Amendment ASA1-AB263

LRBs0145/3

PJH:nwn:md

2009 - 2010 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2009 ASSEMBLY BILL 263

October 14, 2009 - Offered by Representative Zipperer.

AB263-ASA1,1,6 An Act to amend 16.705 (1n), 16.71 (5m), 20.410 (1) (gk) (title), 946.465, 971.37 (1m) (c) 1. (intro.) and 971.37 (1m) (c) 2.; and to create 20.410 (1) (gL), 301.49, 813.129, 814.75 (8m), 969.02 (3) (e), 973.05 (2m) (jm) and 973.057 of the statutes; relating to: requiring persons who violate certain restraining orders or injunctions to be monitored by a global positioning system, making an appropriation, and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, an individual who is, or who acts on behalf of, a victim of abuse, harassment, or threats may obtain a temporary restraining order against the person who has committed the acts of abuse, harassment, or making a threat. The restraining order bars the person from contacting the victim and requires the person to stay away from the victim's residence and other places temporarily occupied by the victim until a court conducts a hearing to determine whether the restraining order should be incorporated into a longer lasting injunction.

If the court determines that the person has engaged in, or may engage in, acts of abuse, harassment, or threats against the victim, the court may issue an injunction against the person. An injunction may stay in effect for up to four years and bars the person from contacting the victim, requires the person to stay away from the victim's residence, and may require the person to stay away from other locations temporarily occupied by the victim.

A person who violates a restraining order or an injunction may be fined up to $1,000 and imprisoned for up to nine months, except that a person who violates a restraining order or injunction that was issued only for harassment faces the same fine but may be imprisoned for up to 90 days.

This substitute amendment allows a court to order a person who is convicted of violating a restraining order or an injunction to submit, for the duration of the restraining order or injunction, to global positioning system (GPS) tracking by the Department of Corrections (DOC). The substitute amendment also allows a court to order, as a condition of release, a person who is charged with violating a restraining order or an injunction to submit to GPS tracking. The substitute amendment requires the court to consider a request for GPS tracking by a district attorney or by the individual who asked for the restraining order.

Under the substitute amendment, DOC must monitor the person's whereabouts with a GPS device and, if the person enters into an area that he or she is required to avoid under the terms of the restraining order or injunction, DOC must immediately notify local law enforcement and the victim. Under the substitute amendment, everyone who violates a restraining order is required to pay a $200 surcharge in addition to his or her fine that will be used toward the costs of GPS tracking. Under the substitute amendment, the court may order the person to pay for the costs of GPS tracking. The substitute amendment makes it a Class I felony, punishable by a fine up to $10,000, imprisonment for up to three years and six months, or both, for a person to tamper with the GPS device.

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

AB263-ASA1, s. 1 Section 1. 16.705 (1n) of the statutes is amended to read:

AB263-ASA1,2,4 16.705 (1n) Subsection (1) does not apply to a contract entered into by the department of corrections for global positioning system tracking services under s. 301.48 (3) or 301.49.

AB263-ASA1, s. 2 Section 2. 16.71 (5m) of the statutes is amended to read:

AB263-ASA1,2,8 16.71 (5m) The department shall delegate authority to the department of corrections to enter into contracts for global positioning system tracking equipment, implementation, and tracking services under s. ss. 301.48 (3) and 301.49.

AB263-ASA1, s. 3 Section 3. 20.410 (1) (gk) (title) of the statutes is amended to read:

AB263-ASA1,3,2 20.410 (1) (gk) (title) Global positioning system tracking devices for certain sex offenders.

AB263-ASA1, s. 4 Section 4. 20.410 (1) (gL) of the statutes is created to read:

AB263-ASA1,3,11 20.410 (1) (gL) Global positioning system tracking devices for certain violators of restraining orders. All moneys received under s. 301.49 (5) and all moneys received from the global positioning system tracking surcharge on court fines, as authorized under s. 971.37 (1m) (c) 1. or 973.057, for expenditures related to the global positioning system tracking program under s. 301.49. If the unencumbered balance in this appropriation account exceeds $100,000 immediately before the end of any fiscal year, the department of corrections shall transfer the excess to the appropriation account under s. 20.437 (1) (hh) at the end of that fiscal year.

AB263-ASA1, s. 5 Section 5. 301.49 of the statutes is created to read:

AB263-ASA1,3,14 301.49 Global positioning system tracking for persons who violate certain orders or injunctions. (1) Definitions. In this section:

AB263-ASA1,3,16 (a) "Exclusion zone" means a zone in which a person who is tracked using a global positioning system tracking device is prohibited from entering.

AB263-ASA1,3,20 (b) "Global positioning system tracking" means tracking using a system that actively monitors and identifies a person's location and timely reports or records the person's presence in an exclusion zone. "Global positioning system tracking" includes comparable technology.

