Chapter 938

938.28 History History: 1995 a. 77; 1997 a. 35; 2005 a. 344.

938.28 Annotation The issuance of a capias to secure the physical attendance of a juvenile prior to the service of the summons and petition on the juvenile was error but did not deny the court personal jurisdiction. Interest of Jermaine T.J., 181 Wis. 2d 82, 510 N.W.2d 735 (Ct. App. 1993).

938.28 Note NOTE: The above annotation cites to s. 48.28, the predecessor statute to s. 938.28.

938.29 938.29 Substitution of judge.

938.29(1) (1) Request for substitution. Except as provided in sub. (1g), the juvenile, either before or during the plea hearing, may file a written request with the clerk of the court or other person acting as the clerk for a substitution of the judge assigned to the proceeding. In a proceeding under s. 938.12 or 938.13 (12), only the juvenile may request a substitution of the judge. If the juvenile has the right to request a substitution of judge, the juvenile’s counsel or guardian ad litem may file the request. Not more than one written request may be filed in any one proceeding, and no single request may name more than one judge. This section does not apply to proceedings under s. 938.21.

938.29(1g) (1g) When substitution request not permitted. The juvenile may not request the substitution of a judge in a proceeding under s. 938.12 or 938.13 (12), and the juvenile and the juvenile’s parent, guardian, or legal custodian may not request the substitution of a judge in a proceeding under s. 938.13 (4), (6), (6m), or (7), if any of the following apply:

938.29(1g)(a) (a) The judge assigned to the proceeding has entered a dispositional order with respect to the juvenile in a previous proceeding under s. 48.12, 1993 stats., s. 48.13 (4), (6), (6m), (7), or (12), 1993 stats., s. 938.12, or 938.13 (4), (6), (6m), (7), or (12).

938.29(1g)(b) (b) The juvenile or the juvenile’s parent, guardian, or legal custodian has requested the substitution of a judge in a previous proceeding under s. 48.12, 1993 stats., s. 48.13 (4), (6), (6m), (7) or (12), 1993 stats., s. 938.12 or 938.13 (4), (6), (6m), (7) or (12).

938.29(1m) (1m) Assignment of new judge. When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. Except as provided in sub. (2), if the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03. If no determination is made within 7 days after receipt of the request for substitution, the clerk shall refer the matter to the chief judge of the judicial administrative district for determination of whether the request was made timely and in proper form and for reassignment as necessary.

938.29(2) (2) Substitution of judge scheduled to conduct waiver hearing. If the request for substitution of a judge is made for the judge scheduled to conduct a waiver hearing under s. 938.18, the request shall be filed before the close of the working day preceding the day that the waiver hearing is scheduled. Except as provided in sub. (1g), the judge may allow an authorized party to make a request for substitution on the day of the waiver hearing. If the request for substitution is made subsequent to the waiver hearing, the judge who conducted the waiver hearing may also conduct the plea hearing.

938.29 History History: 1995 a. 77, 352; 2005 a. 344; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

938.29 Annotation Section 801.58 (2) giving the chief judge authority to review a denial of a request for substitution applies when a juvenile’s request for substitution is denied. Mateo D.O. v. Circuit Court for Winnebago County, 2005 WI App 85, 280 Wis. 2d 575, 696 N.W.2d 275, 05-0220.

938.29 Annotation A juvenile’s request for judicial substitution, filed and signed by counsel, was in proper form. There is no requirement that the juvenile sign the substitution request. Mateo D.O. v. Circuit Court for Winnebago County, 2005 WI App 85, 280 Wis. 2d 575, 696 N.W.2d 275, 05-0220.

938.293 938.293 Discovery.

938.293(1) (1) Law enforcement reports. Copies of all law enforcement officer reports, including the officer’s memorandum and witnesses’ statements, shall be made available upon request to counsel or guardian ad litem prior to a plea hearing. The reports shall be available through the representative of the public designated under s. 938.09. The juvenile, through counsel or guardian ad litem, is the only party who shall have access to the reports in proceedings under s. 938.12, 938.125, or 938.13 (12). The identity of a confidential informant may be withheld under s. 905.10.

