Chapter 938

938.295 History History: 1995 a. 77, 448; 2001 a. 109; 2005 a. 344; 2011 a. 32; 2021 a. 141.

938.296 938.296 Testing for HIV infection and certain diseases.

938.296(1) (1) Definitions. In this section:

938.296(1)(a) (a) “Health care professional” has the meaning given in s. 252.15 (1) (am).

938.296(1)(b) (b) “HIV” has the meaning given in s. 252.01 (1m).

938.296(1)(bm) (bm) “HIV test” has the meaning given in s. 252.01 (2m).

938.296(1)(c) (c) “Sexually transmitted disease” has the meaning given in s. 252.11 (1).

938.296(1)(d) (d) “Significant exposure” has the meaning given in s. 252.15 (1) (em).

938.296(1)(e) (e) “Victim” has the meaning given in s. 938.02 (20m) (a) 1.

938.296(2) (2) Sexually transmitted disease and HIV testing. In a proceeding under s. 938.12 or 938.13 (12) in which the juvenile is alleged to have violated s. 940.225, 948.02, 948.025, 948.05, 948.06, or 948.085 (2), the district attorney or corporation counsel shall apply to the court for an order requiring the juvenile to submit to an HIV test and 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 those tests as specified in sub. (4) (a) to (e), if all of the following apply:

938.296(2)(a) (a) The victim or alleged victim, if an adult, or the parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child, requests the district attorney or corporation counsel to apply for that order.

938.296(2)(b) (b) The district attorney or corporation counsel has probable cause to believe that the victim or alleged victim has had contact with body fluid of the juvenile that constitutes a significant exposure. If the juvenile is adjudicated delinquent, is found to be in need of protection or services or is found not responsible by reason of mental disease or defect under s. 938.30 (5), this paragraph does not apply.

938.296(2m) (2m) Communicable disease testing. In a proceeding under s. 938.12 or 938.13 (12) in which the juvenile is alleged to have violated s. 946.43 (2m), the district attorney or corporation counsel shall apply to the court for an order requiring the juvenile 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 (e), if all of the following apply:

938.296(2m)(a) (a) The victim or alleged victim, if an adult, or the parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child, requests the district attorney or corporation counsel to apply for the order.

938.296(2m)(b) (b) The district attorney or corporation counsel has probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile’s blood, semen, vomit, saliva, urine, feces, or other bodily substance.

938.296(3) (3) When order may be sought. The district attorney or corporation counsel may apply for an order under sub. (2) or (2m) at any of the following times:

938.296(3)(a) (a) At or after the plea hearing and before a dispositional order is entered.

938.296(3)(b) (b) At any time after the juvenile is adjudicated delinquent or found to be in need of protection or services.

938.296(3)(c) (c) At any time after the juvenile is found not responsible by reason of mental disease or defect under s. 938.30 (5).

938.296(3)(d) (d) If the court has determined that the juvenile is not competent to proceed under s. 938.30 (5) and has suspended proceedings on the petition, at any time after the determination that the juvenile is not competent to proceed.

938.296(4) (4) Disclosure of sexually transmitted disease and HIV test results. On receipt of an application for an order under sub. (2), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under s. 938.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the juvenile. If, after hearing, the court finds probable cause to believe that the victim or alleged victim has had contact with body fluid of the juvenile that constitutes a significant exposure, the court shall order the juvenile to submit to an HIV test and a test or series of tests to detect the presence of a sexually transmitted disease. The tests shall be administered by a health care professional. The court shall require the health care professional who performs the tests to refrain from making the test results part of the juvenile’s permanent medical record and to disclose the results of the tests to any of the following:

938.296(4)(a) (a) The parent, guardian or legal custodian of the juvenile.

938.296(4)(b) (b) The victim or alleged victim, if the victim or alleged victim is an adult.

938.296(4)(c) (c) The parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child.

938.296(4)(d) (d) The health care professional that provides care for the juvenile, upon request by the parent, guardian or legal custodian of the juvenile.

