Chapter 23

23.60 History History: 1975 c. 365.

23.61 23.61 Search and seizure; when authorized. A search of a person, object or place may be made and things may be seized when the search is made:

23.61(1) (1) Incident to a lawful arrest;

23.61(2) (2) With consent;

23.61(3) (3) Pursuant to a valid search warrant;

23.61(4) (4) With the authority and within the scope of a right of lawful inspection;

23.61(5) (5) Incident to the issuance of a lawfully issued citation under s. 23.60;

23.61(6) (6) During an authorized temporary questioning under s. 23.59; or

23.61(7) (7) As otherwise authorized by law.

23.61 History History: 1975 c. 365.

23.61 Annotation The warrantless search of a fisherman’s truck by state conservation wardens under s. 29.33 (6) [now s. 29.519 (6)] was presumptively reasonable. State v. Erickson, 101 Wis. 2d 224, 303 N.W.2d 850 (Ct. App. 1981).

23.62 23.62 Issuance of a citation.

23.62(1) (1) Whenever an enforcing officer has probable cause to believe that a person subject to his or her authority is committing or has committed a violation of those statutes enumerated in s. 23.50 (1), any administrative rules promulgated thereunder, any rule of the Kickapoo reserve management board under s. 41.41 (7) (k), or any local ordinances enacted by any local authority in accordance with s. 23.33 (11) (am), 23.335 (21) (a), or 30.77, the officer may proceed in the following manner:

23.62(1)(a) (a) Issue a citation to the defendant in the form specified in s. 23.54, a copy of which shall be filed with the clerk of courts in the county where the violation was committed or with the office of the municipal judge in the case of an ordinance violation;

23.62(1)(b) (b) Proceed, in proper cases, under s. 23.56 or 23.57; or

23.62(1)(c) (c) Bring the information to the district attorney so that he or she may proceed pursuant to s. 23.65.

23.62(2) (2) 

23.62(2)(a) (a) If the defendant is a resident of this state, a law enforcement officer may serve a citation anywhere in the state by following the procedures used for the service of a summons under s. 801.11 (1) (a) or (b) 1. or 1m. or (2) or by mailing a copy to the defendant’s last-known address.

23.62(2)(b) (b) If the defendant is not a resident of the state, a law enforcement officer may serve a citation by delivering a copy to the defendant personally or by mailing a copy to the defendant’s last-known address.

23.62 History History: 1975 c. 365; 1979 c. 175; 1987 a. 200 s. 4; 1993 a. 156, 349; 1995 a. 27, 216; 2005 a. 282; 2015 a. 170.

23.63 23.63 Officer’s action after issuance of citation. After the enforcing officer has issued a citation, the officer:

23.63(1) (1) May release the defendant;

23.63(2) (2) Shall release the defendant when he or she:

23.63(2)(a) (a) Makes a deposit under s. 23.66; or

23.63(2)(b) (b) Makes a deposit and stipulation of no contest under s. 23.67.

23.63(3) (3) Shall proceed under s. 23.57, if the defendant is not released.

23.63 History History: 1975 c. 365.

23.64 23.64 Deposit after release. A person who is released under s. 23.63 shall be permitted to make a deposit any time prior to the court appearance date. The deposit shall be made with the clerk of the court of the county in which the violation occurred or the office of the municipal court having jurisdiction.

23.64 History History: 1975 c. 365.

23.65 23.65 Issuance of complaint and summons.

23.65(1) (1) When it appears to the district attorney that a violation of s. 90.21, 134.60, 281.36, 281.48 (2) to (5), 283.33, 285.57 (2), 285.59 (2), (3) (c) and (4), 287.07, 287.08, 287.81 or 299.64 (2), this chapter or ch. 26, 27, 28, 29, 30, 31, 169, or 350, or any administrative rule promulgated pursuant thereto, a violation specified under s. 285.86, or a violation of ch. 951, if the animal involved is a captive wild animal, has been committed the district attorney may proceed by complaint and summons.

23.65(2) (2) The complaint shall be prepared in the form specified in s. 23.55. After a complaint is prepared, it shall be filed with the judge and a summons shall be issued or the complaint shall be dismissed pursuant to s. 968.03. Such filing commences the action.

