Amendment ASA1-SB323

LRBs0424/1

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1995 - 1996 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, To 1995 SENATE BILL 323

March 28, 1996 - Offered by Representative Green.

SB323-ASA1,1,7 An Act to repeal 48.296 (2) (b), 48.296 (3) (c) and (d) and 48.296 (4) (intro.); to amend 48.296 (2) (b), 48.296 (4) (intro.), 938.296 (2) (b), 938.296 (4) (intro.), 968.38 (2) (a), 968.38 (3) (c) and 968.38 (4) (intro.); and to create 48.296 (3) (c) and (d), 938.296 (3) (c) and (d), 968.38 (3) (d) and 971.13 (4) of the statutes; relating to: testing criminal defendants who are found not competent to proceed or not guilty by reason of mental disease or defect for the presence of the human immunodeficiency virus and sexually transmitted diseases.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB323-ASA1, s. 1 Section 1. 48.296 (2) (b) of the statutes is amended to read:

SB323-ASA1,1,13 48.296 (2) (b) The district attorney or corporation counsel has probable cause to believe that the child has significantly exposed the victim or alleged victim. If the child is adjudicated delinquent or, is found to be in need of protection or services or is found not responsible by reason of mental disease or defect under s. 48.30 (5), this paragraph does not apply.

SB323-ASA1, s. 2 Section 2. 48.296 (2) (b) of the statutes, as affected by 1995 Wisconsin Act .... (this act), is repealed.

SB323-ASA1, s. 3 Section 3. 48.296 (3) (c) and (d) of the statutes are created to read:

SB323-ASA1,2,5 48.296 (3) (c) At any time after the child is found not responsible by reason of mental disease or defect under s. 48.30 (5).

SB323-ASA1,2,8 (d) If the court has determined that the child is not competent to proceed under s. 48.30 (5) and has suspended proceedings on the petition, at any time after the determination that the child is not competent to proceed.

SB323-ASA1, s. 4 Section 4. 48.296 (3) (c) and (d) of the statutes, as created by 1995 Wisconsin Act ... (this act), are repealed.

SB323-ASA1, s. 5 Section 5. 48.296 (4) (intro.) of the statutes is amended to read:

SB323-ASA1,2,24 48.296 (4) (intro.) On receipt of an application for an order under sub. (2), the court shall set a time for a hearing on the application. If the child has been found not competent to proceed under s. 48.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the child. If, after hearing, the court finds probable cause to believe that the child has significantly exposed the victim or alleged victim, the court shall order the child to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease. The court shall require the health care professional who performs the test or series of tests to refrain, notwithstanding s. 252.15 (4) (c), from making the test results part of the child's permanent medical record and to disclose the results of the test to any of the following:

SB323-ASA1, s. 6 Section 6. 48.296 (4) (intro.) of the statutes, as affected by 1995 Wisconsin Act .... (this act), is repealed.

SB323-ASA1, s. 7 Section 7. 938.296 (2) (b) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

SB323-ASA1,3,9 938.296 (2) (b) The district attorney or corporation counsel has probable cause to believe that the juvenile has significantly exposed the victim or alleged victim. If the juvenile is adjudicated delinquent or, is found to be in need of protection or services or is found not responsible by reason of mental disease or defect under s. 938.30 (5), this paragraph does not apply.

SB323-ASA1, s. 8 Section 8. 938.296 (3) (c) and (d) of the statutes are created to read:

SB323-ASA1,3,12 938.296 (3) (c) At any time after the juvenile is found not responsible by reason of mental disease or defect under s. 938.30 (5).

SB323-ASA1,3,15 (d) If the court has determined that the juvenile is not competent to proceed under s. 938.30 (5) and has suspended proceedings on the petition, at any time after the determination that the juvenile is not competent to proceed.

