Chapter 938

938.344(2g) (2g) Stay of order.

938.344(2g)(a) (a) After ordering a penalty under sub. (2), (2b), (2d) or (2e), the court, with the agreement of the juvenile, may enter an additional order staying the execution of the penalty order and suspending or modifying the penalty imposed. The order under this paragraph shall require the juvenile to do any of the following:

938.344(2g)(a)1. 1. Submit to an alcohol and other drug abuse assessment that conforms to the criteria 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.

938.344(2g)(a)2. 2. Participate in an outpatient alcohol or other drug abuse treatment program at an approved treatment facility, if an alcohol or other drug abuse assessment conducted under subd. 1. or s. 938.295 (1) recommends treatment.

938.344(2g)(a)3. 3. Participate in a court-approved alcohol or other drug abuse education program.

938.344(2g)(a)4. 4. Participate in a teen court program if all of the following conditions apply:

938.344(2g)(a)4.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.

938.344(2g)(a)4.b. b. The juvenile admits or pleads no contest in open court, in the presence of the juvenile’s parent, guardian or legal custodian, to the allegations that the juvenile committed the violation specified in sub. (2), (2b), (2d) or (2e).

938.344(2g)(a)4.c. c. The juvenile has not successfully completed participation in a teen court program during the 2 years before the date of the alleged violation.

938.344(2g)(a)5. 5. 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 juvenile under this subdivision.

938.344(2g)(b) (b) 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 par. (a) and that the juvenile does not need treatment, intervention or education, the court shall notify the juvenile of whether or not the penalty will be reinstated.

938.344(2g)(c) (c) 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 penalty will be reinstated.

938.344(2g)(d) (d) 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, 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 hold a hearing to determine whether to impose the penalties under sub. (2), (2b), (2d), or (2e).

938.344(2m) (2m) Counting violations. For purposes of subs. (2) to (2e), all violations arising out of the same incident or occurrence shall be counted as a single violation.

938.344(3) (3) Prosecution in adult court. If the juvenile alleged to have committed the violation is within 3 months of his or her 17th birthday, the court assigned to exercise jurisdiction under this chapter and ch. 48 may, at the request of the district attorney or on its own motion, dismiss the citation without prejudice and refer the matter to the district attorney for prosecution under s. 125.07 (4). The juvenile is entitled to a hearing only on the issue of his or her age. This subsection does not apply to violations under s. 961.573 (2), 961.574 (2) or 961.575 (2) or a local ordinance that strictly conforms to one of those statutes.

938.344 History History: 1995 a. 77, 448; 1997 a. 84; 1999 a. 9 s. 3263; 1999 a. 109; 2001 a. 16; 2005 a. 344; 2009 a. 103; 2011 a. 32.

938.345 938.345 Disposition of juvenile adjudged in need of protection or services.

938.345(1) (1) Dispositional order. If the court finds that the juvenile is in need of protection or services, the court shall enter an order including one or more of the dispositions under s. 938.34 under a care and treatment plan except that the order may not do any of the following:

938.345(1)(a) (a) Place the juvenile in the serious juvenile offender program juvenile correctional facility or a secured residential care center for children and youth.

938.345(1)(c) (c) Order payment of a forfeiture or surcharge.

938.345(1)(d) (d) Restrict or suspend the driving privileges of the juvenile, except as provided under sub. (2).

938.345(1)(e) (e) Place any juvenile not found under ch. 46, 48, 49, 51, 54, or 115 or ch. 880, 2003 stats., to have a developmental disability or a mental illness or to be a child with a disability, as defined in s. 115.76 (5), in a facility that exclusively treats one or more of those categories of juveniles.

938.345(1)(g) (g) Place the juvenile in a juvenile detention facility or juvenile portion of a county jail or in nonsecure custody under s. 938.34 (3) (f).

938.345(1m) (1m) Indian juvenile; placement preferences. Subject to s. 938.028 (6) (b), if the juvenile is an Indian juvenile who is in need of protection or services under s. 938.13 (4), (6), (6m), or (7) and who is being removed from the home of his or her parent or Indian custodian and placed outside that home, the court shall designate one of the placements specified in s. 938.028 (6) (a) 1. to 4. as the placement for the Indian juvenile, in the order of preference listed, unless the court finds good cause, as described in s. 938.028 (6) (d), for departing from that order.