AB263-ASA1,3,22 (c) "Petitioner" means the person who petitioned for the restraining order or injunction that was issued under ss. 813.12 to 813.125 or enforced under s. 813.128.

AB263-ASA1,3,24 (d) "Restraining order or injunction" means an order or an injunction issued pursuant to ss. 813.12 to 813.125 or enforced under s. 813.128.

AB263-ASA1,4,7 (2) Who is covered; duration of coverage. (a) The department shall maintain global positioning system tracking of a person who is not in jail or in prison and who is ordered by a court to submit to monitoring under s. 813.129 or 969.02 (3) (e) for the duration of the restraining order or injunction. If a restraining order or injunction is extended beyond its original expiration date, the department shall maintain global positioning system tracking of the person for the duration of the extended restraining order or injunction.

AB263-ASA1,4,10 (b) The department shall maintain global positioning system tracking of a person who is subject to global positioning system tracking as a condition of release under s. 969.02 (3) (e) for as long as the court orders under that paragraph.

AB263-ASA1,4,14 (3) Functions and operation of tracking program. (a) The department shall implement a continuous global positioning tracking system to electronically monitor the whereabouts of persons who are subject to this section. The system shall do all of the following:

AB263-ASA1,4,19 1. Use field monitoring equipment that supports cellular communications with as large a coverage area as possible and shall automatically provide instantaneous information regarding the whereabouts of a person who is being monitored, including information regarding the person's presence in an exclusion zone established under par. (c).

AB263-ASA1,4,22 2. Use land line communications equipment to transmit information regarding the location of persons who are subject to this section when they are in areas in which no commercial cellular service is available.

AB263-ASA1,4,24 3. Immediately alert the department and the local law enforcement agency having jurisdiction over the exclusion zone if the person enters any exclusion zone.

AB263-ASA1,4,25 4. Immediately alert the petitioner if the person enters any exclusion zone.

AB263-ASA1,5,4 (b) The department shall contract with a vendor using a competitive process as described under s. 16.75 to provide staff in this state to install, remove, and maintain equipment related to global positioning system tracking for purposes of this section. The term of the contract may not exceed 3 years.

AB263-ASA1,5,10 (c) For each person who is subject to global positioning system tracking under this section, the department shall create an individualized exclusion zone for the person, if necessary to protect public safety. In creating an exclusion zone, the department shall include any location that the person is ordered to avoid or enjoined from entering under the restraining order or injunction that the person violated or is alleged to have violated.

AB263-ASA1,5,15 (4) Termination if person moves out of state. Notwithstanding sub. (2), if a person who is subject to being tracked under this section moves out of state, the department shall terminate the person's tracking. If the person returns to the state during the duration of the restraining order or injunction, the department shall reinstate the person's tracking.

AB263-ASA1,5,17 (5) Costs. (a) The department shall determine all of the following for each person tracked:

AB263-ASA1,5,18 1. The cost of global positioning system tracking for the person.

AB263-ASA1,5,20 2. How much of the cost under subd. 1. the person is able to pay based on the factors listed in par. (c).

AB263-ASA1,5,25 (b) If required by the department, a person who is subject to global positioning system tracking shall pay for the cost of tracking up to the amount calculated for the person under par. (a) 2. The department shall collect moneys paid by the person under this paragraph and credit those moneys to the appropriation account under s. 20.410 (1) (gL).

AB263-ASA1,6,2 (c) In determining how much of the costs the person is able to pay, the department may consider the following:

AB263-ASA1,6,3 1. The person's financial resources.

AB263-ASA1,6,4 2. The present and future earning ability of the person.

AB263-ASA1,6,5 3. The needs and earning ability of the person's dependents.

AB263-ASA1,6,6 4. Any other factors that the department considers appropriate.

AB263-ASA1,6,7 (6) Notice. The department shall provide all of the following to each petitioner:

AB263-ASA1,6,9 (a) Notice when the person who is ordered by a court to submit to monitoring under s. 813.129 is released from incarceration.

AB263-ASA1,6,12 (b) The exclusion zones that the person must avoid and the amount of time that the person is allowed to remain in an exclusion zone before the department and law enforcement receive an alert.

AB263-ASA1,6,15 (c) An explanation of the failure rates associated with global positioning system tracking programs and an explanation of situations in which a person may not be detected by the tracking program.

AB263-ASA1, s. 6 Section 6. 813.129 of the statutes is created to read:

AB263-ASA1,6,22 813.129 Global positioning system tracking. (1) If a person knowingly violates a temporary restraining order or injunction issued under s. 813.12 to s. 813.125 or any order enforced under s. 813.128, in addition to other penalties provided in those sections, the court may report the violation to the department of corrections immediately upon the person's conviction and may order the person to submit to global positioning system tracking under s. 301.49.

