2005 Wisconsin Act 431

301.46 (5) (c) (intro.) The department may not provide any of the following under par. (a) or (bm):

431,8 Section 8. 301.48 of the statutes is created to read:

301.48 Global positioning system tracking and residency requirement for certain sex offenders. (1) Definitions. In this section:

(a) "Exclusion zone" means a zone in which a person who is tracked using a global positioning system tracking device is prohibited from entering except for purposes of traveling through it to get to another destination.

(b) "Global positioning system tracking" means tracking using a system that actively monitors and identifies a person's location and timely reports or records the person's presence near or at a crime scene or in an exclusion zone or the person's departure from an inclusion zone. "Global positioning system tracking" includes comparable technology.

(c) "Inclusion zone" means a zone in which a person who is tracked using a global positioning system tracking device is prohibited from leaving.

(d) "Lifetime tracking" means global positioning system tracking that is required for a person for the remainder of the person's life or until terminated under sub. (2m), sub. (6), if applicable, or sub. (7) or (8). "Lifetime tracking" does not include global positioning system tracking under sub. (2) (c) or (d), regardless of how long it is required.

(dm) "Passive positioning system tracking" means tracking using a system that monitors, identifies, and records a person's location.

(e) "Serious child sex offense" means a violation of, or the solicitation, conspiracy, or attempt to engage in conduct in violation of, any of the following:

1. Section 948.02 (1) (b), (c), or (d) or 948.025 (1) (a) or (ag).

2. Section 948.02 (1), 2003 stats., s. 948.02 (2), 2003 stats., or s. 948.025 (1), 2003 stats., if any of the following applies:

a. The actor has sexual intercourse with a person who has not attained the age of 12 years.

b. The actor has sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence.

c. The actor has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence and the actor is at least 18 years of age when the contact occurs.

(em) "Serious child sex offense" means a violation of, or the solicitation, conspiracy, or attempt to engage in conduct in violation of, s. 948.02 (1) or (2) or 948.025 (1) if any of the following applies:

1. The actor has sexual intercourse with a person who has not attained the age of 12 years.

2. The actor has sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence.

3. The actor has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence and the actor is at least 18 years of age when the contact occurs.

(f) "Sex offense" means any of the following:

1. A sex offense, as defined in s. 301.45 (1d) (b).

2. A crime under federal law or the law of any state that is comparable to a crime described in subd. 1.

(g) "Sexual intercourse" means vulvar penetration as well as cunnilingus, fellatio, or anal intercourse between persons or any intrusion of any inanimate object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.

(2) Who is covered. (a) Except as provided in sub. (2m), the department shall maintain lifetime tracking of a person if any of the following occurs with respect to the person on or after the effective date of this paragraph .... [revisor inserts date]:

1. A court places the person on probation for committing a serious child sex offense.

2. The department releases the person to extended supervision or parole while the person is serving a sentence for committing a serious child sex offense.

3. The department releases the person from prison upon the completion of a sentence imposed for a serious child sex offense.

4. A court that found the person not guilty of a serious child sex offense by reason of mental disease or mental defect places the person on conditional release.

5. A court that found the person not guilty of a serious child sex offense by reason of mental disease or mental defect discharges the person under s. 971.17 (6). This subdivision does not apply if the person was on conditional release immediately before being discharged.

(b) The department shall maintain lifetime tracking of a person if any of the following occurs with respect to the person on or after the effective date of this paragraph .... [revisor inserts date]:

1. A court places the person on supervised release under s. 980.08 (6m).

2. A court discharges the person under s. 980.09 or 980.10. This subdivision does not apply if the person was on supervised release immediately before being discharged.

3. The department of health and family services places the person on parole or discharges the person under ch. 975. This subdivision does not apply unless the person's commitment was based on his or her commission of a serious child sex offense.

(c) The department shall have a person tracked using a global positioning system tracking device if all of the following apply:

1. The person has been convicted under federal law or the law of any other state of a crime that is comparable to a serious child sex offense or found not guilty of or not responsible for such a crime by reason of mental disease or mental defect.

