AB130: Bill Text

AB130,194,9 (3) Safety at sporting events. Notwithstanding sub. (2), courts of criminal or civil jurisdiction have exclusive jurisdiction in proceedings against juveniles under s. 167.32 or under a local ordinance strictly conforming to s. 167.32. A juvenile convicted of a violation under s. 167.32 or under a local ordinance strictly conforming to s. 167.32 shall be treated as an adult for sentencing purposes.

AB130,194,13 938.18 Jurisdiction for criminal proceedings for juveniles 14 or older; waiver hearing. (1) (a) Subject to s. 938.183, a juvenile or district attorney may apply to the court to waive its jurisdiction under this chapter in any of the following situations:

AB130,194,15 1. If the juvenile is alleged to have violated s. 161.41 (1), 940.06, 940.225 (1) or (2), 940.305, 940.31, 943.10 (2) or 943.32 (2) on or after the juvenile's 14th birthday.

AB130,194,19 2. If the juvenile is alleged to have committed, on or after the juvenile's 14th birthday, a violation, at the request of or for the benefit of a criminal gang, as defined in s. 939.22 (9), that would constitute a felony under ch. 161 or under chs. 939 to 948 if committed by an adult.

AB130,194,21 3. If the juvenile is alleged to have violated any state criminal law on or after the juvenile's 15th birthday.

AB130,194,24 (b) The judge may also initiate a petition for waiver in any of the situations described in par. (a) if the judge disqualifies himself or herself from any future proceedings on the case.

AB130,195,4 (2) The waiver hearing shall be brought on by filing a petition alleging delinquency drafted under s. 938.255 and a petition for waiver of jurisdiction which shall contain a brief statement of the facts supporting the request for waiver. The petition for waiver of jurisdiction shall be filed prior to the plea hearing.

AB130,195,12 (2m) If it appears that the juvenile may be suitable for participation in the youthful offender program under s. 938.537 or the adult intensive sanctions program under s. 301.048, the court shall order the department of corrections to submit a report analyzing the juvenile's suitability for participation in those programs and recommending whether the juvenile should be placed in either of those programs. The report shall be in writing, except that the report may be presented orally at the waiver hearing if the juvenile and the juvenile's counsel consent. A report that is presented orally shall be transcribed and made a part of the court record.

AB130,195,20 (3) (a) The juvenile shall be represented by counsel at the waiver hearing. Written notice of the time, place and purpose of the hearing shall be given to the juvenile, any parent, guardian or legal custodian, and counsel at least 3 days prior to the hearing. The notice shall contain a statement of the requirements of s. 938.29 (2) with regard to substitution of the judge. Where parents entitled to notice have the same address, notice to one constitutes notice to the other. Counsel for the juvenile shall have access to the social records and other reports consistent with s. 938.293.

AB130,195,23 (b) The juvenile has the right to present testimony on his or her own behalf including expert testimony and has the right to cross-examine witnesses at the hearing.

AB130,195,24 (c) The juvenile does not have the right to a jury at a hearing under this section.

AB130,196,2 (4) (a) The court shall determine whether the matter has prosecutive merit before proceeding to determine if it should waive jurisdiction.

AB130,196,6 (b) If the petition for waiver of jurisdiction is contested, the court, after taking relevant testimony which the district attorney shall present and considering other relevant evidence, shall base its decision whether to waive jurisdiction on the criteria specified in sub. (5).

AB130,196,14 (c) If the petition for waiver of jurisdiction is uncontested, the court shall inquire into the capacity of the juvenile to knowingly, intelligently and voluntarily decide not to contest the waiver of jurisdiction. If the court is satisfied that the decision not to contest the waiver of jurisdiction is knowingly, intelligently and voluntarily made, no testimony need be taken and the court, after considering the petition for waiver of jurisdiction and other relevant evidence in the record before the court, shall base its decision whether to waive jurisdiction on the criteria specified in sub. (5).

AB130,196,16 (5) If prosecutive merit is found, the court shall base its decision whether to waive jurisdiction on the following criteria:

AB130,196,24 (a) The personality and prior record of the juvenile, including whether the juvenile is mentally ill or developmentally disabled, whether the court has previously waived its jurisdiction over the juvenile, whether the juvenile has been previously convicted following a waiver of the court's jurisdiction or has been previously found delinquent, whether such conviction or delinquency involved the infliction of serious bodily injury, the juvenile's motives and attitudes, the juvenile's physical and mental maturity, the juvenile's pattern of living, prior offenses, prior treatment history and apparent potential for responding to future treatment.