AB263-ASA1,7,2 (2) Before issuing an order under sub. (1), the court shall consider whether the person is likely to cause serious bodily harm to the person who petitioned for the restraining order or injunction, poses a serious threat to public safety, or is likely to intimidate witnesses, weighing the following factors:

AB263-ASA1,7,5 (a) Whether the person has allegedly caused physical injury, intentionally abused pets or damaged property, or committed sexual assault, an act of strangulation or forcible entry to gain access to the petitioner.

AB263-ASA1,7,7 (b) Whether the person has threatened any individual, including the petitioner, with harm.

AB263-ASA1,7,10 (c) Whether the person has access to a firearm or other dangerous weapon and a history of improperly using or threatening to use a firearm or other dangerous weapon.

AB263-ASA1,7,11 (d) Whether the person has expressed suicidal ideation.

AB263-ASA1,7,13 (e) Whether the person and the petitioner have recently separated, divorced, or otherwise terminated their relationship.

AB263-ASA1,7,16 (f) Whether the person has exhibited obsessive or controlling behavior toward the petitioner or any member of the petitioner's family, including stalking, surveillance, or isolation of the petitioner or any member of the petitioner's family.

AB263-ASA1,7,17 (g) The person's mental health history.

AB263-ASA1,7,19 (h) Whether the person has a history of abusing alcohol or a controlled substance.

AB263-ASA1,7,21 (3) The court may request the department of corrections to provide a validated danger assessment of the person in order to make the findings required in sub. (2).

AB263-ASA1,7,24 (4) If a court enters an order under sub. (1), the court shall provide the person who petitioned for the restraining order or injunction with a referral to a domestic violence or sexual assault victim service provider.

AB263-ASA1,8,7 (5) If, after weighing the factors set forth under sub. (2), the court determines that a person is likely to cause serious bodily harm to the person who petitioned for the restraining order or injunction, poses a serious threat to public safety, or is likely to intimidate witnesses, and the court determines that another alternative, including imprisonment, is more likely to protect the person who petitioned for the restraining order or injunction or the public or more likely to prevent the intimidation of witnesses, the court may not enter an order under sub. (1).

AB263-ASA1, s. 7 Section 7. 814.75 (8m) of the statutes is created to read:

AB263-ASA1,8,10 814.75 (8m) The global positioning system tracking surcharge under s. 971.37 (1m) (c) 1. or 973.057.

AB263-ASA1, s. 8 Section 8. 946.465 of the statutes is amended to read:

AB263-ASA1,8,16 946.465 Tampering with a global positioning system tracking device. Whoever, without the authorization of the department of corrections, intentionally tampers with, or blocks, diffuses, or prevents the clear reception of, a signal transmitted by, a global positioning system tracking device or comparable technology that is provided under s. 301.48 or 301.49 is guilty of a Class I felony.

AB263-ASA1, s. 9 Section 9. 969.02 (3) (e) of the statutes is created to read:

AB263-ASA1,8,24 969.02 (3) (e) If the person is charged with violating a restraining order or injunction issued under ss. 813.12 to 813.125 or an order or modification enforced under s. 813.128, require the person to submit to global positioning system tracking under s. 301.49 and may require the person to participate in mental health treatment, a batterer's intervention program, or individual counseling. The judge shall consider a request by the district attorney or the petitioner, as defined in s. 301.49 (1) (c), in determining whether to issue an order under this paragraph.

AB263-ASA1, s. 10 Section 10. 971.37 (1m) (c) 1. (intro.) of the statutes is amended to read:

AB263-ASA1,9,9 971.37 (1m) (c) 1. (intro.) The agreement may provide as one of its conditions that a person covered under sub. (1) (b) or (c) pay the domestic abuse surcharge under s. 973.055 and, if applicable, the global positioning system tracking surcharge under s. 973.057. If the agreement requires the person to pay the global positioning system tracking surcharge under s. 973.057, the agreement shall also require the person to pay the domestic abuse surcharge under s. 973.055. Payments and collections of the domestic abuse surcharge and the global positioning system tracking surcharge under this subdivision are subject to s. 973.055 (2) to (4) or s. 973.057 (2) and (3), respectively, except as follows:

AB263-ASA1, s. 11 Section 11. 971.37 (1m) (c) 2. of the statutes is amended to read:

AB263-ASA1,9,13 971.37 (1m) (c) 2. If the prosecution is resumed under sub. (2) and the person is subsequently convicted, a court shall give the person credit under s. 973.055 and, if applicable, s. 973.057 for any amount paid under subd. 1.

AB263-ASA1, s. 12 Section 12. 973.05 (2m) (jm) of the statutes is created to read:

AB263-ASA1,9,16 973.05 (2m) (jm) To payment of the global positioning system tracking surcharge until paid in full.

AB263-ASA1, s. 13 Section 13. 973.057 of the statutes is created to read: