2005 Wisconsin Act 344

344,289 Section 289. 938.295 (1) (title) of the statutes is created to read:

938.295 (1) (title) Examination or assessment of juvenile or parent.

344,290 Section 290. 938.295 (1) of the statutes is renumbered 938.295 (1) (a) and amended to read:

938.295 (1) (a) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant an a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 938.547 (4), the court may order any a juvenile coming within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist, or licensed psychologist, or by another expert appointed by the court holding at least a master's degree in social work or another related field of child development, in order that the juvenile's physical, psychological, alcohol or other drug dependency, mental, or developmental condition may be considered. The court may also order an examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 938.547 (4) of a parent, guardian, or legal custodian whose ability to care for a juvenile is at issue before the court.

(b) The court shall hear any objections by the juvenile and the juvenile's parents, guardian, or legal custodian to the request under par. (a) for such an examination or assessment before ordering the examination or assessment.

(c) The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination. The payment for an alcohol and other drug abuse assessment shall be in accordance with s. 938.361.

344,291 Section 291. 938.295 (1c) (intro.) of the statutes is amended to read:

938.295 (1c) Reasonable cause for assessment; when. (intro.) Reasonable cause is considered to exist exists to warrant an alcohol and other drug abuse assessment under sub. (1) if any of the following applies:

344,292 Section 292. 938.295 (1g) of the statutes is amended to read:

938.295 (1g) Report of results and recommendations. If the court orders an alcohol or other drug abuse assessment under sub. (1), the approved treatment facility shall, within 14 days after the court order, report the results of the assessment to the court, except that, upon request if requested by the approved treatment facility and if the juvenile is not held in secure or nonsecure custody, the court may extend the period for assessment for not more than 20 additional working days. The report shall include a recommendation as to whether the juvenile is in need of treatment, intervention, or education relating to the use or abuse of alcohol beverages, controlled substances, or controlled substance analogs and, if so, shall recommend a service plan and appropriate treatment from an approved treatment facility, intervention from a court-approved pupil assistance program, or education from a court-approved alcohol or other drug abuse education program.

344,293 Section 293. 938.295 (2) (title) of the statutes is created to read:

938.295 (2) (title) Not competent or not responsible.

344,294 Section 294. 938.295 (2) (a) of the statutes is amended to read:

938.295 (2) (a) If there is probable cause to believe that the juvenile has committed the alleged offense and if there is reason to doubt the juvenile's competency to proceed, or upon entry of a plea under s. 938.30 (4) (c), the court shall order the juvenile to be examined by a psychiatrist or licensed psychologist. The If the cost of the examination, if is approved by the court, the cost shall be paid by the county of the court ordering the examination, and the county may recover that cost from the juvenile's parent or guardian as provided in par. (c). Evaluation shall be made on an outpatient basis unless the juvenile presents a substantial risk of physical harm to the juvenile or others; or the juvenile, parent, or guardian, and legal counsel or guardian ad litem, consent to an inpatient evaluation. Any An inpatient evaluation shall be for completed in a specified period that is no longer than is necessary to complete the evaluation.

344,295 Section 295. 938.295 (2) (b) of the statutes is renumbered 938.295 (2) (b) 1. and is amended to read:

938.295 (2) (b) 1. The examiner shall file a report of the examination with the court by the date specified in the order. The court shall cause copies to be transmitted to the district attorney or corporation counsel and to the juvenile's counsel or guardian ad litem. The report shall describe the nature of the examination and, identify the persons interviewed, the particular records reviewed, and any tests administered to the juvenile and state in reasonable detail the facts and reasoning upon which the examiner's opinions are based.

2. If the examination is ordered following a plea under s. 938.30 (4) (c), the report shall also contain an opinion regarding whether the juvenile suffered from mental disease or defect at the time of the commission of the act alleged in the petition and, if so, whether this caused the juvenile to lack substantial capacity to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law.

