Chapter 301

301.48(7)(c) (c) Upon its own motion or upon the motion of the party to whom the petition was sent under par. (b) 2., the court may order that the person to whom the petition relates be examined by a physician who is approved by the court. The physician who conducts an examination under this paragraph shall prepare a report of his or her examination that includes his or her opinion of whether the person is permanently physically incapacitated. The physician shall file the report of his or her examination with the court within 60 days after completing the examination, and the court shall provide copies of the report to the department and the party to whom the petition was sent under par. (b) 2. The contents of the report shall be confidential until the physician testifies at a hearing under par. (d). The department shall pay the cost of an examination required under this paragraph.

301.48(7)(d) (d) The court shall conduct a hearing on a petition filed under par. (b) 1., but if the court has ordered a physical examination under par. (c), the hearing may not occur until after the examination is complete and a report of the examination has been filed as provided under par. (c). At the hearing, the court shall take evidence it considers relevant to determining whether the person to whom the petition relates is permanently physically incapacitated so that he or she is not a danger to the public. The department and the party to whom the petition was sent under par. (b) 2. may offer relevant evidence regarding that issue.

301.48(7)(e) (e) The court may grant a petition filed under par. (b) 1. if it determines after a hearing under par. (d) that the person to whom the petition relates is permanently physically incapacitated so that he or she is not a danger to the public.

301.48(7m) (7m) Termination if person moves out of state. If a person who is subject to being tracked under this section moves out of state, the department shall terminate the person’s tracking. If the person returns to the state, the department shall reinstate the person’s tracking except as provided under sub. (6) or (7).

301.48 History History: 2005 a. 431; 2007 a. 20 ss. 3134m to 3165m, 9121 (6) (a); 2007 a. 96; 2009 a. 28, 180; 2017 a. 346.

301.48 Annotation Lifetime global positioning system (GPS) tracking is not a punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Neither the intent nor effect of lifetime GPS tracking is punitive. Consequently, the defendant in this case was not entitled to withdraw his plea because the circuit court was not required to inform the defendant that his guilty plea would subject him to lifetime GPS tracking. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740.

301.48 Annotation A statute is an ex post facto law only if it imposes punishment. In Muldrow, 2018 WI 52, the court determined that neither the intent nor the effect of lifetime global positioning system (GPS) tracking is punitive. Thus, GPS tracking does not violate the ex post facto clause. Kaufman v. Walker, 2018 WI App 37, 382 Wis. 2d 774, 915 N.W.2d 193, 17-0085.

301.48 Annotation This section conditions global positioning system (GPS) tracking on a defendant’s prior convictions, rather than current dangerousness. Therefore, due process does not entitle the defendant to more procedural protections. The defendant in this case was not entitled to a hearing to prove that he was not dangerous because his current state of dangerousness was immaterial to being subject to GPS monitoring. Kaufman v. Walker, 2018 WI App 37, 382 Wis. 2d 774, 915 N.W.2d 193, 17-0085.

301.48 Annotation Given how slight is the incremental loss of privacy from having to wear an anklet monitor, and how valuable to society the information collected by the monitor is, this section does not violate the 4th amendment. The terms of supervised release, probation, and parole often authorize searches by probation officers without the officers’ having to obtain warrants. Such warrantless searches do not violate the 4th amendment as long as they are reasonable. The search conducted in this case via an anklet monitor is less intrusive than a conventional search. Such monitoring of sex offenders is permissible if it satisfies the reasonableness test applied in parolee and special-needs cases. Wisconsin’s ankle monitoring of the defendant was reasonable. Belleau v. Wall, 811 F.3d 929 (2016). See also Braam v. Carr, 37 F.4th 1269 (2022).

301.48 Annotation This section was not an ex post facto law simply because it took effect after the plaintiff had committed the crimes for which the plaintiff had been convicted. A statute is an ex post facto law only if it imposes punishment. This monitoring law is not punishment; it is prevention. Belleau v. Wall, 811 F.3d 929 (2016).

301.49 301.49 Global positioning system tracking for persons who violate certain orders or injunctions.

301.49(1) (1) Definitions. In this section:

301.49(1)(a) (a) “Exclusion zone” means a zone in which a person who is tracked using a global positioning system tracking device is prohibited from entering.

301.49(1)(am) (am) “Exclusion zone violation” means entry into an exclusion zone except for purposes of traveling through an exclusion zone to get to another destination, unless the person is prohibited by the department from making such entry.

301.49(1)(b) (b) “Global positioning system tracking” means tracking using a system that actively monitors and identifies a person’s location and timely reports or records the person’s presence in an exclusion zone. “Global positioning system tracking” includes comparable technology.

301.49(1)(c) (c) “Petitioner” means the person who petitioned for the restraining order or injunction that was issued under s. 813.12 or 813.125.

301.49(1)(d) (d) “Restraining order or injunction” means an order or an injunction issued pursuant to s. 813.12 or 813.125.

301.49(2) (2) Who is covered; duration of coverage.

301.49(2)(a) (a) The department shall maintain global positioning system tracking of a person who is not in jail or in prison and who is ordered by a court to submit to monitoring under s. 813.129 for the duration of the person’s period of probation.

