Chapter 969

969.01(2) (2) After conviction.

969.01(2)(a) (a) Release pursuant to s. 969.02 or 969.03 may be allowed in the discretion of the trial court after conviction and prior to sentencing or the granting of probation. This paragraph does not apply to a conviction for a 3rd or subsequent violation that is counted as a suspension, revocation, or conviction under s. 343.307, or under s. 940.09 (1) or 940.25 in the person’s lifetime, or a combination thereof.

969.01(2)(b) (b) In misdemeanors, release may be allowed upon appeal in the discretion of the trial court.

969.01(2)(c) (c) In felonies, release may be allowed upon appeal in the discretion of the trial court.

969.01(2)(d) (d) The supreme court or a justice thereof or the court of appeals or a judge thereof may allow release after conviction.

969.01(2)(e) (e) Any court or judge or any justice authorized to grant release after conviction for a misdemeanor or felony may, in addition to the powers granted in s. 969.08, revoke the order releasing a defendant.

969.01(3) (3) Bail for witness. If it appears by affidavit that the testimony of a person is material in any felony criminal proceeding and that it may become impracticable to secure the person’s presence by subpoena, the judge may require such person to give bail for the person’s appearance as a witness. If the witness is not in court, a warrant for the person’s arrest may be issued and upon return thereof the court may require the person to give bail as provided in s. 969.03 for the person’s appearance as a witness. If the person fails to give bail, the person may be committed to the custody of the sheriff for a period not to exceed 15 days within which time the person’s deposition shall be taken as provided in s. 967.04.

969.01(4) (4) Considerations in setting conditions of release. If bail is imposed only due to a finding under sub. (1) (b) 1., the bail amount shall be only in the amount found necessary to assure the appearance of the defendant. If bail is imposed due to a finding under sub. (1) (b) 2., the bail amount may not be excessive. Conditions of release, other than monetary conditions, may be imposed for the purpose of assuring the defendant’s appearance in court, protecting members of the community from serious harm, or preventing intimidation of witnesses. Proper considerations in determining whether to release the defendant without bail, fixing a reasonable and not excessive amount of bail or imposing other reasonable conditions of release are: the ability of the arrested person to give bail, the nature, number and gravity of the offenses and the potential penalty the defendant faces, whether the alleged acts were violent in nature, the defendant’s prior record of criminal convictions and delinquency adjudications, if any, the character, health, residence and reputation of the defendant, the character and strength of the evidence which has been presented to the judge, whether the defendant is currently on probation, extended supervision or parole, whether the defendant is already on bail or subject to other release conditions in other pending cases, whether the defendant has been bound over for trial after a preliminary examination, whether the defendant has in the past forfeited bail or violated a condition of release or was a fugitive from justice at the time of arrest, and the policy against unnecessary detention of the defendant’s pending trial.

969.01 History History: 1977 c. 187; 1979 c. 112; 1981 c. 183; 1993 a. 486; 1995 a. 77; 1997 a. 232, 283; 2009 a. 100, 214; 2023 a. 3.

969.01 Annotation The trial court exceeded its authority in granting bail to a revoked probationer pending review of a probation revocation. State ex rel. Shock v. DHSS, 77 Wis. 2d 362, 253 N.W.2d 55 (1977).

969.01 Annotation Habeas corpus is available to persons released on personal recognizance bonds. State ex rel. Wohlfahrt v. Bodette, 95 Wis. 2d 130, 289 N.W.2d 366 (Ct. App. 1980).

969.01 Annotation The court may impose a monetary condition of release under sub. (2) (b). State v. Barnes, 127 Wis. 2d 34, 377 N.W.2d 624 (Ct. App. 1985).

969.01 Annotation A warrant under sub. (3) must be supported by probable cause to believe that the testimony of the person is material and that it may become impractical to secure the person’s presence by subpoena. State v. Brady, 130 Wis. 2d 443, 388 N.W.2d 151 (1986).