2. The person resides in this state, is employed or carrying on a vocation, as defined in s. 301.45 (1d) (a), in this state, or is a student, as defined in s. 301.45 (1d) (c), in this state.

(d) If, on or after the effective date of this paragraph .... [revisor inserts date], a person is being placed on probation, extended supervision, or parole for committing a sex offense and par. (a), (b), or (c) does not apply, the department may have the person tracked using a global positioning system tracking device as a condition of the person's probation, extended supervision, or parole.

(2m) Passive positioning system tracking. If a person who is subject to lifetime tracking under sub. (2) (a) 1., 2., or 3. completes his or her sentence, including any probation, parole, or extended supervision, the department may decide to use passive positioning system tracking instead of maintaining lifetime tracking.

(3) Functions and operation of tracking program. (a) Except as provided in sub. (2m), the department shall implement a continuous global positioning tracking system to electronically monitor the whereabouts of persons who are subject to this section. The system shall do all of the following:

1. Use field monitoring equipment that supports cellular communications with as large a coverage area as possible and shall automatically provide instantaneous or nearly instantaneous information regarding the whereabouts of a person who is being monitored, including information regarding the person's presence in an exclusion zone established under par. (c) or absence from an inclusion zone established under par. (c).

2. Use land line communications equipment to transmit information regarding the location of persons who are subject to this section when they are in areas in which no commercial cellular service is available.

3. Immediately alert the department and the local law enforcement agency having jurisdiction over the exclusion or inclusion zone if the person stays in any exclusion zone for any longer period than the time needed to travel through the zone to get to another destination or if the person leaves any inclusion zone.

(b) The department shall contract with a vendor using a competitive process under s. 16.75 to provide global positioning system tracking services and passive positioning system tracking services for purposes of this section.

(c) For each person who is subject to global positioning system tracking under this section, the department shall create individualized exclusion and inclusion zones for the person, if necessary to protect public safety. In creating exclusion zones, the department shall focus on areas where children congregate, with perimeters of 100 to 250 feet, and on areas where the person has been prohibited from going as a condition of probation, extended supervision, parole, conditional release, or supervised release. In creating inclusion zones for a person on supervised release, the department shall consider s. 980.08 (7).

(d) If a person who is on supervised release or conditional release is being tracked, the department shall notify the department of health and family services, upon request, of any tracking information for the person under any of the following circumstances:

1. The department of corrections has been alerted under par. (a) 3. that the person being tracked has improperly stayed in an exclusion zone or improperly left an inclusion zone.

2. The person being tracked fails to make a payment to the department under sub. (4) (b).

(4) Costs. (a) The department shall determine all of the following for each person tracked:

1. The cost of global positioning system tracking or passive positioning system tracking for the person.

2. How much of the cost under subd. 1. the person is able to pay based on the factors listed in par. (d).

(b) If required by the department, a person who is subject to global positioning system tracking or passive positioning system tracking shall pay for the cost of tracking up to the amount calculated for the person under par. (a) 2.

(c) The department of health and family services shall pay for the cost of tracking a person to whom sub. (2) (a) 4. or 5. or (b) applies while the person is on conditional release or supervised release to the extent that the cost is not covered by payments made by the person under par. (b).

(d) In determining how much of the costs the person is able to pay, the department may consider the following:

1. The person's financial resources.

2. The present and future earning ability of the person.

3. The needs and earning ability of the person's dependents.

4. Any other costs that the person is required to pay in conjunction with his or her supervision by the department or the department of health and family services.

5. Any other factors that the department considers appropriate.

(6) Offender's petition to terminate lifetime tracking. (a) Subject to par. (b), a person who is subject to lifetime tracking may file a petition requesting that lifetime tracking be terminated. A person shall file a petition requesting termination of lifetime tracking with the circuit court for the county in which the person was convicted or found not guilty or not responsible by reason of mental disease or defect.

(b) 1. A person may not file a petition requesting termination of lifetime tracking if he or she has been convicted of a crime that was committed during the period of lifetime tracking.

