SB496: Bill Text

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

SB496, s. 1 Section 1. 20.410 (1) (a) of the statutes is amended to read:

SB496,6,8 20.410 (1) (a) General program operations. The amounts in the schedule to operate institutions and, to provide field services and administrative services, to provide drug use intervention services under s. 973.105 to persons who are incarcerated, and for a study of the effects of drug use intervention services provided under ss. 302.11 (7) (ag), 302.113 (9m), and 973.105. No payments may be made under this paragraph for payments in accordance with other states party to the interstate corrections compact under s. 302.25.

SB496, s. 2 Section 2 . 20.410 (1) (a) of the statutes, as affected by 2001 Wisconsin Act .... (this act), is amended to read:

SB496,6,17 20.410 (1) (a) General program operations. The amounts in the schedule to operate institutions, to provide field services and administrative services, and to provide drug use intervention services under s. 973.105 to persons who are incarcerated, and for a study of the effects of drug use intervention services provided under ss. 302.11 (7) (ag), 302.113 (9m), and 973.105. No payments may be made under this paragraph for payments in accordance with other states party to the interstate corrections compact under s. 302.25.

SB496, s. 3 Section 3. 20.410 (1) (b) of the statutes is amended to read:

SB496,7,5 20.410 (1) (b) Services for community corrections. The amounts in the schedule to provide services related to probation, extended supervision and parole, the intensive sanctions program under s. 301.048, the community residential confinement program under s. 301.046, programs of intensive supervision of adult offenders and, minimum security correctional institutions established under s. 301.13, and drug assessments under s. 302.11 (7) (am), 302.113 (9m) (b), or 973.105 (4). No payments may be made under this paragraph for payments in accordance with other states party to the interstate corrections compact under s. 302.25.

SB496, s. 4 Section 4. 46.03 (18) (fm) of the statutes is repealed.

SB496, s. 5 Section 5. 51.42 (7) (b) 12. of the statutes is created to read:

SB496,7,11 51.42 (7) (b) 12. Prescribe standards for drug education programs that serve persons who are ordered to participate in drug education as a condition of parole under s. 302.11 (7) (ag), as a condition of extended supervision under s. 302.113 (9m), or as a condition of probation under s. 973.105.

SB496, s. 6 Section 6. 301.03 (3j) of the statutes is created to read:

SB496,7,18 301.03 (3j) Provide drug assessments and drug use intervention services for persons convicted of drug-related offenses as provided under s. 973.105, for parolees who violate conditions of parole that are related to drug possession offenses or drug treatment, as provided under s. 302.11 (7) (ag), and for persons on extended supervision who violate conditions of extended supervision that are related to drug possession offenses or drug treatment, as provided under s. 302.113 (9m).

SB496, s. 7 Section 7. 302.11 (7) (ag), (am) and (ar) of the statutes are created to read:

SB496,8,3 302.11 (7) (ag) Notwithstanding par. (a), if a parolee commits a nonviolent drug possession offense, as defined in s. 973.105 (1) (g), or violates a condition of parole concerning drug use intervention services, as defined in s. 973.105 (1) (e), the division of hearing and appeals, or the department, if the parolee waives a hearing, may not revoke parole for that violation but may require that the parolee participate in drug use intervention services as a condition of parole or, if participation in drug use intervention services is already a condition of parole, may modify the requirements for participation in drug use intervention services, unless any of the following applies:

SB496,8,7 1. At any time during the 5 years prior to the date on which the parolee committed the nonviolent drug possession offense or the violation of a condition of parole concerning drug use intervention services, the parolee committed or was serving a sentence for a felony identified under s. 939.62 (2m) (a) 2m. b.

SB496,8,9 2. The parolee is serving a sentence for a firearms offense, as defined in s. 973.105 (1) (f), or for a crime under s. 346.63.

SB496,8,14 3. The parolee has previously been provided drug use intervention services under this paragraph or s. 302.113 (9m) (a) or 973.105 and the division of hearings and appeals or the department, whichever is applicable, finds by clear and convincing evidence that the parolee is unamenable to treatment in accordance with s. 973.105 (9) or that the person is a danger to himself or herself or others.

