Chapter 938

938.34(14s) (14s) Possession of controlled substances or controlled substance analogs.

938.34(14s)(a) (a) In addition to any other dispositions imposed under this section, if the juvenile is found to have violated s. 961.41 (3g), the court shall order one of the following penalties:

938.34(14s)(a)1. 1. For a first violation, a forfeiture of not more than $50.

938.34(14s)(a)2. 2. For a violation committed within 12 months of a previous violation, a forfeiture of not more than $100.

938.34(14s)(a)3. 3. For a violation committed within 12 months of 2 or more previous violations, a forfeiture of not more than $500.

938.34(14s)(am) (am) In addition to any other dispositions imposed under this section, if the juvenile is found to have violated s. 961.41 (1) or (1m) or 961.65, the court shall order one of the following penalties:

938.34(14s)(am)1. 1. For a first violation, a forfeiture of not less than $250 nor more than $500.

938.34(14s)(am)2. 2. For a violation committed within 12 months of a previous violation, a forfeiture of not less than $300.

938.34(14s)(am)3. 3. For a violation committed within 12 months of 2 or more previous violations, a forfeiture of $500.

938.34(14s)(b) (b) After ordering a disposition under par. (a) or (am), the court, with the agreement of the juvenile, may enter an additional order staying the execution of the dispositional order. If the court stays a dispositional order under this paragraph, the court shall enter an additional order requiring the juvenile to do any of the following:

938.34(14s)(b)1. 1. Submit to an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 938.547 (4) and that is conducted by an approved treatment facility. The order shall designate an approved treatment facility to conduct the alcohol and other drug abuse assessment and shall specify the date by which the assessment must be completed.

938.34(14s)(b)2. 2. Participate in an outpatient alcohol or other drug abuse treatment program at an approved treatment facility, if an assessment conducted under subd. 1. or s. 938.295 (1) recommends treatment.

938.34(14s)(b)3. 3. Participate in an alcohol or other drug abuse education program.

938.34(14s)(c) (c) If the approved treatment facility, with the written informed consent of the juvenile or, if the juvenile has not attained the age of 12, the written informed consent of the juvenile’s parent, notifies the agency primarily responsible for providing services to the juvenile that the juvenile has submitted to an assessment under this subsection and that the juvenile does not need treatment, intervention or education, the court shall notify the juvenile of whether or not the original dispositional order will be reinstated.

938.34(14s)(d) (d) If the juvenile completes the alcohol or other drug abuse treatment program or court-approved alcohol or other drug abuse education program, the approved treatment facility or court-approved alcohol or other drug abuse education program shall, with the written informed consent of the juvenile or, if the juvenile has not attained the age of 12, the written informed consent of the juvenile’s parent, notify the agency primarily responsible for providing services to the juvenile that the juvenile has complied with the order and the court shall notify the juvenile of whether or not the original dispositional order will be reinstated.

938.34(14s)(e) (e) If an approved treatment facility or court-approved alcohol or other drug abuse education program, with the written informed consent of the juvenile or, if the juvenile has not attained the age of 12, the written informed consent of the juvenile’s parent, notifies the agency primarily responsible for providing services to the juvenile that a juvenile is not participating in, or has not satisfactorily completed, a recommended alcohol or other drug abuse treatment program or a court-approved alcohol or other drug abuse education program, the court shall impose the original disposition under par. (a) or (am).

938.34(14t) (14t) Possession of a controlled substance or controlled substance analog on or near certain premises. If the juvenile is adjudicated delinquent under a violation of s. 961.41 (3g) by possessing or attempting to possess a controlled substance included in schedule I or II under ch. 961, a controlled substance analog of a controlled substance included in schedule I or II under ch. 961 or ketamine or flunitrazepam while in or on the premises of a scattered-site public housing project, as defined in s. 961.01 (20i), while in or on or otherwise within 1,000 feet of a state, county, city, village, or town park, a jail or correctional facility, as defined in s. 961.01 (12m), a multiunit public housing project, as defined in s. 961.01 (14m), a swimming pool open to members of the public, a youth center, as defined in s. 961.01 (22), or a community center, while in or on or otherwise within 1,000 feet of any private, tribal, or public school premises, or while in or on or otherwise within 1,000 feet of a school bus, as defined in s. 340.01 (56), the court shall require that the juvenile participate for 100 hours in a supervised work program or other community service work under sub. (5g).

