Chapter 938

938.183 Annotation The text of this section does not limit the adult court jurisdiction prescribed in sub. (1) to the individual juvenile court in the specific county where a juvenile was previously waived. Whenever a juvenile court exercising jurisdiction under this chapter has previously waived a juvenile—who is alleged to be in violation of any state law and that juvenile is either convicted or the criminal proceeding is still pending—courts of criminal jurisdiction anywhere in Wisconsin have exclusive original jurisdiction. State v. Hinkle, 2019 WI 96, 389 Wis. 2d 1, 935 N.W.2d 271, 17-1416.

938.183 Annotation Serious Juvenile Offenders: The Need for a Third Sentencing Option In Wisconsin. Snyder. 100 MLR 267 (2016).

938.185 938.185 Venue.

938.185(1) (1) Proceedings generally. Subject to subs. (3) and (4), venue for any proceeding under ss. 938.12, 938.125, 938.13, 938.135, and 938.18 may be in any of the following:

938.185(1)(a) (a) The county where the juvenile resides.

938.185(1)(b) (b) The county where the juvenile is present.

938.185(1)(c) (c) In the case of a violation of a state law or a county, town or municipal ordinance, the county where the violation occurred, except that in that case the court of the county where the violation occurred may, after the juvenile is adjudged delinquent, transfer the proceeding to the county where the juvenile resides for disposition, if the court of the county of residence agrees to that transfer.

938.185(2) (2) Juvenile subject to dispositional order. Venue for any proceeding under s. 938.357, 938.363, or 938.365 shall be in the county where the dispositional order was issued, unless prior to the proceeding the court of that county determined that proper venue for the proceeding lies in another county and transferred the case, along with all appropriate records, to that other county.

938.185(2m) (2m) Extended out-of-home care. Venue for a proceeding under s. 938.366 (3) (am) shall be in the county where the most recent order specified in s. 938.366 (1) (a) was issued.

938.185(3) (3) Sex offender registry violations. Venue for a proceeding under s. 938.12 or 938.13 (12) based on an alleged violation of s. 301.45 (6) (a) or (ag) may be in the juvenile’s county of residence at the time that the petition is filed. If the juvenile does not have a county of residence in this state at the time that the petition is filed, or if the juvenile’s county of residence is unknown at the time that the petition is filed, venue for the proceeding may be in any of the following counties:

938.185(3)(a) (a) Any county in which the juvenile has resided while subject to s. 301.45.

938.185(3)(b) (b) The county in which the juvenile was adjudicated delinquent or found not responsible by reason of mental disease or defect for the sex offense that requires the juvenile to register under s. 301.45.

938.185(3)(c) (c) If the juvenile is required to register under s. 301.45 (1g) (dt), the county in which the juvenile was found to be a sexually violent person under ch. 980.

938.185(3)(d) (d) If the juvenile is required to register only under s. 301.45 (1g) (f) or (g), any county in which the juvenile has been a student in this state or has been employed or carrying on a vocation in this state.

938.185(4) (4) Indian juveniles. Venue for a proceeding under s. 938.12 or 938.13 (12) based on an allegation that an Indian juvenile has committed a delinquent act may not be in the county specified in sub. (1) (a), unless that county is specified in sub. (1) (b) or (c), if all of the following circumstances apply:

938.185(4)(a) (a) At the time of the alleged delinquent act the juvenile was under an order of a tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile’s parent, or permanent guardianship.

938.185(4)(b) (b) At the time of the alleged delinquent act the juvenile was physically outside the boundaries of the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under par. (a), including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

938.185(4)(c) (c) A petition relating to the delinquent act has been filed in a tribal court that has jurisdiction over the juvenile.

938.185 History History: 1995 a. 77, 352, 440; 1999 a. 89; 2003 a. 284; 2005 a. 344; 2009 a. 94; 2015 a. 55, 373.

938.185 Note NOTE: 2003 Wis. Act 284 contains explanatory notes.

938.185 Annotation Venue becomes an issue only in the event that it is contested. It is not an element of the crime charged. The county where a juvenile “resides” is the county of domicile. The county where a juvenile “is present” is the county where the child is present at the time a petition is filed. State v. Corey J.G., 215 Wis. 2d 395, 572 N.W.2d 845 (1998), 96-3148.

subch. IV of ch. 938 SUBCHAPTER IV

HOLDING A JUVENILE IN CUSTODY

938.19 938.19 Taking a juvenile into custody.

938.19(1) (1) Criteria. A juvenile may be taken into custody under any of the following:

938.19(1)(a) (a) A warrant.

938.19(1)(b) (b) A capias issued by a court under s. 938.28.