2. A person may not file a petition requesting termination of lifetime tracking earlier than 20 years after the date on which the period of lifetime tracking began. If a person files a petition requesting termination of lifetime tracking at any time earlier than 20 years after the date on which the period of lifetime tracking began, the court shall deny the petition without a hearing.

3. A person described in sub. (2) (b) may not file a petition requesting termination of lifetime tracking.

(c) Upon receiving a petition requesting termination of lifetime tracking, the court shall send a copy of the petition to the district attorney responsible for prosecuting the serious sex offense that was the basis for the order of lifetime tracking. Upon receiving the copy of the petition, the district attorney shall conduct a criminal history record search to determine whether the person has been convicted of a criminal offense that was committed during the period of lifetime tracking. No later than 30 days after the date on which he or she receives the copy of the petition, the district attorney shall report the results of the criminal history record search to the court and may provide a written response to the petition.

(d) After reviewing a report submitted under par. (c) concerning the results of a criminal history record search, the court shall do whichever of the following is applicable:

1. If the report indicates that the person filing the petition has been convicted of a criminal offense that was committed during the period of lifetime tracking, the court shall deny the person's petition without a hearing.

2. If the report indicates that the person filing the petition has not been convicted of a criminal offense that was committed during the period of lifetime tracking, the court shall order the person to be examined under par. (e), shall notify the department that it may submit a report under par. (f) and shall schedule a hearing on the petition to be conducted as provided under par. (g).

(e) A person filing a petition requesting termination of lifetime tracking who is entitled to a hearing under par. (d) 2. shall be examined by a person who is either a physician or a psychologist licensed under ch. 455 and who is approved by the court. The physician or psychologist who conducts an examination under this paragraph shall prepare a report of his or her examination that includes his or her opinion of whether the person petitioning for termination of lifetime tracking is a danger to the public. The physician or psychologist shall file the report of his or her examination with the court within 60 days after completing the examination, and the court shall provide copies of the report to the person filing the petition and the district attorney. The contents of the report shall be confidential until the physician or psychologist testifies at a hearing under par. (g). The person petitioning for termination of lifetime tracking shall pay the cost of an examination required under this paragraph.

(f) After it receives notification from the court under par. (d) 2., the department may prepare and submit to the court a report concerning a person who has filed a petition requesting termination of lifetime tracking. If the department prepares and submits a report under this paragraph, the report shall include information concerning the person's conduct while on lifetime tracking and an opinion as to whether lifetime tracking of the person is still necessary to protect the public. When a report prepared under this paragraph has been received by the court, the court shall, before the hearing under par. (g), disclose the contents of the report to the attorney for the person who filed the petition and to the district attorney. When the person who filed the petition is not represented by an attorney, the contents shall be disclosed to the person.

(g) A hearing on a petition requesting termination of lifetime tracking may not be conducted until the person filing the petition has been examined and a report of the examination has been filed as provided under par. (e). At the hearing, the court shall take evidence it considers relevant to determining whether lifetime tracking should be continued because the person who filed the petition is a danger to the public. The person who filed the petition and the district attorney may offer evidence relevant to the issue of the person's dangerousness and the continued need for lifetime tracking.

(h) The court may grant a petition requesting termination of lifetime tracking if it determines after a hearing under par. (g) that lifetime tracking is no longer necessary to protect the public.

(i) If a petition requesting termination of lifetime tracking is denied after a hearing under par. (g), the person may not file a subsequent petition requesting termination of lifetime tracking until at least 5 years have elapsed since the most recent petition was denied.

(7) Department's petition to terminate lifetime tracking. (a) The department may file a petition requesting that a person's lifetime tracking be terminated if the person is permanently physically incapacitated. The petition shall include affidavits from 2 physicians that explain the nature of the person's permanent physical incapacitation.

(b) 1. The department shall file a petition under par. (a) with the circuit court for the county in which the person was convicted or found not guilty or not responsible by reason of mental disease or defect or, in the case of a person described in sub. (2) (b), the circuit court for the county in which the person was found to be a sexually violent person.

