Chapter 885

885.11 885.11 Disobedient witness.

885.11(1) (1) Damages recoverable. If any person obliged to attend as a witness shall fail to do so without any reasonable excuse, the person shall be liable to the aggrieved party for all damages occasioned by such failure, to be recovered in an action.

885.11(2) (2) Attendance compelled. Every court, in case of unexcused failure to appear before it, may issue an attachment to bring such witness before it for the contempt, and also to testify.

885.11(3) (3) Punishment in courts. Inexcusable failure to attend any court of record is a contempt of the court, punishable by a fine not exceeding $200.

885.11(4) (4) Same. Unexcused failure to attend a court not of record shall be a contempt, and the witness shall be fined all the costs of the witness’s apprehension, unless the witness shall show reasonable cause for his or her failure; in which case the party procuring the witness to be apprehended shall pay said costs.

885.11(5) (5) Striking out pleading. If any party to an action or proceeding shall unlawfully refuse or neglect to appear or testify or depose therein, either within or without the state, the court may, also, strike out the party’s pleading, and give judgment against the party as upon default or failure of proof.

885.11 History History: 1987 a. 155; 1993 a. 486.

885.11 Cross-reference Cross-reference: See also s. 804.12 (4) regarding failure to appear at deposition.

885.11 Annotation Sub. (5) is broad enough to include the failure to produce documents at a discovery examination, but a party cannot delay seven years before making the motion to strike the pleading. “Unlawfully” means without legal excuse, which must be determined at a hearing. Gipson Lumber Co. v. Schickling, 56 Wis. 2d 164, 201 N.W.2d 500 (1972).

885.11 Annotation The trial court did not abuse its discretion in dismissing a plaintiff’s complaint for failure to comply with a discovery order. Furrenes v. Ford Motor Co., 79 Wis. 2d 260, 255 N.W.2d 511 (1977).

885.12 885.12 Coercing witnesses before officers and boards. If any person, without reasonable excuse, fails to attend as a witness, or to testify as lawfully required before any arbitrator, coroner, medical examiner, board, commission, commissioner, examiner, committee, or other officer or person authorized to take testimony, or to produce a book or paper which the person was lawfully directed to bring, or to subscribe the person’s deposition when correctly reduced to writing, any judge of a court of record or a circuit court commissioner in the county where the person was obliged to attend may, upon sworn proof of the facts, issue an attachment for the person, and unless the person shall purge the contempt and go and testify or do such other act as required by law, may commit the person to close confinement in the county jail until the person shall so testify or do such act, or be discharged according to law. The sheriff of the county shall execute the commitment.

885.12 History History: 1973 c. 272; 1993 a. 486; 2001 a. 61.

885.12 Cross-reference Cross-reference: See s. 785.06.

885.14 885.14 Disclosure of information and sources by news person.

885.14(1) (1) Definition. In this section, “news person” means any of the following:

885.14(1)(a) (a) Any business or organization that, by means of print, broadcast, photographic, mechanical, electronic, or other medium, disseminates on a regular and consistent basis news or information to the public, including a newspaper, magazine, or other periodical; book publisher; news agency; wire service; radio or television station or network; cable or satellite network, service, or carrier; or audio or audiovisual production company; and a parent, subsidiary, division, or affiliate of any of these businesses or organizations.

885.14(1)(b) (b) Any person who is or has been engaged in gathering, receiving, preparing, or disseminating news or information to the public for an entity described in par. (a), including any person supervising or assisting the person in gathering, receiving, preparing, or disseminating such news or information.

885.14(2) (2) Subpoenas issued to news person.

885.14(2)(a) (a) Prohibition. Except as provided in par. (b), no person having the power to issue a subpoena may issue a subpoena compelling a news person to testify about or produce or disclose any of the following that is obtained or prepared by the news person in the news person’s capacity in gathering, receiving, or preparing news or information for potential dissemination to the public:

885.14(2)(a)1. 1. The identity of a confidential source of any news or information.

885.14(2)(a)2. 2. Any information that would tend to identify the confidential source of any news or information.