969.01 Annotation Indigency under this section relates to current economic status and does not involve consideration of whether the defendant is shirking unless the shirking relates to another statutory factor. Cash bail is not prohibited against an indigent convicted misdemeanant who takes an appeal. However, where there is no risk that the indigent misdemeanant will not appear, cash bail is inappropriate. State v. Taylor, 205 Wis. 2d 664, 556 N.W.2d 779 (Ct. App. 1996), 96-0857.

969.01 Annotation The conditions that a court is authorized to impose under this section and s. 969.03 govern the release of a defendant from custody and do not apply if the defendant cannot post bond and is not released. A court may impose pretrial, no-contact provisions on incarcerated defendants under s. 940.47 if the terms of that statute are met. State v. Orlik, 226 Wis. 2d 527, 595 N.W.2d 468 (Ct. App. 1999), 98-2826.

969.01 Annotation A circuit court that followed a blanket policy that mandated participation in a pretrial program as a condition of release for all persons based solely on the nature of the offense, without making an individualized determination that that condition is appropriate, erroneously exercised its discretion in setting conditions of bail. State v. Wilcenski, 2013 WI App 21, 346 Wis. 2d 145, 827 N.W.2d 642, 12-0142.

969.01 Annotation Under sub. (1), judges and court commissioners have the power, prior to the filing of a complaint, to release on bail persons arrested for the commission of a felony. 65 Atty. Gen. 102.

969.01 Annotation The public defender may represent indigent material witnesses subject to sub. (3) bail provisions so long as there is no conflict of interest with another client, but may not represent indigents in civil forfeiture actions unless that action is reasonably related to one for which an indigent is entitled to counsel. 72 Atty. Gen. 61.

969.01 Annotation Pretrial release; Wisconsin bail reform. 1971 WLR 594.

969.01 Annotation The Presumption of Release in Bail Decisions. Adelman & Schulenburg. Wis. Law. July 1989.

969.01 Annotation Nationwide Trend: Rethinking the Money Bail System. Okocha. Wis. Law. June 2017.

969.01 Annotation Milwaukee Moves Away From Money Bail System. Kremers. Wis. Law. June 2017.

969.02 969.02 Release of defendants charged with misdemeanors.

969.02(1) (1) A judge may release a defendant charged with a misdemeanor without bail or may permit the defendant to execute an unsecured appearance bond in an amount specified by the judge.

969.02(2) (2) In lieu of release pursuant to sub. (1), the judge may require the execution of an appearance bond with sufficient solvent sureties, or the deposit of cash in lieu of sureties. If the judge requires a deposit of cash in lieu of sureties, the person making the cash deposit shall be given written notice of the requirements of sub. (6).

969.02(2m) (2m) The clerk of circuit court may accept a credit card or debit card, as defined in s. 59.40 (5) (a) and 1. and 2., instead of cash under sub. (2).

969.02(3) (3) In addition to or in lieu of the alternatives under subs. (1) and (2), the judge may:

969.02(3)(a) (a) Place the person in the custody of a designated person or organization agreeing to supervise him or her.

969.02(3)(b) (b) Place restrictions on the travel, association or place of abode of the defendant during the period of release.

969.02(3)(c) (c) Prohibit the defendant from possessing any dangerous weapon.

969.02(3)(d) (d) Impose bail following a finding under s. 969.01 (1) (b) or impose any nonmonetary condition deemed reasonably necessary to secure appearance in court as required, protect members of the community from serious harm, or prevent intimidation of witnesses, including a condition that the defendant return to custody after specified hours. The charges authorized by s. 303.08 (4) and (5) shall not apply under this section.

969.02(3)(e) (e) If the person is charged with violating a restraining order or injunction issued under s. 813.12 or 813.125, require the person to participate in mental health treatment, a batterer’s intervention program, or individual counseling. The judge shall consider a request by the district attorney or the petitioner, as defined in s. 301.49 (1) (c), in determining whether to issue an order under this paragraph.