SB496,8,16 4. The parolee refuses to participate in drug use intervention services as a condition of parole.

SB496,8,20 (am) Before making a determination regarding revocation or conditions of parole under par. (ag), the division of hearings and appeals or the department may require that a parolee submit to an assessment of his or her use of controlled substances.

SB496,8,23 (ar) Any assessment required under par. (am) shall meet the conditions for assessments under s. 973.105 (4). Any drug use intervention services required under par. (ag) shall meet the conditions for services under s. 973.105 (5).

SB496, s. 8 Section 8. 302.113 (9m) of the statutes is created to read:

SB496,9,11 302.113 (9m) (a) Notwithstanding sub. (9) and except as provided under par. (d), if a person released to extended supervision under this section commits a nonviolent drug possession offense, as defined in s. 973.105 (1) (g), or violates a condition of extended supervision concerning drug use intervention services, as defined in s. 973.105 (1) (e), the division of hearing and appeals, or the department, if the person on extended supervision waives a hearing, may not revoke extended supervision for that violation but may require that the person participate in drug use intervention services as a condition of extended supervision or, if participation in drug use intervention services is already a condition of extended supervision, may modify the requirements for participation in drug use intervention services, unless any of the following applies:

SB496,9,16 1. At any time during the 5 years prior to the date on which the person committed the nonviolent drug possession offense or the violation of a condition of extended supervision concerning drug use intervention services, the person committed or was serving a sentence for a felony identified under s. 939.62 (2m) (a) 2m. b.

SB496,9,18 2. The person is serving a sentence for a firearms offense, as defined in s. 973.105 (1) (f), or for a crime under s. 346.63.

SB496,9,23 3. The person has previously been provided drug use intervention services under this subsection or s. 302.11 (7) (ag) or 973.105 and the division of hearings and appeals or the department, whichever is applicable, finds by clear and convincing evidence that the person is unamenable to treatment in accordance with s. 973.105 (9) or that the person is a danger to himself or herself or others.

SB496,9,25 4. The person refuses to participate in drug use intervention services as a condition of extended supervision.

SB496,10,4 (b) Before making a determination regarding revocation or conditions of extended supervision under par. (a), the division of hearings and appeals or the department may require that a person on extended supervision submit to an assessment of his or her use of controlled substances.

SB496,10,7 (c) Any assessment required under par. (b) shall meet the conditions for assessments under s. 973.105 (4). Any drug use intervention services required under par. (a) shall meet the conditions for services under s. 973.105 (5).

SB496,10,10 (d) The division of hearings and appeals or the department may not modify a condition of extended supervision under par. (a) if the modification conflicts with a condition of extended supervision set by a court under s. 973.01 (5).

SB496, s. 9 Section 9. 961.438 of the statutes is amended to read:

SB496,10,17 961.438 Minimum sentence. Any minimum sentence under this chapter is a presumptive minimum sentence. Except as provided in s. 973.09 (1) (d) or 973.105 (2) or (3), the court may impose a sentence that is less than the presumptive minimum sentence or may place the person on probation only if it finds that the best interests of the community will be served and the public will not be harmed and if it places its reasons on the record.

SB496, s. 10 Section 10. 961.47 of the statutes is repealed.

SB496, s. 11 Section 11. 961.472 of the statutes is repealed.

SB496, s. 12 Section 12. 961.475 of the statutes is repealed.

SB496, s. 13 Section 13. 973.105 of the statutes is created to read:

SB496,10,23 973.105 Probation and treatment for nonviolent drug possession offenders. (1) In this section:

SB496,10,24 (a) "Approved treatment facility" has the meaning given under s. 51.01 (2).

SB496,10,25 (b) "Drug dependent" has the meaning given in s. 51.01 (8).

SB496,11,5 (c) "Drug paraphernalia for personal use" means any equipment, product, or material of any kind that is used, designed for use, or primarily intended for use by a person to inject, ingest, inhale, or otherwise introduce into the person's body a controlled substance or controlled substance analog in violation of ch. 961, but does not include items under s. 961.571 (1) (b).

