Proposed s. Jus 19.08 sets forth when an individual on probation, parole, or extended supervision may participate in the program. Proposed s. Jus 19.09 sets forth when an individual may volunteer to participate in the program. Proposed s. Jus 19.10 sets forth the types of testing that may be used by a participating county agency to determine whether a participant has used alcohol, controlled substances, or both. It further states that an ignition interlock device is not an acceptable testing method. Finally, it provides that the agency shall provide the testing equipment and may contract with a private vendor to obtain equipment as necessary. Proposed s. Jus 19.11(1) sets forth the program’s enrollment procedures, and provides sanctions for the failure to enroll by an individual ordered to participate in the program. Proposed s. Jus 19.11(2) states that a test revealing the presence of alcohol or a controlled substance is a failed test; permits the participating county agency to use a confirmation test to double-check a failed test; and provides that an agency may take a participant who fails a test into custody. Proposed s. Jus 19.11(3) provides that missing a test is a violation of the participation agreement and that being late for a test may be considered a violation. Either type of violation may result in a sanction. A participant may not take a test at a location other than the testing site designated in the participation agreement unless the participant has made prior arrangements with the participating county agency. The agency may excuse a participant from a scheduled test based upon exigent circumstances. Proposed s. Jus 19.11(4) provides that a participant who tampers with a test shall be sanctioned by the participating county agency. If the participant damages any equipment in the course of tampering, the participant shall reimburse the agency for the cost of the damaged equipment. Proposed s. Jus 19.11(5) provides that a court may issue a standing order establishing procedures for taking participants into custody who have violated the participation agreement. Proposed s. Jus 19.12 provides that the participating county agency shall collect fees from participants. The fee amounts shall be determined by the Department in consultation with the agencies. The agency shall remit a fixed portion of the fee amounts owed by participants to the Department. This section sets forth how the agency shall use the collected fees, and how the participant shall pay the required fees. It states that a participant with a positive balance after successful completion of the program shall receive a refund of that balance but that a participant with a positive balance after termination from the program shall not receive a refund. A participant’s failure to pay fees may result in termination from the program. The agency shall report any such failure to the court, the department of corrections, and the district attorney. Proposed s. Jus 19.13 directs participating county agencies to use the data collection system designated by the Department to record participant information, testing data, and fees collected. It sets out the information the agency shall be required to record, and the schedule for recording that information. It provides that the information shall be kept confidential. The Department will use the data provided to evaluate program outcomes and effectiveness as required by s. 165.957(7), Stats. Proposed s. Jus 19.14 provides that a participant who loses or intentionally damages any testing equipment shall reimburse the agency for the lost or damaged equipment. Failure to pay the reimbursement may result in the participant being taken into custody. Proposed s. Jus 19.15 describes the different ways a participant may be discharged from the program. First, a participant has completed the program if he or she successfully complied with the program requirements for the specified period. Second, a participant is terminated from the program if he or she has been removed from the program due to his or her violation of program requirements. Third, a participant is administratively discharged from the program if the court, department of corrections, or district attorney has determined that the participant is no longer required or able to participate in the program. Proposed s. Jus 19.16 provides that the court, department of corrections, or district attorney, with the agency’s concurrence, may authorize a participant to repeat the program for a maximum of two repetitions. Summary of, and comparison with, existing or proposed federal regulation: 23 C.F.R. § 1200.23, “Impaired driving countermeasures grants,” establishes criteria for awarding federal 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).
Comparison with rules in adjacent states: Illinois, Michigan, and Minnesota do not have frequent sobriety testing programs. The Senate of the State of Iowa passed S.S.B. 1101, regarding frequent sobriety testing, on March 9, 2017. However, the legislation has not yet been approved by the Iowa House of Representatives.
Summary of factual data and analytical methodologies: The proposed rules are based on the Department’s legal staff’s analysis of the language and requirements of the relevant statutes, and the Department’s law enforcement staff’s analysis of the guidance needed by county agencies participating in the frequent sobriety testing pilot program. Based on those analyses, the Department has determined that the proposed emergency rules are necessary for the Department and participating county agencies to carry out their responsibilities under s. 165.957, Stats. Agency contact person: Assistant Attorney General Maura Whelan, Wisconsin Department of Justice, 17 West Main Street, P.O. Box 7857, Madison, Wisconsin 53707‑7857; phone (608) 266-3859; email: whelanmf@doj.state.wi.us. Place where comments are to be submitted and deadline for submission: Comments may be submitted to the contact person named above no later than one week after the public hearing on these emergency rules is conducted. Information as to the date, location, and time of the public hearing will be published in the Wisconsin Administrative Register.
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FINDING OF EMERGENCY
These rules are proposed as emergency rules pursuant to s. 165.957(8), Stats., which states that “[t]he department may use the emergency rules procedure under s. 227.24 to promulgate rules specified in sub. (3)[, and] . . . 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.” TEXT OF THE proposed emergency RULES
SECTION 1. Chapter Jus 19 is created to read: FREQUENT SOBRIETY TESTING PILOT PROGRAM
Jus 19.01 Purpose. The purpose of this chapter is to establish standards, timelines, and procedures, as required under s. 165.957(3), Stats., for a frequent sobriety testing pilot program in the state of Wisconsin. Jus 19.02 Applicability. This chapter applies to the department of justice, department of corrections, participating counties, circuit courts, district attorneys, and participants in the frequent sobriety testing pilot program.
Jus 19.03 Definitions. In this chapter:
(1) "Agency" means a sheriff's office or an entity designated by a sheriff of a county selected by the department to participate in the frequent sobriety testing pilot program.
(2) “Alcohol concentration” means the alcohol content of blood, breath, or urine by weight.
(3) “Breath test” means the collection of a breath sample to measure breath alcohol concentration.
(4) “Continuous monitoring” means breath or transdermal testing for the presence of alcohol at least once every hour.
(5) "Controlled substance" has the meaning given in s. 961.01(4), Stats. (6) “Court” means a circuit court in the state of Wisconsin.
(7) “Data collection system” means a computer application providing for the entry of specific, structured variables into a database to track key data elements for analysis and reporting.
(8) “Deferred prosecution agreement” means a written agreement between a criminal defendant and a district attorney in which the district attorney agrees to suspend the prosecution for a specified period provided that the defendant complies with conditions included in the agreement.
(9) “Department” means the department of justice.
(10) “District attorney” means the district attorney of a county participating in the program who has jurisdiction over the prosecution of a participant.
(11) "Drug patch" means any type of device affixed to a person's skin to test for the presence of controlled substances in the person's body.
(12) "Participant" means an adult person who has been ordered by the court or the department of corrections to refrain from using alcohol or controlled substances, or both, as a condition of release and has been ordered by a court or the department of corrections to participate in the program. “Participant” also means an adult person who has agreed to participate in the program as a condition of a deferred prosecution agreement or who volunteers to participate in the program.
(13) "Participation agreement" means an agreement between a participant and an agency in which the participant agrees to comply with the program requirements.
(14) “Program” means the frequent sobriety testing pilot program, which requires a participant to abstain from the use of alcohol or a controlled substance, or both, for a specified period of time, during which the participant shall submit to twice-a-day or continuous testing of the participant's blood, breath, urine, or other bodily substance, in order to determine if alcohol or a controlled substance, or both, is present in the participant's body.
(15) “Repeat participant” means a person who participates in the program more than once.