969.02(4) (4) As a condition of release in all cases, a person released under this section shall not commit any crime.

969.02(4m) (4m) Any person who is charged with a misdemeanor and released under this section shall comply with s. 940.49. The person shall be given written notice of this requirement.

969.02(5) (5) Once bail has been given and a charge is pending or is thereafter filed or transferred to another court, the latter court shall continue the original bail in that court subject to s. 969.08.

969.02(6) (6) When a judgment of conviction is entered in a prosecution in which a deposit had been made in accordance with sub. (2), the balance of such deposit, after deduction of the bond costs, shall be applied first to the payment of any restitution ordered under s. 973.20 and then, if ordered restitution is satisfied in full, to the payment of the judgment.

969.02(7) (7) If the complaint against the defendant has been dismissed or if the defendant has been acquitted, the entire sum deposited shall be returned. A deposit under sub. (2) shall be returned to the person who made the deposit, his or her heirs or assigns, subject to sub. (6).

969.02(7m) (7m) The restrictions on the application of cash deposits under subs. (6) and (7) do not apply if bail is forfeited under s. 969.13.

969.02(8) (8) In all misdemeanors, bail shall not exceed the maximum fine provided for the offense.

969.02 History History: 1971 c. 298 ss. 10, 13; 1979 c. 111, 112; 1981 c. 118, 183; 1989 a. 31; 1991 a. 63, 315; 1993 a. 486; 1999 a. 85; 2005 a. 59, 447; 2011 a. 266; 2021 a. 239 s. 74; 2023 a. 3.

969.02 Annotation This chapter provides no penalty for the violation of this section. Section 946.49 provides a penalty for failing to comply with the terms of a bond, but there is no penalty where no bond is required. State v. Dawson, 195 Wis. 2d 161, 536 N.W.2d 119 (Ct. App. 1995), 94-2570.

969.02 Annotation The plain language of sub. (6) requires the circuit court to order the application of the balance of any bond deposit toward the satisfaction of court costs. When the statutes under which costs were assessed provided no authority to waive the costs or to satisfy them by other means, the circuit court erred when it applied pre-sentence incarceration time toward satisfaction of the defendant’s court costs. State v. Baker, 2005 WI App 45, 280 Wis. 2d 181, 694 N.W.2d 415, 04-0590.

969.02 Annotation “Release” refers to the defendant posting the bond, be it signature or cash, and need not be accompanied by the defendant’s physical departure from the jailhouse. State v. Dewitt, 2008 WI App 134, 313 Wis. 2d 794, 758 N.W.2d 201, 07-2869.

969.03 969.03 Release of defendants charged with felonies.

969.03(1) (1) A defendant charged with a felony may be released by the judge without bail or upon the execution of an unsecured appearance bond or the judge may in addition to requiring the execution of an appearance bond or in lieu thereof impose one or more of the following conditions which will assure appearance for trial:

969.03(1)(a) (a) Place the person in the custody of a designated person or organization agreeing to supervise the person.

969.03(1)(b) (b) Place restrictions on the travel, association or place of abode of the defendant during the period of release.

969.03(1)(c) (c) Prohibit the defendant from possessing any dangerous weapon.

969.03(1)(d) (d) Require the execution of an appearance bond with sufficient solvent sureties, or the deposit of cash in lieu of sureties. If the judge requires a deposit of cash in lieu of sureties, the person making the cash deposit shall be given written notice of the requirements of sub. (4).

969.03(1)(e) (e) Impose bail following a finding under s. 969.01 (1) (b) or any nonmonetary condition deemed reasonably necessary to secure appearance in court as required, protect members of the community from serious harm, or prevent intimidation of witnesses, including a condition requiring that the defendant return to custody after specified hours. The charges authorized by s. 303.08 (4) and (5) shall not apply under this section.

969.03(1m) (1m) The clerk of circuit court may accept a credit card or debit card, as defined in s. 59.40 (5) (a) 1. and 2., instead of cash under sub. (1) (d).