SB496,11,8 (d) "Drug treatment" means inpatient residential drug treatment, outpatient treatment, day treatment, transitional residential treatment, detoxification, or narcotic replacement therapy.

SB496,11,11 (e) "Drug use intervention services" means drug treatment, drug education, vocational assistance, or any other service intended to address a person's drug dependence or drug use.

SB496,11,13 (f) "Firearms offense" means an offense under s. 941.20, 941.21, 941.23, 941.235, 941.237, 941.26, 941.28, 941.29, or 941.296.

SB496,11,17 (g) "Nonviolent drug possession offense" means an offense, or attempt to commit an offense, under s. 961.573 (1) that involves drug paraphernalia for personal use, or an offense, or attempt to commit an offense, under s. 961.41 (3g) (a) to (e).

SB496,11,22 (2) (a) If a person is convicted of a nonviolent drug possession offense, the sentencing court shall withhold sentence for the offense or impose sentence for the offense and stay its execution, and shall place the person on probation under s. 973.09 and require that the person participate in drug use intervention services as a condition of probation for the offense, unless any of the following applies:

SB496,11,25 1. At any time during the 5 years prior to the date on which the person committed the offense for which he or she is being sentenced, the person committed or was serving a sentence for a felony identified under s. 939.62 (2m) (a) 2m. b.

SB496,12,2 2. The person is convicted of another crime other than a nonviolent drug possession offense in the same proceeding.

SB496,12,5 3. The person is found to have violated s. 346.63 or an ordinance that is in conformity with s. 346.63 for the same act or incident or series of acts or incidents that resulted in conviction for the nonviolent drug possession offense.

SB496,12,7 4. The person was incarcerated under a sentence for another crime when he or she committed the nonviolent drug possession offense.

SB496,12,11 5. The person has previously been provided drug use intervention services under this section or s. 302.11 (7) (ag) or 302.113 (9m) and the court finds by clear and convincing evidence that the person is unamenable to treatment in accordance with sub. (9).

SB496,12,13 6. The person refuses to participate in drug use intervention services as a condition of probation.

SB496,13,7 (b) Notwithstanding par. (a) 2., if the other crime under par. (a) 2. is a misdemeanor other than a misdemeanor under ch. 940 or 948 or s. 346.63, or a misdemeanor firearms offense, the sentencing court shall withhold sentence for the nonviolent drug possession offense, or impose sentence for the nonviolent drug possession offense and stay its execution, place the person on probation under s. 973.09 for the nonviolent drug possession offense, and order that the person participate in drug use intervention services as a condition of probation for the nonviolent drug possession offense. If the court finds that the person is drug dependent and that the person's drug dependence significantly contributed to the commission of the misdemeanor, the court shall place the person on probation under s. 973.09 for that misdemeanor and require that the person participate in drug use intervention services as a condition of probation for the misdemeanor. If the court determines that the person is not drug dependent, or that the person is drug dependent but the drug dependence did not significantly contribute to the commission of the misdemeanor, the court may place the person on probation for the misdemeanor as provided under sub. (3). If the court does not place the person on probation for the misdemeanor, the court shall determine whether the person shall serve probation for the nonviolent drug possession offense concurrently with the sentence for the misdemeanor or consecutively to the sentence for the misdemeanor.

SB496,13,15 (3) If a person is convicted of a crime, other than felony under ch. 940 or 948 or s. 346.63, or a felony firearms offense, is not eligible for mandatory probation and drug use intervention services under sub. (2), and is found by the sentencing court to be drug dependent, the sentencing court may order that the department provide the person drug use intervention services. The court may order that the department provide the services to the person while he or she is on probation, while the person is incarcerated in prison or in a county jail, while the person is otherwise confined, or while the person is on extended supervision.

SB496,14,2 (4) (a) Before determining a disposition under sub. (2) or (3), a court may order an offender to submit to an assessment of his or her use of controlled substances. The court shall designate an approved treatment facility that is certified by the department of health and family services to provide assessment services to conduct any assessment ordered under this paragraph. The court may order that the treatment facility provide a proposed plan for drug use intervention services. The treatment facility shall submit an assessment report to the court within 14 days of the order for an assessment. Upon receipt of the report, the court shall provide a copy to the offender or his or her attorney. At the request of the treatment facility, the court may extend the time for submitting a report by not more than 20 additional workdays.

