Chapter 938

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.

938.205(1)(c) (c) That the juvenile will run away or be taken away so as to be unavailable for proceedings of the court or its officers, proceedings of the division of hearings and appeals in the department of administration for revocation of community supervision or aftercare supervision, or action by the department of corrections or county department relating to a violation of 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.

938.205(2) (2) Applicability. The criteria for holding a juvenile in custody under this section govern the decision of all persons responsible for determining whether the action is appropriate.

938.205 History History: 1995 a. 77, 275; 1997 a. 35, 296; 1999 a. 32; 2001 a. 16; 2005 a. 344; 2015 a. 55.

938.207 938.207 Places where a juvenile may be held in nonsecure custody.

938.207(1) (1) Where may be held. A juvenile held in physical custody under s. 938.205 may be held in any of the following places:

938.207(1)(a) (a) The home of a parent or guardian, except that a juvenile may not be held in the home of a parent or guardian if the parent or guardian has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the juvenile, and the conviction has not been reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the juvenile. The person making the custody decision shall consider the wishes of the juvenile in making that determination.

938.207(1)(b) (b) The home of a relative or like-kin, except that a juvenile may not be held in the home of a person who has been convicted under s. 940.01 of the first-degree intentional homicide, or under s. 940.05 of the 2nd-degree intentional homicide, of a parent of the juvenile, and the conviction has not been reversed, set aside or vacated, unless the person making the custody decision determines by clear and convincing evidence that the placement would be in the best interests of the juvenile. The person making the custody decision shall consider the wishes of the juvenile in making that determination.

938.207(1)(c) (c) A licensed foster home if the placement does not violate the conditions of the license.

938.207(1)(cm) (cm) A licensed group home if the placement does not violate the conditions of the license.

938.207(1)(d) (d) A nonsecure facility operated by a licensed child welfare agency.

938.207(1)(e) (e) A licensed private or public shelter care facility.

938.207(1)(f) (f) The home of a person not a relative or like-kin if the person has not had a license under s. 48.62 refused, revoked, or suspended within the previous 2 years. A placement under this paragraph may not exceed 30 days, unless the placement is extended by the court for cause for an additional 30 days.

938.207(1)(g) (g) A hospital as defined in s. 50.33 (2) (a) and (c) or physician’s office if the juvenile is held under s. 938.20 (4).

938.207(1)(h) (h) A place specified in s. 51.15 (2) (d) if the juvenile is held under s. 938.20 (5).

938.207(1)(i) (i) An approved public treatment facility for emergency treatment if the juvenile is held under s. 938.20 (6).

938.207(1)(k) (k) A facility under s. 48.58.

938.207(1g) (1g) Indian juvenile; placement preferences. An Indian juvenile in need of protection or services under s. 938.13 (4), (6), (6m), or (7) who is held in physical custody under s. 938.205 (1) shall be placed in compliance with s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b), unless the person responsible for determining the placement finds good cause, as described in s. 938.028 (6) (d), for departing from the order of placement preference under s. 938.028 (6) (a) or finds that emergency conditions necessitate departing from that order. When the reason for departing from that order is resolved, the Indian juvenile shall be placed in compliance with the order of placement preference under s. 938.028 (6) (a) or, if applicable, s. 938.028 (6) (b).

938.207(2) (2) Payment. If a facility listed in sub. (1) (b) to (k) is used to hold a juvenile in custody, or if supervisory services of a home detention program are provided to a juvenile held under sub. (1) (a), the county shall pay the facility’s authorized rate for the care of the juvenile. If no authorized rate has been established, the court shall fix a reasonable sum to be paid by the county for the supervision or care of the juvenile.

938.207 History History: 1995 a. 77; 1999 a. 9; 2005 a. 344; 2009 a. 28, 94; 2017 a. 140; 2023 a. 119.

938.208 938.208 Criteria for holding a juvenile in a juvenile detention facility. A juvenile may be held in a juvenile detention facility if the intake worker determines that any of the following conditions applies:

938.208(1) (1) Delinquent act and risk of harm or running away. Probable cause exists to believe that the juvenile has committed a delinquent act and either presents a substantial risk of physical harm to another person or a substantial risk of running away so as to be unavailable for a court hearing, a revocation of community supervision or aftercare supervision hearing, or action by the department of corrections or county department relating to a violation of 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. For juveniles who have been adjudged delinquent, the delinquent act referred to in this section may be the act for which the juvenile was adjudged delinquent. If the intake worker determines that any of the following conditions applies, the juvenile is considered to present a substantial risk of physical harm to another person:

938.208(1)(a) (a) Probable cause exists to believe that the juvenile has committed a delinquent act that would be a felony under s. 940.01, 940.02, 940.03, 940.05, 940.19 (2) to (6), 940.198, 940.21, 940.225 (1), 940.31, 941.20 (3), 943.02 (1), 943.231 (1), 943.32 (2), 947.013 (1t), (1v), or (1x), 948.02 (1) or (2), 948.025, 948.03, or 948.085 (2), if committed by an adult.

