Chapter 946

946.415 Annotation This section delineates one crime: a suspect’s armed, physical refusal to be taken into custody. It can be committed by action or threat, which are alternative ways of threatening an officer to avoid being taken into custody. A jury instruction requiring unanimity on which occurred is not required. State v. Koeppen, 2000 WI App 121, 237 Wis. 2d 418, 614 N.W.2d 530, 99-0418.

946.42 946.42 Escape.

946.42(1) (1) In this section:

946.42(1)(a) (a)

946.42(1)(a)1. 1. “Custody” includes without limitation all of the following:

946.42(1)(a)1.a. a. Actual custody of an institution, including a juvenile correctional facility, as defined in s. 938.02 (10p), a secured residential care center for children and youth, as defined in s. 938.02 (15g), a juvenile detention facility, as defined in s. 938.02 (10r), a Type 2 residential care center for children and youth, as defined in s. 938.02 (19r), a facility used for the detention of persons detained under s. 980.04 (1), a facility specified in s. 980.065, or a juvenile portion of a county jail.

946.42(1)(a)1.b. b. Actual custody of a peace officer or institution guard.

946.42(1)(a)1.bm. bm. Actual custody or authorized physical control of a correctional officer.

946.42(1)(a)1.c. c. Actual custody or authorized physical control of a probationer, parolee, or person on extended supervision by the department of corrections.

946.42(1)(a)1.e. e. Constructive custody of persons placed on supervised release under ch. 980.

946.42(1)(a)1.f. f. Constructive custody of prisoners and juveniles subject to an order under s. 938.183, 938.34 (4d), (4h), or (4m), or 938.357 (4) or (5) (e) temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile, or otherwise.

946.42(1)(a)1.g. g. Custody of the sheriff of the county to which the prisoner was transferred after conviction.

946.42(1)(a)1.h. h. Custody of a person subject to a confinement order under s. 973.09 (4).

946.42(1)(a)2. 2. “Custody” does not include the constructive custody of a probationer, parolee, or person on extended supervision by the department of corrections or a probation, extended supervision, or parole agent or, subject to s. 938.533 (3) (a), the constructive custody of a person who has been released to community supervision or aftercare supervision under ch. 938.

946.42(1)(b) (b) “Escape” means to leave in any manner without lawful permission or authority.

946.42(1)(c) (c) “Legal arrest” includes without limitation an arrest pursuant to process fair on its face notwithstanding insubstantial irregularities and also includes taking a juvenile into custody under s. 938.19.

946.42(2) (2) A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class A misdemeanor:

946.42(2)(a) (a) Pursuant to a legal arrest for or lawfully charged with or convicted of a violation of a statutory traffic regulation, a statutory offense for which the penalty is a forfeiture or a municipal ordinance.

946.42(2)(b) (b) Lawfully taken into custody under s. 938.19 for a violation of or lawfully alleged or adjudged under ch. 938 to have violated a statutory traffic regulation, a statutory provision for which the penalty is a forfeiture or a municipal ordinance.

946.42(2)(c) (c) Pursuant to a civil arrest or body execution.

946.42(2m) (2m) A person who is in the custody of a probation, parole, or extended supervision agent, or a correctional officer, based on an allegation or a finding that the person violated the rules or conditions of probation, parole, or extended supervision and who intentionally escapes from custody is guilty of a Class H felony.

946.42(3) (3) A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class H felony:

946.42(3)(a) (a) Pursuant to a legal arrest for, lawfully charged with or convicted of or sentenced for a crime.

946.42(3)(b) (b) Lawfully taken into custody under s. 938.19 for or lawfully alleged or adjudged under ch. 938 to be delinquent on the basis of a violation of a criminal law.

946.42(3)(c) (c) Subject to a disposition under s. 938.34 (4d), (4h), or (4m), to a placement under s. 938.357 (4) or 938.533 (3) (a), or to community supervision or aftercare revocation under s. 938.357 (5) (e).