SB496,14,10 (b) If the court orders an assessment under par. (a) for an offender who is a medical assistance or badger care recipient, the court shall order that the assessment be provided by a provider who is certified as a medical assistance provider, if a certified provider is available. If the medical assistance or badger care recipient is enrolled in a health care maintenance organization, the court shall order that the assessment be provided by a provider who is an employee of the health maintenance organization or with whom the health care maintenance organization contracts for services, if such a provider is available.

SB496,14,13 (5) (a) The department is responsible for providing, or securing the provision of, any drug use intervention services ordered under this section. Drug treatment ordered under this section must be provided by an approved treatment facility.

SB496,14,22 (b) If the department is required under this section to provide a health service or benefit specified under s. 49.46 (2) to an offender who is a medical assistance or badger care recipient, the department shall arrange for that health service or benefit to be provided by a provider who is certified as a medical assistance provider, if a certified provider is available. If the medical assistance or badger care recipient is enrolled in a health care maintenance organization, the department shall arrange for the health service or benefit to be provided by a provider who is an employee of the health maintenance organization or with whom the health care maintenance organization contracts for services, if such a provider is available.

SB496,14,25 (c) Subject to the requirements under par. (a) and (b), the department may contract with an appropriate county department under s. 51.42 to provide drug use intervention services under this section.

SB496,15,9 (6) If a person is placed on probation under sub. (2) or (3) and ordered to participate in drug use intervention services as a condition of probation, the services may not be for longer than 12 months or the length of the probation, whichever is shorter. By 30 days before the expiration of the services, the service provider shall submit a report to the sentencing court recommending whether the person receiving drug use intervention services should participate in aftercare services. Prior to the completion of a person's probation, the sentencing court may modify the conditions of a person's probation to require that the person participate in up to 6 months of aftercare services upon completion of drug use intervention services.

SB496,15,12 (7) Notwithstanding s. 973.09 (4) (a), a person placed on probation under sub. (2) may not be confined in a county jail, Huber facility, work camp, or tribal jail as a condition of probation.

SB496,15,23 (8) (a) Notwithstanding s. 973.10 (2), if a person placed on probation under sub. (2) or (3) commits a nonviolent drug possession offense or violates a condition of probation concerning drug use intervention services, the division of hearings and appeals or, if the probationer waived his or her right to a hearing, the department may modify the conditions of probation, but may not revoke probation unless a hearing examiner or the department, whichever is applicable, finds by clear and convincing evidence that the person is unamenable to treatment as provided under sub. (9) or is a danger to himself or herself or to others. If the probationer violates a condition of probation that is not related to drug use intervention services, the department or the division of hearings and appeals may revoke probation as provided under s. 973.10 (2).

SB496,16,5 (b) Upon the request of a person who is the subject of a determination concerning amenability to treatment under par. (a), the treatment provider responsible for providing the person treatment under this section shall submit a report to the department or the division of hearings and appeals, whichever is applicable, regarding the person's amenability to treatment. The treatment provider may testify regarding the person's amenability to treatment at any revocation proceeding under par. (a).

SB496,16,6 (9) (a) A person is unamenable to treatment if any of the following applies:

SB496,16,9 1. The person has repeatedly committed serious violations of drug use intervention service rules that inhibit the person's ability to participate in the services.

SB496,16,11 2. The person has continually refused to participate in drug use intervention services ordered under this section or s. 302.11 (7) (ag) or 302.113 (9m) (a).

SB496,16,13 3. The person has asked to be removed from drug use intervention services ordered under this section or s. 302.11 (7) (ag) or 302.113 (9m) (a).

SB496,16,15 (b) The department of health and family services may promulgate rules for determining whether a person is unamenable to treatment under this subsection.