AB130,197,3 (b) The type and seriousness of the offense, including whether it was against persons or property, the extent to which it was committed in a violent, aggressive, premeditated or wilful manner, and its prosecutive merit.

AB130,197,8 (c) The adequacy and suitability of facilities, services and procedures available for treatment of the juvenile and protection of the public within the juvenile justice system, and, where applicable, the mental health system and the suitability of the juvenile for placement in the youthful offender program under s. 938.537 or the adult intensive sanctions program under s. 301.048.

AB130,197,11 (d) The desirability of trial and disposition of the entire offense in one court if the juvenile was allegedly associated in the offense with persons who will be charged with a crime in circuit court.

AB130,197,18 (6) After considering the criteria under sub. (5), the court shall state its finding with respect to the criteria on the record, and, if the court determines on the record that it is established by clear and convincing evidence that it would be contrary to the best interests of the juvenile or of the public to hear the case, the court shall enter an order waiving jurisdiction and referring the matter to the district attorney for appropriate proceedings in the court of criminal jurisdiction, and the court of criminal jurisdiction thereafter has exclusive jurisdiction.

AB130,197,22 (7) If the juvenile absconds and does not appear at the waiver hearing, the court may proceed with the waiver hearing as provided in subs. (4) to (6) in the juvenile's absence. If the waiver is granted, the juvenile may contest that waiver when the juvenile is apprehended.

AB130,197,25 (8) When waiver is granted, the juvenile, if held in secure custody, shall be transferred to an appropriate officer or adult facility and shall be eligible for bail in accordance with chs. 968 and 969.

AB130,198,3 (9) If waiver is granted, sub. (1) does not restrict the authority of the district attorney to charge the offense he or she deems is appropriate and does not restrict the authority of any court or jury to convict the juvenile in regard to any offense.

AB130,198,6 938. 183 Original adult court jurisdiction for criminal proceedings. (1) Notwithstanding ss. 938.12 (1) and 938.18, courts of criminal jurisdiction have exclusive original jurisdiction over all of the following:

AB130,198,8 (a) A juvenile who is alleged to have violated s. 940.20 (1) or 946.43 while placed in a secured correctional facility.

AB130,198,14 (b) A juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation following waiver of jurisdiction under s. 938.18 by the court assigned to exercise jurisdiction under this chapter and ch. 48 or if the court assigned to exercise jurisdiction under this chapter and ch. 48 has waived its jurisdiction over the juvenile for a previous violation and criminal proceedings on that previous violation are still pending.

AB130,198,19 (c) A juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation over which the court of criminal jurisdiction had original jurisdiction under this section or if proceedings on a previous violation over which the court of criminal jurisdiction has original jurisdiction under this section are still pending.

AB130,198,24 (1m) Notwithstanding subchs. IV to VI, a juvenile described in sub. (1) is subject to the procedures specified in chs. 967 to 979 and the criminal penalties provided for the crime that the juvenile is alleged to have committed, unless a court of criminal jurisdiction transfers jurisdiction under s. 970.032 to a court assigned to exercise jurisdiction under this chapter and ch. 48.

AB130,199,11 (2) (a) Notwithstanding ss. 938.12 (1) and 938.18, courts of criminal jurisdiction have exclusive original jurisdiction over a juvenile who is alleged to have attempted or committed a violation of s. 940.01 or to have committed a violation of s. 940.02 or 940.05 on or after the juvenile's 10th birthday. Notwithstanding subchs. IV to VI, a juvenile who is alleged to have attempted or committed a violation of s. 940.01 or to have committed a violation of s. 940.02 or 940.05 on or after the juvenile's 10th birthday is subject to the procedures specified in chs. 967 to 979 and the criminal penalties provided for the crime that the juvenile is alleged to have committed, unless the court of criminal jurisdiction convicts the juvenile of a lesser offense, in which case the court of criminal jurisdiction shall impose a disposition specified in s. 938.34.

AB130,199,19 (b) A juvenile who is subject to this paragraph shall remain under the supervision of the department of health and social services until the juvenile's 17th birthday. When the juvenile attains the age of 17 years, the court of criminal jurisdiction shall transfer supervision of the juvenile from the department of health and social services to the department of corrections, and the department of corrections may place the juvenile in a state prison named in s. 302.01. A juvenile who is placed with the department of corrections under this paragraph is eligible for parole under s. 304.06.