938.34(15) (15) Deoxyribonucleic acid analysis requirements.

938.34(15)(a) (a)

938.34(15)(a)1. 1. If the juvenile is adjudicated delinquent on the basis of a violation that would be a felony if committed by an adult in this state or of a violation of s. 940.225 (3m), 941.20 (1), 944.20, 944.30 (1m), 944.31 (1), 944.33, 946.52, or 948.10 (1) (b), the court shall require the juvenile to comply with the requirement under s. 165.76 (1) (am) by providing a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis. The court shall inform the juvenile that he or she may request expungement under s. 165.77 (4).

938.34(15)(a)3. 3. The results from deoxyribonucleic acid analysis of a specimen under subd. 1. may be used only as authorized under s. 165.77 (3).

938.34(15)(b) (b) Biological samples required under par. (a) 1. shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

938.34 Cross-reference Cross-reference: See also ch. Jus 9, Wis. adm. code.

938.34(15m) (15m) Sex offender reporting requirements.

938.34(15m)(am) (am)

938.34(15m)(am)1. 1. Except as provided in par. (bm), if the juvenile is adjudicated delinquent on the basis of any violation, or the solicitation, conspiracy, or attempt to commit any violation, under ch. 940, 944, or 948 or s. 942.08 or 942.09, or ss. 943.01 to 943.15, the court may require the juvenile to comply with the reporting requirements under s. 301.45 if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), and that it would be in the interest of public protection to have the juvenile report under s. 301.45.

938.34(15m)(am)2. 2. If the court under subd. 1. orders the juvenile to comply with the reporting requirements under s. 301.45 in connection with a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 942.09, the court may provide that the juvenile be released from the requirement to comply with the reporting requirements under s. 301.45 upon satisfying the conditions of the dispositional order imposed for the offense. If the juvenile satisfies the conditions of the dispositional order, the court shall notify the department of corrections that the juvenile has satisfied the conditions of the dispositional order.

938.34(15m)(bm) (bm) If the juvenile is adjudicated delinquent on the basis of a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, or 948.085 (2), 948.095, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, or 948.30, of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or of s. 940.30 or 940.31 if the victim was a minor and the juvenile was not the victim’s parent, the court shall require the juvenile to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the juvenile, that the juvenile is not required to comply under s. 301.45 (1m).

938.34(15m)(c) (c) In determining under par. (am) 1. whether it would be in the interest of public protection to have the juvenile report under s. 301.45, the court may consider any of the following:

938.34(15m)(c)1. 1. The ages, at the time of the violation, of the juvenile and the victim of the violation.

938.34(15m)(c)2. 2. The relationship between the juvenile and the victim of the violation.

938.34(15m)(c)3. 3. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the victim.

938.34(15m)(c)4. 4. Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

938.34(15m)(c)5. 5. The probability that the juvenile will commit other violations in the future.

938.34(15m)(c)7. 7. Any other factor that the court determines may be relevant to the particular case.

938.34(15m)(d) (d) If the court orders a juvenile to comply with the reporting requirements under s. 301.45, the court may order the juvenile to continue to comply with the reporting requirements until his or her death.

938.34(15m)(e) (e) If the court orders a juvenile to comply with the reporting requirements under s. 301.45, the clerk of the court in which the order is entered shall promptly forward a copy of the order to the department of corrections. If the finding of delinquency on which the order is based is reversed, set aside or vacated, the clerk of the court shall promptly forward to the department of corrections a certificate stating that the finding of delinquency has been reversed, set aside or vacated.