938.345(2) (2) School dropouts and habitual truants. If the court finds that a juvenile is in need of protection or services based on the fact that the juvenile is a school dropout, as defined in s. 118.153 (1) (b), or based on habitual truancy, and the court also finds that the juvenile has dropped out of school or is a habitual truant as a result of the juvenile’s intentional refusal to attend school rather than the failure of any other person to comply with s. 118.15 (1) (a) and (am), the court, instead of or in addition to any other disposition imposed under sub. (1), may enter an order permitted under s. 938.342.

938.345(3) (3) Sex offender registration.

938.345(3)(a) (a) If the court finds that a juvenile is in need of protection or services on the basis of a violation, or the solicitation, conspiracy, or attempt to commit a 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 is in the interest of public protection to have the juvenile report under s. 301.45. In determining whether it is in the interest of public protection to have the juvenile report under s. 301.45, the court may consider any of the following:

938.345(3)(a)1. 1. The ages, at the time of the violation, of the juvenile and the victim of the violation.

938.345(3)(a)2. 2. The relationship between the juvenile and the victim of the violation.

938.345(3)(a)3. 3. Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the victim.

938.345(3)(a)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.

938.345(3)(a)5. 5. The probability that the juvenile will commit other violations in the future.

938.345(3)(a)6. 6. Any other factor that the court determines may be relevant to the particular case.

938.345(3)(b) (b) 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.

938.345(3)(c) (c) 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 need of protection or services 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 has been reversed, set aside, or vacated.

938.345(3)(d) (d) If the court under par. (a) 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 clerk of the court shall notify the department of corrections and the department of children and families that the juvenile has satisfied the conditions of the dispositional order.

938.345(4) (4) Uncontrollable juveniles. If the court finds that a juvenile is in need of protection or services under s. 938.13 (4), the court, instead of or in addition to any other disposition imposed under sub. (1), may place the juvenile in the home of a guardian under s. 48.977 (2).

938.345 History History: 1995 a. 77; 1997 a. 27, 164; 1999 a. 9, 89; 2003 a. 50; 2005 a. 25, 344, 387; 2007 a. 96, 97; 2009 a. 41, 94, 137; 2015 a. 55; 2019 a. 109; 2021 a. 238 s. 44; 2021 a. 240 s. 30.

938.346 938.346 Notice to victims of juveniles’ acts.

938.346(1) (1) Information to victims. Each known victim of a juvenile’s act shall receive timely notice of the following information:

938.346(1)(a) (a) The procedures under s. 938.396 (1) (c) 5. and 6. for obtaining the identity of the juvenile and the juvenile’s parents.

938.346(1)(b) (b) The procedure under s. 938.396 (1) (c) 5. for obtaining the juvenile’s police records.

938.346(1)(c) (c) The potential liability of the juvenile’s parents under s. 895.035.

938.346(1)(d) (d) Either of the following:

938.346(1)(d)1. 1. Information regarding any decision to close a case under s. 938.24 (5m), any deferred prosecution agreement under s. 938.245, any decision not to file a petition under s. 938.25 (2m), any consent decree under s. 938.32 or any dispositional order under ss. 938.34 to 938.345. The information may not include reports under s. 938.295 or 938.33 or any other information that deals with sensitive personal matters of the juvenile and the juvenile’s family and that does not directly relate to the act or alleged act committed against the victim. This subdivision does not affect the right of a victim to attend any hearing that the victim is permitted to attend under s. 938.299 (1) (am).

938.346(1)(d)2. 2. The procedure for obtaining the information in subd. 1.

938.346(1)(e) (e) The procedure under s. 938.296 under which the victim, if an adult, or the parent, guardian or legal custodian of the victim, if the victim is a child, may request an order requiring a juvenile who is alleged to have violated s. 940.225, 948.02, 948.025, 948.05, 948.06, or 948.085 (2) to submit to an HIV test, as defined in s. 252.01 (2m), and a test or a series of tests to detect the presence of a sexually transmitted disease, as defined in s. 252.11 (1), and to have the results of the tests disclosed as provided in s. 938.296 (4) (a) to (e).

