Chapter 165

165.95 165.95 Alternatives to incarceration; grant program.

165.95(1) (1) In this section:

165.95(1)(ag) (ag) “Tribe” has the meaning given in s. 165.91 (1).

165.95(1)(bg) (bg) “Violent offender” means a person to whom one of the following applies:

165.95(1)(bg)1. 1. The person has been charged with or convicted of an offense in a pending case and, during the course of the offense, the person carried, possessed, or used a dangerous weapon, the person used force against another person, or a person died or suffered serious bodily harm.

165.95(1)(bg)2. 2. The person has one or more prior convictions for a felony involving the use or attempted use of force against another person with the intent to cause death or serious bodily harm.

165.95(2) (2) The department of justice shall make grants to counties and to tribes to enable them to establish and operate programs, including suspended and deferred prosecution programs and programs based on principles of restorative justice, that provide alternatives to prosecution and incarceration for criminal offenders who abuse alcohol or other drugs. The department of justice shall make the grants from the appropriations under s. 20.455 (2) (em), (jd), (kn), and (kv). The department of justice shall collaborate with the department of corrections and the department of health services in establishing this grant program.

165.95(2r) (2r) Any county or tribe that receives a grant under this section on or after January 1, 2012, shall provide matching funds that are equal to 25 percent of the amount of the grant.

165.95(3) (3) A county or tribe shall be eligible for a grant under sub. (2) if all of the following apply:

165.95(3)(a) (a) The county’s or tribe’s program is designed to meet the needs of a person who abuses alcohol or other drugs and who may be or has been charged with or who has been convicted of a crime in that county related to the person’s use or abuse of alcohol or other drugs.

165.95(3)(b) (b) The program is designed to promote public safety, reduce prison and jail populations, reduce prosecution and incarceration costs, reduce recidivism, and improve the welfare of participants’ families by meeting the comprehensive needs of participants.

165.95(3)(c) (c) The program establishes eligibility criteria for a person’s participation. The criteria shall specify that a violent offender is not eligible to participate in the program.

165.95(3)(cd) (cd) Subject to par. (cg), the program does not prohibit a person from beginning or continuing participation in the program because he or she uses a medication that is approved by the federal food and drug administration for the treatment of his or her substance use disorder.

165.95(3)(cg) (cg) The program allows a participant to use a medication that is approved by the federal food and drug administration if all of the following are true:

165.95(3)(cg)1. 1. A licensed health care provider, acting in the scope of his or her practice, has examined the person and determined that the person’s use of the medication is an appropriate treatment for the person’s substance use disorder.

165.95(3)(cg)2. 2. The medication was appropriately prescribed by a person authorized to prescribe medication in the state.

165.95(3)(cg)3. 3. The person is using the medication as prescribed as part of treatment for a diagnosed substance use disorder.

165.95(3)(d) (d) Services provided under the program are consistent with evidence-based practices in substance abuse and mental health treatment, as determined by the department of health services, and the program provides intensive case management.

165.95(3)(e) (e) The program uses graduated sanctions and incentives to promote successful substance abuse treatment.

165.95(3)(f) (f) The program provides holistic treatment to its participants and provides them services that may be needed, as determined under the program, to eliminate or reduce their use of alcohol or other drugs, improve their mental health, facilitate their gainful employment or enhanced education or training, provide them stable housing, facilitate family reunification, ensure payment of child support, and increase the payment of other court-ordered obligations.

165.95(3)(g) (g) The program is designed to integrate all mental health services provided to program participants by state and local government agencies and other organizations. The program shall require regular communication among a participant’s substance abuse treatment providers, other service providers, the case manager, and any person designated under the program to monitor the person’s compliance with his or her obligations under the program and any probation, extended supervision, and parole agent assigned to the participant.

165.95(3)(h) (h) The program provides substance abuse and mental health treatment services through providers that are certified by the department of health services.

165.95(3)(i) (i) The program requires participants to pay a reasonable amount for their treatment, based on their income and available assets, and pursues and uses all possible resources available through insurance and federal, state, and local aid programs, including cash, vouchers, and direct services.

