(19) “Transdermal alcohol monitoring” means the use of a device to detect alcohol in a person’s body by measuring ethanol vapors released through the skin.
(20) "Twice-a-day testing" means testing a participant for the use of alcohol at least twice daily, with testing times approximately twelve hours apart.
(21) “Urinalysis testing” means collecting and analyzing urine specimens to detect the presence of alcohol or controlled substances, or both.
Jus 19.04 Program participation and enrollment. (1) Before commencing the program, a participant shall sign a written participation agreement with the agency using a form approved by the department. The agreement shall include the following information: type and frequency of testing; testing site; testing fees; payment procedures; participant’s obligations and responsibilities; and potential sanctions for non-compliance as determined by the agency. The agreement shall also include the duration of the person’s participation in the program as ordered by the court or department of corrections, or provided in a deferred prosecution agreement.
(2) A participant shall sign the agreement in the presence of the testing site officer, parole or probation agent, or other person designated by the agency, acknowledging and agreeing to the terms and conditions imposed by the court or department of corrections or provided in a deferred prosecution agreement. The participant shall receive a copy of the signed participation agreement.
(3) In conjunction with the participation agreement, the participant shall sign a consent form allowing the release of personal and testing information to the agency and department for enforcement and reporting purposes. The format of the consent form shall be approved by the department. The participant shall receive a copy of the signed consent form.
(4) A participant shall be enrolled in the program for a minimum of 90 days and a maximum of 365 days except when ordered as a condition of pretrial release. Program participation may be extended beyond the initial or maximum enrollment period at the discretion of the court, the department of corrections, or the district attorney. An extension shall not exceed 90 days. An individual’s participation in the program shall not exceed 18 months.
(5) A participant who is in physical custody may not be enrolled in the program until released from physical custody.
(6) A person on work release may be ordered to participate in the program or may volunteer to participate in the program.
(7) Participation in the program shall not replace a participant’s statutory obligations or any other condition imposed by the court or the department of corrections or as part of a deferred prosecution agreement.
Jus 19.05 Agency agreement with the department. (1) Each agency participating in the program shall sign a written agreement with the department outlining the respective responsibilities of the agency and the department.
(2) By signing the agreement, the agency agrees to abide by this chapter and any other guidelines and procedures established by the department for the administration of the program.
(3) The agreement shall require the agency to provide an accounting to the department of all fees, costs, and other payments collected from participants, in a manner directed by the department.
(4) The agreement shall list the data collection and reporting requirements outlined in s. Jus 19.13 and s. 165.957(6), Stats. (5) The agreement shall direct the agency to remit to the department a portion of all program fee amounts collected from its participants. The department shall use these payments to recoup its expenditures for administering the program, and installing, maintaining, and administering the data collection system. The department shall return to the agency any fees paid under the agreement not used to support the program.
Jus 19.06 Conditions of bond or pre-trial release. The court may require a defendant to participate in the program as a condition of bond or pre-trial release. The defendant may participate if any of the following apply:
(1) The defendant has two or more convictions for operating a motor vehicle while intoxicated (OWI) and is currently charged with a non-OWI offense.
(2) The defendant is charged with a third or subsequent OWI offense.
Jus 19.07 Conditions of deferred prosecution. A deferred prosecution agreement may include a provision requiring the defendant to participate in the program. The defendant may participate in the program only if the defendant has two or more OWI convictions and the deferred prosecution agreement is based on a non-OWI offense.
Note: Pursuant to s. 967.055(3), Stats., a prosecutor may not place a person in a deferred prosecution program if the person is accused of or charged with operating a motor vehicle while intoxicated. Neither s. 165.957, Stats., nor this rule allow the use of deferred prosecution agreements in OWI cases. Jus 19.08 Conditions post-conviction. The court or department of corrections may order a defendant convicted of an offense to participate in the program as a condition of probation, parole, or extended supervision. The defendant may participate in the program if any of the following apply:
(1) The defendant is being sentenced for a second or subsequent OWI offense.
(2) The defendant has two or more OWI convictions and is being sentenced for a non-OWI offense.
Jus 19.09 Volunteers. A defendant with two prior OWI convictions may voluntarily participate in the program. A voluntary participant shall agree to abstain from alcohol and controlled substances while released on bond, under s. 969.01(1), Stats., on probation, under a deferred prosecution agreement, or on parole or extended supervision. Volunteers shall adhere to all program requirements. Jus 19.10 Testing. (1) Testing may include any combination of breath testing, drug patch testing, blood testing, urinalysis, or transdermal alcohol monitoring, provided that the method selected supports either continuous monitoring or twice-a-day testing. Other testing methods or schedules may be used if approved by the agency and the department. The testing methods at each testing site will be determined by the agency in collaboration with the department.