885.14(2)(a)3. 3. Any news or information obtained or prepared in confidence by the news person.

885.14(2)(a)4. 4. Any news, information, or identity of any source of any news or information that is not described in subd. 1., 2., or 3.

885.14(2)(b) (b) Procedure before courts. Subject to par. (c), a circuit court may issue a subpoena to compel a news person to testify about or disclose or produce any news, information, or identity of any source as specified in par. (a) 4. if the court finds, after notice to and an opportunity to be heard by the news person that the person requesting the subpoena established, based on information obtained from a person other than the news person, one of the following by clear and convincing evidence:

885.14(2)(b)1. 1. In a criminal prosecution or investigation that there are reasonable grounds to believe that a crime has occurred.

885.14(2)(b)2. 2. In a civil action or proceeding that the complaint states a claim upon which relief may be granted.

885.14(2)(c) (c) A circuit court may issue a subpoena under par. (b) only if all of the following conditions are met:

885.14(2)(c)1. 1. The news, information, or identity of the source is highly relevant to the investigation, prosecution, action, or proceeding.

885.14(2)(c)2. 2. The news, information, or identity of the source is necessary to the maintenance of a party’s claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.

885.14(2)(c)3. 3. The news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding.

885.14(2)(c)4. 4. There is an overriding public interest in the disclosure of the news, information, or identity of the source.

885.14(3) (3) Subpoenas issued to persons other than news persons. No person having the power to issue a subpoena may issue a subpoena to compel a person other than a news person to testify about or produce or disclose, information, records, or communications relating to a business transaction between that person and the news person if the purpose of the subpoena is to discover any of the items listed in sub. (2) (a) 1. to 3.

885.14(4) (4) Distribution. A disclosure to another person or dissemination to the public of news, information, or the identity of a source as described in sub. (2) (a) 1. to 4. by a news person does not constitute a waiver of the protection from compelled disclosure under sub. (2) or (3).

885.14(5) (5) Inadmissibility. Any news, information, records, communications, or the identity of a source of any news or information obtained in violation of this section are inadmissible for any purpose in any judicial, legislative, or administrative action, proceeding, or hearing.

885.14 History History: 2009 a. 400.

885.14 Annotation Sub. (4) does not state that the reporter privilege cannot be waived in any circumstances; it delineates a particular circumstance in which, consistent with a free and independent press, disclosure will not constitute waiver. The circumstance identified in sub. (4) was not the situation that was presented in this case, in which a reporter chose to join a party’s legal team. The reporter privilege under this section did not apply in that situation. Colborn v. Netflix Inc., 608 F. Supp. 3d 736 (2022).

885.15 885.15 Immunity.

885.15(1) (1) No person may be excused from attending, testifying or producing books, papers, and documents before any court in a prosecution under s. 134.05 on the ground or for the reason that the testimony or evidence required of him or her may tend to incriminate him or her, or to subject him or her to a penalty or forfeiture. No person who testifies or produces evidence in obedience to the command of the court in the prosecution may be liable to any suit or prosecution, civil or criminal, for or on account of testifying or producing evidence; provided, that no person may be exempted from prosecution and punishment for perjury committed in so testifying.

885.15(2) (2) The immunity provided under sub. (1) is subject to the restrictions under s. 972.085.

885.15 History History: 1989 a. 122.

885.205 885.205 Privileged communications. No dean of men, dean of women or dean of students at any institution of higher education in this state, or any school psychologist at any school in this state, shall be allowed to disclose communications made to such dean or psychologist or advice given by such dean or psychologist in the course of counseling a student, or in the course of investigating the conduct of a student enrolled at such university or school, except:

885.205(1) (1) This prohibition may be waived by the student.

885.205(2) (2) This prohibition does not include communications which such dean needs to divulge for the dean’s own protection, or the protection of those with whom the dean deals, or which were made to the dean for the express purpose of being communicated to another, or of being made public.

885.205(3) (3) This prohibition does not extend to a criminal case when such dean has been regularly subpoenaed to testify.