938.296(4)(e) (e) The health care professional that provides care for the victim or alleged victim, upon request by the victim or alleged victim or, if the victim or alleged victim is a child, upon request by the parent, guardian or legal custodian of the victim or alleged victim.

938.296(5) (5) Disclosure of communicable disease test results. On receipt of an application for an order under sub. (2m), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under s. 938.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the juvenile. If, after hearing, the court finds probable cause to believe that the act or alleged act of the juvenile that constitutes a violation of s. 946.43 (2m) carried a potential for transmitting a communicable disease to the victim or alleged victim and involved the juvenile’s blood, semen, vomit, saliva, urine or feces or other bodily substance of the juvenile, the court shall order the juvenile 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 juvenile. The court shall require the health care professional who performs the test or series of tests to refrain from making the test results part of the juvenile’s permanent medical record and to disclose the results of the test to any of the following:

938.296(5)(a) (a) The parent, guardian or legal custodian of the juvenile.

938.296(5)(b) (b) The victim or alleged victim, if the victim or alleged victim is an adult.

938.296(5)(c) (c) The parent, guardian or legal custodian of the victim or alleged victim, if the victim or alleged victim is a child.

938.296(5)(d) (d) The health care professional that provides care for the juvenile, upon request by the parent, guardian or legal custodian of the juvenile.

938.296(5)(e) (e) The health care professional that provides care for the victim or alleged victim, upon request by the victim or alleged victim or, if the victim or alleged victim is a child, upon request by the parent, guardian or legal custodian of the victim or alleged victim.

938.296(6) (6) Payment for test costs. The court may order the county to pay for the cost of a test or series of tests ordered under sub. (4) or (5). This subsection does not prevent recovery of reasonable contribution toward the cost of that test or series of tests from the parent or guardian of the juvenile as the court may order based on the ability of the parent or guardian to pay. This subsection is subject to s. 301.03 (18).

938.296 History History: 1995 a. 77; 1997 a. 181, 182, 237; 1999 a. 188; 2005 a. 277, 344; 2009 a. 209.

938.2965 938.2965 Waiting area for victims and witnesses.

938.2965(1) (1) Definition. In this section, “witness” has the meaning given in s. 950.02 (5).

938.2965(2) (2) County to provide. If an area is available and use of the area is practical, a county shall provide a waiting area for a victim or witness to use during hearings under this chapter that is separate from any area used by the juvenile, the juvenile’s relatives, and witnesses for the juvenile. If a separate waiting area is not available or its use is not practical, a county shall provide other means to minimize the contact between the victim or witness and the juvenile, the juvenile’s relatives, and witnesses for the juvenile during hearings under this chapter.

938.2965 History History: 1997 a. 181; 2005 a. 344.

938.297 938.297 Motions before trial.

938.297(1) (1) Motions able to be determined without trial. Any motion which is capable of determination without trial of the general issue may be made before trial.

938.297(2) (2) Defenses and objections based on petitions for citation. If defenses and objections based on defects in the institution of proceedings, lack of probable cause on the face of the petition or citation, insufficiency of the petition or citation, or invalidity in whole or in part of the statute on which the petition or citation is founded are not raised within 10 days after the plea hearing, they are waived. Other motions capable of determination without trial may be brought any time before trial.

938.297(3) (3) Suppression of evidence. Motions to suppress evidence as illegally seized or statements as illegally obtained shall be made before fact-finding on the issues. The court may consider the motion at the fact-finding hearing if it appears that a party is surprised by the attempt to introduce the evidence and that party waives jeopardy. Only the juvenile may waive jeopardy in cases under s. 938.12, 938.125, or 938.13 (12).

938.297(4) (4) Propriety of taking juvenile into custody. Although the taking of a juvenile into custody is not an arrest, it shall be considered an arrest for the purpose of deciding motions which require a decision about the propriety of the taking into custody, including motions to suppress evidence as illegally seized, motions to suppress statements as illegally obtained, and motions challenging the lawfulness of the taking into custody.