3. If the examination is ordered following a finding that there is probable cause to believe that the juvenile has committed the alleged offense and that there is reason to doubt the juvenile's competency to proceed, the report shall also contain an opinion regarding the juvenile's present mental capacity to understand the proceedings and assist in his or her defense and, if the examiner reports that the juvenile lacks competency to proceed, the examiner's opinion regarding the likelihood that the juvenile, if provided treatment, may be restored to competency within the time specified in s. 938.30 (5) (e) 1. The report shall also state in reasonable detail the facts and reasoning upon which the examiner's opinions are based.

344,296 Section 296. 938.295 (3) of the statutes is amended to read:

938.295 (3) Objection to a particular professional. If the juvenile or a parent objects to a particular physician, psychiatrist, licensed psychologist, or other expert as required under this section, the court shall appoint a different physician, psychiatrist, psychologist or other expert as required under this section.

344,297 Section 297. 938.295 (4) (title) of the statutes is created to read:

938.295 (4) (title) Telephone or live audiovisual proceeding.

344,298 Section 298. 938.296 (1) (title) and (2) (title) of the statutes are created to read:

938.296 (1) (title) Definitions.

(2) (title) Sexually transmitted disease testing.

344,299 Section 299. 938.296 (2m) (title) of the statutes is created to read:

938.296 (2m) (title) Communicable disease testing.

344,300 Section 300. 938.296 (2m) (b) of the statutes is amended to read:

938.296 (2m) (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 or, feces, or other bodily substance of the juvenile.

344,301 Section 301. 938.296 (3) (title), (4) (title), (5) (title) and (6) (title) of the statutes are created to read:

938.296 (3) (title) When order may be sought.

(4) (title) Disclosure of sexually transmitted disease test results.

(5) (title) Disclosure of communicable disease test results.

(6) (title) Payment for test costs.

344,302 Section 302. 938.2965 (1) (title) of the statutes is created to read:

938.2965 (1) (title) Definition.

344,303 Section 303. 938.2965 (2) of the statutes is amended to read:

938.2965 (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 if 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.

344,304 Section 304. 938.297 (1) (title) of the statutes is created to read:

938.297 (1) (title) Motions able to be determined without trial.

344,305 Section 305. 938.297 (2) to (4) of the statutes are amended to read:

938.297 (2) Defenses and objections based on petitions for citation. Defenses 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 shall be are not raised not later than within 10 days after the plea hearing or be deemed, they are waived. Other motions capable of determination without trial may be brought any time before trial.

(3) Suppression of evidence. Motions to suppress evidence as having been illegally seized or statements as having been illegally obtained shall be made before fact-finding on the issues. The court may entertain consider the motion at the fact-finding hearing if it appears that a party is surprised by the attempt to introduce such 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).

(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 but not limited to motions to suppress evidence as illegally seized, motions to suppress statements as illegally obtained, and motions challenging the lawfulness of the taking into custody.

344,306 Section 306. 938.297 (5) (title), (6) (title) and (7) (title) of the statutes are created to read:

938.297 (5) (title) Continuation in custody if motion to dismiss granted.

(6) (title) Service of motion on attorney.

(7) (title) Oral argument by telephone.

344,307 Section 307. 938.299 (1) (title) of the statutes is created to read:

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

344,308 Section 308. 938.299 (1) (am) of the statutes is amended to read:

938.299 (1) (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 a judge the court may exclude a victim from any portion of a hearing which that deals with sensitive personal matters of the juvenile or the juvenile's family and which 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.

344,309 Section 309. 938.299 (1) (ar) of the statutes is renumbered 938.299 (1) (ar) 1. and amended to read:

938.299 (1) (ar) 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), except that the.

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 which that deals with sensitive personal matters of the juvenile or the juvenile's family and which 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.

344,310 Section 310. 938.299 (1) (b) of the statutes is amended to read:

938.299 (1) (b) Except as provided in par. (av) and s. 938.396, any person who divulges any information which 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.

344,311 Section 311. 938.299 (4) (title) of the statutes is created to read:

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

344,312 Section 312. 938.299 (4) (b) and (5) of the statutes are amended to read:

938.299 (4) (b) Except as provided in s. 901.05, neither common law nor 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, or 948.06, 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.