885.205 History History: 1993 a. 486.

885.23 885.23 Genetic tests in civil actions. Whenever it is relevant in a civil action to determine the parentage or identity of any child, person or corpse, the court, by order, shall direct any party to the action and any person involved in the controversy to submit to one or more genetic tests as provided in s. 767.84. The results of the tests shall be receivable as evidence in any case where exclusion from parentage is established or where a probability of parentage is shown to exist. Whenever the court orders the genetic tests and one of the parties refuses to submit to the tests that fact shall be disclosed upon trial.

885.23 History History: 1979 c. 352; 1995 a. 100; 2005 a. 443 s. 265.

885.23 Annotation Section 767.80 (1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action. The proper vehicle for determining parentage is a motion by the father under this section for a determination of parentage within the pending wrongful death action. Shannon E.T. v. Alicia M.V.M., 2007 WI 29, 299 Wis. 2d 601, 728 N.W.2d 636, 05-0077.

885.235 885.235 Chemical tests for intoxication.

885.235(1) (1) In this section:

885.235(1)(a) (a) “Alcohol concentration” means the number of grams of alcohol in 100 milliliters of a person’s blood or the number of grams of alcohol in 210 liters of a person’s breath.

885.235(1)(b) (b) “Controlled substance” has the meaning specified in s. 961.01 (4).

885.235(1)(bd) (bd) “Controlled substance analog” has the meaning given in s. 961.01 (4m).

885.235(1)(c) (c) “Drug” has the meaning specified in s. 450.01 (10).

885.235(1)(d) (d) “Restricted controlled substance” means any of the following:

885.235(1)(d)1. 1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

885.235(1)(d)1m. 1m. The heroin metabolite 6-monoacetylmorphine.

885.235(1)(d)2. 2. A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in subd. 1.

885.235(1)(d)3. 3. Cocaine or any of its metabolites.

885.235(1)(d)4. 4. Methamphetamine.

885.235(1)(d)5. 5. Delta-9-tetrahydrocannabinol, excluding its precursors or metabolites, at a concentration of one or more nanograms per milliliter of a person’s blood.

885.235(1g) (1g) In any action or proceeding in which it is material to prove that a person was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration while operating or driving a motor vehicle or, if the vehicle is a commercial motor vehicle, on duty time, while operating a motorboat, except a sailboat operating under sail alone, while operating a snowmobile, while operating an all-terrain vehicle or utility terrain vehicle or while handling a firearm, evidence of the amount of alcohol in the person’s blood at the time in question, as shown by chemical analysis of a sample of the person’s blood or urine or evidence of the amount of alcohol in the person’s breath, is admissible on the issue of whether he or she was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration if the sample was taken within 3 hours after the event to be proved. The chemical analysis shall be given effect as follows without requiring any expert testimony as to its effect:

885.235(1g)(a) (a) The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but less than 0.08 is relevant evidence on the issue of being under the combined influence of alcohol and a controlled substance, a controlled substance analog or any other drug, but, except as provided in par. (d) or sub. (1m), is not to be given any prima facie effect.

885.235(1g)(b) (b) Except with respect to the operation of a commercial motor vehicle as provided in par. (d), the fact that the analysis shows that the person had an alcohol concentration of more than 0.04 but less than 0.08 is relevant evidence on the issue of intoxication or an alcohol concentration of 0.08 or more but is not to be given any prima facie effect.

885.235(1g)(c) (c) The fact that the analysis shows that the person had an alcohol concentration of 0.08 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.08 or more.

885.235(1g)(d) (d) The fact that the analysis shows that the person had an alcohol concentration of 0.04 or more is prima facie evidence that he or she was under the influence of an intoxicant with respect to operation of a commercial motor vehicle and is prima facie evidence that he or she had an alcohol concentration of 0.04 or more.

