Chapter 968

968.373(6)(b) (b) The attorney general, a law enforcement agency, or a district attorney that obtains under this section information regarding the location of a communications device, or evidence derived from the information, shall destroy any information or evidence derived from it if the trial court reaches final disposition for all charges in connection with the investigation that was the subject of the warrant under sub. (4) and no person was adjudged guilty of a crime in connection with the investigation.

968.373(6)(c) (c) Information regarding the location of a communications device that is obtained under this section may be disclosed to other investigative or law enforcement officers.

968.373(6m) (6m) Return. A warrant issued under sub. (4) shall be returned, including in the form of a summary description of the information received, to the court not later than 5 days after the records or information described in the warrant are received by the attorney general, district attorney, or law enforcement agency, whichever is designated in the warrant.

968.373(7) (7) Defense and immunity.

968.373(7)(a) (a) A person on whom a warrant issued under sub. (4) is served is immune from civil or criminal liability for acts or omissions in providing records or information, facilities, or assistance in accordance with the terms of the warrant.

968.373(7)(b) (b) A person who discloses the location of a communications device under sub. (8) (b) is immune from civil or criminal liability for the acts or omissions in making the disclosure in accordance with sub. (8) (b).

968.373(7)(c) (c) No cause of action or criminal action may arise against any provider of electronic communication service, or its officers, employees, or agents or other persons specified in the court order under sub. (5), for providing information, facilities, or assistance in accordance with the terms of a court order under sub. (5).

968.373(7m) (7m) Technical irregularities. Evidence disclosed under a warrant issued under sub. (4) may not be suppressed because of technical irregularities or errors not affecting the substantial rights of the defendant.

968.373(8) (8) Exception.

968.373(8)(a) (a) The prohibition in sub. (2) does not apply to an investigative or law enforcement officer who identifies or tracks the location of a communications device if any of the following applies:

968.373(8)(a)1. 1. The customer or subscriber provides consent for the action.

968.373(8)(a)2. 2. An emergency involving danger of death or serious physical injury to any person exists and identifying or tracking the location of the communications device is relevant to preventing the death or injury or to mitigating the injury.

968.373(8)(b) (b) A provider of electronic communication service shall disclose the location of a communications device without a warrant if any of the following applies:

968.373(8)(b)1. 1. The customer or subscriber provides consent for the particular disclosure.

968.373(8)(b)2. 2. The provider of electronic communication service believes in good faith that an emergency involving the danger of death or serious physical injury to any person exists and that disclosure of the location is relevant to preventing the death or injury or to mitigating the injury.

968.373(8)(b)3. 3. The provider of electronic communication service receives a written request from a law enforcement agency attesting that the disclosure of device location information is needed to allow a law enforcement agency to respond to a call for emergency services or to an emergency situation that involves the danger of death or serious physical injury to any person and disclosure of device location information is necessary to prevent or mitigate that danger.

968.373(8)(c) (c) If the location of a communications device is disclosed to a law enforcement agency under par. (b) 2. or 3., the provider of electronic communication services shall notify the customer or subscriber of the information disclosure within 30 days after the call for emergency services or the emergency situation, or when any case that resulted from the call for emergency services or the emergency situation has resolved, whichever is later.

968.373(8g) (8g) Court review. If the location of a communications device is disclosed to a law enforcement agency under sub. (8) (b) 2. or 3. and evidence of criminal activity was obtained as a result of the disclosure, the law enforcement agency shall, within 3 days of the disclosure, apply to a judge for an order retroactively authorizing the emergency disclosure. The application under this subsection shall set forth the facts giving rise to the emergency disclosure, and the judge shall promptly issue an order determining whether the emergency disclosure was necessary. If the judge determines that the disclosure was not necessary, the judge shall order that the evidence be suppressed in any criminal proceeding on the grounds that the evidence was unlawfully obtained, and order immediate notification under sub. (8) (c).

968.373(8m) (8m) Jurisdiction. For purposes of this section, a person is considered to be doing business in this state and is subject to service and execution of process from this state, if the person makes a contract with or engages in a terms of service agreement with any other person, whether or not the other person is a resident of this state, and any part of the performance of the contract or provision of service takes place within this state on any occasion.

