968.073 Annotation
Instituting Innocence Reform: Wisconsin's New Government Experiment. Kruse. 2006 WLR 645.
968.075
968.075
Domestic abuse incidents; arrest and prosecution. 968.075(1)(a)
(a) "Domestic abuse" means any of the following engaged in by an adult person against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided or against an adult with whom the person has a child in common:
968.075(1)(a)1.
1. Intentional infliction of physical pain, physical injury or illness.
968.075(1)(a)4.
4. A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under
subd. 1.,
2. or
3.
968.075(1)(c)
(c) "Predominant aggressor" means the most significant, but not necessarily the first, aggressor in a domestic abuse incident.
968.075(1)(d)
(d) "Party" means a person involved in a domestic abuse incident.
968.075(2)
(2) Circumstances requiring arrest; presumption against certain arrests. 968.075(2)(a)(a) Notwithstanding
s. 968.07 (1) and except as provided in
pars. (am) and
(b), a law enforcement officer shall arrest and take a person into custody if:
968.075(2)(a)1.
1. The officer has reasonable grounds to believe that the person is committing or has committed domestic abuse and that the person's actions constitute the commission of a crime; and
968.075(2)(a)2.a.
a. The officer has a reasonable basis for believing that continued domestic abuse against the alleged victim is likely.
968.075(2)(ar)
(ar) In order to protect victims from continuing domestic abuse, a law enforcement officer shall consider all of the following in identifying the predominant aggressor:
968.075(2)(ar)1.
1. The history of domestic abuse between the parties, if it can be reasonably ascertained by the officer, and any information provided by witnesses regarding that history.
968.075(2)(ar)4.
4. The extent to which each person present appears to fear any party.
968.075(2)(ar)5.
5. Whether any party is threatening or has threatened future harm against another party or another family or household member.
968.075(2)(ar)6.
6. Whether either party acted in self-defense or in defense of any other person under the circumstances described in
s. 939.48.
968.075(2)(b)
(b) If the officer's reasonable grounds for belief under
par. (a) 1. are based on a report of an alleged domestic abuse incident, the officer is required to make an arrest under
par. (a) only if the report is received, within 28 days after the day the incident is alleged to have occurred, by the officer or the law enforcement agency that employs the officer.
968.075(2m)
(2m) Immediate release prohibited. Unless
s. 968.08 applies, a law enforcement officer may not release a person whose arrest was required under
sub. (2) until the person posts bail under
s. 969.07 or appears before a judge under
s. 970.01 (1).
968.075(3)(a)(a) Each law enforcement agency shall develop, adopt and implement written policies regarding arrest procedures for domestic abuse incidents. The policies shall include, but not be limited to, the following:
968.075(3)(a)1.a.a. A statement emphasizing that in most circumstances, other than those under
sub. (2), a law enforcement officer should arrest and take a person into custody if the officer has reasonable grounds to believe that the person is committing or has committed domestic abuse and that the person's actions constitute the commission of a crime.
968.075(3)(a)1.c.
c. A statement emphasizing that a law enforcement officer's decision as to whether or not to arrest under this section may not be based on the consent of the victim to any subsequent prosecution or on the relationship of the parties.
968.075(3)(a)1.d.
d. A statement emphasizing that a law enforcement officer's decision not to arrest under this section may not be based solely upon the absence of visible indications of injury or impairment.
968.075(3)(a)1.e.
e. A statement discouraging, but not prohibiting, the arrest of more than one party.
968.075(3)(a)1.f.
f. A statement emphasizing that a law enforcement officer, in determining whether to arrest a party, should consider whether he or she acted in self-defense or in defense of another person.
968.075(3)(a)2.
2. A procedure for the written report and referral required under
sub. (4).
968.075(3)(a)3.
3. A procedure for notifying the alleged victim of the incident of the provisions in
sub. (5), the procedure for releasing the arrested person and the likelihood and probable time of the arrested person's release.
968.075(3)(b)
(b) In the development of these policies, each law enforcement agency is encouraged to consult with community organizations and other law enforcement agencies with expertise in the recognition and handling of domestic abuse incidents.