165.95(3)(j) (j) The program is developed with input from, and implemented in collaboration with, one or more circuit court judges, the district attorney, the state public defender, local and, if applicable, tribal law enforcement officials, county agencies and, if applicable, tribal agencies responsible for providing social services, including services relating to alcohol and other drug addiction, child welfare, mental health, and the Wisconsin Works program, the departments of corrections, children and families, and health services, private social services agencies, and substance abuse treatment providers.

165.95(3)(k) (k) The county or tribe complies with other eligibility requirements established by the department of justice to promote the objectives listed in pars. (a) and (b).

165.95(4) (4) In implementing a program that meets the requirements of sub. (3), a tribe or a county department may contract with or award grants to a religious organization under s. 59.54 (27).

165.95(5) (5) 

165.95(5)(a) (a) A county or tribe that receives a grant under this section shall create an oversight committee to advise the county or tribe in administering and evaluating its program. Each committee shall consist of a circuit court judge, the district attorney or his or her designee, the state public defender or his or her designee, a local law enforcement official, a representative of the county, a representative of the tribe, if applicable, a representative of each other county agency and, if applicable, tribal agency responsible for providing social services, including services relating to child welfare, mental health, and the Wisconsin Works program, representatives of the department of corrections and department of health services, a representative from private social services agencies, a representative of substance abuse treatment providers, and other members to be determined by the county or tribe.

165.95(5)(b) (b) A county or tribe that receives a grant under this section shall comply with state audits and shall submit an annual report to the department of justice and to the oversight committee created under par. (a) regarding the impact of the program on jail and prison populations and its progress in attaining the goals specified in sub. (3) (b) and (f).

165.95(5)(bg) (bg) A county or tribe that receives a grant under this section shall submit data requested by the department of justice to the department of justice each month. The department of justice may request any data regarding the project funded by the grant that is necessary to evaluate the project and prepare the reports under sub. (5p).

165.95(5m) (5m) In a program funded by a grant under this section, if urine collection for the purposes of a drug test results in the exposure of a program participant’s genitals, pubic area, buttock or anus, all of the following must apply:

165.95(5m)(a) (a) The person conducting the urine collection for purposes of a drug test is of the same sex as the program participant.

165.95(5m)(b) (b) During the urine collection, the program participant is not exposed to the view of any person not conducting the urine collection.

165.95(5m)(c) (c) The urine collection is not reproduced through a visual or sound recording.

165.95(5m)(d) (d) The program participant’s genitals, pubic area, buttock, and anus are not subject to any physical inspection beyond observation of the urine collection.

165.95(5m)(e) (e) All staff of the program must strive to preserve the dignity of all program participants subject to urine collection for the purpose of drug testing.

165.95(5p) (5p) 

165.95(5p)(a) (a) The department of justice shall, annually, analyze the data submitted under sub. (5) (bg) and prepare a progress report that evaluates the effectiveness of the grant program. The department of justice shall make the report available to the public.

165.95(5p)(b) (b) The department of justice shall, every 5 years, prepare a comprehensive report that analyzes the data it receives under sub. (5) (bg) and the annual reports it produces under par. (a). The department of justice shall include in this comprehensive report a cost benefit analysis of the grant program and shall submit the report to the chief clerk of each house of the legislature for distribution to the legislature under s. 13.172 (2).

165.95(6) (6) A county or tribe may, with one or more other counties or tribes, jointly apply for and receive a grant under this section. Upon submitting a joint application, each county or tribe shall include with the application a written agreement specifying each tribe’s and each county department’s role in developing, administering, and evaluating the program. The oversight committee established under sub. (5) (a) shall consist of representatives from each county or tribe.

165.95(7) (7) Grants provided under this section shall be provided on a calendar year basis beginning on January 1, 2007. If the department of justice decides to make a grant to a county or tribe under this section, the department of justice shall notify the county or tribe of its decision and the amount of the grant no later than September 1 of the year preceding the year for which the grant will be made.

165.95(7m) (7m) Beginning in fiscal year 2012-13, the department of justice shall, every 5 years, make grants under this section available to any county or tribe on a competitive basis. A county or tribe may apply for a grant under this subsection regardless of whether the county or tribe has received a grant previously under this section.