SB496,17,2 (10) When a court orders probation under sub. (2) for a nonviolent drug possession offense or a misdemeanor, other than a misdemeanor under ch. 940 or 948 or s. 346.63, or a misdemeanor firearms offense, the court shall order that the record of conviction for that offense be expunged upon successful completion of the probation, including satisfaction of any restitution ordered under s. 973.20. A person successfully completes probation if the person completes the term of probation without revocation of the probation. Upon successful completion of probation, the department shall issue a certificate of discharge and shall forward the certificate to the court of record, which shall expunge the record of conviction. Disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for 2nd or subsequent convictions under s. 961.48, do not apply to a conviction that has been expunged under this subsection.

SB496,17,7 (11) (a) If a person who is ordered under this section to submit to an assessment or participate in drug use intervention services is enrolled in a private insurance plan that is required under s. 632.89 to cover such services, or otherwise covers such services, the insurer shall pay for any assessment or drug use intervention service ordered under this section that is covered by the insurance plan.

SB496,17,12 (b) If a medical assistance or badger care recipient is ordered under this section to submit to an assessment or participate in drug use intervention service that is a health care service or other benefit described under s. 49.46 (2), the department of health and family services shall pay for the assessment service as provided under s. 49.46 (2).

SB496,17,15 (c) The court shall order any person who receives an assessment or drug use intervention service under this section to pay, to the extent of the person's ability, for the cost of the assessment or service that is not covered under par. (a) or (b).

SB496,17,22 (d) From the appropriation under s. 20.410 (1) (b), the department shall pay for assessments ordered under sub. (4) that are not paid for under par. (a), (b), or (c), and shall pay for drug use intervention services ordered under this section for persons on probation that are not paid for under par. (a), (b), or (c). From the appropriation under s. 20.410 (1) (a), the department shall pay for drug use intervention services ordered under this section for persons who are incarcerated that are not paid for under par. (a), (b), or (c).

SB496,18,13 (12) The department of health and family services, after consultation with the department of corrections, shall commission a study of the results of drug use intervention services provided under this section and under ss. 302.11 (7) (ag) and 302.113 (9m) (a). By the first day of the 31st month after the effective date of this subsection .... [revisor inserts date], the department of health and family services shall issue an interim report on results from the first 2 years of drug use intervention services. By the first day of the 67th month after the effective date of this subsection .... [revisor inserts date], the department of health and family services shall issue a final report on results from the first 5 years of drug use intervention services. The department of health and family services shall submit the reports required under this subsection to the governor, the majority leader of the senate, the speaker of the assembly, and the cochairpersons of the joint committee on finance. Notwithstanding the purposes for which money is appropriated under s. 20.410 (1) (a), all costs incurred in commissioning the study and issuing the reports required under this subsection shall be paid from the appropriation to the department of corrections under s. 20.410 (1) (a).

SB496, s. 14 Section 14 . Nonstatutory provisions.

SB496,18,21 (1) The department of health and family services shall apply to the center for substance abuse treatment of the substance abuse and mental health services administration in the federal department of health and human services or any other appropriate agency for a grant to fund the drug use intervention services ordered under section 302.11 (7) (ag), 302.113 (9m) (a), or 973.105 of the statutes, as created by this act, from the effective date of this subsection to the first day of the 37th month beginning after the effective date of this subsection.

SB496, s. 15 Section 15. Initial applicability.

SB496,19,2 (1) The treatment of sections 46.03 (18) (fm), 961.47, 961.472, 961.475, and 973.105 of the statutes first applies to offenses committed on the effective date of this subsection, but persons sentenced on or after the effective date of this subsection for offenses committed before the effective date of this subsection may choose to be sentenced in accordance with section 973.105 of the statutes.

SB496, s. 16 Section 16. Effective date. This act takes effect on the first day of the 6th month beginning after publication except as follows:

SB496,19,6 (1) The treatment of sections 51.42 (7) (b) 12. and 973.105 (9) (b) of the statutes and Section 14 of this act take effect on the day after publication.

SB496,19,9 (2) The treatment of section 20.410 (1) (a) (by Section 2 ) of the statutes takes effect on the first day of the 67th month beginning after the effective date of this subsection.

SB496,19,10 (End)