938.34(16) (16) Stay of order. After ordering a disposition under this section, enter an additional order staying the execution of the dispositional order contingent on the juvenile’s satisfactory compliance with any conditions that are specified in the dispositional order and explained to the juvenile by the court. If the juvenile violates a condition of his or her dispositional order, the agency supervising the juvenile or the district attorney or corporation counsel in the county in which the dispositional order was entered shall notify the court and the court shall hold a hearing within 30 days after the filing of the notice to determine whether the original dispositional order should be imposed, unless the juvenile signs a written waiver of any objections to imposing the original dispositional order and the court approves the waiver. If a hearing is held, the court shall notify the parent, juvenile, guardian, and legal custodian, all parties bound by the original dispositional order, and the district attorney or corporation counsel in the county in which the dispositional order was entered of the time and place of the hearing at least 3 days before the hearing. If all parties consent, the court may proceed immediately with the hearing. The court may not impose the original dispositional order unless the court finds by a preponderance of the evidence that the juvenile has violated a condition of his or her dispositional order.

938.34 History History: 1995 a. 77, 352, 440, 448; 1997 a. 27, 35, 36, 84, 130, 164, 183, 205; 1999 a. 9, 32, 57, 89, 185; 2001 a. 16, 59, 69, 109; 2003 a. 33, 50, 200, 321; 2005 a. 14, 253, 277, 344; 2007 a. 97, 116; 2009 a. 8, 28, 103, 137, 185, 302, 334; 2011 a. 32, 258; 2013 a. 20; 2013 a. 165 s. 115; 2013 a. 362; 2015 a. 55; 2017 a. 131, 185; 2019 a. 8 ss. 32 to 34, 71; 2021 a. 72, 76; 2021 a. 238 s. 45; 2023 a. 10, 119, 224; s. 13.92 (2) (i).

938.34 Cross-reference Cross-reference: See also ch. DOC 392, Wis. adm. code.

938.34 Annotation Sub. (4h) does not encompass similar offenses from other jurisdictions. A juvenile may not be placed in the serious juvenile offender program on the basis that the juvenile is adjudicated delinquent for violating similar statutes in other jurisdictions. State v. David L.W., 213 Wis. 2d 277, 570 N.W.2d 582 (Ct. App. 1997), 97-0606.

938.34 Annotation Sub. (16) permits a court to stay imposition of a dispositional order, including revisions. Failure to comply can trigger commencement of the stayed portion commencing when the stay is lifted and terminating upon the completion of the term stated in the stayed order. State v. Kendall G., 2001 WI App 95, 243 Wis. 2d 67, 625 N.W.2d 918, 00-3240.

938.34 Annotation Placement in the serious juvenile offender program under sub. (4h) must occur at an original disposition. It is not a disposition to extend, revise, or change a placement already in effect. State v. Terry T., 2002 WI App 81, 251 Wis. 2d 462, 643 N.W.2d 175, 01-2226.

938.34 Annotation A circuit court has discretion under sub. (16) to stay that part of a dispositional order requiring a delinquent child to register as a sex offender. In determining whether to stay an order, a court should consider the seriousness of the offense as well as the factors enumerated in sub. (15m) (c) and s. 301.45 (1m) (e). Sex offender registration is part of a disposition under this section and sub. (16) allows a circuit court to stay a dispositional order or any number of the dispositions set forth within the order. State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1, 02-2106.

938.34 Annotation Mandatory sex offender registration under sub. (15m) is not criminal punishment. If a provision is not criminal punishment, there is no constitutional right to a jury trial. Sub. (15m) does not violate the guarantees of substantive due process or equal protection. State v. Jeremy P., 2005 WI App 13, 278 Wis. 2d 366, 692 N.W.2d 311, 04-0360.