969.03(2) (2) As a condition of release in all cases, a person released under this section shall not commit any crime.

969.03(2m) (2m) Any person who is charged with a felony and released under this section shall comply with s. 940.49. The person shall be given written notice of this requirement.

969.03(3) (3) Once bail has been given and a charge is pending or is thereafter filed or transferred to another court, the latter court shall continue the original bail in that court subject to s. 969.08. A single bond form shall be utilized for all stages of the proceedings through conviction and sentencing or the granting of probation.

969.03(4) (4) If a judgment of conviction is entered in a prosecution in which a deposit had been made in accordance with sub. (1) (d), the balance of the deposit, after deduction of the bond costs, shall be applied first to the payment of any restitution ordered under s. 973.20 and then, if ordered restitution is satisfied in full, to the payment of the judgment.

969.03(5) (5) If the complaint against the defendant has been dismissed or if the defendant has been acquitted, the entire sum deposited shall be returned. A deposit under sub. (1) (d) shall be returned to the person who made the deposit, his or her heirs or assigns, subject to sub. (4).

969.03(6) (6) The restriction on the application of cash deposits under subs. (4) and (5) do not apply if bail is forfeited under s. 969.13.

969.03 History History: 1971 c. 298; 1979 c. 112; 1981 c. 118, 183; 1989 a. 31; 1991 a. 63; 1993 a. 486; 2005 a. 59, 447; 2023 a. 3.

969.03 Annotation The trial court, not the accused, decides whether to require cash or securities for a bond under sub. (1) (d). State v. Gassen, 143 Wis. 2d 761, 422 N.W.2d 863 (Ct. App. 1988).

969.03 Annotation As used in this section, “crime” includes violations committed in another jurisdiction. State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993).

969.03 Annotation The application of bail posted by third parties to the defendant’s fines under sub. (4) was not unconstitutional. State v. Iglesias, 185 Wis. 2d 118, 517 N.W.2d 175 (1994).

969.03 Annotation The conditions that a court is authorized to impose under this section and s. 969.01 govern the release of a defendant from custody and do not apply if the defendant cannot post bond and is not released. A court may impose pretrial, no-contact provisions on incarcerated defendants under s. 940.47 if the terms of that statute are met. State v. Orlik, 226 Wis. 2d 527, 595 N.W.2d 468 (Ct. App. 1999), 98-2826.

969.03 Annotation The state need not obtain a conviction for the underlying crime in order to prove that the defendant violated the bail jumping statute by committing a crime. If there is evidence sufficient for a reasonable jury to conclude beyond a reasonable doubt that a defendant intentionally violated a bond by committing a crime, that evidence is not required to be in the form of a conviction for the underlying crime. State v. Hauk, 2002 WI App 226, 257 Wis. 2d 579, 652 N.W.2d 393, 01-1668.

969.03 Annotation Sub. (5) requires that any bond money posted shall be returned to the payor once a complaint against the defendant is dismissed, even if the underlying offenses comprising that criminal action are read in at sentencing for a different case. State v. Jones, 2021 WI App 15, 396 Wis. 2d 602, 957 N.W.2d 551, 19-0224.

969.03 Annotation The retention of 10 percent of a partial bail deposit, with no penalty for release on recognizance or where full bail is given, does not violate equal protection requirements. Schilb v. Kuebel, 404 U.S. 357, 92 S. Ct. 479, 30 L. Ed. 2d 502 (1971).

969.035 969.035 Pretrial detention; denial of release from custody.

969.035(1) (1) In this section:

969.035(1)(a) (a) “Serious bodily harm” means bodily injury which causes or contributes to the death of a human being or which creates a substantial risk of death or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.

