(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.
(9) The agency may terminate a voluntary participant for failure to pay required program fees.
(10) The court or department of corrections or district attorney in a deferred prosecution agreement may recommend a reduction or waiver of fees for a participant. However, the agency shall make the final determination on a fee reduction or waiver. The agency may decline to enroll a person in the program if any fees were reduced or waived without the agency’s consent. Regardless of any fee reduction or waiver, the agency shall remit to the department the portion of the total fees collected according to its agreement with the department.
Jus 19.13 Reporting requirements and data collection system. (1) An agency shall use the data collection system designated by the department to track participant information, to record testing data, and to monitor fees collected.
(2) The agency shall report the following information about a participant: enrollment information; demographic information; type, frequency, and duration of program participation; compliance with enrollment procedures; execution of participation agreement and consent form; testing results and notifications; discharge information; fees and other money due and collected; and additional information requested by the department.
(3) Data collection shall occur on an ongoing basis as participants are enrolled in or discharged from the program and as tests are completed. All data shall be entered or uploaded in the data collection system as soon as possible, preferably within 48 hours, after being gathered or received by the agency or testing site.
(4) All information in the data collection system shall be kept current and confidential as required by law. The accuracy and completeness of the data is the responsibility of the agency.
(5) The department shall communicate with agencies on at least a quarterly basis about key statistics and performance metrics, to help monitor data quality and program progress. Agencies shall address and respond to any data quality issues identified through this process.
(6) The department shall use the data provided by the agencies to evaluate program outcomes and effectiveness as required by s. 165.957(7), Stats. (7) The department may require participating agencies, courts, the department of corrections, and district attorneys to provide specific information on program functioning and operations as part of the evaluation process required by s. 165.957(7)(b) and (c), Stats. Jus 19.14 Reimbursement for lost or damaged equipment. (1) A participant who loses or intentionally damages any testing equipment shall reimburse the agency for the lost or damaged equipment.
(2) Any amount owed by the participant as reimbursement for lost or damaged equipment shall be assessed to the participant and paid to the participating county’s frequent sobriety testing pilot program fund.
(3) The agency shall report any failure by a participant to pay an assessed reimbursement to the court, or the department of corrections, or the district attorney, as applicable. A participant who fails to pay the reimbursement may be taken into custody or a court may issue an arrest warrant for the participant.
Jus 19.15 Discharge from the program. (1) A participant is discharged from the program upon completion of the program requirements, administrative discharge, or termination from the program.
(2) Completion means the participant has successfully complied with the program requirements for the duration specified.
(3) Termination from the program means that the court, the department of corrections, or the district attorney, as applicable, has removed the participant from the program due to the participant’s violation of program requirements.
(4) Administrative discharge may occur if the court, the department of corrections, or the district attorney, as applicable, has determined that the participant is no longer required to participate in the program or the participant is unable to continue program participation.
(5) If the participant was in the program as a condition of bond or other pre-trial release, completion of the program means there has been a final disposition of the criminal charge, including acquittal or conviction and imposition of sentence.