938.34 Annotation Sub. (4m) permits a juvenile court to order an adjudged delinquent to a secured correctional facility. Under sub. (16), a trial court, after ordering a disposition, may stay the execution of the dispositional order contingent on the juvenile’s satisfactory compliance with any conditions the court specifies in the dispositional order and explains to the juvenile. That the Racine County juvenile court, Racine County Human Services Department and Racine Unified School District joined together to offer a voluntary residential treatment program for adjudged juvenile delinquents as an alternative to a “secured correctional facility” not found in this section does not make a juvenile’s participation illegal. State v. Andrew J.K., 2006 WI App 126, 293 Wis. 2d 739, 718 N.W.2d 229, 05-2395.

938.34 Annotation Under sub. (5) (a) assessing the damages to the victim is the first step in the court’s determination of restitution and determining the amount the juvenile is capable of paying is the second. Whichever amount is lower is the maximum amount that the court may order as restitution. Under s. 895.035 (2m) (a), courts are without authority to order that the “total damage” figure be converted to a civil judgment. Section 895.035 (2m) (a) allows only for the conversion of restitution. State v. Anthony D., 2006 WI App 218, 296 Wis. 2d 771, 723 N.W. 2d 775, 05-2644.

938.34 Annotation Section 938.355 provides a variety of sanctions for juveniles who have violated their dispositional orders. Section 938.357 enumerates the ways in which a juvenile’s placement may be changed. Nothing in either statute indicates that it is to be the exclusive mechanism for violation of a disposition order. Section 938.34 (16) specifically allows an alternative procedure for dealing with violations of a disposition order when part of the disposition is imposed and stayed. State v. Richard J.D., 2006 WI App 242, 297 Wis. 2d 20, 724 N.W.2d 665, 06-0555.

938.34 Annotation Sub. (7d) authorizes a circuit court to order a juvenile to attend a variety of educational programs, but it does not authorize a circuit court to order a school district to create an educational program or contract for an educational program. Madison Metropolitan School District v. Circuit Court for Dane County, 2011 WI 72, 336 Wis. 2d 95, 800 N.W.2d 442, 09-2845.

938.34 Annotation The able-to-pay limitation in sub. (5) (a) does not conflict with the right to “full restitution” provided by article I, section 9m (2) (m), of the Wisconsin Constitution and is constitutional. State v. M.L.J.N.L., 2024 WI App 11, 411 Wis. 2d 174, 4 N.W.3d 633, 21-1437.

938.34 Annotation Dispositions: Increased Options. Ruscitti. Wis. Law. Apr. 1996.

938.341 938.341 Delinquency adjudication; restriction on firearm possession. Whenever a court adjudicates a juvenile delinquent for an act that if committed by an adult in this state would be a felony, the court shall inform the juvenile of the requirements and penalties under s. 941.29.

938.341 History History: 1995 a. 77.

938.3415 938.3415 Delinquency adjudication; restriction on body armor possession. Whenever a court adjudicates a juvenile delinquent for an act that if committed by an adult in this state would be a violent felony, as defined in s. 941.291 (1) (b), the court shall inform the juvenile of the requirements and penalties under s. 941.291.

938.3415 History History: 2001 a. 95.

938.342 938.342 Disposition; truancy and school dropout ordinance violations.

938.342(1d) (1d) Truancy ordinance violations. If the court finds that the person violated a municipal ordinance enacted under s. 118.163 (1m), the court shall enter an order making one or more of the following dispositions if the disposition is authorized by the municipal ordinance:

938.342(1d)(a) (a) Order the person to attend school.

938.342(1d)(b) (b) Impose a forfeiture of not more than $50 plus costs for a first violation, or a forfeiture of not more than $100 plus costs for any 2nd or subsequent violation committed within 12 months of a previous violation, subject to s. 938.37 and subject to a maximum cumulative forfeiture amount of not more than $500 for all violations committed during a school semester. All or part of the forfeiture plus costs may be assessed against the person, the parent or guardian of the person, or both.

938.342(1d)(c) (c) Order the person to report to a youth report center after school, in the evening, on weekends, on other nonschool days, or at any other time that the person is not under immediate adult supervision, for participation in the social, behavioral, academic, community service, and other programming of the center. Section 938.34 (5g) applies to any community service work performed by a person under this paragraph.