301.49(2)(b) (b) The department shall maintain global positioning system tracking of a person who is subject to global positioning system tracking as a condition of extended supervision.

301.49(3) (3) Functions and operation of tracking program.

301.49(3)(a) (a) The department shall implement a continuous global positioning tracking system to electronically monitor the whereabouts of persons who are subject to this section. The system shall do all of the following:

301.49(3)(a)1. 1. Use field monitoring equipment that supports cellular communications with as large a coverage area as possible and shall automatically provide instantaneous information regarding the whereabouts of a person who is being monitored, including information regarding the person’s presence in an exclusion zone established under par. (c).

301.49(3)(a)2. 2. Use land line communications equipment to transmit information regarding the location of persons who are subject to this section when they are in areas in which no commercial cellular service is available.

301.49(3)(a)3. 3. Immediately alert the department if the person commits an exclusion zone violation. The department shall immediately notify the law enforcement agency having jurisdiction over the exclusion zone and the petitioner of any exclusion zone violation.

301.49(3)(b) (b) The department shall contract with a vendor using a competitive process as described under s. 16.75 to provide staff in this state to install, remove, and maintain equipment related to global positioning system tracking for purposes of this section. The term of the contract may not exceed 7 years.

301.49(3)(c) (c) For each person who is subject to global positioning system tracking under this section, the department shall create an individualized exclusion zone for the person, as necessary to protect the petitioner. In creating an exclusion zone, the department shall consider input from the petitioner and shall include any location that the person is ordered to avoid or enjoined from entering under the restraining order or injunction that the person violated or is alleged to have violated.

301.49(4) (4) Termination if person moves out of state. Notwithstanding sub. (2), if a person who is subject to being tracked under this section moves out of state, the department shall terminate the person’s tracking. If the person returns to the state during the duration of the restraining order or injunction, the department shall immediately reinstate the person’s tracking.

301.49(5) (5) Costs.

301.49(5)(a) (a) The department shall determine all of the following for each person tracked:

301.49(5)(a)1. 1. The cost of global positioning system tracking for the person.

301.49(5)(a)2. 2. How much of the cost under subd. 1. the person is able to pay based on the factors listed in par. (c).

301.49(5)(b) (b) If required by the department, a person who is subject to global positioning system tracking shall pay for the cost of tracking up to the amount calculated for the person under par. (a) 2. The department shall collect moneys paid by the person under this paragraph and credit those moneys to the appropriation account under s. 20.410 (1) (gL).

301.49(5)(c) (c) In determining how much of the costs the person is able to pay, the department may consider the following:

301.49(5)(c)1. 1. The person’s financial resources.

301.49(5)(c)2. 2. The present and future earning ability of the person.

301.49(5)(c)3. 3. The needs and earning ability of the person’s dependents.

301.49(5)(c)4. 4. Any other factors that the department considers appropriate.

301.49(6) (6) Notice. The department shall provide all of the following to each petitioner:

301.49(6)(a) (a) Notice when the person who is ordered by a court to submit to monitoring under s. 813.129 is released from incarceration.

301.49(6)(b) (b) The exclusion zones that the person must avoid and the amount of time that the person is allowed to remain in an exclusion zone before the department and law enforcement receive an alert.

301.49(6)(c) (c) An explanation of the failure rates associated with global positioning system tracking programs and an explanation of situations in which a person may not be detected by the tracking program.

301.49 History History: 2011 a. 266; 2017 a. 346.

301.50 301.50 Notification of intent to chaperone sex offenders.

301.50(1) (1) In this section, “substantial parental relationship” means the acceptance and exercise of significant responsibility for the daily supervision, education, protection, and care of the child. In evaluating whether an individual has had a substantial parental relationship with the child, factors that may be considered include, but are not limited to, whether the individual has expressed concern for or interest in the support, care, or well-being of the child; whether the individual has neglected or refused to provide care or support for the child; and whether, with respect to an individual who is or may be the father of the child, the individual has expressed concern for or interest in the support, care, or well-being of the mother during her pregnancy.

301.50(2) (2) The department shall design a form to be signed by any individual who intends to be a chaperone for sex offenders. The form must include a place for the individual’s signature as well as a statement that the individual has, unless par. (a), (b), or (c) applies, informed, in writing, or has made a good faith effort to inform, any individual with whom the individual who intends to be a chaperone has a child in common, whether through blood, marriage, or adoption, of his or her intent to chaperone a sex offender. The individual does not have to inform an individual with whom he or she has a child in common if any of the following applies:

301.50(2)(a) (a) The child in common is over the age of 18.

301.50(2)(b) (b) The individual who intends to be a chaperone is not the child’s parent or has not had a substantial parental relationship with the child.

301.50(2)(c) (c) The individual who has a child in common with the individual who intends to be a chaperone is not the child’s parent or has not had a substantial parental relationship with the child.

301.50(3) (3) The department is immune from any civil liability for any good faith act or omission of the department in connection with the requirements under this section.

301.50 History History: 2009 a. 257.