885.235(1k) (1k) In any action or proceeding in which it is material to prove that a person had a detectable amount of a restricted controlled substance in his or her blood while operating or driving a motor vehicle or, if the vehicle is a commercial motor vehicle, on duty time, while operating a motorboat, except a sailboat operating under sail alone, while operating a snowmobile, while operating an all-terrain vehicle or utility terrain vehicle, or while handling a firearm, if a chemical analysis of a sample of the person’s blood shows that the person had a detectable amount of a restricted controlled substance in his or her blood, the court shall treat the analysis as prima facie evidence on the issue of the person having a detectable amount of a restricted controlled substance in his or her blood without requiring any expert testimony as to its effect.

885.235(1m) (1m) In any action under s. 23.33 (4c) (a) 3., 23.335 (12) (a) 3., 30.681 (1) (bn), 346.63 (2m) or (7), or 350.101 (1) (c), evidence of the amount of alcohol in the person’s blood at the time in question, as shown by chemical analysis of a sample of the person’s blood or urine or evidence of the amount of alcohol in the person’s breath, is admissible on the issue of whether he or she had an alcohol concentration in the range specified in s. 23.33 (4c) (a) 3., 23.335 (12) (a) 3., 30.681 (1) (bn), 346.63 (2m), or 350.101 (1) (c) or an alcohol concentration above 0.0 under s. 346.63 (7) if the sample was taken within 3 hours after the event to be proved. The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but not more than 0.08 is prima facie evidence that the person had an alcohol concentration in the range specified in s. 23.33 (4c) (a) 3., 23.335 (12) (a) 3., 30.681 (1) (bn), 346.63 (2m), or 350.101 (1) (c) or an alcohol concentration above 0.0 under s. 346.63 (7).

885.235(2) (2) The concentration of alcohol in the blood shall be taken prima facie to be three-fourths of the concentration of alcohol in the urine.

885.235(3) (3) If the sample of breath, blood or urine was not taken within 3 hours after the event to be proved, evidence of the amount of alcohol in the person’s blood or breath as shown by the chemical analysis is admissible only if expert testimony establishes its probative value and may be given prima facie effect only if the effect is established by expert testimony.

885.235(4) (4) The provisions of this section relating to the admissibility of chemical tests for alcohol concentration or intoxication or for determining whether a person had a detectable amount of a restricted controlled substance in his or her blood shall not be construed as limiting the introduction of any other competent evidence bearing on the question of whether or not a person was under the influence of an intoxicant, had a detectable amount of a restricted controlled substance in his or her blood, had a specified alcohol concentration, or had an alcohol concentration in the range specified in s. 23.33 (4c) (a) 3., 23.335 (12) (a) 3., 30.681 (1) (bn), 346.63 (2m), or 350.101 (1) (c).

885.235(5) (5) Notwithstanding sub. (4), in any action or proceeding for a violation of s. 23.33 (4c) (a) 2m. or (b) 2m., 23.335 (12) (a) 2m. or (b) 2m., 30.681 (1) (b) 1m. or (2) (b) 1m., 346.63 (1) (am) or (2) (a) 3., 350.101 (1) (bm) or (2) (bm), 940.09 (1) (am) or (cm) or (1g) (am) or (cm), 940.25 (1) (am) or (cm), or 941.20 (1) (bm), the only form of chemical analysis of a sample of human biological material that is admissible as evidence bearing on the question of whether or not the person had delta-9-tetrahydrocannabinol at a concentration of one or more nanograms per milliliter of the person’s blood is a chemical analysis of a sample of the person’s blood.

885.235 History History: 1971 c. 40; 1973 c. 102; 1981 c. 20, 184; 1983 a. 74, 459; 1985 a. 146 s. 8; 1985 a. 331, 337; 1987 a. 3, 399; 1989 a. 105; 1991 a. 277; 1995 a. 436, 448; 1997 a. 35, 198; 2003 a. 30, 97; 2005 a. 8; 2011 a. 208; 2015 a. 170, 332; 2019 a. 68.

885.235 Annotation A blood sample taken under s. 346.71 (2) and forwarded to the Department of Transportation is admissible in evidence. Luedtke v. Shedivy, 51 Wis. 2d 110, 186 N.W.2d 220 (1971).