938.342(1g) (1g) Habitual truancy ordinance violations. If the court finds that a person under 18 years of age violated a municipal ordinance enacted under s. 118.163 (2), the court shall enter an order making one or more of the following dispositions if the disposition is authorized by the municipal ordinance:

938.342(1g)(a) (a) Suspend the person’s operating privilege, as defined in s. 340.01 (40), for not less than 30 days nor more than one year. The court may take possession of the suspended license. If the court takes possession of a license, it shall destroy the license. The court shall forward to the department of transportation a notice stating the reason for and duration of the suspension.

938.342(1g)(b) (b) Order the person to participate in counseling or a supervised work program or other community service work as described in s. 938.34 (5g). The costs of any counseling, supervised work program, or other community service work may be assessed against the person, the parents or guardian of the person, or both. Any county department, community agency, public agency, or nonprofit charitable organization administering a supervised work program or other community service work to which a person is assigned under an order under this paragraph acting in good faith has immunity from any civil liability in excess of $25,000 for any act or omission by or impacting on that person.

938.342(1g)(c) (c) Order the person to remain at home except during hours in which the person is attending religious worship or a school program, including travel time required to get to and from the school program or place of worship. The order may permit a person to leave his or her home if the person is accompanied by a parent or guardian.

938.342(1g)(d) (d) Order the person to attend an educational program under s. 938.34 (7d).

938.342(1g)(e) (e) Order the department of workforce development to revoke, under s. 103.72, a permit under s. 103.70 authorizing the employment of the person.

938.342(1g)(f) (f) Order the person to be placed in a teen court program if all of the following conditions apply:

938.342(1g)(f)1. 1. The chief judge of the judicial administrative district has approved a teen court program established in the person’s county of residence and the court determines that participation in the teen court program will likely benefit the person and the community.

938.342(1g)(f)2. 2. The person admits or pleads no contest in open court, in the presence of the person’s parent, guardian, or legal custodian, to the allegations that the person violated the municipal ordinance enacted under s. 118.163 (2).

938.342(1g)(f)3. 3. The person has not successfully completed participation in a teen court program during the 2 years before the date of the alleged municipal ordinance violation.

938.342(1g)(g) (g) Order the person to attend school.

938.342(1g)(h) (h) Impose a forfeiture of not more than $500 plus costs, subject to s. 938.37. All or part of the forfeiture plus costs may be assessed against the person, the parent or guardian of the person, or both.

938.342(1g)(i) (i) Order the person to comply with any other reasonable conditions that are consistent with this subsection, including a curfew, restrictions as to going to or remaining on specified premises and restrictions on associating with other juveniles or adults.

938.342(1g)(j) (j) Place the person under formal or informal supervision, as described in s. 938.34 (2), for up to one year.

938.342(1g)(k) (k) Order the person to report to a youth report center after school, in the evening, on weekends, on other nonschool days, or at any other time that the juvenile is not under immediate adult supervision, for participation in the social, behavioral, academic, community service, and other programming of the center. Section 938.34 (5g) applies to any community service work performed by a person under this paragraph.

938.342(1m) (1m) Orders applicable to parents, guardians, and legal custodians.

938.342(1m)(a) (a) If the court finds that the person violated a municipal ordinance enacted under s. 118.163 (2), the court may, in addition to or instead of the dispositions under sub. (1g), order the person’s parent, guardian, or legal custodian to participate in counseling at the parent’s, guardian’s, or legal custodian’s own expense or to attend school with the person, or both, if the disposition is authorized by the municipal ordinance.