(2) An ignition interlock device is not an acceptable testing method for the program.
(3) The agency shall provide the testing equipment and may enter into a contract with a private vendor to obtain the equipment needed to carry out the program.
Jus 19.11 Compliance and sanctions. (1) Enrollment. The court, department of corrections, or district attorney’s office shall inform the agency when a participant is ordered to participate in the program or agrees to participate in the program pursuant to a deferred prosecution agreement. A new participant shall contact the testing site, within a time specified by the court, department of corrections, or district attorney to enroll in the program. Enrollment occurs when the participant signs the participation agreement and consent form. If the participant fails to enroll, the testing site shall notify, as applicable, the court, the department of corrections, and the district attorney. The court may issue a bench warrant directing law enforcement to take the participant into custody and ordering the participant to appear before the court. Volunteers may enroll by contacting the testing site.
(2) Failing a test. (a) A test that reveals the presence of alcohol or a controlled substance is a violation of the participation agreement and shall result in a sanction.
(b) If a test reveals the presence of alcohol or a controlled substance, the agency may conduct a confirmation test.
(c) If a test reveals the presence of alcohol or a controlled substance, the testing site may take the participant into custody for a violation of the participation agreement.
(d) The testing site shall immediately notify, as applicable, the court, the department of corrections, and the district attorney that the participant has violated the participation agreement by failing a test and has been taken into custody.
(3) Missing or being late for a test. (a) Missing a test at a designated time at the designated testing site without the agency’s approval is a violation of the participation agreement and may result in a sanction. If a participant is late for on-site testing, it may be considered a violation of the participation agreement and may result in a sanction.
(b) If a participant fails to appear for a scheduled test, the testing site shall immediately notify, as applicable, the court, the department of corrections, and the district attorney. The court may issue a bench warrant directing law enforcement to take the participant into custody and ordering the participant to appear before the court.
(c) Unless prior arrangements have been made between the participant and the agency, a test at a non-designated testing site is a violation of the participation agreement.
(d) At the discretion of the agency, a participant who must travel outside the area of the designated testing site may be tested at an alternative location with advance written approval from the agency.
(e) The agency may excuse a participant from a scheduled test based upon exigent circumstances, including inclement weather, emergency, or documented health problems.
(f) The testing site shall record a participant’s failure to appear for a test or an excused absence from a test in the data collection system.
(4) Tampering with a test. (a) The agency shall impose a sanction on a participant who tampers with a test.
(b) A participant who damages any equipment in the course of tampering with a test shall reimburse the agency for the cost of the damaged equipment.
(c) The testing site shall record the tampering as a violation of the participation agreement in the data collection system.
(5) Standing Order. A court may issue a standing order establishing procedures for taking into custody participants who have violated the participation agreement in any way, including using alcohol or any controlled substance, failing a test, missing a test, being late for on-site testing, or tampering with a test.
Jus 19.12 Fees. (1) The agency shall collect program fees from participants, including administrative fees, testing or daily monitoring fees according to test type, and installation and deactivation fees for remote transdermal alcohol monitoring devices.
(2) The department shall determine all fee amounts in consultation with the participating agencies. The fee amounts shall reflect the program costs to the agency and the department. The department shall provide a standard fee schedule to the agency. The fee schedule shall be reviewed and updated annually as necessary to reflect actual program costs.
(3) The agency may ask the department to approve a fee modification on a showing of necessity to cover program costs.
(4) The agency shall use the fees collected to pay a vendor for any test administered, to cover other testing costs, administrative program costs, program support services, equipment maintenance and replacement costs, program compliance, and to pay the department as directed by s. Jus 19.05(5). The agency shall report to the department how the fees are expended annually or as requested by the department. (5) Generally, the testing site shall not administer a test before payment is made. However, the agency may allow tests to be administered without prior payment. The participant shall pay the fees with cash or money orders only. The testing site shall provide a receipt to the participant. The agency may accept advance payment from a participant.
(6) If a participant has a positive balance upon successful completion of the sobriety program, the participant shall receive a refund for the balance. If a participant has a positive balance upon termination from the program, the participant shall not receive a refund for the balance.
(7) If a participant fails to pay any required program fees, the testing site shall report the failure to pay to the court, the department of corrections, and the district attorney, as applicable.
(8) A participant’s failure to pay fees may result in termination from the program at the recommendation of the agency, the court, the department of corrections, or the district attorney, as applicable.