968.075(3)(c)
(c) This subsection does not limit the authority of a law enforcement agency to establish policies that require arrests under more circumstances than those set forth in
sub. (2), but the policies may not conflict with the presumption under
sub. (2) (am).
968.075(4)
(4) Report required where no arrest. If a law enforcement officer does not make an arrest under this section when the officer has reasonable grounds to believe that a person is committing or has committed domestic abuse and that person's acts constitute the commission of a crime, the officer shall prepare a written report stating why the person was not arrested. The report shall be sent to the district attorney's office, in the county where the acts took place, immediately after investigation of the incident has been completed. The district attorney shall review the report to determine whether the person involved in the incident should be charged with the commission of a crime.
968.075(5)(a)1.1. Unless there is a waiver under
par. (c), during the 72 hours immediately following an arrest for a domestic abuse incident, the arrested person shall avoid the residence of the alleged victim of the domestic abuse incident and, if applicable, any premises temporarily occupied by the alleged victim, and avoid contacting or causing any person, other than law enforcement officers and attorneys for the arrested person and alleged victim, to contact the alleged victim.
968.075(5)(a)2.
2. An arrested person who intentionally violates this paragraph shall be required to forfeit not more than $1,000.
968.075(5)(b)1.1. Unless there is a waiver under
par. (c), a law enforcement officer or other person who releases a person arrested for a domestic abuse incident from custody less than 72 hours after the arrest shall inform the arrested person orally and in writing of the requirements under
par. (a), the consequences of violating the requirements and the provisions of
s. 939.621. The arrested person shall sign an acknowledgment on the written notice that he or she has received notice of, and understands the requirements, the consequences of violating the requirements and the provisions of
s. 939.621. If the arrested person refuses to sign the notice, he or she may not be released from custody.
968.075(5)(b)2.
2. If there is a waiver under
par. (c) and the person is released under
subd. 1., the law enforcement officer or other person who releases the arrested person shall inform the arrested person orally and in writing of the waiver and the provisions of
s. 939.621.
968.075(5)(b)3.
3. Failure to comply with the notice requirement under
subd. 1. regarding a person who is lawfully released from custody bars a prosecution under
par. (a), but does not affect the application of
s. 939.621 in any criminal prosecution.
968.075(5)(c)
(c) At any time during the 72-hour period specified in
par. (a), the alleged victim may sign a written waiver of the requirements in
par. (a). The law enforcement agency shall have a waiver form available.
968.075(5)(d)
(d) The law enforcement agency responsible for the arrest of a person for a domestic abuse incident shall notify the alleged victim of the requirements under
par. (a) and the possibility of, procedure for and effect of a waiver under
par. (c).
968.075(5)(e)
(e) Notwithstanding
s. 968.07 (1), a law enforcement officer shall arrest and take a person into custody if the officer has reasonable grounds to believe that the person has violated
par. (a).
968.075(6)
(6) Conditional release. A person arrested and taken into custody for a domestic abuse incident is eligible for conditional release. Unless there is a waiver under
sub. (5) (c), as part of the conditions of any such release that occurs during the 72 hours immediately following such an arrest, the person shall be required to comply with the requirements under
sub. (5) (a) and to sign the acknowledgment under
sub. (5) (b). The arrested person's release shall be conditioned upon his or her signed agreement to refrain from any threats or acts of domestic abuse against the alleged victim or other person.
968.075(6m)
(6m) Officer immunity. A law enforcement officer is immune from civil and criminal liability arising out of a decision by the officer to arrest or not arrest an alleged offender, if the decision is made in a good faith effort to comply with this section.
968.075(7)
(7) Prosecution policies. Each district attorney's office shall develop, adopt and implement written policies encouraging the prosecution of domestic abuse offenses. The policies shall include, but not be limited to, the following:
968.075(7)(a)
(a) A policy indicating that a prosecutor's decision not to prosecute a domestic abuse incident should not be based:
968.075(7)(a)1.
1. Solely upon the absence of visible indications of injury or impairment;
968.075(7)(a)2.
2. Upon the victim's consent to any subsequent prosecution of the other person involved in the incident; or
968.075(7)(a)3.