938.293(2) (2) Records relating to juvenile. All records relating to a juvenile which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party, upon demand and upon presentation of releases where necessary, at least 48 hours before the proceeding. Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with the permission of the court. The court may instruct counsel not to disclose specified items in the materials to the juvenile or the parent if the court reasonably believes that the disclosure would be harmful to the interests of the juvenile. Section 971.23 shall be applicable in all delinquency proceedings under this chapter, except that the court shall establish the timetable for the disclosures required under s. 971.23 (1), (2m), (8), and (9).

938.293(3) (3) Audiovisual recording of oral statement. Upon request prior to the fact-finding hearing, the district attorney shall disclose to the juvenile, and to the juvenile’s counsel or guardian ad litem, the existence of any audiovisual recording of an oral statement of a child under s. 908.08 that is within the possession, custody, or control of the state and shall make reasonable arrangements for the requesting person to view the statement. If, after compliance with this subsection, the state obtains possession, custody, or control of the audiovisual recording of the oral statement, the district attorney shall promptly notify the requesting person of that fact and make reasonable arrangements for the requesting person to view the statement.

938.293 History History: 1995 a. 77, 387; 1997 a. 35; 2001 a. 16; 2005 a. 42, 344; 2007 a. 97.

938.295 938.295 Physical, psychological, mental or developmental examination.

938.295(1) (1) Examination or assessment of juvenile or parent.

938.295(1)(a) (a) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria under s. 938.547 (4), the court may order a juvenile within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist, or licensed psychologist, or by another expert appointed by the court holding at least a master’s degree in social work or another related field of child development, in order that the juvenile’s physical, psychological, alcohol or other drug dependency, mental, or developmental condition may be considered. The court may also order an examination or an alcohol and other drug abuse assessment that conforms to the criteria under s. 938.547 (4) of a parent, guardian, or legal custodian whose ability to care for a juvenile is at issue before the court.

938.295(1)(b) (b) The court shall hear any objections by the juvenile and the juvenile’s parents, guardian, or legal custodian to the request under par. (a) for an examination or assessment before ordering the examination or assessment.

938.295(1)(c) (c) The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination. The payment for an alcohol and other drug abuse assessment shall be in accordance with s. 938.361.

938.295(1c) (1c) Reasonable cause for assessment; when. Reasonable cause exists to warrant an alcohol and other drug abuse assessment under sub. (1) if any of the following applies:

938.295(1c)(a) (a) The multidisciplinary screen procedure conducted under s. 938.24 (2) indicates that the juvenile is at risk of having needs and problems related to alcohol or other drug abuse.

938.295(1c)(b) (b) The juvenile was adjudicated delinquent on the basis of an offense specified in ch. 961.

938.295(1c)(c) (c) The greater weight of the evidence at the fact-finding hearing indicates that any offense which formed the basis for the adjudication was motivated by the juvenile’s need to purchase or otherwise obtain alcohol beverages, controlled substances or controlled substance analogs.

938.295(1g) (1g) Report of results and recommendations. If the court orders an alcohol or other drug abuse assessment under sub. (1), the approved treatment facility shall, within 14 days after the order, report the results of the assessment to the court, except that, if requested by the facility and if the juvenile is not held in secure or nonsecure custody, the court may extend the period for assessment for not more than 20 additional working days. The report shall include a recommendation as to whether the juvenile is in need of treatment, intervention, or education relating to the use or abuse of alcohol beverages, controlled substances, or controlled substance analogs and, if so, shall recommend a service plan and appropriate treatment from an approved treatment facility or education from a court-approved alcohol or other drug abuse education program.

938.295(2) (2) Not competent or not responsible.

938.295(2)(a) (a) If there is probable cause to believe that the juvenile has committed the alleged offense and if there is reason to doubt the juvenile’s competency to proceed, or upon entry of a plea under s. 938.30 (4) (c), the court shall order the juvenile to be examined by a psychiatrist or licensed psychologist. If the cost of the examination is approved by the court, the cost shall be paid by the county of the court ordering the examination, and the county may recover that cost from the juvenile’s parent or guardian as provided in par. (c). Evaluation shall be made on an outpatient basis unless the juvenile presents a substantial risk of physical harm to the juvenile or others; or the juvenile, parent, or guardian, and legal counsel or guardian ad litem, consent to an inpatient evaluation. An inpatient evaluation shall be completed in a specified period that is no longer than necessary.