946.42(3)(e) (e) In custody under the circumstances described in sub. (2) and leaves the state to avoid apprehension. Leaving the state and failing to return is prima facie evidence of intent to avoid apprehension.

946.42(3)(f) (f) Pursuant to a legal arrest as a fugitive from justice in another state.

946.42(3)(g) (g) Committed to the department of health services under ch. 971 or 975.

946.42(3m) (3m) A person who intentionally escapes from custody under any of the following circumstances is guilty of a Class F felony:

946.42(3m)(a) (a) While subject to a detention order under s. 980.04 (1) or a custody order under s. 980.04 (3).

946.42(3m)(b) (b) While subject to an order issued under s. 980.06 committing the person to custody of the department of health services, regardless of whether the person is placed in institutional care or on supervised release.

946.42(4) (4) If a person is convicted of an escape under this section, the maximum term of imprisonment for the escape may be increased by not more than 5 years if an individual who had custody of the person who escaped is injured during the course of the escape.

946.42 History History: 1971 c. 164 s. 89; 1975 c. 39; 1977 c. 173, 312, 354, 418; 1985 a. 320; 1987 a. 27, 238, 352; 1987 a. 403 ss. 238, 239, 256; 1989 a. 31; 1993 a. 16, 377, 385, 491; 1995 a. 27 ss. 7233m, 7233p, 9126 (19); 1995 a. 77, 154, 352, 390; 1997 a. 35, 283; 1999 a. 9; 2001 a. 109; 2005 a. 344, 434; 2007 a. 20 s. 9121 (6) (a); 2007 a. 97, 226; 2013 a. 334; 2015 a. 55.

946.42 Annotation There is no denial of equal protection in the punishment under sub. (3) (d) [now sub. (3) (g)] of persons committed under the sex crimes law when persons civilly committed are not subject to the same statute. State v. Neutz, 69 Wis. 2d 292, 230 N.W.2d 806 (1975).

946.42 Annotation A defendant’s escape under the work-release statute was an escape under sub. (3). Brown v. State, 73 Wis. 2d 703, 245 N.W.2d 670 (1976).

946.42 Annotation The sentence for an escape conviction may be consecutive to a sex crime commitment. State v. Kruse, 101 Wis. 2d 387, 305 N.W.2d 85 (1981).

946.42 Annotation It is not necessary to leave the physical boundaries of an institution to complete an act of escape. State v. Sugden, 143 Wis. 2d 728, 422 N.W.2d 624 (1988).

946.42 Annotation Under sub. (5) (b) [now sub. (1) (a)], an individual is “in custody” once freedom of movement is restricted; one lawfully arrested may not leave without permission. State v. Adams, 152 Wis. 2d 68, 447 N.W.2d 90 (Ct. App. 1989).

946.42 Annotation A person can be “in custody” without being under “legal arrest,” but a person cannot be under “legal arrest” without being “in custody.” State v. Hoffman, 163 Wis. 2d 752, 472 N.W.2d 558 (Ct. App. 1991).

946.42 Annotation A traffic regulation under sub. (2) (a) does not include any offense punishable as a crime. State v. Beasley, 165 Wis. 2d 97, 477 N.W.2d 57 (Ct. App. 1991).

946.42 Annotation Upon conviction of a crime, a person is in custody regardless of physical control. Leaving without the court’s granting release is escape. State v. Scott, 191 Wis. 2d 146, 528 N.W.2d 46 (Ct. App. 1995).

946.42 Annotation As used in sub. (1) (a), “medical care” includes treatment at drug and alcohol rehabilitation centers. State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996), 96-0729.

946.42 Annotation Failure to return to jail while on work release from incarceration for failure to pay a municipal forfeiture is escape under this section. State v. Smith, 214 Wis. 2d 541, 571 N.W.2d 472 (Ct. App. 1997), 97-0266.

946.42 Annotation Custody under sub. (1) (a) does not include the custody of a parole or probation officer. State v. Zimmerman, 2001 WI App 238, 248 Wis. 2d 370, 635 N.W.2d 864, 00-3173.