938.297(5) (5) Continuation in custody if motion to dismiss granted. If the juvenile is in custody and the court grants a motion to dismiss based upon a defect in the petition or citation or in the institution of the proceedings, the court may order the juvenile continued in custody for not more than 48 hours pending the filing of a new petition or citation.

938.297(6) (6) Service of motion on attorney. A motion required to be served on a juvenile may be served upon his or her attorney of record.

938.297(7) (7) Oral argument by telephone. Oral argument permitted on motions under this section may be heard by telephone under s. 807.13 (1).

938.297(8) (8) Appellate review. An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a juvenile may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon an admission or a plea of no contest to the allegations in the petition.

938.297 History History: 1995 a. 77; 1997 a. 35; 2005 a. 344; 2009 a. 27.

938.299 938.299 Procedures at hearings.

938.299(1) (1) Closed hearings; exceptions.

938.299(1)(a) (a) Except as provided in par. (ar), the general public shall be excluded from hearings under this chapter unless a public fact-finding hearing is demanded by a juvenile through his or her counsel. The court shall refuse to grant the public hearing, however, if the victim of an alleged sexual assault objects or, in a nondelinquency proceeding, if a parent or guardian objects. If a public hearing is not held, only the parties, their counsel, witnesses, a representative of the news media who wishes to attend the hearing for the purpose of reporting news without revealing the identity of the juvenile involved and other persons requested by a party and approved by the court may be present. Any other person the court finds to have a proper interest in the case or in the work of the court, including a member of the bar or a person engaged in the bona fide research, monitoring, or evaluation of activities conducted under 42 USC 629h, as determined by the director of state courts, may be admitted by the court.

938.299(1)(ag) (ag) If a public hearing is not held, in addition to persons permitted to attend under par. (a), the juvenile’s foster parent or other physical custodian described in s. 48.62 (2) may be present, except that the court may exclude a foster parent or other physical custodian described in s. 48.62 (2) from any portion of the hearing if that portion of the hearing deals with sensitive personal information of the juvenile or the juvenile’s family or if the court determines that excluding the foster parent or other physical custodian would be in the best interests of the juvenile.

938.299(1)(am) (am) Subject to s. 906.15, if a public hearing is not held, in addition to persons permitted to attend under par. (a), a victim of a juvenile’s act or alleged act may attend any hearing under this chapter based upon the act or alleged act, except that the court may exclude a victim from any portion of a hearing that deals with sensitive personal matters of the juvenile or the juvenile’s family and that does not directly relate to the act or alleged act committed against the victim. A member of the victim’s family and, at the request of the victim, a representative of an organization providing support services to the victim, may attend the hearing under this subsection.

938.299(1)(ar) (ar)

938.299(1)(ar)1. 1. Notwithstanding par. (a) and except as provided under subd. 2., the general public may attend any hearing under this chapter relating to a juvenile who has been alleged to be delinquent for committing a violation that would be a felony if committed by an adult if the juvenile has been adjudicated delinquent previously and that previous adjudication remains of record and unreversed or relating to a juvenile who has been alleged to be delinquent for committing a violation specified in s. 938.34 (4h) (a).

938.299(1)(ar)2. 2. The court shall exclude the general public from a hearing if the victim of a sexual assault objects and may, in its discretion, exclude the general public from any portion of a hearing that deals with sensitive personal matters of the juvenile or the juvenile’s family and that does not relate to the act or alleged act committed by the juvenile or from any other hearing described in this paragraph. If the court excludes the general public from a hearing described in this paragraph, only those persons who are permitted under par. (a) or (am) to attend a hearing from which the general public is excluded may attend.

938.299(1)(av) (av) If a public hearing is held under par. (a) or (ar), any person may disclose to anyone any information obtained as a result of that hearing.

938.299(1)(b) (b) Except as provided in par. (av) and s. 938.396, any person who divulges any information that would identify the juvenile or the family involved in any proceeding under this chapter is subject to ch. 785. This paragraph does not preclude a victim of the juvenile’s act from commencing a civil action based upon the juvenile’s act.

938.299(2m) (2m) Use of restraints.