938.295(2)(b) (b)

938.295(2)(b)1. 1. The examiner shall file a report of the examination with the court by the date specified in the order. The court shall cause copies to be transmitted to the district attorney or corporation counsel and to the juvenile’s counsel or guardian ad litem. The report shall describe the nature of the examination, identify the persons interviewed, the particular records reviewed, and any tests administered to the juvenile and state in reasonable detail the facts and reasoning upon which the examiner’s opinions are based.

938.295(2)(b)2. 2. If the examination is ordered following a plea under s. 938.30 (4) (c), the report shall also contain an opinion regarding whether the juvenile suffered from mental disease or defect at the time of the commission of the act alleged in the petition and, if so, whether this caused the juvenile to lack substantial capacity to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law.

938.295(2)(b)3. 3. If the examination is ordered following a finding that there is probable cause to believe that the juvenile has committed the alleged offense and that there is reason to doubt the juvenile’s competency to proceed, the report shall also contain an opinion regarding the juvenile’s present mental capacity to understand the proceedings and assist in his or her defense and, if the examiner reports that the juvenile lacks competency to proceed, the examiner’s opinion regarding the likelihood that the juvenile, if provided treatment, may be restored to competency within the time specified in s. 938.30 (5) (e) 1.

938.295(2)(c) (c) A county that pays the cost of an examination under par. (a) may recover a reasonable contribution toward that cost from the juvenile’s parent or guardian, based on the ability of the parent or guardian to pay. If the examination is provided or otherwise funded by the county department under s. 46.215, 46.22, or 46.23, the county department shall collect the contribution of the parent or guardian as provided in s. 301.03 (18). If the examination is provided or otherwise funded by the county department under s. 51.42 or 51.437, the county department shall collect the contribution of the parent or guardian as provided in s. 46.03 (18).

938.295(3) (3) Objection to a particular professional. If the juvenile or a parent objects to a particular physician, psychiatrist, licensed psychologist, or other expert, the court shall appoint a different physician, psychiatrist, psychologist or other expert.

938.295(4) (4) Telephone or live audiovisual proceeding. Motions or objections under this section may be heard under s. 938.299 (5).

938.295 History History: 1995 a. 77, 448; 2001 a. 109; 2005 a. 344; 2011 a. 32; 2021 a. 141.

938.296 938.296 Testing for HIV infection and certain diseases.

938.296(1) (1) Definitions. In this section:

938.296(1)(a) (a) “Health care professional” has the meaning given in s. 252.15 (1) (am).

938.296(1)(b) (b) “HIV” has the meaning given in s. 252.01 (1m).

938.296(1)(bm) (bm) “HIV test” has the meaning given in s. 252.01 (2m).

938.296(1)(c) (c) “Sexually transmitted disease” has the meaning given in s. 252.11 (1).

938.296(1)(d) (d) “Significant exposure” has the meaning given in s. 252.15 (1) (em).

938.296(1)(e) (e) “Victim” has the meaning given in s. 938.02 (20m) (a) 1.

938.296(2) (2) Sexually transmitted disease and HIV testing. In a proceeding under s. 938.12 or 938.13 (12) in which the juvenile is alleged to have violated s. 940.225, 948.02, 948.025, 948.05, 948.06, or 948.085 (2), the district attorney or corporation counsel shall apply to the court for an order requiring the juvenile to submit to an HIV test and a test or a series of tests to detect the presence of a sexually transmitted disease, each of which tests shall be administered by a health care professional, and to disclose the results of those tests as specified in sub. (4) (a) to (e), if all of the following apply:

938.296(2)(a) (a) The victim or alleged victim, if an adult, or the parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child, requests the district attorney or corporation counsel to apply for that order.