938.346(1)(ec) (ec) The procedure under s. 938.296 under which the victim, if an adult, or the parent, guardian or legal custodian of the victim, if the victim is a child, may request an order requiring a juvenile who is alleged to have violated s. 946.43 (2m) to submit to a test or a series of tests to detect the presence of communicable diseases and to have the results of that test or series of tests disclosed as provided in s. 938.296 (5) (a) to (e).

938.346(1)(em) (em) The right to confer, if requested, with an intake worker regarding deferred prosecution agreements under s. 938.245 (1m) or with a district attorney or corporation counsel under s. 938.265 regarding the possible outcomes of the proceedings and under s. 938.32 (1) (am) regarding consent decrees.

938.346(1)(f) (f) The right to request and receive notice of the time and place of any hearing that the victim may attend under s. 938.299 (1) (am).

938.346(1)(fm) (fm) All of the following:

938.346(1)(fm)1. 1. The right to a separate waiting area as provided under s. 938.2965.

938.346(1)(fm)2. 2. The right to have his or her interest considered concerning continuances in the case under s. 938.315 (2).

938.346(1)(fm)3. 3. The right to have victim impact information included in a court report under s. 938.33 and to have the person preparing the court report attempt to contact the victim, as provided under s. 938.331.

938.346(1)(fm)4. 4. The right to employer intercession services under s. 950.04 (1v) (bm).

938.346(1)(g) (g) The right to make a statement to the court as provided in ss. 938.32 (1) (b) and 938.335 (3m).

938.346(1)(h) (h) All of the following:

938.346(1)(h)1. 1. The right to be accompanied by a service representative, as provided under s. 895.45.

938.346(1)(h)2. 2. The right to restitution, as provided under ss. 938.245, 938.32 (1t) and 938.34 (5).

938.346(1)(h)3. 3. The right to compensation, as provided under subch. I of ch. 949.

938.346(1)(h)4. 4. The right to a speedy disposition of the case under s. 950.04 (1v) (k).

938.346(1)(h)5. 5. The right to have personal property returned, as provided under s. 950.04 (1v) (s).

938.346(1)(h)6. 6. The right to complain to the department of justice concerning the treatment of crime victims, as provided under s. 950.08 (3), and to request review by the crime victims rights board of the complaint, as provided under s. 950.09 (2).

938.346(1m) (1m) Duties of intake workers and district attorneys. The intake worker shall make a reasonable attempt to provide notice of the information under sub. (1) (a), (b), (c), and (h), the information under sub. (1) (d) relating to a deferred prosecution agreement under s. 938.245, the information under sub. (1) (em) relating to the right to confer, if requested, on deferred prosecution agreements and the information under sub. (3) if the juvenile’s case is closed. The district attorney or corporation counsel shall make a reasonable attempt to provide notice of the information under sub. (1) (e), (ec), (f), (fm), and (g), the information under sub. (1) (d) relating to a consent decree under s. 938.32 or a dispositional order under ss. 938.34 to 938.345, the information under sub. (1) (em) relating to the right to request an opportunity to confer, if requested, on amendment of petitions, consent decrees and disposition recommendations and the information under sub. (3) if he or she decides not to file a petition or the proceeding is terminated without a consent decree or dispositional order after the filing of a petition.

938.346(2) (2) Restrictions on disclosure of information. The notice under sub. (1) shall include an explanation of the restrictions on disclosing information obtained under this chapter and the penalties for violating the restrictions.

938.346(3) (3) Closed cases. If an inquiry is closed by an intake worker or otherwise does not result in a deferred prosecution agreement, the intake worker shall make a reasonable attempt to inform each known victim of the juvenile’s alleged act as provided in s. 938.24 (5m). If a district attorney or corporation counsel decides not to file a petition or if, after a petition is filed, a proceeding is dismissed or otherwise does not result in a consent decree or dispositional order, a district attorney or corporation counsel shall make a reasonable attempt to inform each known victim of the juvenile’s alleged act as provided in s. 938.25 (2m) or 938.312, whichever is applicable.

938.346(4) (4) Child victims. If the victim, as defined in s. 938.02 (20m) (a) 1., is a child, the notice under this section shall be given to the child’s parents, guardian or legal custodian.