938.299(2m)(a) (a) In this subsection, “restraints” means leather, canvas, rubber, Velcro, or plastic restraints; handcuffs, waist belts, or leg chains; a wheel chair; an electric immobilization device; or any other device used to securely limit the movement of a juvenile’s body.

938.299(2m)(b) (b) Restraints may not be used on a juvenile during a court proceeding and shall be removed prior to the juvenile being brought into the courtroom and appearing before the court unless the court finds all of the following:

938.299(2m)(b)1. 1. The use of restraints is necessary due to any of the following factors:

938.299(2m)(b)1.a. a. Restraints are necessary to prevent physical harm to the juvenile or another person.

938.299(2m)(b)1.b. b. The juvenile has a history of disruptive courtroom behavior that has placed others in potentially harmful situations, or the juvenile presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior.

938.299(2m)(b)1.c. c. There is a founded belief that the juvenile presents a substantial risk of flight from the courtroom.

938.299(2m)(b)2. 2. There are no less restrictive alternatives to restraints that will prevent flight or physical harm to the juvenile or another person, including the presence of court personnel, law enforcement officers, or bailiffs.

938.299(2m)(c) (c) The court shall provide the juvenile’s counsel an opportunity to be heard before the court orders the use of restraints. If the juvenile’s counsel informs the court that the juvenile wishes to be present, the court may order telephone or videoconference hearing pursuant to sub. (5). If restraints are ordered, the court shall make findings of fact in support of the order.

938.299(2m)(d) (d) Any restraints shall allow the juvenile limited movement of the hands to read and handle documents and writings necessary to the hearing. Under no circumstances may a juvenile be restrained using restraints that are fixed to a wall, floor, or furniture.

938.299(4) (4) Evidentiary rules at hearings.

938.299(4)(a) (a) Chapters 901 to 911 govern the presentation of evidence at the fact-finding hearing under s. 938.31.

938.299(4)(b) (b) Except as provided in s. 901.05, common law and statutory rules of evidence are not binding at a waiver hearing under s. 938.18, a hearing for a juvenile held in custody under s. 938.21, a hearing under s. 938.296 (4) for a juvenile who is alleged to have violated s. 940.225, 948.02, 948.025, 948.05, 948.06, or 948.085 (2), a hearing under s. 938.296 (5) for a juvenile who is alleged to have violated s. 946.43 (2m), a dispositional hearing, or any postdispositional hearing under this chapter. At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant, or unduly repetitious testimony, or evidence that is inadmissible under s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality, and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.

938.299(5) (5) Telephone or live audiovisual hearings.

938.299(5)(a) (a) The court may, upon the motion of the juvenile or the prosecutor or upon its own motion, conduct any hearing under this chapter on the record by telephone or live audiovisual means, if available. If the proceeding is required to be reported under SCR 71.01 (2), the proceeding shall be reported by a court reporter who is in simultaneous voice communication with all parties to the proceeding. Regardless of the physical location of any party to a proceeding conducted by telephone or live audiovisual means, any plea, waiver, stipulation, motion, objection, decision, order, or other action taken by the court or any party shall have the same effect as if made in open court. Simultaneous access to the proceeding shall be provided to persons entitled to attend by means of a loudspeaker, live audiovisual means, or, upon request to the court, by allowing a person entitled to attend to listen to or view the proceedings without charge.

938.299(5)(b) (b) If the juvenile or the prosecutor objects to the use of telephone or live audiovisual means for a critical stage of the proceedings, the court shall sustain the objection. For all other such objections, the court shall consider the factors outlined in s. 885.56 in determining whether to sustain or overrule the objection.

938.299(6) (6) Establishment of paternity when man alleges paternity. If a man who has been given notice under s. 938.27 (3) (b) 1. appears at any hearing for which he received the notice, alleges that he is the father of the juvenile and states that he wishes to establish the paternity of the juvenile, all of the following apply:

938.299(6)(a) (a) The court shall refer the matter to the state or to the attorney responsible for support enforcement under s. 59.53 (6) (a) for a determination, under s. 767.80, of whether an action should be brought for the purpose of determining the paternity of the juvenile.