165.95(8) (8) The department of justice shall assist a county or tribe receiving a grant under this section in obtaining funding from other sources for its program.

165.95(9) (9) The department of justice shall inform any county or tribe that is applying for a grant under this section whether the county or tribe meets the requirements established under sub. (3), regardless of whether the county or tribe receives a grant.

165.95(10) (10) The department of justice shall evaluate every 2 years, the grant program established under this section.

165.95 History History: 2013 a. 20 ss. 177, 1944; 2013 a. 197; Stats. 2013 s. 165.95; 2015 a. 388; 2017 a. 59, 351; 2019 a. 9; 2021 a. 240 s. 30; 2023 a. 19; s. 35.17 correction in (2).

165.95 Annotation This section does not create a fundamental liberty interest. It is a funding statute and, as such, does not need to provide expulsion procedures to survive a procedural due process challenge. State v. Keister, 2019 WI 26, 385 Wis. 2d 739, 924 N.W.2d 203, 17-1618.

165.955 165.955 Drug court; grant program.

165.955(1) (1) In this section, “drug court” means a court that diverts a substance-abusing person from prison or jail into treatment by increasing direct supervision of the person, coordinating public resources, providing intensive community-based treatment, and expediting case processing.

165.955(2) (2) From the appropriation under s. 20.455 (2) (eg), the department of justice shall provide, to counties that have not established a drug court, grants to establish and operate drug courts.

165.955 History History: 2013 a. 20.

165.957 165.957 Frequent testing for use of alcohol or a controlled substance; pilot program.

165.957(1) (1) In this section:

165.957(1)(a) (a) “Controlled substance” has the meaning given in s. 961.01 (4).

165.957(1)(b) (b) “Testing” means a procedure for determining the presence and level of alcohol or a controlled substance in an individual’s blood, breath, or urine, and includes any combination of the use of breath testing, drug patch testing, urinalysis, or continuous or transdermal alcohol monitoring.

165.957(2) (2) The department of justice may designate up to 5 counties to participate in a voluntary frequent sobriety testing program. If a county opts not to participate in the program, the department of justice may designate another county to replace it.

165.957(3) (3) The department of justice may, by rule, establish the following:

165.957(3)(a) (a) A standard for frequent testing for the use of alcohol or a controlled substance that is an alternative to the testing described in sub. (4) (b) 1. This paragraph does not apply to testing required pursuant to an order under s. 343.301 (1g) (am) 2. that a court imposes on a person who meets the criteria under s. 343.301 (1g) (a) 2. b.

165.957(3)(b) (b) A standard for setting fees that counties may collect under sub. (4) (d). The standard may include a component that allows the department of justice to recoup its costs under this section, and as provided in sub. (5) (a).

165.957(3)(c) (c) A timeline and procedure for counties to submit to the department of justice the information required under sub. (6).

165.957(4) (4) Each frequent sobriety testing program shall meet all of the following criteria:

165.957(4)(a) (a) The program limits participation to persons whose number of convictions under ss. 940.09 (1) and 940.25, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 2 or more, and to whom one of the following applies:

165.957(4)(a)1. 1. The person is ordered by a judge or by the department of corrections as a condition of bond, release under s. 969.01 (1) (a), probation or deferred prosecution, release to parole, or release to extended supervision, to totally abstain from using alcohol or a controlled substance, and whose participation in the program is ordered by the judge or by the department of corrections as a condition of bond, release under s. 969.01 (1) (a), probation, release to parole, or release to extended supervision.

165.957(4)(a)2. 2. The person agrees to totally abstain from using alcohol or a controlled substance while he or she is released on bond, on release under s. 969.01 (1) (a), on probation, participating in a deferred prosecution agreement, or on parole or extended supervision and agrees to participate in the program even though his or her participation is not ordered by a judge or by the department of corrections as a condition of bond, release pursuant to s. 969.01 (1) (a), probation or deferred prosecution, or release to parole or to extended supervision. This subdivision does not apply to any person who meets the criteria under s. 343.301 (1g) (a) 2. b. and who is subject to an order under s. 343.301 (1g) (am) 2.