SB323-ASA1, s. 9 Section 9. 938.296 (4) (intro.) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

SB323-ASA1,4,5 938.296 (4) (intro.) On receipt of an application for an order under sub. (2), the court shall set a time for a hearing on the application. If the juvenile has been found not competent to proceed under s. 938.30 (5), the court may hold a hearing under this subsection only if the court first determines that the probable cause finding can be fairly made without the personal participation of the juvenile. If, after hearing, the court finds probable cause to believe that the juvenile has significantly exposed the victim or alleged victim, the court shall order the juvenile to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease. The court shall require the health care professional who performs the test or series of tests to refrain, notwithstanding s. 252.15 (4) (c), from making the test results part of the juvenile's permanent medical record and to disclose the results of the test to any of the following:

SB323-ASA1, s. 10 Section 10. 968.38 (2) (a) of the statutes is amended to read:

SB323-ASA1,4,10 968.38 (2) (a) The district attorney has probable cause to believe that the defendant has significantly exposed the alleged victim or victim. If the defendant is convicted or found not guilty by reason of mental disease or defect, this paragraph does not apply.

SB323-ASA1, s. 11 Section 11. 968.38 (3) (c) of the statutes is amended to read:

SB323-ASA1,4,13 968.38 (3) (c) At any time after the defendant is convicted or is found not guilty by reason of mental disease or defect.

SB323-ASA1, s. 12 Section 12. 968.38 (3) (d) of the statutes is created to read:

SB323-ASA1,4,17 968.38 (3) (d) If the court has determined that the defendant is not competent to proceed under s. 971.14 (4) and suspended the criminal proceedings, at any time after the determination that the defendant is not competent to proceed.

SB323-ASA1, s. 13 Section 13. 968.38 (4) (intro.) of the statutes is amended to read:

SB323-ASA1,5,11 968.38 (4) (intro.)  The court shall set a time for a hearing on the matter under sub. (2) during the preliminary examination, if sub. (3) (a) applies; after the defendant is bound over for trial and before a verdict is rendered, if sub. (3) (b) applies; or after conviction or a finding of not guilty by reason of mental disease or defect, if sub. (3) (c) applies; or, subject to s. 971.13 (4), after the determination that the defendant is not competent, if sub. (3) (d) applies. The court shall give the district attorney and the defendant notice of the hearing at least 72 hours prior to the hearing. The defendant may have counsel at the hearing, and counsel may examine and cross-examine witnesses. If the court finds probable cause to believe that the defendant has significantly exposed the victim or alleged victim, the court shall order the defendant to submit to a test or a series of tests administered by a health care professional to detect the presence of HIV, antigen or nonantigenic products of HIV, an antibody to HIV or a sexually transmitted disease. The court shall require the health care professional who performs the test to disclose the test results to the defendant. The court shall require the health care professional who performs the test to refrain, notwithstanding s. 252.15 (4) (c), from making the test results part of the defendant's permanent medical record and to disclose the results of the test to any of the following:

SB323-ASA1, s. 14 Section 14. 971.13 (4) of the statutes is created to read:

SB323-ASA1,5,16 971.13 (4) The fact that a defendant is not competent to proceed does not preclude a hearing under s. 968.38 (4) unless the probable cause finding required under s. 968.38 (4) cannot be fairly made without the personal participation of the defendant.

SB323-ASA1, s. 15 Section 15. Initial applicability.

SB323-ASA1,5,20 (1) This act first applies to a person who is alleged to have committed a violation of section 940.225, 948.02, 948.025, 948.05 or 948.06 of the statutes on the effective date of this subsection.

SB323-ASA1, s. 16 Section 16. Effective dates. This act takes effect on the day after publication, except as follows:

SB323-ASA1,6,3 (1) The repeal of section 48.296 (2) (b), (3) (c) and (d) and (4) (intro.) of the statutes, the amendment of section 938.296 (2) (b) and (4) (intro.) of the statutes and the creation of section 938.296 (3) (c) and (d) of the statutes take effect on July 1, 1996.

SB323-ASA1,6,4 (End)