STATE OF WISCONSIN
Department of Justice
STATEMENT OF SCOPE OF PROPOSED EMERGENCY RULES
Rule No.: These proposed emergency rules will be placed in a new chapter to be designated Wis. Admin. Code ch. Jus 19. Individual rule numbers have not yet been designated. Relating to: Standards and procedures for frequent sobriety testing pilot program.
1. Description of the objectives of the rules:
The State of Wisconsin Department of Justice (DOJ) proposes to promulgate emergency administrative rules to implement DOJ’s statutory responsibility under Wis. Stat. § 165.957(3) to establish standards and procedures for a frequent sobriety testing pilot program. Wisconsin Stat. § 165.957 is newly created by 2015 Act 55. It establishes a pilot program for frequent sobriety testing to detect the use of alcohol or controlled substances by certain persons under court or Department of Corrections (DOC) supervision with convictions, suspensions, or revocations arising from intoxicated use of a vehicle. In order to participate, individuals must fall into one of two categories. In the mandatory group are persons ordered by a court or DOC to refrain from using alcohol or controlled substances and to participate in the program as a condition of probation, deferred prosecution, parole, or extended supervision. In the voluntary group are persons who agree to refrain from using alcohol and/or controlled substances while on probation, deferred prosecution, parole, or extended supervision, and volunteer to participate in the program even though not ordered to do so by the court or DOC. The statute directs DOJ to designate up to five counties to participate in the pilot program.
The proposed emergency rules will cover three subject areas:
First, as a default, the sobriety testing program requires participants to be tested at least twice a day at twelve-hour intervals. See Wis. Stat. § 165.957(4)(b)1. DOJ will promulgate rules to establish alternative frequent sobriety testing standards in addition to the default standard. See Wis. Stat. § 165.957(3)(a). Second, the designated counties must collect fees from the individuals participating in the testing program. See Wis. Stat. § 165.957(4)(d). DOJ will promulgate rules to establish a standard for setting these fees. See Wis. Stat. § 165.957(3)(b). The fee standard established by these rules may include a component allowing DOJ to recoup its costs, through agreement with each county. See id. Third, each designated county must report annually to DOJ the number of program participants; the failure or dropout rate of program participants; the costs associated with the program; and other information DOJ requests. See Wis. Stat. § 165.957(6). DOJ will promulgate rules establishing a timeline and procedure for the counties’ submission of the required information. See Wis. Stat. § 165.957(3)(c). DOJ’s existing administrative rules are located at Wis. Admin. Code chs. Jus 8-12, 14, and 16-18. The emergency rules proposed here will be placed in a new chapter, to be designated Wis. Admin. Code ch. Jus 19. Ch. Jus 19 will be entitled “Frequent Sobriety Testing Pilot Program.” Wisconsin Stat. § 165.957(8) specifically provides that DOJ “may use the emergency rules procedure under s. 227.24 to promulgate [the proposed] rules.” Therefore, DOJ is not required to provide evidence that the promulgation of emergency rules is necessary for the preservation of the public, health, safety, or welfare. See Exec. Order # 50, ¶ 3. 2. Description of existing policies relevant to the rule and of new policies proposed to be included in the rule and an analysis of policy alternatives; the history, background and justification for the proposed rule:
The program created by Wis. Stat. § 165.957 is entirely new. Therefore, there are no existing DOJ practices or policies that cover the subject area of the administrative rules here proposed. South Dakota implemented the first 24/7 sobriety program in 2005. Participants in this program remain in society, enabling them to fulfill their work and family responsibilities as long as they comply with and pass rigorous ongoing sobriety tests. A 2012 study by the RAND Corporation reports a significant decrease in OWI recidivism in South Dakota since the state adopted the 24/7 sobriety program. Since 2005, several other states have adopted similar programs.
3. Statutory authority for the rule (including the statutory citation and language):
The proposed rulemaking is authorized by Wis. Stat. § 165.957, which permits the Department of Justice to establish rules as summarized in section 1 of this Scope Statement. Specifically, § 165.957 provides: (3) The department of justice may, by rule, establish the following:
(a) A standard for frequent testing for the use of alcohol or a controlled substance that is an alternative to the testing described in sub. (4)(b)1.
(b) A standard for setting fees that counties may collect under sub. (4)(d). The standard may include a component that allows the department of justice to recoup its costs under this section, and as provided in sub. (5)(a).
(c) A timeline and procedure for counties to submit to the department of justice the information required under sub. (6).
. . . .
(8) The department of justice may use the emergency rules procedure under s. 227.24 to promulgate rules specified in sub. (3). Notwithstanding s. 227.24(1)(a) and (3), the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this section. The proposed rulemaking is also authorized by Wis. Stat. § 227.11(2)(a), which confers on each administrative agency the power to promulgate administrative rule that the agency determines to be necessary to effectuate the statutory provisions administered by the agency, as long as those rules do not exceed the bounds of correct interpretation of those provisions. Section 227.11(2)(A) provides: (2) Rule-making authority is expressly conferred as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