938.296(2)(b) (b) The district attorney or corporation counsel has probable cause to believe that the victim or alleged victim has had contact with body fluid of the juvenile that constitutes a significant exposure. If the juvenile is adjudicated delinquent, is found to be in need of protection or services or is found not responsible by reason of mental disease or defect under s. 938.30 (5), this paragraph does not apply.

938.296(2m) (2m) Communicable disease testing. In a proceeding under s. 938.12 or 938.13 (12) in which the juvenile is alleged to have violated s. 946.43 (2m), the district attorney or corporation counsel shall apply to the court for an order requiring the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of communicable diseases and to disclose the results of the test or tests as specified in sub. (5) (a) to (e), if all of the following apply:

938.296(2m)(a) (a) The victim or alleged victim, if an adult, or the parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child, requests the district attorney or corporation counsel to apply for the order.

938.296(2m)(b) (b) The district attorney or corporation counsel has probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile’s blood, semen, vomit, saliva, urine, feces, or other bodily substance.

938.296(3) (3) When order may be sought. The district attorney or corporation counsel may apply for an order under sub. (2) or (2m) at any of the following times:

938.296(3)(a) (a) At or after the plea hearing and before a dispositional order is entered.

938.296(3)(b) (b) At any time after the juvenile is adjudicated delinquent or found to be in need of protection or services.

938.296(3)(c) (c) At any time after the juvenile is found not responsible by reason of mental disease or defect under s. 938.30 (5).

938.296(3)(d) (d) If the court has determined that the juvenile is not competent to proceed under s. 938.30 (5) and has suspended proceedings on the petition, at any time after the determination that the juvenile is not competent to proceed.

938.296(4) (4) Disclosure of sexually transmitted disease and HIV test results. On receipt of an application for an order under sub. (2), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under s. 938.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the juvenile. If, after hearing, the court finds probable cause to believe that the victim or alleged victim has had contact with body fluid of the juvenile that constitutes a significant exposure, the court shall order the juvenile to submit to an HIV test and a test or series of tests to detect the presence of a sexually transmitted disease. The tests shall be administered by a health care professional. The court shall require the health care professional who performs the tests to refrain from making the test results part of the juvenile’s permanent medical record and to disclose the results of the tests to any of the following:

938.296(4)(a) (a) The parent, guardian or legal custodian of the juvenile.

938.296(4)(b) (b) The victim or alleged victim, if the victim or alleged victim is an adult.

938.296(4)(c) (c) The parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child.

938.296(4)(d) (d) The health care professional that provides care for the juvenile, upon request by the parent, guardian or legal custodian of the juvenile.

938.296(4)(e) (e) The health care professional that provides care for the victim or alleged victim, upon request by the victim or alleged victim or, if the victim or alleged victim is a child, upon request by the parent, guardian or legal custodian of the victim or alleged victim.

938.296(5) (5) Disclosure of communicable disease test results. On receipt of an application for an order under sub. (2m), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under s. 938.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the juvenile. If, after hearing, the court finds probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the juvenile, the court shall order the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of any communicable disease that was potentially transmitted by the act or alleged act of the juvenile. The court shall require the health care professional who performs the test or series of tests to refrain from making the test results part of the juvenile’s permanent medical record and to disclose the results of the test to any of the following:

938.296(5)(a) (a) The parent, guardian or legal custodian of the juvenile.

938.296(5)(b) (b) The victim or alleged victim, if the victim or alleged victim is an adult.

938.296(5)(c) (c) The parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child.

938.296(5)(d) (d) The health care professional that provides care for the juvenile, upon request by the parent, guardian or legal custodian of the juvenile.

938.296(5)(e) (e) The health care professional that provides care for the victim or alleged victim, upon request by the victim or alleged victim or, if the victim or alleged victim is a child, upon request by the parent, guardian or legal custodian of the victim or alleged victim.

938.296(6) (6) Payment for test costs. The court may order the county to pay for the cost of a test or series of tests ordered under sub. (4) or (5). This subsection does not prevent recovery of reasonable contribution toward the cost of that test or series of tests from the parent or guardian of the juvenile as the court may order based on the ability of the parent or guardian to pay. This subsection is subject to s. 301.03 (18).