969.035(1)(b) (b) Notwithstanding s. 969.001 (3), “violent crime” means any crime specified in s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.07, 940.08, 940.10, 940.19 (5), 940.195 (5), 940.198 (2) (a) or (c), 940.21, 940.225 (1), 940.23, 941.327, 948.02 (1) or (2), 948.025, 948.03, or 948.085.

969.035(2) (2) A circuit court may deny release from custody under this section to any of the following persons:

969.035(2)(a) (a) A person accused of committing an offense under s. 940.01, 940.225 (1), 948.02 (1) or (2), 948.025, or 948.085.

969.035(2)(b) (b) A person accused of committing or attempting to commit a violent crime and the person has a previous conviction for committing or attempting to commit a violent crime.

969.035(3) (3) A court may proceed under this section if the district attorney alleges to the court and provides the court with documents as follows:

969.035(3)(a) (a) Alleges that the defendant is eligible for denial of release under sub. (2) (a) or (b).

969.035(3)(b) (b) Provides a copy of the complaint charging the commission or attempted commission of the present offense specified in sub. (2) (a) or (b).

969.035(3)(c) (c) Alleges that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent the intimidation of witnesses.

969.035(4) (4) If the court determines that the district attorney has complied with sub. (3), the court may order that the detention of a person who is currently in custody be continued or may issue a warrant commanding any law enforcement officer to bring the defendant without unnecessary delay before the court. When the defendant is brought before the court, he or she shall be given a copy of the documents specified in sub. (3) and informed of his or her rights under this section and s. 970.02 (1) and (6).

969.035(5) (5) A pretrial detention hearing is a hearing before a court for the purpose of determining if the continued detention of the defendant is justified. A pretrial detention hearing may be held in conjunction with a preliminary examination under s. 970.03 or a conditional release revocation hearing under s. 969.08 (5) (b), but separate findings shall be made by the court relating to the pretrial detention, preliminary examination and conditional release revocation. The pretrial detention hearing shall be commenced within 10 days from the date the defendant is detained or brought before the court under sub. (4). The defendant may not be denied release from custody in accordance with s. 969.03 for more than 10 days prior to the hearing required by this subsection.

969.035(6) (6) During the pretrial detention hearing:

969.035(6)(a) (a) The state has the burden of going forward and proving by clear and convincing evidence that the defendant committed an offense specified under sub. (2) (a), or that the defendant committed or attempted to commit a violent crime subsequent to a prior conviction for a violent crime.

969.035(6)(b) (b) The state has the burden of going forward and proving by clear and convincing evidence that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent the intimidation of witnesses.

969.035(6)(c) (c) The evidence shall be presented in open court with the right of confrontation, right to call witnesses, right to cross-examination and right to representation by counsel. The rules of evidence applicable in criminal trials govern the admissibility of evidence at the hearing.

969.035(6)(d) (d) The court may exclude witnesses until they are called to testify, may direct that persons who are expected to be called as witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined.

969.035(6)(e) (e) Testimony of the defendant given shall not be admissible on the issue of guilt in any other judicial proceeding, but the testimony shall be admissible in perjury proceedings and for impeachment purposes in any subsequent proceeding.

969.035(7) (7) If the court does not make the findings under sub. (6) (a) and (b) and the defendant is otherwise eligible, the defendant shall be released from custody with or without conditions in accordance with s. 969.03.

969.035(8) (8) If the court makes the findings under sub. (6) (a) and (b), the court may deny bail to the defendant for an additional period not to exceed 60 days following the hearing. If the time period passes and the defendant is otherwise eligible, he or she shall be released from custody with or without conditions in accordance with s. 969.03.

969.035(9) (9) In computing the 10-day periods under sub. (5) and the 60-day period under sub. (8), the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant. Delay is caused by the defendant only if the delay is expressly requested by the defendant.

969.035(10) (10) The defendant may petition the court to be released from custody with or without conditions in accordance with s. 969.03 at any time.

969.035(11) (11) A person who has been detained under this section is entitled to placement of his or her case on an expedited trial calendar and his or her trial shall be given priority.