AB130,199,24 (c) If the juvenile is placed outside the juvenile's home under this subsection, the order shall contain, a designation of the amount of support, if any, to be paid by the juvenile's parent, guardian or trustee, specifying that the support obligation begins on the date of the placement, or a referral to the county designee under s. 59.07 (97) for establishment of child support.

AB130,200,2 938.185 Venue. (1) Subject to sub. (3), venue for any proceeding under ss. 938.12, 938.125, 93 8.13, 938.135 and 938.18 may be in any of the following:

AB130,200,3 (a) The county where the juvenile resides.

AB130,200,4 (b) The county where the juvenile is present.

AB130,200,9 (c) In the case of a violation of a state law, the county where the violation occurred, except that in that case the court of the county where the violation occurred may, after the juvenile is adjudged delinquent, transfer the proceeding to the county where the juvenile resides for disposition, if the court of the county of residence agrees to that transfer and the transferring court agrees to that disposition.

AB130,200,15 (2) Venue for any proceeding under s. 938.363 or 938.365 shall be in the county where the dispositional order was issued, unless the juvenile's county of residence has changed, or the parent of the juvenile has resided in a different county of this state for 6 months. In either case, the court may, upon a motion and for good cause shown, transfer the case, along with all appropriate records, to the county of residence of the juvenile or parent.

AB130,200,20 (3) Venue for a proceeding under s. 938.12 or 938.13 (12) based on an alleged violation of s. 175.45 (6) may be in the juvenile's county of residence at the time that the petition is filed or, if the juvenile does not have a county of residence in this state at the time that the petition is filed, any county in which the juvenile has resided while subject to s. 175.45.

AB130,200,22 SUBCHAPTER IV HOLDING A juvenile IN CUSTODY

AB130,200,24 938.19 Taking a juvenile into custody. (1) A juvenile may be taken into custody under any of the following:

AB130,200,25 (a) A warrant.

AB130,201,1 (b) A capias issued by a judge under s. 938.28.

AB130,201,5 (c) An order of the judge if made upon a showing satisfactory to the judge that the welfare of the juvenile demands that the juvenile be immediately removed from his or her present custody. The order shall specify that the juvenile be held in custody under s. 938.207.

AB130,201,7 (d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:

AB130,201,9 1. A capias or a warrant for the juvenile's apprehension has been issued in this state, or that the juvenile is a fugitive from justice.

AB130,201,11 2. A capias or a warrant for the juvenile's apprehension has been issued in another state.

AB130,201,13 3. The juvenile is committing or has committed an act which is a violation of a state or federal criminal law.

AB130,201,15 4. The juvenile has run away from his or her parents, guardian or legal or physical custodian.

AB130,201,17 5. The juvenile is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary.

AB130,201,20 6. The juvenile has violated the terms of court-ordered supervision or aftercare supervision administered by the department of health and social services, the department of corrections or a county department.

AB130,201,22 7. The juvenile has violated the conditions of an order under s. 938.21 (4) or the conditions of an order for temporary physical custody by an intake worker.

AB130,201,25 8. The juvenile has violated a civil law or a local ordinance punishable by a forfeiture, except that in that case the juvenile shall be released immediately under s. 938.20 (2) (ag) or as soon as reasonably possible under s. 938.20 (2) (b) to (g).

AB130,202,2 10. The juvenile is absent from school without an acceptable excuse under s. 118.15.

AB130,202,7 (1m) A juvenile who is absent from school without an acceptable excuse under s. 118.15 may be taken into custody by an individual designated under s. 118.16 (2m) (a) if the school attendance officer of the school district in which the juvenile resides or the juvenile's parent, guardian or legal custodian requests that the juvenile be taken into custody. The request shall specifically identify the juvenile.

AB130,202,17 (2) When a juvenile is taken into physical custody as provided in this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian and legal custodian of the juvenile by the most practical means. The person taking the juvenile into custody shall continue such attempt until the parent, guardian and legal custodian of the juvenile are notified, or the juvenile is delivered to an intake worker under s. 938.20 (3), whichever occurs first. If the juvenile is delivered to the intake worker before the parent, guardian and legal custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian and legal custodian of the juvenile are notified.

AB130,202,19 (3) Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.