938.346(5) (5) Court policies and rules. Chief judges and circuit judges shall establish by policy and rule procedures for the implementation of this section. Subject to subs. (1m) and (3), the policies and rules shall specify when, how and by whom the notice under this section shall be provided to victims and with whom victims may confer regarding deferred prosecution agreements, amendment of petitions, consent decrees and disposition recommendations.

938.346 History History: 1995 a. 77; 1997 a. 181, 205; 1999 a. 188; 2005 a. 155, 277, 344; 2007 a. 20; 2009 a. 209.

938.35 938.35 Effect of judgment and disposition.

938.35(1) (1) Effect and admissibility of judgment. The court shall enter a judgment setting forth the court’s findings and disposition in the proceeding. A judgment in a proceeding on a petition under this chapter is not a conviction of a crime, does not impose any civil disabilities ordinarily resulting from the conviction of a crime and does not operate to disqualify the juvenile in any civil service application or appointment. The disposition of a juvenile, and any record of evidence given in a hearing in court, is not admissible as evidence against the juvenile in any case or proceeding in any other court except for the following:

938.35(1)(a) (a) In sentencing proceedings after conviction of a felony or misdemeanor and then only for the purpose of a presentence investigation.

938.35(1)(b) (b) In a proceeding in any court assigned to exercise jurisdiction under this chapter and ch. 48.

938.35(1)(c) (c) In a court of civil or criminal jurisdiction while it is exercising jurisdiction over an action affecting the family and is considering the custody of a juvenile.

938.35(1)(cm) (cm) In a court of civil or criminal jurisdiction for purposes of setting bail under ch. 969 or impeaching a witness under s. 906.09.

938.35(1)(d) (d) The fact that a juvenile has been adjudged delinquent on the basis of unlawfully and intentionally killing a person is admissible for the purpose of s. 854.14 (5) (b).

938.35(1)(e) (e) In a hearing, trial, or other proceeding under ch. 980.

938.35(1m) (1m) Future criminal proceedings barred. Disposition by the court assigned to exercise jurisdiction under this chapter and ch. 48 of any allegation under s. 938.12 or 938.13 (12) shall bar any future proceeding on the same matter in criminal court when the juvenile attains 17 years of age. This subsection does not affect proceedings in criminal court that have been transferred under s. 938.18.

938.35(2) (2) Court disclosure of information. Except under sub. (1), this section does not preclude the court from disclosing information to qualified persons if the court considers the disclosure to be in the best interests of the juvenile or of the administration of justice.

938.35 History History: 1995 a. 77; 1997 a. 35, 205; 1999 a. 32; 2005 a. 344, 434; 2013 a. 166.

938.35 Annotation If evidence of a prior rape is introduced at a rape trial to prove identity, testimony of the prior rape victim is admissible notwithstanding that the defendant was tried as a juvenile for the prior rape. Sanford v. State, 76 Wis. 2d 72, 250 N.W.2d 348 (1977).

938.35 Annotation Inferential impeachment; the presence of parole officers at subsequent juvenile adjudications. O’Donnell. 55 MLR 349.

938.35 Note NOTE: The above annotations cite to s. 48.35, the predecessor statute to s. 938.35.

938.355 938.355 Dispositional orders.

938.355(1) (1) Intent. In any order under s. 938.34 or 938.345, the court shall decide on a placement and treatment finding based on evidence submitted to the court. The disposition shall employ those means necessary to promote the objectives under s. 938.01. If the court has determined that any of the conditions specified in s. 938.34 (4m) (b) 1., 2., or 3. applies, that determination shall be prima facie evidence that a less restrictive alternative than placement in a juvenile correctional facility or a secured residential care center for children and youth is not appropriate. If information under s. 938.331 has been provided in a court report under s. 938.33 (1), the court shall consider that information when deciding on a placement and treatment finding.

938.355(2) (2) Content of order; copy to parent.

938.355(2)(a) (a) In addition to the order, the court shall make written findings of fact and conclusions of law based on the evidence presented to the court to support the disposition ordered, including findings as to the juvenile’s condition and need for special treatment or care if an examination or assessment was conducted under s. 938.295. A finding may not include a finding that a juvenile is in need of psychotropic medications.

938.355(2)(b) (b) The court order shall be in writing and shall contain:

938.355(2)(b)1. 1. Specific services to be provided to the juvenile and the juvenile’s family, and, if custody is to be transferred to effect the treatment plan, the identity of the legal custodian.