165.957(4)(b) (b)

165.957(4)(b)1. 1. Except as provided in subd. 2. or 2m., the program requires participants to be tested for the use of alcohol at least twice daily, at approximately 12-hour intervals, or for the use of a controlled substance as frequently as practicable.

165.957(4)(b)2. 2. If the standard for frequent testing described in subd. 1. creates an unreasonable hardship for the county administering the program, the program may utilize the standard established by the department of justice under sub. (3) (a). This subdivision does not apply to any person who meets the criteria under s. 343.301 (1g) (a) 2. b. and who is subject to an order under s. 343.301 (1g) (am) 2.

165.957(4)(b)2m. 2m. Any person who meets the criteria under s. 343.301 (1g) (a) 2. b. and who is subject to an order under s. 343.301 (1g) (am) 2. shall be tested as required under 23 USC 405 (d) (7) (A) (ii) and regulations adopted thereunder.

165.957(4)(c) (c) The program informs a participant that, if he or she fails to appear for a scheduled test or if his or her test results indicate that the participant used alcohol or a controlled substance, he or she may be placed under immediate arrest and referred to the department of corrections and to the appropriate prosecuting agency for violating a condition of his or her bond, release under s. 969.01 (1) (a), probation or deferred prosecution, or of his or her release to parole or extended supervision.

165.957(4)(d) (d) The program requires participants to pay a fee, except that a county may allow a participant to pay a reduced fee or no fee, subject to the participant’s ability to pay. Each county may establish fees that are consistent with any standard established under sub. (3) (b) and that the county determines are sufficient to fund its frequent sobriety testing program. Except as provided in sub. (5), the county may retain the fees it collects pursuant to this paragraph to administer its program.

165.957(5) (5) 

165.957(5)(a) (a) The department of justice may enter into an agreement with each designated county that requires the county to pay a portion of the fees the county collects under sub. (4) (d) to the department of justice to pay the actual costs of performing the analysis and reporting under sub. (7).

165.957(5)(b) (b) The department of justice shall deposit in the state treasury for deposit into the general fund all moneys it collects under this subsection. These moneys shall be credited to the appropriation account under s. 20.455 (2) (gu).

165.957(6) (6) Each county that establishes a frequent sobriety testing program after being designated by the department of justice under sub. (2) shall, annually, provide the following information to the department of justice:

165.957(6)(a) (a) The number of participants in the program.

165.957(6)(b) (b) The costs associated with the program.

165.957(6)(c) (c) The failure or dropout rate of participants.

165.957(6)(d) (d) Other information requested by the department of justice.

165.957(7) (7) 

165.957(7)(a) (a) Not later than June 30, 2016, the department of justice shall provide to the legislature under s. 13.172 (2) a list of counties it designated under sub. (2). For each county it designates, the department of justice shall inform the legislature of the reasons it chose the county for participation. If the department of justice designated a county to replace a different county, the department of justice shall include that information in the report.

165.957(7)(b) (b) Beginning January 15, 2017, and annually thereafter until January 15, 2021, the department of justice shall analyze the information it receives pursuant to sub. (6) and shall submit a report to the legislature under s. 13.172 (2). The report shall include all of the following information relating to the prior year’s frequent sobriety testing programs:

165.957(7)(b)1. 1. A list of counties designated under sub. (2) that established a frequent sobriety testing program.

165.957(7)(b)2. 2. The number of participants in each county’s frequent sobriety testing program.

165.957(7)(b)3. 3. A description of each county’s frequent sobriety testing program.

165.957(7)(b)4. 4. The recidivism rates for participants in each county’s frequent sobriety testing program.

165.957(7)(c) (c) By January 15, 2021, the department of justice shall submit a final report to the legislature under s. 13.172 (2) that includes all of the information required under par. (b) and contains a recommendation as to whether the frequent sobriety testing programs should be continued, discontinued, or modified.

165.957(8) (8) The department of justice may use the emergency rules procedure under s. 227.24 to promulgate rules specified in sub. (3). Notwithstanding s. 227.24 (1) (a) and (3), the department 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.

165.957(9) (9) This section does not apply after June 30, 2021.

165.957 History History: 2015 a. 55, 389; 2023 a. 3.