3. Upon the relationship of the persons involved in the incident.
968.075(7)(b)
(b) A policy indicating that when any domestic abuse incident is reported to the district attorney's office, including a report made under
sub. (4), a charging decision by the district attorney should, absent extraordinary circumstances, be made not later than 2 weeks after the district attorney has received notice of the incident.
968.075(8)
(8) Education and training. Any education and training by the law enforcement agency relating to the handling of domestic abuse complaints shall stress enforcement of criminal laws in domestic abuse incidents and protection of the alleged victim. Law enforcement agencies and community organizations with expertise in the recognition and handling of domestic abuse incidents shall cooperate in all aspects of the training.
968.075(9)(a)(a) Each district attorney shall submit an annual report to the department of justice listing all of the following:
968.075(9)(a)1.
1. The number of arrests for domestic abuse incidents in his or her county as compiled and furnished by the law enforcement agencies within the county.
968.075(9)(a)2.
2. The number of subsequent prosecutions and convictions of the persons arrested for domestic abuse incidents.
968.075(9)(b)
(b) The listing of the number of arrests, prosecutions and convictions under
par. (a) shall include categories by statutory reference to the offense involved and include totals for all categories.
968.075 Note
NOTE: 1987 Wis. Act 346, which created this section, states the legislative intent and purpose in section 1 of the Act.
968.075 Annotation
Questions by an officer prior to an arrest to determine which spouse was the primary physical aggressor under sub. (3) (a) 1. b. were investigatory and Miranda warnings were not required when the defendant was not deprived of freedom or questioned in a coercive environment. State v. Leprich,
160 Wis. 2d 472,
465 N.W.2d 844 (Ct. App. 1991).
968.075 Annotation
Warrantless arrest and detention for bail jumping, 946.49, is authorized if probable cause exists that the arrestee violated the contact prohibition in sub. (5) (a) 1. after being released under ch. 969.
78 Atty. Gen. 177.
968.075 Annotation
This section applies to roommates living in university residence halls, whether privately or state owned. If criteria requiring arrest under sub. (2) exist, a law enforcement officer must make a custodial arrest.
79 Atty. Gen. 109.
968.075 Annotation
A Prosecutor's View of Elder Abuse. Hanrahan. Wis. Law. Sept. 2000.
968.08
968.08
Release by law enforcement officer of arrested person. A law enforcement officer having custody of a person arrested without a warrant may release the person arrested without requiring the person to appear before a judge if the law enforcement officer is satisfied that there are insufficient grounds for the issuance of a criminal complaint against the person arrested.
968.08 History
History: 1993 a. 486.
968.085
968.085
Citation; nature; issuance; release of accused. 968.085(1)(1)
Nature. A citation under this section is a directive, issued by a law enforcement officer, that a person appear in court and answer criminal charges. A citation is not a criminal complaint and may not be used as a substitute for a criminal complaint.
968.085(2)
(2) Authority to issue; effect. Except as provided in
sub. (8), a law enforcement officer may issue a citation to any person whom he or she has reasonable grounds to believe has committed a misdemeanor. A citation may be issued in the field or at the headquarters or precinct station of the officer instead of or subsequent to a lawful arrest. If a citation is issued, the person cited shall be released on his or her own recognizance. In determining whether to issue a citation, the law enforcement officer may consider whether:
968.085(2)(c)
(c) The accused appears to represent a danger of harm to himself or herself, another person or property.
968.085(2)(d)
(d) The accused can show sufficient evidence of ties to the community.
968.085(2)(e)
(e) The accused has previously failed to appear or failed to respond to a citation.
968.085(2)(f)
(f) Arrest or further detention appears necessary to carry out legitimate investigative action in accordance with law enforcement agency policies.
968.085(3)
(3) Contents. The citation shall do all of the following:
968.085(3)(a)
(a) Identify the offense and section which the person is alleged to have violated, including the date, and if material, identify the property and other persons involved.
968.085(3)(b)
(b) Contain the name and address of the person cited, or other identification if that cannot be ascertained.
968.085(3)(d)
(d) Direct the person cited to appear for his or her initial appearance in a designated court, at a designated time and date.
