Notwithstanding s. 971.29
, if the prosecutor seeks to dismiss or amend a charge under s. 346.63 (1)
or a local ordinance in conformity therewith, or s. 346.63 (2)
, or s. 940.09
where the offense involved the use of a vehicle or an improper refusal under s. 343.305
, the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public's interest in deterring the operation of motor vehicles by persons who are under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving, in deterring the operation of motor vehicles by persons with a detectable amount of a restricted controlled substance in his or her blood, or in deterring the operation of commercial motor vehicles by persons with an alcohol concentration of 0.04 or more. The court may not approve an application to amend the vehicle classification from a commercial motor vehicle to a noncommercial motor vehicle unless there is evidence in the record that the motor vehicle being operated by the defendant at the time of his or her arrest was not a commercial motor vehicle.
Notwithstanding s. 971.29
, if the prosecutor seeks to dismiss or amend a charge under s. 30.681 (1)
or a local ordinance in conformity therewith, a charge under s. 30.681 (2)
, a charge under s. 30.684 (5)
or a local ordinance in conformity therewith or a charge under s. 940.09
if the offense involved the use of a motorboat, except a sailboat operating under sail alone, the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public's interest in deterring the operation of motorboats by persons who are under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of operating a motorboat safely, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of operating a motorboat safely.
(3) No deferred prosecution.
A prosecutor may not place a person in a deferred prosecution program if the person is accused of or charged with any of the following offenses:
Sub. (2) does not conflict with the separation of powers doctrine and is constitutional. State v. Dums, 149 Wis. 2d 314
, 440 N.W.2d 814
(Ct. App. 1989).
A defendant is “charged" with a crime for purposes of sub. (2) (a) when a criminal complaint is filed. State v. Corvino, 2016 WI App 52
, ___ Wis. 2d ___, 883 N.W.2d 169
The plain language of sub. (2) (a) clearly shows that the legislature intended to except OWI prosecutions from the general rule set forth in s. 971.29 (1) allowing charges to be amended without court approval at any time prior to arraignment. State v. Corvino, 2016 WI App 52
, ___ Wis. 2d ___, 883 N.W.2d 169
Prosecution decisions based on contributions to organizations and agencies.
A prosecutor may not, in exchange for a person's payment of money, other than restitution, to any organization or agency, dismiss or amend a charge alleging a criminal offense or elect not to commence a criminal prosecution.
History: 1999 a. 58
; 2007 a. 84
A prosecutor may engage in negotiations relating to a defendant's reimbursement of blood withdrawal expenses, but a prosecutor may not, as a result of a defendant's payment or offer of payment of blood withdrawal expenses, dismiss or amend the charge, citation, or complaint or forego the initiation of a criminal prosecution, action, or special proceeding based on the violation. OAG 11-09
Determination of indigency; appointment of counsel; preparation of record. 967.06(1)
As soon as practicable after a person has been detained or arrested in connection with any offense that is punishable by incarceration, or in connection with any civil commitment proceeding, or in any other situation in which a person is entitled to counsel regardless of ability to pay under the constitution or laws of the United States or this state, the person shall be informed of his or her right to counsel.
Except as provided in par. (b)
, a person entitled to counsel under sub. (1)
who indicates at any time that he or she wants to be represented by a lawyer, and who claims that he or she is not able to pay in full for a lawyer's services, shall immediately be permitted to contact the authority for indigency determinations specified under s. 977.07 (1)
. The authority for indigency determination in each county shall have daily telephone access to the county jail in order to identify all persons who are being held in the jail. The jail personnel shall provide by phone information requested by the authority.
If the person indicating that he or she wants to be represented by a lawyer is detained under ch. 48
, or 938
, the person shall be referred for appointment of counsel as provided under s. 48.23 (4)
, or 938.23 (4)
, whichever is applicable.
In any case in which the state public defender provides representation to an indigent person, the public defender may request that the applicable court reporter or clerk of circuit court prepare and transmit any transcript or court record. The request shall be complied with. The state public defender shall, from the appropriation under s. 20.550 (1) (f)
, compensate the court reporter or clerk of circuit court for the cost of preparing, handling, duplicating, and mailing the documents.
Sup. Ct. Order, 71 Wis. 2d ix (1975); 1977 c. 29
; 1979 c. 356
; 1981 c. 20
; 1983 a. 377
; 1993 a. 16
; 2007 a. 20
The defendant was entitled to court-appointed counsel in a state-initiated civil contempt action. Brotzman v. Brotzman, 91 Wis. 2d 335
, 283 N.W.2d 600
(Ct. App. 1979).
This section gives the public defender the right to receive juvenile records of indigent clients notwithstanding s. 48.396 (2). State ex rel. S. M. O. 110 Wis. 2d 447
, 329 N.W.2d 275
(Ct. App. 1982).