938.19(1)(c) (c) A court order if there is a showing that the welfare of the juvenile demands that the juvenile be immediately removed from his or her present custody. The order shall specify that the juvenile be held in custody under s. 938.207.

938.19(1)(d) (d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:

938.19(1)(d)1. 1. A capias or a warrant for the juvenile’s apprehension has been issued in this state, or the juvenile is a fugitive from justice.

938.19(1)(d)2. 2. A capias or a warrant for the juvenile’s apprehension has been issued in another state.

938.19(1)(d)3. 3. The juvenile is committing or has committed an act which is a violation of a state or federal criminal law.

938.19(1)(d)4. 4. The juvenile has run away from his or her parents, guardian or legal or physical custodian.

938.19(1)(d)5. 5. The juvenile is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary.

938.19(1)(d)6. 6. The juvenile has violated a condition of court-ordered supervision, community supervision, or aftercare supervision; a condition of the juvenile’s placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth; or a condition of the juvenile’s participation in the intensive supervision program under s. 938.534.

938.19(1)(d)7. 7. The juvenile has violated the conditions of an order under s. 938.21 (4) or of an order for temporary physical custody issued by an intake worker.

938.19(1)(d)8. 8. The juvenile has violated a civil law or a local ordinance punishable by a forfeiture, except that in that case the juvenile shall be released immediately under s. 938.20 (2) (ag) or as soon as reasonably possible under s. 938.20 (2) (b) to (g).

938.19(1)(d)10. 10. The juvenile is absent from school without an acceptable excuse under s. 118.15.

938.19(1m) (1m) Truancy. A juvenile who is absent from school without an acceptable excuse under s. 118.15 may be taken into custody by an individual designated under s. 118.16 (2m) (a) if the school attendance officer of the school district in which the juvenile resides, or the juvenile’s parent, guardian, or legal custodian, requests that the juvenile be taken into custody. The request shall specifically identify the juvenile.

938.19(2) (2) Notification of parent, guardian, legal custodian, Indian custodian. When a juvenile is taken into physical custody under this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian, legal custodian, and Indian custodian of the juvenile by the most practical means. The person taking the juvenile into custody shall continue such attempt until the parent, guardian, legal custodian, and Indian custodian of the juvenile are notified, or the juvenile is delivered to an intake worker under s. 938.20 (3), whichever occurs first. If the juvenile is delivered to the intake worker before the parent, guardian, legal custodian, and Indian custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian, legal custodian, and Indian custodian of the juvenile are notified.

938.19(3) (3) Not an arrest. Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.

938.19 History History: 1995 a. 77; 2001 a. 16; 2005 a. 344; 2009 a. 94; 2015 a. 55.

938.19 Annotation A juvenile may not be taken into custody under sub. (1) (d) 8. for violating an ordinance that does not impose a forfeiture although a forfeiture may be imposed under s. 48.343 (2) [now s. 938.343]. In Interest of J.F.F., 164 Wis. 2d 10, 473 N.W.2d 546 (Ct. App. 1991).

938.19 Note NOTE: The above annotation cites to s. 48.19, the predecessor statute to s. 938.19.

938.195 938.195 Recording custodial interrogations.

938.195(1) (1) Definitions. In this section:

938.195(1)(a) (a) “Custodial interrogation” has the meaning given in s. 968.073 (1) (a).

938.195(1)(b) (b) “Law enforcement agency” has the meaning given in s. 165.83 (1) (b).

938.195(1)(c) (c) “Place of detention” means a juvenile detention facility, jail, municipal lockup facility, or juvenile correctional facility, or a police or sheriff’s office or other building under the control of a law enforcement agency, at which juveniles are held in custody in connection with an investigation of a delinquent act.

938.195(2) (2) When required.

938.195(2)(a) (a) A law enforcement agency shall make an audio or audio and visual recording of any custodial interrogation of a juvenile that is conducted at a place of detention unless a condition under s. 938.31 (3) (c) 1. to 5. applies.

938.195(2)(b) (b) If feasible, a law enforcement agency shall make an audio or audio and visual recording of any custodial interrogation of a juvenile that is conducted at a place other than a place of detention unless a condition under s. 938.31 (3) (c) 1. to 5. applies.

938.195(3) (3) Notice not required. A law enforcement officer or agent of a law enforcement agency conducting a custodial interrogation is not required to inform the subject of the interrogation that the officer or agent is making an audio or audio and visual recording of the interrogation.

938.195 History History: 2005 a. 60; 2007 a. 97; 2013 a. 168 s. 21.

938.195 Annotation It was a violation of this section for police to cease recording the custodial interrogation under the facts of this case. Nevertheless, the error, if any, in not suppressing some of the defendant’s statements, was harmless. State v. Moore, 2015 WI 54, 363 Wis. 2d 376, 864 N.W.2d 827, 13-0127.