(5) Telephone or live audiovisual hearings. On request of any party, unless good cause to the contrary is shown, any hearing under s. 938.209 (1) (a) 5. or 938.21 (1) may be held on the record by telephone or live audiovisual means or testimony may be received by telephone or live audiovisual means as prescribed in under s. 807.13 (2). The request and the showing of good cause for not conducting the hearing or admitting testimony by telephone or live audiovisual means may be made by telephone.

344,313 Section 313. 938.299 (6) (title), (7) (title), (8) (title) and (9) (title) of the statutes are created to read:

938.299 (6) (title) Establishment of paternity when man alleges paternity.

(7) (title) Establishment of paternity when no man alleges paternity.

(8) (title) Testimony of juvenile's mother relating to paternity.

(9) (title) American Indian juvenile; tribal court involvement.

344,314 Section 314. 938.299 (9) (a) and (b) of the statutes are amended to read:

938.299 (9) (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 tribe's 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 may be is the more appropriate forum.

(b) If the court and tribal court either mutually agree or agree under the terms of an established judicial protocol applicable to the court that the tribal court would be is the more appropriate forum, the court shall dismiss the petition without prejudice or stay the proceeding. The court's decision shall be based on the best interests of the juvenile and of the public.

344,315 Section 315. 938.30 (1) (title) of the statutes is created to read:

938.30 (1) (title) Time of hearing.

344,316 Section 316. 938.30 (2) of the statutes is amended to read:

938.30 (2) Information to juvenile and parents; basic rights; substitution. At or before the commencement of the hearing under this section the juvenile and the parent, guardian, or legal custodian shall be advised of their rights as specified in s. 938.243 and shall be informed that the hearing shall be to the court and that a request for a substitution of judge under s. 938.29 must be made before the end of the plea hearing or be is waived. Nonpetitioning parties, including the juvenile, shall be granted a continuance of the plea hearing if they wish to consult with an attorney on the request for a substitution of a judge.

344,317 Section 317. 938.30 (3) (title) and (4) (title) of the statutes are created to read:

938.30 (3) (title) Juvenile in need of protection or services proceeding; possible pleas.

(4) (title) Delinquency and civil law or ordinance proceedings; possible pleas.

344,318 Section 318. 938.30 (4) (a), (bm) and (c) of the statutes are amended to read:

938.30 (4) (a) Admit some or all of the facts alleged in the petition or citation, however, such a. This plea is an admission only of the commission of the acts and does not constitute an admission of delinquency.

(bm) Plead no contest to the allegations, but only if the court permits the juvenile to enter that plea.

(c) Except pursuant to in the case of a petition or citation under s. 938.125, state that he or she is not responsible for the acts alleged in the petition by reason of mental disease or defect. This plea shall be joined with an admission under par. (a), a denial under par. (b), or a plea of no contest under par. (bm).

344,319 Section 319. 938.30 (4m) of the statutes is renumbered 938.30 (4m) (intro.) and amended to read:

938.30 (4m) Court to inquire about notice to victims. (intro.) Before accepting a plea under sub. (4) in a proceeding in which a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12), the court shall inquire of the district attorney or corporation counsel whether he as to all of the following:

(a) Whether he or she has complied with s. ss. 938.265 and whether he or she has complied with s. 938.27 (4m), whether any.

(b) Whether any of the known victims requested notice of the date, time, and place of the plea hearing and, if so, whether the district attorney or corporation counsel provided to the victim that notice of the date, time and place of the hearing.

344,320 Section 320. 938.30 (5) (title) of the statutes is created to read:

938.30 (5) (title) Not competent or not responsible.

344,321 Section 321. 938.30 (5) (a) 2., (c) (intro.) and (d) (intro.) of the statutes are amended to read:

938.30 (5) (a) 2. If the juvenile denies the allegations in the petition or citation, the court shall hold a fact-finding hearing on the allegations in the petition or citation as provided under s. 938.31. If, at the end of the fact-finding after the hearing, the court finds that the allegations in the petition have been proven, the court shall immediately hold a hearing to determine whether the juvenile was not responsible by reason of mental disease or defect.