(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. [which requires alcohol testing at least twice daily and testing for controlled substances as frequently as practicable]. . . .
(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).
Those portions of the proposed rules that are not specifically authorized by ss. 165.957(3), Stats., are authorized by s. 227.11(2)(a), Stats., which 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.
This statute confers on the Department the power to determine whether administrative rules interpreting statutory provisions to be enforced or administered by the Department are necessary to effectuate the purpose of those statutory provisions and, if such necessity is found, to promulgate administrative rules that do not exceed the bounds of correct interpretation of the governing statutes.
The Department finds that the rules here proposed are necessary to effectuate the statutory objectives of s. 165.57, Stats., which authorizes creation of the frequent sobriety testing pilot program. The Department has the statutory responsibility to enforce and administer that program.
The Department further finds that the rules here proposed:
• do not exceed the bounds of correct interpretation of the pertinent statutes;
• are authorized by s. 165.957, Stats., and are not based on authority derived from any other statutory or non-statutory statements or declarations of legislative intent, purpose, findings, or policy;
• are authorized as necessary interpretations of specific statutory requirements and are not based on authority derived from any other general powers or duties of the department of justice; and
• do not impose any standards or requirements that are more restrictive than the standards and requirements contained in the pertinent statutes.
For these reasons, those portions of the proposed rules that are not specifically authorized by s. 165.957(3), Stats., are authorized by s. 227.11(2)(a), Stats. Related statutes or rules: The frequent sobriety testing pilot program created by s. 165.957, Stats., is new. Therefore, there are no existing statutes or rules relevant to or affected by the proposed rule.
Plain language analysis: Wisconsin Stat. § 165.957 establishes a pilot program for frequent sobriety testing to detect the use of alcohol or controlled substances by certain individuals under supervision by a circuit court or the department of corrections or pursuant to a deferred prosecution agreement, who have been ordered to refrain from using alcohol, controlled substances, or both. Five counties have been designated by the Department to participate in the pilot program. The participating counties will collect and transmit program data to the Department. By January 15, 2021, the Department will submit a final report to the legislature recommending whether the program should be continued, discontinued, or modified. The rules proposed here set forth the procedures and standards applicable to the Department, participating counties, and participating individuals for the duration of the pilot program.
Proposed s. Jus 19.02 specifies to whom the requirements of ch. Jus 19 apply. Proposed s. Jus 19.03 provides definitions for terms used in ch. Jus 19. Proposed s. Jus 19.04(1) and (2) provide that an individual participant in the frequent sobriety testing pilot program shall sign a written “participation agreement” with the county agency participating in the program and enumerates the required contents of that written agreement. Proposed s. Jus 19.04(3) provides that the participant shall sign a consent form allowing release of testing information to the Department and the participating county agency for enforcement and reporting purposes. Proposed s. Jus 19.04(4) provides the minimum and maximum duration of an individual’s participation in the program and allows for limited extensions. Proposed s. Jus 19.04(5) provides that an individual in custody ordered to participate in the program may not participate until he or she is released from custody. Proposed s. Jus 19.04(6) provides that an individual on work release may be ordered to or may volunteer to participate in the program. Proposed s. Jus 19.04(7) provides that participation in the program does not replace a participant’s other obligations under applicable statutes or conditions imposed by the court, the department of corrections, or a deferred prosecution agreement.
Proposed Jus 19.05 provides that each county agency participating in the program shall sign a written agreement outlining the respective responsibilities of the agency and the Department, and enumerates the required contents of that written agreement.
Proposed s. Jus 19.06 sets forth when an individual on bond or pre-trial release may participate in the program. Proposed s. Jus 19.07 sets forth when an individual may participate in the program as part of a deferred prosecution agreement. 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—