2. The department shall send a copy of a petition filed under subd. 1. to the district attorney responsible for prosecuting the serious sex offense that was the basis for the order of lifetime tracking or, in the case of a person described in sub. (2) (b), the agency that filed the petition under s. 980.02.

(c) Upon its own motion or upon the motion of the party to whom the petition was sent under par. (b) 2., the court may order that the person to whom the petition relates be examined by a physician who is approved by the court. The physician who conducts an examination under this paragraph shall prepare a report of his or her examination that includes his or her opinion of whether the person is permanently physically incapacitated. The physician shall file the report of his or her examination with the court within 60 days after completing the examination, and the court shall provide copies of the report to the department and the party to whom the petition was sent under par. (b) 2. The contents of the report shall be confidential until the physician testifies at a hearing under par. (d). The department shall pay the cost of an examination required under this paragraph.

(d) The court shall conduct a hearing on a petition filed under par. (b) 1., but if the court has ordered a physical examination under par. (c), the hearing may not occur until after the examination is complete and a report of the examination has been filed as provided under par. (c). At the hearing, the court shall take evidence it considers relevant to determining whether the person to whom the petition relates is permanently physically incapacitated so that he or she is not a danger to the public. The department and the party to whom the petition was sent under par. (b) 2. may offer relevant evidence regarding that issue.

(e) The court may grant a petition filed under par. (b) 1. if it determines after a hearing under par. (d) that the person to whom the petition relates is permanently physically incapacitated so that he or she is not a danger to the public.

(8) (a) In this subsection, "relative" means a child, brother, sister, first cousin, 2nd cousin, nephew, niece, grandchild, or great grandchild, or any other person related by blood, marriage, or adoption.

(b) Notwithstanding sub. (2), the department may terminate a person's lifetime tracking after 10 years if the victim of the serious child sex offense for which the person is being tracked is a relative of the person being tracked.

431,9 Section 9. 946.465 of the statutes is created to read:

946.465 Tampering with a global positioning system tracking device. Whoever, without the authorization of the department of corrections, intentionally tampers with a global positioning system tracking device or comparable technology that is provided under s. 301.48 is guilty of a Class I felony.

431,12 Section 12. 971.17 (4) (e) of the statutes is renumbered 971.17 (4) (e) 1. and amended to read:

971.17 (4) (e) 1. If the court finds that the person is appropriate for conditional release, the court shall notify the department of health and family services. The Subject to subd. 2. and 3., the department of health and family services and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health and family services may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for conditional release, unless the county department, department of health and family services and person to be released request additional time to develop the plan.

2. If the county department of the person's county of residence declines to prepare a plan, the department of health and family services may arrange for another any other county to prepare the plan if that county agrees to prepare the plan and if the individual person will be living in that county. This subdivision does not apply if the person was found not guilty of a sex offense, as defined in s. 301.45 (1d) (b), by reason of mental disease or defect.

431,14 Section 14. 971.17 (4) (e) 3. of the statutes is created to read:

971.17 (4) (e) 3. If the county department for the person's county of residence declines to prepare a plan for a person who was found not guilty of a sex offense, as defined in s. 301.45 (1d) (b), by reason of mental disease or defect, the department may arrange for any of the following counties to prepare a plan if the county agrees to do so:

a. The county in which the person was found not guilty by reason of mental disease or defect, if the person will be living in that county.

b. A county in which a treatment facility for sex offenders is located, if the person will be living in that facility.

431,15 Section 15. 980.08 (5) of the statutes is renumbered 980.08 (5) (b) and amended to read:

980.08 (5) (b) If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence, as determined by the department under s. 980.105. The department and the county department under s. 51.42 in the county of residence of the person selected under par. (c) or (d) shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. In developing a plan for where the person may reside while on supervised release, the department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am). If the person is a serious child sex offender, the plan shall address the person's need for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. The department may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department and person to be released request additional time to develop the plan. If