938.299(6)(b) (b) The state or the attorney responsible for support enforcement who receives a referral under par. (a) shall perform the duties specified under s. 767.80 (5) (c) and (6r).

938.299(6)(c) (c) The court having jurisdiction over actions affecting the family shall give priority under s. 767.82 (7m) to an action brought under s. 767.80 whenever the petition filed under s. 767.80 indicates that the matter was referred by the court under par. (a).

938.299(6)(d) (d) The court may stay the proceedings under this chapter pending the outcome of the paternity proceedings under subch. IX of ch. 767 if the court determines that the paternity proceedings will not unduly delay the proceedings under this chapter and the determination of paternity is necessary to the court’s disposition of the juvenile if the juvenile is found to be in need of protection or services or if the court determines or has reason to know that the paternity proceedings may result in a finding that the juvenile is an Indian juvenile and in a petition by the juvenile’s parent, Indian custodian, or tribe for transfer of the proceeding to the jurisdiction of the tribe.

938.299(6)(e) (e)

938.299(6)(e)1. 1. In this paragraph, “genetic test” means a test that examines genetic markers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purpose of determining the statistical probability that a man who is alleged to be a juvenile’s father is the juvenile’s biological father.

938.299(6)(e)2. 2. The court shall, at the hearing, orally inform any man specified in sub. (6) (intro.) that he may be required to pay for any testing ordered by the court under this paragraph or under s. 885.23.

938.299(6)(e)3. 3. In addition to ordering testing as provided under s. 885.23, if the court determines that it would be in the best interests of the juvenile, the court may order any man specified in sub. (6) (intro.) to submit to one or more genetic tests which shall be performed by an expert qualified as an examiner of genetic markers present on the cells and of the specific body material to be used for the tests, as appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability that the man alleged to be the juvenile’s father is the juvenile’s biological father based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at any hearing. The court, upon request by a party, may order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body materials to be used for the tests.

938.299(6)(e)4. 4. If the genetic tests show that an alleged father is not excluded and that the statistical probability that the alleged father is the juvenile’s biological father is 99.0 percent or higher, the court may determine that for purposes of a proceeding under this chapter or ch. 48, other than a proceeding under subch. VIII of ch. 48, the man is the juvenile’s biological parent.

938.299(6)(e)5. 5. A determination by the court under subd. 4. is not a determination of paternity under s. 938.355 (4g) (a), a judgment of paternity under ch. 767, or an adjudication of paternity under subch. VIII of ch. 48.

938.299(7) (7) Establishment of paternity when no man alleges paternity. If a man who has been given notice under s. 938.27 (3) (b) 1. appears at any hearing for which he received the notice but does not allege that he is the father of the juvenile and state that he wishes to establish the paternity of the juvenile or if no man to whom such notice was given appears at a hearing, the court may refer the matter to the state or to the attorney responsible for support enforcement under s. 59.53 (6) (a) for a determination, under s. 767.80, of whether an action should be brought for the purpose of determining the paternity of the juvenile.

938.299(8) (8) Testimony of juvenile’s mother relating to paternity. As part of the proceedings under this chapter, the court may order that a record be made of any testimony of the juvenile’s mother relating to the juvenile’s paternity. A record made under this subsection is admissible in a proceeding to determine the juvenile’s paternity under subch. IX of ch. 767.

938.299(9) (9) Indian juvenile; tribal court involvement.

938.299(9)(a) (a) If a petition under s. 938.12 or 938.13 (12) includes the statement in s. 938.255 (1) (cr) 2. or if the court is informed during a proceeding under s. 938.12 or 938.13 (12) that a petition relating to the delinquent act has been filed in a tribal court with respect to a juvenile to whom the circumstances specified in s. 938.255 (1) (cr) 1. apply, the court shall stay the proceeding and communicate with the tribal court in which the other proceeding is or may be pending to discuss which court is the more appropriate forum.