938.20 938.20 Release or delivery from custody.

938.20(2) (2) Release of juvenile.

938.20(2)(ag) (ag) Except as provided in pars. (b) to (g), a person taking a juvenile into custody shall make every effort to release the juvenile immediately to the juvenile’s parent, guardian, legal custodian, or Indian custodian.

938.20(2)(b) (b) If the juvenile’s parent, guardian, legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the juvenile, the person who took the juvenile into custody may release the juvenile to a responsible adult after counseling or warning the juvenile as may be appropriate.

938.20(2)(c) (c) If the juvenile is 15 years of age or older, the person who took the juvenile into custody may release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.

938.20(2)(cm) (cm) If the juvenile has violated a condition of community supervision or aftercare supervision, a condition of the juvenile’s placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth, or a condition of the juvenile’s participation in the intensive supervision program under s. 938.534, the person who took the juvenile into custody may release the juvenile to the department of corrections or county department, whichever has supervision over the juvenile.

938.20(2)(d) (d) If the juvenile is a runaway, the person who took the juvenile into custody may release the juvenile to a home under s. 48.227.

938.20(2)(e) (e) If a juvenile is taken into custody under s. 938.19 (1) (d) 10., the law enforcement officer who took the juvenile into custody may release the juvenile under par. (ag) or (b) or, if the school board of the school district in which the juvenile resides has established a youth service center under s. 118.16 (4) (e), may deliver that juvenile to that youth service center. If the juvenile is delivered to a youth service center, personnel of the youth service center may release the juvenile to the juvenile’s parent, guardian or legal custodian, or release the juvenile to the juvenile’s school, after counseling the juvenile as may be appropriate. If the juvenile is released to the juvenile’s school, personnel of the youth service center shall immediately notify the juvenile’s parent, guardian and legal custodian that the juvenile was taken into custody under s. 938.19 (1) (d) 10. and released to the juvenile’s school.

938.20(2)(f) (f) If a juvenile is taken into custody under s. 938.19 (1m), the person who took the juvenile into custody may release the juvenile under par. (ag), (b) or (e) or to the juvenile’s school administrator, as defined in s. 125.09 (2) (a) 3., or a school employee designated by the school administrator. If a juvenile is released to a school administrator or the school administrator’s designee under this paragraph, the school administrator or designee shall do all of the following:

938.20(2)(f)1. 1. Immediately notify the juvenile’s parent, guardian or legal custodian that the juvenile was taken into custody under s. 938.19 (1m) and released to the school administrator or his or her designee.

938.20(2)(f)2. 2. Make a determination of whether the juvenile is a child at risk, as defined in s. 118.153 (1) (a), unless that determination has been made within the current school semester. If a juvenile is determined to be a child at risk under this subdivision, the school administrator shall provide a program for the juvenile according to the plan developed under s. 118.153 (2) (a).

938.20(2)(f)3. 3. Provide the juvenile and his or her parent or guardian with an opportunity for educational counseling to determine whether a change in the juvenile’s program or curriculum, including any of the modifications specified in s. 118.15 (1) (d), would resolve the juvenile’s truancy problem, unless the juvenile and his or her parent or guardian have been provided with an opportunity for educational counseling within the current school semester.

938.20(2)(g) (g) If a juvenile is taken into custody under s. 938.19 (1) (d) 10. and is not released under par. (ag), (b) or (e) or if a juvenile is taken into custody under s. 938.19 (1m) and is not released under par. (ag), (b), (e) or (f), the person who took the juvenile into custody shall release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.

938.20(3) (3) Notification to parent, guardian, legal custodian, Indian custodian of release. If the juvenile is released under sub. (2) (b) to (d) or (g), the person who took the juvenile into custody shall immediately notify the juvenile’s parent, guardian, legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released. If the juvenile is not released under sub. (2), the person who took the juvenile into custody shall arrange in a manner determined by the court and law enforcement agencies for the juvenile to be interviewed by the intake worker under s. 938.067 (2). The person who took the juvenile into custody shall make a statement in writing with supporting facts of the reasons why the juvenile was taken into physical custody and shall give a copy of the statement to the intake worker and to any juvenile 10 years of age or older. If the intake interview is not done in person, the report may be read to the intake worker.

938.20(4) (4) Delivery to hospital or physician. If the juvenile is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall deliver the juvenile to a hospital as defined in s. 50.33 (2) (a) and (c) or physician’s office.