23.65(3) (3) If a district attorney refuses or is unavailable to issue a complaint, a circuit judge, after conducting a hearing, may permit the filing of a complaint if he or she finds there is probable cause to believe that the person charged has committed a violation of s. 281.36, 287.07, 287.08 or 287.81, this chapter or ch. 26, 27, 28, 29, 30, 31 or 350 or a violation specified under s. 285.86. The district attorney shall be informed of the hearing and may attend.

23.65 History History: 1975 c. 365; 1979 c. 175; 1981 c. 390; 1989 a. 284, 335, 359; 1991 a. 97; 1993 a. 16, 243, 344, 491; 1995 a. 227, 290; 1997 a. 35; 1999 a. 9; 2001 a. 56; 2013 a. 69.

23.66 23.66 Deposit.

23.66(1) (1) If under the procedure of s. 23.62 a person is cited or arrested, the person may make a deposit as follows:

23.66(1)(a) (a) By mailing the amount of money the enforcing officer directs and a copy of the citation to the office of the clerk of courts in the county where the offense allegedly occurred or to the office of the municipal court having jurisdiction, or by going to the office of the clerk of courts or municipal court, the office of the sheriff, or any city, village or town police headquarters; or

23.66(1)(b) (b) If the enforcing officer permits, by placing the amount of money the enforcing officer directs in a serially numbered envelope addressed to the clerk of courts in the county where the offense allegedly occurred or to the office of the municipal court having jurisdiction, sealing the envelope, signing a statement on the back of the envelope stating the amount of money enclosed and returning the envelope to the enforcing officer. The officer shall deliver the envelope and a copy of the citation to the office of the clerk of courts in the county where the offense allegedly occurred or to the office of the municipal court having jurisdiction. The officer shall note on the face of the citation the serial number of the envelope used in making a deposit under this paragraph.

23.66(1m) (1m) The enforcing officer or the person receiving the deposit may allow the alleged violator to submit a check, share draft or other draft for the amount of the deposit or make the deposit by use of a credit card.

23.66(2) (2) The person receiving the deposit shall prepare a receipt in triplicate showing the purpose for which the deposit is made, stating that the defendant may inquire at the office of the clerk of court or municipal court regarding the disposition of the deposit, and notifying the defendant that if he or she fails to appear in court at the time fixed in the citation he or she will be deemed to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit which the court may accept. The original of the receipt shall be delivered to the defendant in person or by mail. If the defendant pays by check, share draft, or other draft, the check, share draft, or other draft or a microfilm copy of the check, share draft, or other draft shall be considered a receipt. If the defendant makes the deposit by use of a credit card, the credit charge receipt shall be considered a receipt.

23.66(3) (3) If the court does not accept the deposit as a forfeiture for the offense, a summons shall be issued. If the defendant fails to respond to the summons, an arrest warrant shall be issued.

23.66(4) (4) The basic amount of the deposit shall be determined in accordance with a deposit schedule that the judicial conference shall establish. Annually, the judicial conference shall review and may revise the schedule. In addition to the basic amount determined according to the schedule, the deposit shall include costs, fees, and surcharges imposed under ch. 814.

23.66 History History: 1975 c. 365; 1977 c. 29, 449; 1979 c. 34; 1981 c. 317, 391; 1983 a. 368, 456; 1985 a. 29, 36, 332; 1987 a. 27, 399; 1991 a. 39; 1997 a. 27; 2003 a. 139.

23.67 23.67 Deposit and stipulation of no contest.

23.67(1) (1) If pursuant to the procedure of s. 23.62 a person is cited or arrested, such person may make a deposit and stipulation of no contest, and submit them in the same manner as the deposit in s. 23.66.

23.67(2) (2) The deposit and stipulation of no contest may be made at any time prior to the court appearance date. By signing the stipulation, the defendant is deemed to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit.

23.67(3) (3) The person receiving the deposit and stipulation of no contest shall prepare a receipt in triplicate showing the purpose for which the deposit is made, stating that the defendant may inquire at the office of the clerk of court or municipal court regarding the disposition of the deposit, and notifying the defendant that if the stipulation of no contest is accepted by the court the defendant will be deemed to have submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit. Delivery of the receipt shall be made in the same manner as in s. 23.66.

