(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 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.
(13) “Non-OWI offense” means an offense that is not an OWI offense, as defined.
(14) “OWI offense” means a violation of ss. 940.09(1), 940.25, Stats., and the statutes and other laws enumerated in s. 343.307, Stats. (15) “OWI conviction” means a conviction under ss. 940.09(1), 940.25, Stats., and a suspension, revocation, and other conviction as enumerated in s. 343.307(1), Stats. (16) “Participation agreement” means an agreement between a participant and an agency in which the participant agrees to comply with the program requirements.
(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.
(18) “Sanction” means a consequence imposed for a violation of the participation agreement and may include arrest.
(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.
(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.
(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.
(23) “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 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:
(a) The type and frequency of testing.
(b) The location of the testing site.
(c) Testing fees.
(d) Payment procedures.
(e) The participant’s obligations and responsibilities.
(f) Potential sanctions for the participant’s noncompliance as determined by the agency.
(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 agency shall deliver a copy of the signed participation agreement to the participant.
(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 initial enrollment period of 90 days and a maximum initial enrollment period of 365 days except when ordered as a condition of pretrial release.
(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. 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.
(6) A participant may not be enrolled in the program while in physical custody.
(7) A person on work release may be ordered to participate in the program or may volunteer to participate in the program.
(8) 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.
(4) The agreement shall list the data collection and reporting requirements outlined in s. Jus 19.13 and s. 165.957 (6), Stats. (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 19.06 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:
(1) The defendant has 2 or more OWI convictions and is currently charged with a non-OWI offense.
(2) The defendant is charged with a 3rd or subsequent OWI offense.
Jus 19.07 Conditions of deferred prosecution. A deferred prosecution agreement may include a provision requiring a defendant to participate in the program if the defendant has 2 or more OWI convictions and the deferred prosecution agreement is based on a non-OWI offense.
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 19.08 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:
(1) The defendant is being sentenced for a 2nd or subsequent OWI offense.
(2) The defendant has 2 or more OWI convictions and is being sentenced for a non-OWI offense.
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 19.10 Testing. (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.
(2) An ignition interlock device, as defined in s. 340.01 (23v), Stats., is not an acceptable testing method for the program. (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 19.11 Compliance and sanctions. (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 or agrees to participate in the program under a deferred prosecution agreement. A new participant shall contact the testing site, 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 testing site shall notify, as applicable, the court, the department of corrections, and the district attorney. The 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.
(2) Failing a test. (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.
(b) If a test reveals the presence of alcohol or a controlled substance, the agency may conduct a confirmation test.
(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.