If the court is put on notice that the accused has a language difficulty, the court must make a factual determination whether an interpreter is necessary; if so, the accused must be made aware of the right to an interpreter, at public cost if the accused is indigent. Waiver of the right must be made voluntarily in open court on the record. State v. Neave, 117 Wis. 2d 359
, 344 N.W.2d 181
Police had no duty to inform a suspect during custodial interrogation that a lawyer retained by the suspect's family was present. State v. Hanson, 136 Wis. 2d 195
, 401 N.W.2d 771
The county must provide free transcripts to the state public defender. State v. Dresel, 136 Wis. 2d 461
, 401 N.W.2d 855
(Ct. App. 1987).
A public defender appointed as postconviction counsel is entitled to all court records including the presentence investigation report; access may not be restricted under s. 972.15 (4). Oliver v. Goulee, 179 Wis. 2d 376
, 507 N.W.2d 145
(Ct. App. 1993).
The state public defender may be denied access to jail inmates who have not requested counsel, and jail authorities need only provide over the telephone that information necessary for the public defender to assess the need to make an indigency determination in person under s. 977.07 (1) for an inmate who has requested counsel and claims indigency. Section SPD 2.03 (3) and (5) (July, 1990), Wis. Adm. Code exceed the bounds of this section. 78 Atty. Gen. 133
Circuit court commissioners.
A circuit court commissioner may exercise powers or perform duties specified for a judge if such action is permitted under s. 757.69
History: 1977 c. 323
; 2001 a. 61
Telephone proceedings. 967.08(1)
Unless good cause to the contrary is shown, proceedings referred to in this section may be conducted 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 the call, 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. With the exceptions of scheduling conferences, pretrial conferences, and, during hours the court is not in session, setting, review, modification of bail and other conditions of release under ch. 969
, the proceeding shall be conducted in a courtroom or other place reasonably accessible to the public. Simultaneous access to the proceeding shall be provided to persons entitled to attend by means of a loudspeaker or, upon request to the court, by making a person party to the telephone call without charge.
The court may permit the following proceedings to be conducted under sub. (1)
on the request of either party. The request and the opposing party's showing of good cause for not conducting the proceeding under sub. (1)
may be made by telephone.
Arraignment under s. 971.05
, if the defendant intends to plead not guilty or to refuse to plead.
Non-evidentiary proceedings on the following matters may be conducted under sub. (1)
on request of either party. The request and the opposing party's showing of good cause for not conducting the proceeding under sub. (1)
may be made by telephone.
Setting, review and modification of bail and other conditions of release under ch. 969
Motions under s. 971.31
directed to the sufficiency of the complaint or the affidavits supporting the issuance of a warrant for arrest or search.
Sup. Ct. Order, 141 Wis. 2d xii (1987); 1987 a. 403
; Sup. Ct. Order, 158 Wis. 2d xvii (1990); 1995 a. 27
; 1997 a. 252
Effective date note
Judicial Council Note, 1988: This section [created] allows various criminal proceedings to be conducted by telephone conference or live audio-visual means, if available. Requirements for reporting and public access are preserved. [Re Order eff. 1-1-88]
Judicial Council Note, 1990: [Re amendment of (1)] Supreme Court Rule 71.01 (2) specifies when a verbatim record is required of a judicial proceeding. Such a record should not be required solely because the proceeding is conducted by telephone or live audio-visual means. Likewise, the requirement in the prior rule that all telephone proceedings be conducted in the courtroom or other reasonably accessible public place discouraged the practice of setting and modifying bail by telephone conference during hours the court was not in session.
Effective date note
[Re amendment of (2)] The appearances, motions and waivers listed in this subsection are rights of the defendant. If the defendant consents that telephone procedures be used, any party objecting should show good cause. [Re Order eff. 1-1-91]
Interpreters may serve by telephone or video.
On request of any party, the court may permit an interpreter to act in any criminal proceeding, other than trial, by telephone or live audiovisual means.
Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 403
Waiting area for victims and witnesses. 967.10(2)
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 court proceedings that is separate from any area used by the defendant, the defendant's relatives and defense witnesses. 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 defendant, the defendant's relatives and defense witnesses during court proceedings.
History: 1997 a. 181
Alternatives to prosecution and incarceration; monitoring participants. 967.11(1)
In this section, “approved substance abuse treatment program" means a substance abuse treatment program that meets the requirements of s. 165.95 (3)
, as determined by the department of justice under s. 165.95 (9)
If a county establishes an approved substance abuse treatment program and the program authorizes the use of surveillance and monitoring technology or day reporting programs, a court or a district attorney may require a person participating in an approved substance abuse treatment program to submit to surveillance and monitoring technology or a day reporting program as a condition of participation.
History: 2005 a. 25
; 2013 a. 20
Electronic filing. Section 801.18
shall govern the electronic filing of documents in criminal actions. Electronic filing may be made through a custom data exchange between the court case management system and the automated information system used by district attorneys.
Sup. Ct. Order No. 14-03
, 2016 WI 29, filed 4-28-16, eff. 7-1-16.