Chapter DOC 328

DOC 328.18(3) (3) Staff may not use deadly force if its use creates a substantial danger of harm to innocent third parties, unless the danger created by not using such force is greater than the danger created by using it.

DOC 328.18(4) (4) The use of excessive force is forbidden. Only as much force may be used as is reasonably necessary to achieve the objective.

DOC 328.18 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.19 DOC 328.19 Mechanical restraints.

DOC 328.19(1) (1) An employee may use mechanical restraints authorized by the department to restrain an offender only in accordance with the following:

DOC 328.19(1)(a) (a) To protect staff or others from an offender who poses an immediate risk of flight or physical injury to others.

DOC 328.19(1)(b) (b) To protect an offender who poses an immediate threat of physical injury to self.

DOC 328.19(1)(c) (c) To take an offender into custody.

DOC 328.19(1)(d) (d) To transport an offender while in custody.

DOC 328.19(2) (2) Mechanical restraints may not be used under any of the following circumstances:

DOC 328.19(2)(a) (a) As a method of punishment.

DOC 328.19(2)(b) (b) In a manner that intentionally causes undue physical discomfort, inflicts physical pain, or restricts the blood circulation or breathing of the offender.

DOC 328.19(2)(c) (c) To restrain an offender to a vehicle.

DOC 328.19(3) (3) Staff shall monitor an offender in restraints at regular intervals until the restraints are removed or custody of the offender is transferred.

DOC 328.19(4) (4) Offenders should be released from restraints to perform bodily functions and for meals when the removal does not jeopardize safety and security.

DOC 328.19 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.20 DOC 328.20 Incapacitating agents. An employee may possess and use only those incapacitating agents and delivery systems approved by the department.

DOC 328.20(1) (1) Authorized use of incapacitating agents. An employee who is on duty may possess or use incapacitating agents only under the following conditions:

DOC 328.20(1)(a) (a) After successfully completing a department approved training program for use of incapacitating agents.

DOC 328.20(1)(b) (b) While acting in self-defense or defense of a third person.

DOC 328.20(2) (2) Contamination response. An employee using incapacitating agents shall provide an exposed person an opportunity for necessary medical attention.

DOC 328.20(3) (3) Documentation. The employee using incapacitating agents shall document its use according to department policy and procedure.

DOC 328.20 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.21 DOC 328.21 Firearms or other weapons. No employee of the division may possess or use a firearm or other weapons while on duty, except as permitted under s. DOC 328.23.

DOC 328.21 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.22 DOC 328.22 Search and seizure; pat-down.

DOC 328.22(1) (1) General policy. A search of an offender, the offender’s living quarters or property, or seizure of the offender’s body contents may be made at any time, but only in accordance with this section. Strip searches or body cavity searches are prohibited. For purposes of this section, the mouth is not a body cavity.

DOC 328.22(2) (2) Justification. A search or seizure is appropriate and consistent with the goals and objectives of supervision under any of the following circumstances:

DOC 328.22(2)(a) (a) When an employee has reasonable grounds to believe the offender possesses contraband or evidence of a rule violation on or within his or her person or property.

DOC 328.22(2)(b) (b) With the consent of the offender, when a search or seizure is necessary to verify compliance with the rules.

DOC 328.22(2)(c) (c) When ordered by the court.

DOC 328.22(3) (3) Reasonable grounds. In deciding whether there are reasonable grounds to believe that an offender has used, possesses or is under the influence of an intoxicating substance, that an offender possesses contraband, or that an offender’s living quarters or property contain contraband or evidence of a rule violation, an employee may consider any of the following:

DOC 328.22(3)(a) (a) The observations of employees.

DOC 328.22(3)(b) (b) Information provided by informants. In evaluating the reliability of the information and the informant, the employee shall consider the following:

DOC 328.22(3)(b)1. 1. The detail, consistency, and corroboration of the information provided by the informant.

DOC 328.22(3)(b)2. 2. Whether the informant has provided reliable information in the past and whether the informant has reason to provide inaccurate information.

DOC 328.22(3)(c) (c) The activity of the offender.

DOC 328.22(3)(d) (d) Information provided by the offender.

DOC 328.22(3)(e) (e) The experience of the employee with that offender or in a similar circumstance.

DOC 328.22(3)(f) (f) Prior seizures of contraband from the offender.

DOC 328.22(4) (4) Informing the offender. Whenever possible before a search or seizure is conducted, an employee shall inform the offender of all of the following:

DOC 328.22(4)(a) (a) A search or seizure is about to occur.

DOC 328.22(4)(b) (b) The reason for the search or seizure.

DOC 328.22(4)(c) (c) The method for conducting the search or seizure.

DOC 328.22(4)(d) (d) The place where the search or seizure is to occur.

DOC 328.22(4)(e) (e) The consequences of not complying with the search or seizure.

DOC 328.22(5) (5) Pat down. A pat-down may be conducted at any time an employee has a reasonable concern that an offender may possess a weapon or other object which may be used as a weapon. After a pat-down, if the employee has reasonable grounds to believe that the offender may be in possession of a weapon or contraband, the employee may proceed with a personal search of the offender.

DOC 328.22(6) (6) Personal search.

DOC 328.22(6)(a) (a) Any staff member may conduct a personal search of an offender.