938.296 History History: 1995 a. 77; 1997 a. 181, 182, 237; 1999 a. 188; 2005 a. 277, 344; 2009 a. 209.

938.2965 938.2965 Waiting area for victims and witnesses.

938.2965(1) (1) Definition. In this section, “witness” has the meaning given in s. 950.02 (5).

938.2965(2) (2) County to provide. If an area is available and use of the area is practical, a county shall provide a waiting area for a victim or witness to use during hearings under this chapter that is separate from any area used by the juvenile, the juvenile’s relatives, and witnesses for the juvenile. If a separate waiting area is not available or its use is not practical, a county shall provide other means to minimize the contact between the victim or witness and the juvenile, the juvenile’s relatives, and witnesses for the juvenile during hearings under this chapter.

938.2965 History History: 1997 a. 181; 2005 a. 344.

938.297 938.297 Motions before trial.

938.297(1) (1) Motions able to be determined without trial. Any motion which is capable of determination without trial of the general issue may be made before trial.

938.297(2) (2) Defenses and objections based on petitions for citation. If defenses and objections based on defects in the institution of proceedings, lack of probable cause on the face of the petition or citation, insufficiency of the petition or citation, or invalidity in whole or in part of the statute on which the petition or citation is founded are not raised within 10 days after the plea hearing, they are waived. Other motions capable of determination without trial may be brought any time before trial.

938.297(3) (3) Suppression of evidence. Motions to suppress evidence as illegally seized or statements as illegally obtained shall be made before fact-finding on the issues. The court may consider the motion at the fact-finding hearing if it appears that a party is surprised by the attempt to introduce the evidence and that party waives jeopardy. Only the juvenile may waive jeopardy in cases under s. 938.12, 938.125, or 938.13 (12).

938.297(4) (4) Propriety of taking juvenile into custody. Although the taking of a juvenile into custody is not an arrest, it shall be considered an arrest for the purpose of deciding motions which require a decision about the propriety of the taking into custody, including motions to suppress evidence as illegally seized, motions to suppress statements as illegally obtained, and motions challenging the lawfulness of the taking into custody.

938.297(5) (5) Continuation in custody if motion to dismiss granted. If the juvenile is in custody and the court grants a motion to dismiss based upon a defect in the petition or citation or in the institution of the proceedings, the court may order the juvenile continued in custody for not more than 48 hours pending the filing of a new petition or citation.

938.297(6) (6) Service of motion on attorney. A motion required to be served on a juvenile may be served upon his or her attorney of record.

938.297(7) (7) Oral argument by telephone. Oral argument permitted on motions under this section may be heard by telephone under s. 807.13 (1).

938.297(8) (8) Appellate review. An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a juvenile may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon an admission or a plea of no contest to the allegations in the petition.

938.297 History History: 1995 a. 77; 1997 a. 35; 2005 a. 344; 2009 a. 27.

938.299 938.299 Procedures at hearings.

938.299(1) (1) Closed hearings; exceptions.

938.299(1)(a) (a) Except as provided in par. (ar), the general public shall be excluded from hearings under this chapter unless a public fact-finding hearing is demanded by a juvenile through his or her counsel. The court shall refuse to grant the public hearing, however, if the victim of an alleged sexual assault objects or, in a nondelinquency proceeding, if a parent or guardian objects. If a public hearing is not held, only the parties, their counsel, witnesses, a representative of the news media who wishes to attend the hearing for the purpose of reporting news without revealing the identity of the juvenile involved and other persons requested by a party and approved by the court may be present. Any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar or a person engaged in the bona fide research, monitoring, or evaluation of activities conducted under 42 USC 629h, as determined by the director of state courts, may be admitted by the court.

938.299(1)(ag) (ag) If a public hearing is not held, in addition to persons permitted to attend under par. (a), the juvenile’s foster parent or other physical custodian described in s. 48.62 (2) may be present, except that the court may exclude a foster parent or other physical custodian described in s. 48.62 (2) from any portion of the hearing if that portion of the hearing deals with sensitive personal information of the juvenile or the juvenile’s family or if the court determines that excluding the foster parent or other physical custodian would be in the best interests of the juvenile.