938.20(5) (5) Emergency detention of juvenile. If the juvenile is believed to have a mental illness or developmental disability or to be drug dependent and exhibits conduct that constitutes a substantial probability of physical harm to the juvenile or to others, or a very substantial probability of physical impairment or injury to the juvenile exists due to the impaired judgment of the juvenile and if the standards of s. 51.15 are met, the person taking the juvenile into physical custody, the intake worker, or other appropriate person shall proceed under s. 51.15.

938.20(6) (6) Delivery of intoxicated juvenile. If the juvenile is believed to be an intoxicated person who has threatened, attempted or inflicted physical harm on himself or herself or on another and is likely to inflict such physical harm unless committed, or is incapacitated by alcohol or another drug, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall proceed under s. 51.45 (11).

938.20(7) (7) Duties of intake worker.

938.20(7)(a) (a) When a juvenile who is possibly involved in a delinquent act is interviewed by an intake worker, the intake worker shall inform the juvenile of his or her right to counsel and the right against self-incrimination.

938.20(7)(b) (b) The intake worker shall review the need to hold the juvenile in custody and shall make every effort to release the juvenile from custody as provided in par. (c). The intake worker shall base his or her decision as to whether to release the juvenile or to continue to hold the juvenile in custody on the criteria under s. 938.205 and criteria established under s. 938.06 (1) or (2).

938.20(7)(c) (c) The intake worker may release the juvenile as follows:

938.20(7)(c)1. 1. To a parent, guardian, legal custodian, or Indian custodian, or to a responsible adult if the parent, guardian, legal custodian, or Indian custodian is unavailable, unwilling, or unable to provide supervision for the juvenile, counseling or warning the juvenile as may be appropriate; or, if the juvenile is 15 years of age or older, without immediate adult supervision, counseling or warning the juvenile as may be appropriate.

938.20(7)(c)1m. 1m. In the case of a juvenile who has violated a condition of community supervision or aftercare supervision, a condition of the juvenile’s placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth, or a condition of the juvenile’s participation in the intensive supervision program under s. 938.534, to the department of corrections or county department, whichever has supervision of the juvenile.

938.20(7)(c)2. 2. In the case of a runaway juvenile, to a home under s. 48.227.

938.20(7)(d) (d) If the juvenile is released from custody, the intake worker shall immediately notify the juvenile’s parent, guardian, legal custodian, and Indian custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released.

938.20(8) (8) Notification that held in custody.

938.20(8)(a) (a) If a juvenile is held in custody, the intake worker shall notify the juvenile’s parent, guardian, legal custodian, and Indian custodian of the reasons for holding the juvenile in custody and of the juvenile’s whereabouts unless there is reason to believe that notice would present imminent danger to the juvenile. The parent, guardian, legal custodian, and Indian custodian shall also be notified of the time and place of the detention hearing required under s. 938.21, the nature and possible consequences of the hearing, the right to present and cross-examine witnesses at the hearing, and, in the case of a parent or Indian custodian of an Indian juvenile who is the subject of an Indian juvenile custody proceeding, as defined in s. 938.028 (2) (b), the right to counsel under s. 938.028 (4) (b). If the parent, guardian, legal custodian, or Indian custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible.

938.20(8)(b) (b) If the juvenile is alleged to have committed a delinquent act, the juvenile shall receive the same notice about the detention hearing as the parent, guardian, or legal custodian. The intake worker shall notify both the juvenile and the juvenile’s parent, guardian, or legal custodian.

938.20(8)(c) (c) If a juvenile who has violated a condition of community supervision or aftercare supervision, a condition of the juvenile’s placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth, or a condition of the juvenile’s participation in the intensive supervision program under s. 938.534 is held in custody, the intake worker shall also notify the department of corrections or county department, whichever has supervision over the juvenile, of the reasons for holding the juvenile in custody, of the juvenile’s whereabouts, and of the time and place of the detention hearing required under s. 938.21.

938.20 History History: 1995 a. 77; 1997 a. 35; 2001 a. 16; 2005 a. 344; 2009 a. 94; 2015 a. 55; 2017 a. 34.

938.205 938.205 Criteria for holding a juvenile in physical custody.

938.205(1) (1) Criteria. A juvenile may be held under s. 938.207, 938.208, or 938.209 (1) if the intake worker determines that there is probable cause to believe the juvenile is within the jurisdiction of the court and if probable cause exists to believe any of the following:

938.205(1)(a) (a) That the juvenile will commit injury to the person or property of others if not held.

938.205(1)(b) (b) That the parent, guardian, or legal custodian of the juvenile or other responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care and that services to ensure the juvenile’s safety and well-being are not available or would be inadequate.