AB130,202,23 938.20 Release or delivery from custody. (2) (ag) Except as provided in pars. (b) to (g), a person taking a juvenile into custody shall make every effort to release the juvenile immediately to the juvenile's parent, guardian or legal custodian.

AB130,203,2 (b) If the juvenile's parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the juvenile, the person who took the juvenile into custody may release the juvenile to a responsible adult after counseling or warning the juvenile as may be appropriate.

AB130,203,5 (c) If the juvenile is 15 years of age or older, the person who took the juvenile into custody may release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.

AB130,203,9 (cm) If the juvenile has violated the terms of aftercare supervision administered by the department or a county department, the person who took the juvenile into custody may release the juvenile to the department or county department, whichever has aftercare supervision over the juvenile.

AB130,203,11 (d) If the child is a runaway, the person who took the child into custody may release the child to a home authorized under s. 48.227.

AB130,203,22 (e) If a juvenile is taken into custody under s. 938.19 (1) (d) 10., the law enforcement officer who took the juvenile into custody may release the juvenile under par. (ag) or (b) or, if the school board of the school district in which the juvenile resides has established a youth service center under s. 118.16 (4) (e), may deliver that juvenile to that youth service center. If the juvenile is delivered to a youth service center, personnel of the youth service center may release the juvenile to the juvenile's parent, guardian or legal custodian, or release the juvenile to the juvenile's school, after counseling the juvenile as may be appropriate. If the juvenile is released to the juvenile's school, personnel of the youth service center shall immediately notify the juvenile's parent, guardian and legal custodian that the juvenile was taken into custody under s. 938.19 (1) (d) 10. and released to the juvenile's school.

AB130,204,3 (f) If a juvenile is taken into custody under s. 938. 19 (1m), the person who took the juvenile into custody may release the juvenile under par. (ag), (b) or (e) or to the juvenile's school administrator, as defined in s. 125.09 (2) (a) 3., or a school employe designated by the school administrator. If a juvenile is released to a school administrator or the school administrator's designee under this paragraph, the school administrator or designee shall do all of the following:

AB130,204,6 1. Immediately notify the juvenile's parent, guardian or legal custodian that the juvenile was taken into custody under s. 938.19 (1m) and released to the school administrator or his or her designee.

AB130,204,11 2. Make a determination of whether the juvenile is a child at risk, as defined in s. 118.153 (1) (a), unless that determination has been made within the current school semester. If a juvenile is determined to be a child at risk under this subdivision, the school administrator shall provide a program for the juvenile according to the plan developed under s. 118.153 (2) (a).

AB130,204,17 3. Provide the juvenile and his or her parent or guardian with an opportunity for educational counseling to determine whether a change in the juvenile's program or curriculum, including any of the modifications specified in s. 118.15 (1) (d), would resolve the juvenile's truancy problem, unless the juvenile and his or her parent or guardian have been provided with an opportunity for educational counseling within the current school semester.

AB130,204,22 (g) If a juvenile is taken into custody under s. 938.19 (1) (d) 10. and is not released under par. (ag), (b) or (e) or if a juvenile is taken into custody under s. 938.19 (1m) and is not released under par. (ag), (b), (e) or (f), the person who took the juvenile into custody shall release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.

AB130,205,8 (3) If the juvenile is released under sub. (2) (b) to (d) or (g), the person who took the juvenile into custody shall immediately notify the juvenile's parent, guardian and legal custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released. If the juvenile is not released under sub. (2), the person who took the juvenile into custody shall arrange in a manner determined by the court and law enforcement agencies for the juvenile to be interviewed by the intake worker under s. 938.067 (2), and shall make a statement in writing with supporting facts of the reasons why the juvenile was taken into physical custody and shall give any juvenile 10 years of age or older a copy of the statement in addition to giving a copy to the intake worker. When the intake interview is not done in person, the report may be read to the intake worker.

AB130,205,13 (4) If the juvenile is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall deliver the juvenile to a hospital as defined in s. 50.33 (2) (a) and (c) or physician's office.

AB130,205,20 (5) If the juvenile is believed to be mentally ill, drug dependent or developmentally disabled, and exhibits conduct which constitutes a substantial probability of physical harm to the juvenile or to others, or a very substantial probability of physical impairment or injury to the juvenile exists due to the impaired judgment of the juvenile, and the standards of s. 51.15 are met, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall proceed under s. 51.15.