968.373(8s) (8s) Emergency contact information. Any provider of electronic communication services considered to be doing business in this state under sub. (8m) shall submit its emergency contact information to the department of justice to facilitate a request for information made by a law enforcement agency or tribal law enforcement agency under this section no later than May 28, 2024, annually by January 1 of each year thereafter, and as soon as possible any time a change occurs to the emergency contact information most recently submitted to the department of justice.

968.373(9) (9) Seizure. Any device used in violation of sub. (2) may be seized as contraband by any law enforcement officer and forfeited to this state in an action under s. 973.075.

968.373 History History: 2013 a. 375; 2023 a. 232.

968.375 968.375 Subpoenas and warrants for records or communications of customers of an electronic communication service or remote computing service provider.

968.375(1) (1) Jurisdiction. For purposes of this section, a person is considered to be doing business in this state and is subject to service and execution of process from this state, if the person makes a contract with or engages in a terms of service agreement with any other person, whether or not the other person is a resident of this state, and any part of the performance of the contract or provision of service takes place within this state on any occasion.

968.375(2) (2) Subpoena.

968.375(2)(a) (a) Upon the request of the attorney general or a district attorney and upon a showing of probable cause, a judge may issue a subpoena requiring a person who provides electronic communication service or remote computing service to disclose within a reasonable time that is established in the subpoena a record or other information pertaining to a subscriber or customer of the service, including any of the following relating to the subscriber or customer:

968.375(2)(a)1. 1. Name.

968.375(2)(a)2. 2. Address.

968.375(2)(a)3. 3. Local and long distance telephone connection records, or records of session times and durations.

968.375(2)(a)4. 4. Length of service, including start date, and types of service utilized.

968.375(2)(a)5. 5. Telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address.

968.375(2)(a)6. 6. Means and source of payment for the electronic communication service or remote computing service, including any credit card or bank account number.

968.375(2)(b) (b) A subpoena under this subsection may not require disclosure of the contents of communications.

968.375(3) (3) Warrant. Upon the request of the attorney general or a district attorney and upon a showing of probable cause, a judge may issue a warrant requiring a person who provides electronic communication service or remote computing service to disclose within a reasonable time that is established in the warrant any of the following:

968.375(3)(a) (a) The content of a wire or electronic communication that is in electronic storage in an electronic communications system or held or maintained by a provider of remote computing service.

968.375(3)(b) (b) A record or information described under sub. (2) (a).

968.375(3)(c) (c) A record or information that identifies the location of a device used to transmit electronic or wire communications.

968.375(4) (4) Basis, application for, and issuance of subpoena or warrant. Section 968.12 (2) and (3) applies to the basis and application for, and issuance of, a subpoena under sub. (2) or a warrant under sub. (3) as it applies to the basis and application for, and issuance of, a search warrant under s. 968.12.

968.375(5) (5) Manner of service. A subpoena or warrant issued under this section may be served in the manner provided for serving a summons under s. 801.11 (5) or, if delivery can reasonably be proved, by United States mail, delivery service, telephone facsimile, or electronic transmission.

968.375(6) (6) Time for service. A subpoena or warrant issued under this section shall be served not more than 5 days after the date of issuance.

968.375(7) (7) Motion to quash. The person on whom a subpoena or warrant issued under this section is served may file a motion to quash the subpoena or warrant with the judge who issued the subpoena or warrant. If the person files the motion within the time for production of records or information, the judge shall hear and decide the motion within 8 days after the motion is filed.

968.375(8) (8) Law enforcement presence not required. The presence of a law enforcement officer is not required for service or execution of a subpoena or warrant issued under this section.

968.375(9) (9) Return. A subpoena or warrant issued under this section shall be returned to the court not later than 5 days after the records or information described in the subpoena or warrant are received by the attorney general, district attorney, or law enforcement agency, whichever is designated in the subpoena or warrant.