946.42 Annotation Detention at the Wisconsin Resource Center while awaiting evaluation and trial on a petition for commitment as a sexually violent person under ch. 980 does not subject the detainee to escape charges under this section. State ex rel. Thorson v. Schwarz, 2004 WI 96, 274 Wis. 2d 1, 681 N.W.2d 914, 02-3380.

946.42 Annotation Testimony adduced at trial may establish the element of being sentenced for a crime, regardless of whether the jury actually sees the certified judgment of conviction. State v. Hughes, 2011 WI App 87, 334 Wis. 2d 445, 799 N.W.2d 504, 10-1322.

946.425 946.425 Failure to report to jail.

946.425(1) (1) Any person who is subject to a series of periods of imprisonment under s. 973.03 (5) (b) and who intentionally fails to report to the county jail as required under the sentence is guilty of a Class H felony.

946.425(1m) (1m) 

946.425(1m)(a) (a) Any person who receives a stay of execution of a sentence of imprisonment of less than 10 days to a county jail under s. 973.15 (8) (a) and who intentionally fails to report to the county jail as required under the sentence is guilty of a Class A misdemeanor.

946.425(1m)(b) (b) Any person who receives a stay of execution of a sentence of imprisonment of 10 or more days to a county jail under s. 973.15 (8) (a) and who intentionally fails to report to the county jail as required under the sentence is guilty of a Class H felony.

946.425(1r) (1r) 

946.425(1r)(a) (a) Any person who is subject to a confinement order under s. 973.09 (4) as the result of a conviction for a misdemeanor and who intentionally fails to report to the county jail or house of correction as required under the order is guilty of a Class A misdemeanor.

946.425(1r)(b) (b) Any person who is subject to a confinement order under s. 973.09 (4) as the result of a conviction for a felony and who intentionally fails to report to the county jail or house of correction as required under the order is guilty of a Class H felony.

946.425(3) (3) A prosecutor may not charge a person with violating both subs. (1) and (1m) regarding the same incident or occurrence.

946.425 History History: 1989 a. 85; 1993 a. 273; 1995 a. 154; 2001 a. 109.

946.43 946.43 Assaults by prisoners.

946.43(1m) (1m) Any prisoner confined to a state prison or other state, county or municipal detention facility who intentionally does any of the following is guilty of a Class F felony:

946.43(1m)(a) (a) Places an officer, employee, visitor or another inmate of such prison or institution in apprehension of an immediate battery likely to cause death or great bodily harm; or

946.43(1m)(b) (b) Confines or restrains an officer, employee, visitor or another inmate of such prison or institution without the person’s consent.

946.43(2m) (2m) 

946.43(2m)(a) (a) Any prisoner confined to a state prison or other state, county or municipal detention facility who throws or expels blood, semen, vomit, saliva, urine, feces or other bodily substance at or toward an officer, employee or visitor of the prison or facility or another prisoner of the prison or facility under all of the following circumstances is guilty of a Class I felony:

946.43(2m)(a)1. 1. The prisoner throws or expels the blood, semen, vomit, saliva, urine, feces or other bodily substance with the intent that it come into contact with the officer, employee, visitor or other prisoner.

946.43(2m)(a)2. 2. The prisoner throws or expels the blood, semen, vomit, saliva, urine, feces or other bodily substance with the intent either to cause bodily harm to the officer, employee, visitor or other prisoner or to abuse, harass, offend, intimidate or frighten the officer, employee, visitor or other prisoner.

946.43(2m)(a)3. 3. The officer, employee, visitor or other prisoner does not consent to the blood, semen, vomit, saliva, urine, feces or other bodily substance being thrown or expelled at or toward him or her.

946.43(2m)(b) (b) A court shall impose a sentence for a violation of par. (a) consecutive to any sentence previously imposed or which may be imposed for any crime or offense for which the person was in custody when he or she committed the violation of par. (a).