23.67(4) (4) If the court does not accept the deposit and stipulation of no contest, a summons shall be issued. If the defendant fails to respond to the summons, an arrest warrant shall be issued.

23.67(5) (5) The defendant may, within 10 days after signing the stipulation or at the time of the court appearance date, move the court for relief from the effects of the stipulation, pursuant to s. 23.75 (3) (c).

23.67 History History: 1975 c. 365; 1977 c. 29; 1979 c. 34; 1981 c. 317; 1985 a. 36; 1987 a. 27, 399; 1991 a. 39; 1997 a. 27; 2003 a. 139.

23.68 23.68 Pleading. The citation or complaint issued pursuant to s. 23.62 or 23.65 may serve as the initial pleading and, notwithstanding any other provisions of the statutes, shall be deemed adequate process to give the appropriate court jurisdiction over the person upon the filing of the citation or complaint with such court.

23.68 History History: 1975 c. 365.

23.69 23.69 Motions. Any motion which is capable of determination without the trial of the general issue shall be made before trial.

23.69 History History: 1975 c. 365.

23.69 Annotation Summary judgment is not permitted in forfeiture actions for violations of ch. 30. The relevant procedural statutes cannot be reconciled with the summary judgment procedure. Although the parties agreed to the filing of a written answer in lieu of an appearance, such an agreement cannot provide the basis to impose upon the statutory scheme a summary judgment procedure that does not otherwise exist. State v. Ryan, 2012 WI 16, 338 Wis. 2d 695, 809 N.W.2d 37, 09-3075.

23.70 23.70 Arraignment; plea.

23.70(1) (1) If the defendant appears in response to a citation or a summons, or is arrested and brought before a court with jurisdiction to try the case, the defendant shall be informed that he or she is entitled to a jury trial and then asked whether he or she wishes to plead. If the defendant wishes to plead, he or she may plead guilty, not guilty or no contest.

23.70(2) (2) If the defendant pleads guilty or no contest, the court may accept the plea, find the defendant guilty and proceed under s. 23.78.

23.70 History History: 1975 c. 365.

23.71 23.71 Not guilty plea; immediate trial. If the defendant pleads not guilty and states that he or she waives the right to jury trial and wishes an immediate trial, the case may be tried forthwith if the state consents.

23.71 History History: 1975 c. 365.

23.72 23.72 Not guilty plea. If the defendant pleads not guilty the court shall set a date for trial or advise the defendant that he or she will be notified of the date set for trial. The defendant shall be released upon payment of a deposit as set forth in s. 23.66, or the court may release the defendant on his or her own recognizance. If a defendant fails to appear at the date set under this section, the court may issue a warrant under ch. 968 and, if the defendant has posted a deposit for appearance at that date, the court may order the deposit forfeited.

23.72 History History: 1975 c. 365.

23.73 23.73 Discovery. Neither party is entitled to pretrial discovery except that if the defendant moves within 10 days after the alleged violation and shows cause therefor, the court may order that the defendant be allowed to inspect and test under such conditions as the court prescribes, any devices used by the plaintiff to determine whether a violation has been committed and may inspect the reports of experts relating to those devices.

23.73 History History: 1975 c. 365.

23.74 23.74 Mode of trial.

23.74(1) (1) The defendant shall be informed of the right to a jury trial in circuit court on payment of fees required by s. 23.77 (1).

23.74(2) (2) If both parties, in a court of record, request a trial by the court or if neither demands a trial by jury, the right to a trial by jury is waived.

23.74 History History: 1975 c. 365; 1977 c. 305; 1977 c. 449 s. 497.

23.75 23.75 Proceedings in court.

23.75(1) (1) If the defendant appears in court at the time directed in the citation or summons, the case shall be tried as provided by law.

23.75(2) (2) If the defendant fails to appear in court at the time fixed in the complaint and summons, judgment may be rendered against the defendant according to the demand of the complaint, or the court may issue a warrant for the defendant’s arrest.

23.75(3) (3) If the defendant fails to appear in court at the time fixed in the citation or by subsequent postponement, the following procedure shall apply:

23.75(3)(a) (a)

23.75(3)(a)1. 1. If the defendant has not made a deposit, the court may consider the nonappearance to be a plea of no contest and enter judgment accordingly or the court may issue a summons or an arrest warrant.