DOC 328.22(6)(b) (b) Every personal search shall be documented in the offender’s case record.

DOC 328.22(7) (7) Search of living quarters or property.

DOC 328.22(7)(a) (a) An agent shall obtain supervisory approval prior to any search under this subsection.

DOC 328.22(7)(b) (b) The employee who conducted the search shall complete a written report of every search of an offender’s living quarters or property. The report shall state all of the following:

DOC 328.22(7)(b)1. 1. The identity of the offender whose living quarters or property was searched.

DOC 328.22(7)(b)2. 2. The identity of any employee who conducted the search and any other persons present during the search.

DOC 328.22(7)(b)3. 3. The date, time, and place of the search.

DOC 328.22(7)(b)4. 4. The reason for conducting the search.

DOC 328.22(7)(b)5. 5. Any items seized pursuant to the search with documentation of chain of custody.

DOC 328.22(7)(b)6. 6. Whether any damage was done to the premises or property during the search.

DOC 328.22(7)(c) (c) During searches an employee may read business records and personal mail of offenders. The employee may not read any privileged legal materials, including any communication between an offender and an attorney, or any materials prepared in anticipation of a lawsuit.

DOC 328.22(7)(d) (d) An employee may not forcibly enter any property to conduct a search.

DOC 328.22(8) (8) Seizure of body contents.

DOC 328.22(8)(a) (a) Only licensed or certified medical staff may take a blood or stool sample.

DOC 328.22(8)(b) (b) When the agent or supervisor requires the collection of a urine specimen to be observed, an employee of the same sex as the offender shall observe and collect the urine specimen.

DOC 328.22(8)(c) (c) Any trained employee may conduct breathalyzer tests or collect hair or other physical material samples.

DOC 328.22(8)(d) (d) A report of a test on a specimen of an offender’s urine, breath, blood, stool, hair, fingernails, saliva, semen, or other identifying physical material produced by the offender may be presented as evidence in a revocation hearing. The expert who made the findings need not be called as a witness in a hearing or proceeding under this chapter, ch. DOC 331, or ch. HA 2.

DOC 328.22 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.23 DOC 328.23 Contraband.

DOC 328.23(1) (1) Any employee who reasonably believes that an item in an offender’s possession is contraband may seize the item, whether or not the employee believes a violation of the offender’s rules or conditions of supervision has occurred. Any items seized must be documented with chain of custody.

DOC 328.23(2) (2) The supervisor shall dispose of seized contraband after all proceedings in which it may be required have been completed. Disposition shall be as follows:

DOC 328.23(2)(a) (a) All confiscated currency, whose true owner cannot be determined, shall be placed in the general fund.

DOC 328.23(2)(b) (b) Checks and other negotiable instruments shall be returned to the maker. If it is not possible to determine an address for the maker of the check, the check shall be destroyed.

DOC 328.23(2)(c) (c) U.S. bonds and other securities shall be held in the department’s cashier’s office, and upon proof of ownership, the item shall be returned to the owner.

DOC 328.23(2)(d) (d) Property items shall be returned at the offender’s expense to the owner if the owner is known unless the owner transferred the property in an unauthorized manner. Property items which an offender is not permitted to possess and which are not illegal may be transferred to another person at the offender’s expense. Property items of inherent value which were not returned to the owner shall be sold through the department’s purchasing officer and money received shall be placed in the general fund.

DOC 328.23(2)(e) (e) Intoxicating substances, such as alcohol or controlled substances, shall be disposed of in accordance with division policy.

DOC 328.23(2)(f) (f) Firearms not required for use as evidence shall be disposed of in accordance with s. 968.20, Stats.

DOC 328.23(2)(g) (g) Any item originally assigned as property of the state shall be returned to service.

DOC 328.23 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.24 DOC 328.24 Absconding.

DOC 328.24(1) (1) If an offender absconds, an employee shall issue an apprehension request.

DOC 328.24(2) (2) If an offender committed under s. 961.47 (1), Stats., absconds and is not located within 90 days, an employee shall request that the committing court issue a capias ordering apprehension of the offender, vacating the order committing the offender to the custody of the department, or relieve the department of further responsibility for the offender. Following court action, the agent shall cancel the apprehension request.

DOC 328.24(3) (3) Once the offender is apprehended and becomes available, an employee shall conduct a violation investigation and make a determination regarding disposition. The employee shall also cancel the apprehension request.

DOC 328.24 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.25 DOC 328.25 Tolled time.

DOC 328.25(1) (1) The department may toll all or any part of the period of time between the date of the violation and the date of an order of revocation or reinstatement is entered, subject to sentence credit for time the offender spent in custody pursuant to s. 973.155 (1), Stats. If the offender is subsequently reinstated rather than revoked, time shall be tolled only if the reinstatement order concludes that the offender did in fact violate the rules or conditions of his or her supervision.

DOC 328.25(2) (2) A division of hearings and appeals administrative law judge or the secretary shall determine the amount of time to be tolled.

DOC 328.25 History History: CR 10-126: cr. Register June 2013 No. 690, eff. 7-1-13.

DOC 328.26 DOC 328.26 Reinstatement.

DOC 328.26(1) (1) The department may reinstate an offender upon the offender’s request and written admission of a violation of the rules or conditions of supervision sufficient to warrant revocation.