968.375(10) (10) Secrecy. A subpoena or warrant issued under this section shall be issued with all practicable secrecy and the request, complaint, affidavit, or testimony upon which it is based may not be filed with the clerk or made public until the subpoena or warrant has been executed and returned to the court. The judge may issue an order sealing the subpoena or warrant and the request, complaint, affidavit, or testimony upon which it is based. The judge may issue an order prohibiting the person on whom the subpoena or warrant is served from disclosing the existence of the subpoena or warrant to the customer or subscriber unless the judge subsequently authorizes such disclosure.

968.375(11) (11) Immunity. A person on whom a subpoena or warrant issued under this section is served is immune from civil liability for acts or omissions in providing records or information, facilities, or assistance in accordance with the terms of the subpoena or warrant.

968.375(12) (12) Technical irregularities. Evidence disclosed under a subpoena or warrant issued under this section shall not be suppressed because of technical irregularities or errors not affecting the substantial rights of the defendant.

968.375(13) (13) Disclosure without subpoena or warrant. A provider of electronic communication or remote computing service may disclose records or information described under sub. (2) (a) of a customer or subscriber or the content of communications of a customer or subscriber described under sub. (3) without a subpoena or warrant if any of the following applies:

968.375(13)(a) (a) The customer or subscriber provides consent for the particular disclosure.

968.375(13)(b) (b) The provider of electronic communication or remote computing service believes in good faith that an emergency involving the danger of death or serious physical injury to any person exists and that disclosure of the information is required to prevent the death or injury or to mitigate the injury.

968.375 History History: 2009 a. 349; 2011 a. 260 s. 81; 2013 a. 167, 375; 2015 a. 195 s. 82.

968.38 968.38 Testing for HIV infection and certain diseases.

968.38(1) (1) In this section:

968.38(1)(a) (a) “Health care professional” means a physician or a registered nurse or licensed practical nurse who is licensed under ch. 441.

968.38(1)(b) (b) “HIV” means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

968.38(1)(bc) (bc) “HIV test” has the meaning given in s. 252.01 (2m).

968.38(1)(bm) (bm) “Physician” has the meaning given in s. 448.01 (5).

968.38(1)(c) (c) “Sexually transmitted disease” has the meaning given in s. 252.11 (1).

968.38(1)(d) (d) “Significant exposure” has the meaning given in s. 252.15 (1) (em).

968.38(2) (2) In a criminal action under s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095, if all of the following apply, the district attorney shall apply to the circuit court for his or her county to order the defendant to submit to an HIV test and to 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 the test or tests as specified in sub. (4) (a) to (c):

968.38(2)(a) (a) The district attorney has probable cause to believe that the alleged victim or victim has had contact with body fluid of the defendant that constitutes a significant exposure. If the defendant is convicted or found not guilty by reason of mental disease or defect, this paragraph does not apply.

968.38(2)(b) (b) The alleged victim or victim who is not a minor or the parent or guardian of the alleged victim or victim who is a minor requests the district attorney to so apply for an order.

968.38(2m) (2m) In a criminal action under s. 941.375 (2) or 946.43 (2m), the district attorney shall apply to the circuit court for his or her county for an order requiring the defendant 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 (c), if all of the following apply:

968.38(2m)(a) (a) The district attorney has probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 941.375 (2) or 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant.

968.38(2m)(b) (b) The alleged victim or victim who is not a minor or the parent or guardian of the alleged victim or victim who is a minor requests the district attorney to apply for an order.

968.38(3) (3) The district attorney may apply under sub. (2) or (2m) for an order at any of the following times, and, within those times, shall do so as soon as possible so as to enable the court to provide timely notice:

968.38(3)(a) (a) At or after the initial appearance and prior to the preliminary examination.

968.38(3)(b) (b) If the defendant waives the preliminary examination, at any time after the court binds the defendant over for trial and before a verdict is rendered.

968.38(3)(c) (c) At any time after the defendant is convicted or is found not guilty by reason of mental disease or defect.

968.38(3)(d) (d) If the court has determined that the defendant is not competent to proceed under s. 971.14 (4) and suspended the criminal proceedings, at any time after the determination that the defendant is not competent to proceed.