23.75(3)(a)2. 2. If the court considers the nonappearance to be a plea of no contest and enters judgment accordingly, the court shall promptly mail a copy or notice of the judgment to the defendant. The judgment shall allow the defendant not less than 20 working days from the date the judgment copy or notice is mailed to pay the forfeiture, plus costs, fees, and surcharges imposed under ch. 814.

23.75(3)(b) (b) If the defendant has made a deposit, the citation may serve as the initial pleading and the defendant shall be deemed to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not exceeding the amount of the deposit. The court may either accept the plea of no contest and enter judgment accordingly, or reject the plea and issue a summons. If the defendant fails to appear in response to the summons, the court shall issue an arrest warrant. If the court accepts the plea of no contest, the defendant may move within 90 days after the date set for appearance to withdraw the plea of no contest, open the judgment, and enter a plea of not guilty if the defendant shows to the satisfaction of the court that failure to appear was due to mistake, inadvertence, surprise, or excusable neglect. If a party is relieved from the plea of no contest, the court or judge may order a written complaint to be filed and set the matter for trial. After trial, the costs, fees, and surcharges imposed under ch. 814 shall be taxed as provided by law. If on reopening the defendant is found not guilty, the court shall delete the record of conviction and shall order the defendant’s deposit returned.

23.75(3)(c) (c) If the defendant has made a deposit and stipulation of no contest, the citation may serve as the initial pleading and the defendant shall be deemed to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not exceeding the amount of the deposit. The court may either accept the plea of no contest and enter judgment accordingly, or reject the plea and issue a summons. If the defendant fails to appear in response to the summons, the court shall issue an arrest warrant. After signing a stipulation of no contest, the defendant may, at any time prior to or at the time of the court appearance date, move the court for relief from the effect of the stipulation. The court may act on the motion, with or without notice, for cause shown by affidavit and upon just terms, and relieve the defendant from the stipulation and the effects thereof. If the defendant is relieved from the stipulation of no contest, the court may order a citation or complaint to be filed and set the matter for trial. After trial, the costs, fees, and surcharges imposed under ch. 814 shall be taxed as provided by law.

23.75(4) (4) If a citation or summons is issued to a defendant and he or she is unable to appear in court on the day specified, the defendant may enter a plea of not guilty by mailing to the judge at the address indicated on the citation or summons a letter stating such plea. The letter must show the defendant’s return address. Such letter may include a request for trial during normal daytime business hours. Upon receipt of the letter, the judge shall reply by letter to the defendant’s address setting forth a time and place for trial, such time to be during normal business hours if so requested. The date of the trial shall be at least 10 days from the mailing by the judge. Nothing in this subsection forbids the setting of the trial at any time convenient to all parties concerned.

23.75(5) (5) Costs shall not be taxed against the plaintiff.

23.75 History History: 1975 c. 365; 1977 c. 29; 1979 c. 34; 1981 c. 317; 1985 a. 36; 1987 a. 27, 399; 1991 a. 39; 1993 a. 156; 1997 a. 27; 2003 a. 139.

23.76 23.76 Burden of proof. In all actions under this chapter, the state must convince the trier of fact to a reasonable certainty of every element of the offense by evidence that is clear, satisfactory and convincing.

23.76 History History: 1975 c. 365.

23.77 23.77 Jury trial.

23.77(1) (1) If in circuit court either party files a written demand for a jury trial within 20 days after the court appearance date and immediately pays the fee prescribed in s. 814.61 (4), the court shall place the case on the jury calendar. The number of jurors shall be determined under s. 756.06 (2) (b). If no party demands a trial by jury, the right to trial by jury is permanently waived.

23.77(3) (3) If there is a demand for a trial by jury, the provisions of s. 345.43 (3) (a) and (b) are applicable.

23.77 History History: 1975 c. 365; 1977 c. 305, 318, 447; 1977 c. 449 s. 497; 1979 c. 175 s. 53; 1981 c. 317; 1995 a. 427; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).

23.78 23.78 Verdict. A verdict is valid if agreed to by five-sixths of the jury. If a verdict relates to more than one count, it shall be valid as to any count if any five-sixths of the jury agree thereto. The form of the verdict shall be guilty or not guilty. The amount of the forfeiture shall be stated by the court after a finding of guilty.

23.78 History History: 1975 c. 365.