(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.
(16) “Sanction” is a consequence imposed for a violation of the participation agreement.
(17) “Testing site” means the facility designated by the agency and approved by the department where the program shall be administered including testing, installation of remote transdermal alcohol monitoring equipment, collection of fees from participants, and entry of participant information into the data collection system. An agency may designate more than one testing site.
(19) “Transdermal alcohol monitoring” means the use of a device to detect alcohol in a person’s body by measuring ethanol vapors released through the skin.
(20) "Twice-a-day testing" means testing a participant for the use of alcohol at least twice daily, with testing times approximately twelve hours apart.
(21) “Urinalysis testing” means collecting and analyzing urine specimens to detect the presence of alcohol or controlled substances, or both.
Jus 19.04 Program participation and enrollment. (1) Before commencing the program, a participant shall sign a written participation agreement with the agency using a form approved by the department. The agreement shall include the following information: type and frequency of testing; testing site; testing fees; payment procedures; participant’s obligations and responsibilities; and potential sanctions for non-compliance as determined by the agency. The agreement shall also include the duration of the person’s participation in the program as ordered by the court or department of corrections, or provided in a deferred prosecution agreement.
(2) A participant shall sign the agreement in the presence of the testing site officer, parole or probation agent, or other person designated by the agency, acknowledging and agreeing to the terms and conditions imposed by the court or department of corrections or provided in a deferred prosecution agreement. The participant shall receive a copy of the signed participation agreement.
(3) In conjunction with the participation agreement, the participant shall sign a consent form allowing the release of personal and testing information to the agency and department for enforcement and reporting purposes. The format of the consent form shall be approved by the department. The participant shall receive a copy of the signed consent form.
(4) A participant shall be enrolled in the program for a minimum of 90 days and a maximum of 365 days except when ordered as a condition of pretrial release. Program participation may be extended beyond the initial or maximum enrollment period at the discretion of the court, the department of corrections, or the district attorney. An extension shall not exceed 90 days. An individual’s participation in the program shall not exceed 18 months.
(5) A participant who is in physical custody may not be enrolled in the program until released from physical custody.
(6) A person on work release may be ordered to participate in the program or may volunteer to participate in the program.
(7) Participation in the program shall not replace a participant’s statutory obligations or any other condition imposed by the court or the department of corrections or as part of a deferred prosecution agreement.
Jus 19.05 Agency agreement with the department. (1) Each agency participating in the program shall sign a written agreement with the department outlining the respective responsibilities of the agency and the department.
(2) By signing the agreement, the agency agrees to abide by this chapter and any other guidelines and procedures established by the department for the administration of the program.
(3) The agreement shall require the agency to provide an accounting to the department of all fees, costs, and other payments collected from participants, in a manner directed by the department.
(4) The agreement shall list the data collection and reporting requirements outlined in s. Jus 19.13 and s. 165.957(6), Stats. (5) The agreement shall direct the agency to remit to the department a portion of all program fee amounts collected from its participants. The department shall use these payments to recoup its expenditures for administering the program, and installing, maintaining, and administering the data collection system. The department shall return to the agency any fees paid under the agreement not used to support the program.
Jus 19.06 Conditions of bond or pre-trial release. The court may require a defendant to participate in the program as a condition of bond or pre-trial release. The defendant may participate if any of the following apply:
(1) The defendant has two or more convictions for operating a motor vehicle while intoxicated (OWI) and is currently charged with a non-OWI offense.
(2) The defendant is charged with a third or subsequent OWI offense.
Jus 19.07 Conditions of deferred prosecution. A deferred prosecution agreement may include a provision requiring the defendant to participate in the program. The defendant may participate in the program only if the defendant has two or more OWI convictions and the deferred prosecution agreement is based on a non-OWI offense.
Note: Pursuant to s. 967.055(3), Stats., a prosecutor may not place a person in a deferred prosecution program if the person is accused of or charged with operating a motor vehicle while intoxicated. Neither s. 165.957, Stats., nor this rule allow the use of deferred prosecution agreements in OWI cases. Jus 19.08 Conditions post-conviction. The court or department of corrections may order a defendant convicted of an offense to participate in the program as a condition of probation, parole, or extended supervision. The defendant may participate in the program if any of the following apply:
(1) The defendant is being sentenced for a second or subsequent OWI offense.
(2) The defendant has two or more OWI convictions and is being sentenced for a non-OWI offense.
Jus 19.09 Volunteers. A defendant with two prior OWI convictions may voluntarily participate in the program. A voluntary participant shall agree to abstain from alcohol and controlled substances while released on bond, under s. 969.01(1), Stats., on probation, under a deferred prosecution agreement, or on parole or extended supervision. Volunteers shall adhere to all program requirements. Jus 19.10 Testing. (1) Testing may include any combination of breath testing, drug patch testing, blood testing, urinalysis, or transdermal alcohol monitoring, provided that the method selected supports either continuous monitoring or twice-a-day testing. Other testing methods or schedules may be used if approved by the agency and the department. The testing methods at each testing site will be determined by the agency in collaboration with the department.
(2) An ignition interlock device is not an acceptable testing method for the program.
(3) The agency shall provide the testing equipment and may enter into a contract with a private vendor to obtain the equipment needed to carry out the program.
Jus 19.11 Compliance and sanctions. (1) Enrollment. The court, department of corrections, or district attorney’s office shall inform the agency when a participant is ordered to participate in the program or agrees to participate in the program pursuant to a deferred prosecution agreement. A new participant shall contact the testing site, within a time specified by the court, department of corrections, or district attorney to enroll in the program. Enrollment occurs when the participant signs the participation agreement and consent form. If the participant fails to enroll, the testing site shall notify, as applicable, the court, the department of corrections, and the district attorney. The court may issue a bench warrant directing law enforcement to take the participant into custody and ordering the participant to appear before the court. Volunteers may enroll by contacting the testing site.
(2) Failing a test. (a) A test that reveals the presence of alcohol or a controlled substance is a violation of the participation agreement and shall result in a sanction.
(b) If a test reveals the presence of alcohol or a controlled substance, the agency may conduct a confirmation test.
(c) If a test reveals the presence of alcohol or a controlled substance, the testing site may take the participant into custody for a violation of the participation agreement.
(d) The testing site shall immediately notify, as applicable, the court, the department of corrections, and the district attorney that the participant has violated the participation agreement by failing a test and has been taken into custody.
(3) Missing or being late for a test. (a) Missing a test at a designated time at the designated testing site without the agency’s approval is a violation of the participation agreement and may result in a sanction. If a participant is late for on-site testing, it may be considered a violation of the participation agreement and may result in a sanction.