938.208(1)(b) (b) Probable cause exists to believe that the juvenile possessed, used or threatened to use a handgun, as defined in s. 175.35 (1) (b), short-barreled rifle, as defined in s. 941.28 (1) (b), or short-barreled shotgun, as defined in s. 941.28 (1) (c), while committing a delinquent act that would be a felony under ch. 940 if committed by an adult.

938.208(1)(c) (c) Probable cause exists to believe that the juvenile has possessed or gone armed with a short-barreled rifle or a short-barreled shotgun in violation of s. 941.28, or has possessed or gone armed with a handgun in violation of s. 948.60.

938.208(2) (2) Runaway from another state or secure custody. Probable cause exists to believe that the juvenile is a fugitive from another state or has run away from a juvenile correctional facility or a secured residential care center for children and youth and there has been no reasonable opportunity to return the juvenile.

938.208(3) (3) Protective custody. The juvenile consents in writing to being held in order to protect him or her from an imminent physical threat from another and such secure custody is ordered by the court in a protective order.

938.208(4) (4) Runaway from nonsecure custody. Probable cause exists to believe that the juvenile, having been placed in nonsecure custody by an intake worker under s. 938.207 or by the court under s. 938.21 (4), has run away or committed a delinquent act and no other suitable alternative exists.

938.208(5) (5) Runaway from another county. Probable cause exists to believe that the juvenile has been adjudged or alleged to be delinquent and has run away from another county and would run away from nonsecure custody pending his or her return. A juvenile may be held in secure custody under this subsection for no more than 24 hours after the end of the day that the decision to hold the juvenile was made unless an extension of those 24 hours is ordered by the court for good cause shown. Only one extension may be ordered.

938.208(6) (6) Subject to jurisdiction of adult court. Probable cause exists to believe that the juvenile is subject to the jurisdiction of the court of criminal jurisdiction under s. 938.183 (1) and is under 15 years of age.

938.208 History History: 1995 a. 77, 352; 1999 a. 9; 2001 a. 16, 61, 109; 2005 a. 277, 344; 2007 a. 97; 2015 a. 55; 2021 a. 76; 2023 a. 10.

938.209 938.209 Criteria for holding a juvenile in a county jail or a municipal lockup facility.

938.209(1) (1) County jail. Subject to s. 938.208, a county jail may be used as a juvenile detention facility if the criteria under either par. (a) or (b) are met:

938.209(1)(a) (a) No other juvenile detention facility approved by the department of corrections or a county is available and all of the following conditions are met:

938.209(1)(a)1. 1. The jail meets the standards for juvenile detention facilities established by the department of corrections.

938.209(1)(a)2. 2. The juvenile is held in a room separated and removed from incarcerated adults.

938.209(1)(a)3. 3. The juvenile is not held in a cell designed for the administrative or disciplinary segregation of adults.

938.209(1)(a)4. 4. Adequate supervision is provided.

938.209(1)(a)5. 5. The court reviews the status of the juvenile every 3 days.

938.209(1)(b) (b) The juvenile presents a substantial risk of physical harm to other persons in the juvenile detention facility, as evidenced by previous acts or attempts, which can only be avoided by transfer to the jail. The conditions of par. (a) 1. to 5. shall be met. The juvenile shall be given a hearing and may be transferred only upon a court order.

938.209(2m) (2m) Municipal lockup.

938.209(2m)(a) (a) A juvenile who is alleged to have committed a delinquent act may be held in a municipal lockup facility if all of the following criteria are met:

938.209(2m)(a)1. 1. The department of corrections has approved the municipal lockup facility as a suitable place for holding juveniles in custody.

938.209(2m)(a)2. 2. The juvenile is held in the municipal lockup facility for not more than 6 hours while awaiting his or her hearing under s. 938.21 (1) (a).

938.209(2m)(a)3. 3. There is sight and sound separation between the juvenile and any adult who is being held in the municipal lockup facility.

938.209(2m)(a)4. 4. The juvenile is held for investigative purposes only.

938.209(2m)(b) (b) The department of corrections shall promulgate rules establishing minimum requirements for the approval of a municipal lockup facility as a suitable place for holding juveniles in custody and for the operation of such a facility. The rules shall be designed to protect the health, safety, and welfare of the juveniles held in those facilities.

938.209(3) (3) Juveniles under adult court jurisdiction. The restrictions of this section do not apply to the use of jail for a juvenile who has been waived to adult court under s. 938.18 or who is under the jurisdiction of an adult court under s. 938.183, unless the juvenile is under the jurisdiction of an adult court under s. 938.183 (1) and is under 15 years of age.

938.209 History History: 1995 a. 77, 352; 1997 a. 35, 296; 2005 a. 344; 2007 a. 97; 2015 a. 55.