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:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency's general powers or duties does not confer rule-making authority on the agency or augment the agency's rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
4. Estimate of the amount of time that state employees will spend to develop the rule and of other resources necessary to develop the rule:
It is estimated that state employees will spend approximately 200 hours on the rulemaking process for the proposed rules, including research, drafting, and compliance with required rulemaking procedures.
5. Description of all entities that may be impacted by the rule:
The proposed rules governing procedures and standards for a frequent sobriety testing pilot program under Wis. Stat. § 165.957 will affect the interests of Wisconsin residents in the counties designated by DOJ to participate in the program. It will directly affect the interests of individuals who either are required to participate in the program by a sentencing court or DOC, or choose to participate voluntarily. In addition, the proposed rules will indirectly affect the safety interests of the general public in the designated counties and surrounding counties to the extent that the frequent sobriety testing pilot program decreases recidivism by persons convicted of impaired driving offenses. The proposed rules will affect the interests of the courts in the designated counties and the DOC offices and DOC staff supervising persons who participate in the frequent sobriety testing pilot program as a condition of probation, deferred prosecution, parole, or extended supervision.
6. Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule:
The only related existing or proposed federal regulation is 23 C.F.R. § 1200.23, “Impaired driving countermeasures grants.” That provision establishes criteria for awarding grants to states “that adopt and implement effective programs to reduce traffic safety problems resulting from individuals driving motor vehicles while under the influence of alcohol, drugs, or the combination of alcohol and drugs or that enact alcohol ignition interlock laws.” 23 C.F.R. § 1200.23(a). States may apply for a grant under this section for “[c]osts associated with a 24—7 sobriety program.” 23 C.F.R. § 1200.23(c), (i) (1)(ix), (2), (3). A 24—7 sobriety program is a State law or program that authorizes a State court or a State agency, as a condition of sentence, probation, parole, or work permit, to require an individual who pleads guilty to or was convicted of driving under the influence of alcohol or drugs to—
(1) Abstain totally from alcohol or drugs for a period of time; and
(2) Be subject to testing for alcohol or drugs at least twice per day by continuous transdermal alcohol monitoring via an electronic monitoring device, or by an alternative method approved by NHTSA.
Id. at (b).
7. Anticipated economic impact of proposed rules.
The proposed emergency rules are expected to have minimal or no economic impact locally or statewide.
Contact Person: Assistant Attorney General Maura Whelan (608) 266-3859