946.43 History History: 1977 c. 173, 273; 1999 a. 188; 2001 a. 109.

946.44 946.44 Assisting or permitting escape.

946.44(1) (1) Whoever does the following is guilty of a Class H felony:

946.44(1)(a) (a) Any officer or employee of an institution where prisoners are detained who intentionally permits a prisoner in the officer’s or employee’s custody to escape; or

946.44(1)(b) (b) Whoever with intent to aid any prisoner to escape from custody introduces into the institution where the prisoner is detained or transfers to the prisoner anything adapted or useful in making an escape.

946.44(1g) (1g) Any public officer or public employee who violates sub. (1) (a) or (b) is guilty of a Class F felony.

946.44(1m) (1m) Whoever intentionally introduces into an institution where prisoners are detained or transfers to a prisoner any firearm, whether loaded or unloaded, or any article used or fashioned in a manner to lead another person to believe it is a firearm, is guilty of a Class F felony.

946.44(2) (2) In this section:

946.44(2)(a) (a) “Custody” has the meaning designated in s. 946.42 (1) (a).

946.44(2)(b) (b) “Escape” has the meaning designated in s. 946.42 (1) (b).

946.44(2)(c) (c) “Institution” includes a juvenile correctional facility, as defined in s. 938.02 (10p), a secured residential care center for children and youth, as defined in s. 938.02 (15g), and a Type 2 residential care center for children and youth, as defined in s. 938.02 (19r).

946.44(2)(d) (d) “Prisoner” includes a person who is under the supervision of the department of corrections under s. 938.34 (4h), who is placed in a juvenile correctional facility or a secured residential care center for children and youth under s. 938.183, 938.34 (4m), or 938.357 (4) or (5) (e), or who is placed in a Type 2 residential care center for children and youth under s. 938.34 (4d).

946.44 History History: 1977 c. 173; 1985 a. 320; 1987 a. 27, 236, 238, 403; 1989 a. 31, 107; 1993 a. 16, 377, 385, 486, 491; 1995 a. 27, 77, 352; 1999 a. 9; 2001 a. 109; 2005 a. 344; 2013 a. 334.

946.45 946.45 Negligently allowing escape.

946.45(1) (1) Any officer or employee of an institution where prisoners are detained who, through his or her neglect of duty, allows a prisoner in his or her custody to escape is guilty of a Class B misdemeanor.

946.45(2) (2) In this section:

946.45(2)(a) (a) “Custody” has the meaning designated in s. 946.42 (1) (a).

946.45(2)(b) (b) “Escape” has the meaning designated in s. 946.42 (1) (b).

946.45(2)(c) (c) “Institution” includes a juvenile correctional facility, as defined in s. 938.02 (10p), a secured residential care center for children and youth, as defined in s. 938.02 (15g), and a Type 2 residential care center for children and youth, as defined in s. 938.02 (19r).

946.45(2)(d) (d) “Prisoner” includes a person who is under the supervision of the department of corrections under s. 938.34 (4h), who is placed in a juvenile correctional facility or a secured residential care center for children and youth under s. 938.183, 938.34 (4m) or 938.357 (4) or (5) (e), or who is placed in a Type 2 residential care center for children and youth under s. 938.34 (4d).

946.45 History History: 1977 c. 173; 1985 a. 320; 1987 a. 27, 238; 1989 a. 31, 107; 1993 a. 16, 377, 385, 491; 1995 a. 27, 77, 352; 1999 a. 9; 2005 a. 344; 2013 a. 334.

946.46 946.46 Encouraging violation of probation, extended supervision or parole. Whoever intentionally aids or encourages a parolee, probationer or person on extended supervision or any person committed to the custody or supervision of the department of corrections or a county department under s. 46.215, 46.22 or 46.23 by reason of crime or delinquency to abscond or violate a term or condition of parole, extended supervision or probation is guilty of a Class A misdemeanor.

946.46 History History: 1971 c. 164 s. 89; 1977 c. 173; 1989 a. 31, 107; 1993 a. 385; 1995 a. 27; 1997 a. 283.