AB130,205,25 (6) If the juvenile is believed to be an intoxicated person who has threatened, attempted or inflicted physical harm on himself or herself or on another and is likely to inflict such physical harm unless committed, or is incapacitated by alcohol, the person taking the juvenile into physical custody, the intake worker or other appropriate person shall proceed under s. 51.45 (11).

AB130,206,3 (7) (a) When a juvenile is interviewed by an intake worker, the intake worker shall inform any juvenile possibly involved in a delinquent act of his or her right to counsel and the right against self-incrimination.

AB130,206,8 (b) The intake worker shall review the need to hold the juvenile in custody and shall make every effort to release the juvenile from custody as provided in par. (c). The intake worker shall base his or her decision as to whether to release the juvenile or to continue to hold the juvenile in custody on the criteria specified in s. 938.205 and criteria established under s. 938.06 (1) or (2).

AB130,206,9 (c) The intake worker may release the juvenile as follows:

AB130,206,15 1. To a parent, guardian or legal custodian, or, if the parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the juvenile, release the juvenile to a responsible adult, counseling or warning the juvenile as may be appropriate, or, if the juvenile is 15 years of age or older, release the juvenile without immediate adult supervision, counseling or warning the juvenile as may be appropriate.

AB130,206,18 1m. In the case of a juvenile who has violated the terms of aftercare supervision administered by the department or a county department, to the department or county department, whichever has aftercare supervision of the juvenile.

AB130,206,19 2. In the case of a runaway juvenile, to a home authorized under s. 48.227.

AB130,206,23 (d) If the juvenile is released from custody, the intake worker shall immediately notify the juvenile's parent, guardian and legal custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released.

AB130,207,17 (8) If a juvenile is held in custody, the intake worker shall notify the juvenile's parent, guardian and legal custodian of the reasons for holding the juvenile in custody and of the juvenile's whereabouts unless there is reason to believe that notice would present imminent danger to the juvenile. If a juvenile who has violated the terms of aftercare supervision administered by the department or a county department is held in custody, the intake worker shall also notify the department or county department, whichever has supervision over the juvenile, of the reasons for holding the juvenile in custody, of the juvenile's whereabouts and of the time and place of the detention hearing required under s. 938.21. The parent, guardian and legal custodian shall also be notified of the time and place of the detention hearing required under s. 938.21, the nature and possible consequences of that hearing, the right to counsel under s. 938.23 regardless of ability to pay, and the right to present and cross-examine witnesses at the hearing. If the parent, guardian or legal custodian is not immediately available, the intake worker or another person designated by the court shall provide notice as soon as possible. When the juvenile is alleged to have committed a delinquent act, the juvenile shall receive the same notice about the detention hearing as the parent, guardian or legal custodian. The intake worker shall notify both the juvenile and the juvenile's parent, guardian or legal custodian.

AB130,207,21 938.205 Criteria for holding a juvenile in physical custody. (1) A juvenile may be held under s. 938.207, 938.208 or 938.209 if the intake worker determines that there is probable cause to believe the juvenile is within the jurisdiction of the court and if probable cause exists to believe one of the following:

AB130,207,23 (a) That if the juvenile is not held he or she will commit injury to the person or property of others.

AB130,208,2 (b) That the parent, guardian or legal custodian of the juvenile or other responsible adult is unavailable, unwilling or unable to provide adequate supervision and care and that services to ensure the juvenile's safety and well-being are not available or would be inadequate.

AB130,208,5 (c) That the juvenile will run away or be taken away so as to be unavailable for proceedings of the court or its officers or proceedings of the division of hearings and appeals in the department of administration for revocation of aftercare supervision.

AB130,208,8 (2) The criteria for holding a juvenile in custody specified in this section shall govern the decision of all persons responsible for determining whether the action is appropriate.

AB130,208,11 938.207 Places where a juvenile may be held in nonsecure custody. (1) A juvenile held in physical custody under s. 938.205 may be held in any of the following places:

AB130,208,12 (a) The home of a parent or guardian.

AB130,208,13 (b) The home of a relative.

AB130,208,15 (c) A licensed foster home or a licensed treatment foster home provided the placement does not violate the conditions of the license.

AB130,208,17 (cm) A licensed group home provided that the placement does not violate the conditions of the license.

AB130,208,18 (d) A nonsecure facility operated by a licensed child welfare agency.