885.235 Annotation Administration of a blood or breath test does not violate a defendant’s privilege against self-incrimination. State v. Driver, 59 Wis. 2d 35, 207 N.W.2d 850 (1973).

885.235 Annotation When blood alcohol content is tested under statutory procedures, results of the test are mandatorily admissible. The physical sample tested is not evidence intended, required, or even susceptible of being produced by the state under s. 971.23 (4) and (5). State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984).

885.235 Annotation Failure to timely notify a person of the right to an alternative blood test for intoxication does not affect the presumption of validity for a properly given blood test and is not grounds for suppressing the test results. County of Dane v. Granum, 203 Wis. 2d 252, 551 N.W.2d 859 (Ct. App. 1996), 95-3470.

885.237 885.237 Presumptions as to operation and registration of motor vehicle.

885.237(1) (1) The fact that a motor vehicle is located on a highway, as defined in s. 340.01 (22), is prima facie evidence, for purposes of ch. 341, that the motor vehicle has been operated on a highway by the owner.

885.237(2) (2) Notwithstanding s. 341.04, the fact that an automobile or motor truck having a registered weight of 8,000 pounds or less is located on a highway, as defined in s. 340.01 (22), and is not displaying valid registration plates, a temporary operation plate or other evidence of registration as provided under s. 341.18 (1) is prima facie evidence, for purposes of ch. 341, that the vehicle is an unregistered or improperly registered vehicle. This subsection does not apply to violations of ordinances enacted under s. 341.65, but this subsection does apply to violations of ordinances enacted under s. 341.65, 2003 stats.

885.237 History History: 1991 a. 233; 1997 a. 27; 1999 a. 80; 2005 a. 185.

885.24 885.24 Actions for public moneys, immunity.

885.24(1) (1) No witness or party in an action brought upon the bond of a public officer, or in an action by the state or any municipality to recover public money received by or deposited with the defendant, or in any action, proceeding or examination, instituted by or in behalf of the state or any municipality, involving the official conduct of any officer thereof, may be excused from testifying on the ground that his or her testimony may expose him or her to prosecution for any crime or forfeiture. No person may be prosecuted or subjected to any penalty or forfeiture for or on account of testifying or producing evidence, documentary or otherwise, in the action, proceeding or examination, except a prosecution for perjury committed in giving the testimony.

885.24(2) (2) The immunity provided under sub. (1) is subject to the restrictions under s. 972.085.

885.24 History History: 1989 a. 122.

885.25 885.25 State actions vs. corporations or limited liability companies.

885.25(1) (1) No corporation or limited liability company shall be excused from producing books, papers, tariffs, contracts, agreements, records, files or documents, in its possession, or under its control, in obedience to the subpoena of any court or officer authorized to issue subpoenas, in any civil action which is now or hereafter may be pending, brought by the state against it to recover license fees, taxes, penalties or forfeitures, or to enforce forfeitures, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of it, may subject it to a penalty or forfeiture, or be excused from making a true answer under oath, by and through its properly authorized officer or agent, when required by law to make such answer to any pleading in any such civil action upon any such ground or for such reason.

885.25(2) (2) No officer, clerk, agent, employee or servant of any corporation or limited liability company in any such action may be excused from attending or testifying or from producing books, papers, tariffs, contracts, agreements, records, files or documents, in his or her possession or under his or her control, in obedience to the subpoena of any court in which any such civil action is pending or before any officer or court empowered or authorized to take deposition or testimony in any such action, in obedience to the subpoena of the officer or court, or of any officer or court empowered to issue a subpoena in that behalf, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him or her, may tend to incriminate him or her or subject him or her to a penalty or a forfeiture, but no such officer, clerk, agent, employee or servant shall be prosecuted, or subjected to any penalty or forfeiture, for or on account of testifying or producing evidence, documentary or otherwise, before the court or officer, or any court or officer empowered to issue subpoena in that behalf, or in any such case or proceeding except a prosecution for perjury or false swearing in giving the testimony.

885.25(2m) (2m) The immunity provided under sub. (2) is subject to the restrictions under s. 972.085.