968.38(4) (4) The court shall set a time for a hearing on the matter under sub. (2) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the victim or alleged victim has had contact with body fluid of the defendant that constitutes a significant exposure, the court shall order the defendant to submit to an HIV test and to a test or a series of tests to detect the presence of a sexually transmitted disease. The tests shall be performed by a health care professional. The court shall require the health care professional who performs the test to disclose the test results to the defendant, to refrain from making the test results part of the defendant’s permanent medical record, and to disclose the results of the test to any of the following:

968.38(4)(a) (a) The alleged victim or victim, if the alleged victim or victim is not a minor.

968.38(4)(b) (b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor.

968.38(4)(c) (c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim.

968.38(5) (5) The court shall set a time for a hearing on the matter under sub. (2m) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the act or alleged act of the defendant that constitutes a violation of s. 941.375 (2) or 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the defendant’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the defendant, the court shall order the defendant 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 defendant. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain from making the test results part of the defendant’s permanent medical record and to disclose the results of the test to any of the following:

968.38(5)(a) (a) The alleged victim or victim, if the alleged victim or victim is not a minor.

968.38(5)(b) (b) The parent or guardian of the alleged victim or victim, if the alleged victim or victim is a minor.

968.38(5)(c) (c) The health care professional who provides care to the alleged victim or victim, upon request by the alleged victim or victim or, if the alleged victim or victim is a minor, by the parent or guardian of the alleged victim or victim.

968.38 History History: 1991 a. 269; 1993 a. 27, 32, 183, 227, 495; 1995 a. 456; 1997 a. 182; 1999 a. 188; 2005 a. 277; 2009 a. 209; 2021 a. 54.

968.38 Annotation Acquittal on a charge of sexual intercourse with a minor did not prevent an order for HIV testing following a conviction for sexual assault; the test is probable cause and is not governed by the outcome of the trial. State v. Parr, 182 Wis. 2d 349, 513 N.W.2d 647 (Ct. App. 1994).

968.40 968.40 Grand jury.

968.40(1) (1) Selection of grand jury list. Any judge may, in writing, order the clerk of circuit court to select a grand jury list within a specified reasonable time. The clerk shall select from the prospective juror list for the county the names of not fewer than 75 nor more than 150 persons to constitute the prospective grand juror list. The list shall be kept secret.

968.40(3) (3) Examination of prospective jurors. At the time set for the prospective grand jurors to appear, the judge shall and the district attorney or other prosecuting officer may examine the prospective jurors under oath or affirmation relative to their qualifications to serve as grand jurors and the judge shall excuse those who are disqualified, and may excuse others for any reason which seems proper to the judge.

968.40(4) (4) Additional grand jurors. If after such examination fewer than 17 grand jurors remain, additional prospective jurors shall be selected, summoned and examined until there are at least 17 qualified jurors on the grand jury.

968.40(6) (6) Time grand jurors to serve. Grand jurors shall serve for a period of 31 consecutive days unless more days are necessary to complete service in a particular proceeding. The judge may discharge the grand jury at any time.

968.40(7) (7) Orders filed with clerk. All orders mentioned in this section shall be filed with the clerk of court.

968.40(8) (8) Intercounty racketeering and crime. When a grand jury is convened pursuant to this section to investigate unlawful activity under s. 165.70, and such activity involves more than one county, including the county where the petition for such grand jury is filed, then if the attorney general approves, all expenses of such proceeding shall be charged to the appropriation under s. 20.455 (1) (d).

968.40 History History: 1971 c. 125 s. 522 (1); 1977 c. 29 s. 1656 (27); 1977 c. 187 ss. 95, 135; 1977 c. 318; 1977 c. 447 s. 210; 1977 c. 449; Stats. 1977 s. 756.10; 1991 a. 39; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997); Stats. 1997 s. 968.40.

968.40 Annotation A claim of grand jury discrimination necessitates federal habeas corpus review. Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979).

968.40 Annotation The Grand Jury in Wisconsin. Coffey & Richards. 58 MLR 517 (1975).