938.342(1m)(am) (am) If the court finds that the person violated a municipal ordinance enacted under s. 118.163 (1m), the court may, as part of the disposition under sub. (1d), order the person’s parent or guardian to pay all or part of a forfeiture plus costs assessed under sub. (1d) (b). If the court finds that the person violated a municipal ordinance enacted under s. 118.163 (2), the court may, as part of the disposition under sub. (1g), order the person’s parent or guardian to pay all or part of the costs of any program ordered under sub. (1g) (b) or to pay all or part of a forfeiture plus costs assessed under sub. (1g) (h).

938.342(1m)(b) (b) No order to any parent, guardian, or legal custodian under par. (a) or (am) may be entered until the parent, guardian, or legal custodian is given an opportunity to be heard on the contemplated order of the court. The court shall cause notice of the time, place, and purpose of the hearing to be served on the parent, guardian, or legal custodian personally at least 10 days before the date of the hearing. The procedure in these cases shall, as far as practicable, be the same as in other cases to the court. At the hearing, the parent, guardian, or legal custodian may be represented by counsel and may produce and cross-examine witnesses. A parent, guardian, or legal custodian who fails to comply with any order issued by a court under par. (a) or (am) may be proceeded against for contempt of court.

938.342(1r) (1r) School attendance condition. If school attendance is a condition of an order under sub. (1d) or (1g), the order shall specify what constitutes a violation of the condition and shall direct the school board of the school district or the governing body of the private school in which the person is enrolled, or shall request the governing body of the tribal school in which the person is enrolled, to notify the court or, if the person is under the supervision of an agency under sub. (1g) (j), the agency that is responsible for supervising the person, within 5 days after any violation of the condition by the person.

938.342(2) (2) School dropout ordinance violation.

938.342(2)(a) (a) Except as provided in par. (b), if the court finds that a person is subject to a municipal ordinance enacted under s. 118.163 (2m) (a), the court shall enter an order suspending the person’s operating privilege, as defined in s. 340.01 (40), until the person attains 18 years of age.

938.342(2)(b) (b) The court may order any of the dispositions specified under sub. (1g) if the court finds that suspension of the person’s operating privilege, as defined in s. 340.01 (40), until the person attains 18 years of age would cause an undue hardship to the person or the person’s family.

938.342 History History: 1995 a. 27 s. 9130 (4); 1995 a. 77, 352; 1997 a. 3, 239; 2001 a. 16; 2003 a. 82; 2005 a. 344; 2009 a. 103, 302.

938.343 938.343 Disposition of juvenile adjudged to have violated a civil law or an ordinance. Except as provided by ss. 938.342 and 938.344, if the court finds that the juvenile violated a civil law or an ordinance, the court shall enter an order making one or more of the following dispositions:

938.343(1) (1) Counseling. Counsel the juvenile or the parent or guardian.

938.343(2) (2) Forfeiture. Impose a forfeiture not to exceed the maximum forfeiture that may be imposed on an adult for committing that violation or, if the violation is only applicable to a person under 18 years of age, $50. The order shall include a finding that the juvenile alone is financially able to pay and shall allow up to 12 months for the payment. If a juvenile fails to pay the forfeiture, the court may suspend any license issued under ch. 29 or suspend the juvenile’s operating privilege, as defined in s. 340.01 (40), for not more than 2 years. The court shall immediately take possession of the suspended license if issued under ch. 29 or, if the license is issued under ch. 343, the court may take possession of, and if possession is taken, shall destroy, the license. The court shall forward to the department which issued the license the notice of suspension stating that the suspension is for failure to pay a forfeiture imposed by the court, together with any license issued under ch. 29 of which the court takes possession. If the forfeiture is paid during the period of suspension, the court shall immediately notify the department, which shall, if the license is issued under ch. 29, return the license to the person. Any recovery under this subsection shall be reduced by the amount recovered as a forfeiture for the same act under s. 938.45 (1r) (b).

938.343(2m) (2m) Teen court program. Order the juvenile to be placed in a teen court program if all of the following conditions apply:

938.343(2m)(a) (a) The chief judge of the judicial administrative district has approved a teen court program established in the juvenile’s county of residence and the court determines that participation in the teen court program will likely benefit the juvenile and the community.