NHTSA.
Id. at (b).
Comparison with rules in adjacent states: Illinois, Michigan, and Minnesota do not have frequent sobriety testing programs. The Senate of the State of Iowa passed S.S.B. 1101, regarding frequent sobriety testing, on March 9, 2017. However, the legislation has not yet been approved by the Iowa House of Representatives.
Summary of factual data and analytical methodologies: The proposed rules are based on the Department’s legal staff’s analysis of the language and requirements of the relevant statutes, and the Department’s law enforcement staff’s analysis of the guidance needed by county agencies participating in the frequent sobriety testing pilot program. Based on those analyses, the Department has determined that the proposed emergency rules are necessary for the Department and participating county agencies to carry out their responsibilities under s. 165.957, Stats. Agency contact person: Assistant Attorney General Maura Whelan, Wisconsin Department of Justice, 17 West Main Street, P.O. Box 7857, Madison, Wisconsin 53707‑7857; phone (608) 266-3859; email: whelanmf@doj.state.wi.us. Place where comments are to be submitted and deadline for submission: Comments may be submitted to the contact person named above no later than one week after the public hearing on these emergency rules is conducted. Information as to the date, location, and time of the public hearing will be published in the Wisconsin Administrative Register.
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FINDING OF EMERGENCY
These rules are proposed as emergency rules pursuant to s. 165.957(8), Stats., which states that “[t]he department may use the emergency rules procedure under s. 227.24 to promulgate rules specified in sub. (3)[, and] . . . is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this section.” TEXT OF THE proposed emergency RULES
SECTION 1. Chapter Jus 19 is created to read: FREQUENT SOBRIETY TESTING PILOT PROGRAM
Jus 19.01 Purpose. The purpose of this chapter is to establish standards, timelines, and procedures, as required under s. 165.957(3), Stats., for a frequent sobriety testing pilot program in the state of Wisconsin. Jus 19.02 Applicability. This chapter applies to the department of justice, department of corrections, participating counties, circuit courts, district attorneys, and participants in the frequent sobriety testing pilot program.
Jus 19.03 Definitions. In this chapter:
(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.
(2) “Alcohol concentration” means the alcohol content of blood, breath, or urine by weight.
(3) “Breath test” means the collection of a breath sample to measure breath alcohol concentration.
(4) “Continuous monitoring” means breath or transdermal testing for the presence of alcohol at least once every hour.
(5) "Controlled substance" has the meaning given in s. 961.01(4), Stats. (6) “Court” means a circuit court in the state of Wisconsin.
(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.
(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.
(9) “Department” means the department of justice.
(10) “District attorney” means the district attorney of a county participating in the program who has jurisdiction over the prosecution of a participant.
(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.
(12) "Participant" means an adult person who has been ordered by the 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.
(13) "Participation agreement" means an agreement between a participant and an agency in which the participant agrees to comply with the program requirements.
(14) “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.
(15) “Repeat participant” means a person who participates in the program more than once.
(16) “Sanction” is a consequence imposed for a violation of the participation agreement.
(17) “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.
(19) “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.
(20) "Twice-a-day testing" means testing a participant for the use of alcohol at least twice daily, with testing times approximately twelve hours apart.
(21) “Urinalysis testing” means collecting and analyzing urine specimens to detect the presence of alcohol or controlled substances, or both.
Jus 19.04 Program participation and enrollment. (1) Before commencing 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 following information: type and frequency of testing; testing site; testing fees; payment procedures; participant’s obligations and responsibilities; and potential sanctions for non-compliance as determined by the agency. The agreement shall also include the 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.
(2) A participant shall sign the agreement in the presence of the testing site officer, parole or probation agent, or other 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 participant shall receive a copy of the signed participation agreement.
(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 format of the consent form shall be approved by the department. The participant shall receive a copy of the signed consent form.
(4) A participant shall be enrolled in the program for a minimum of 90 days and a maximum of 365 days except when ordered as a condition of pretrial release. Program participation may be extended beyond the initial or maximum enrollment period at the discretion of the court, the department of corrections, or the district attorney. An extension shall not exceed 90 days. An individual’s participation in the program shall not exceed 18 months.
(5) A participant who is in physical custody may not be enrolled in the program until released from physical custody.
(6) A person on work release may be ordered to participate in the program or may volunteer to participate in the program.
(7) Participation in the program shall 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 19.05 Agency agreement with the department. (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.
(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.
(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.
