Section 331.05. Preliminary hearing.

 

(1)   Requirement. When revocation is initiated, a magistrate shall conduct a preliminary hearing in accordance with this section to determine whether there is probable cause to believe that the offender violated a rule or a condition of supervision.

(2)   Exceptions. A preliminary hearing need not be held if one of the following is true:

(a) The offender waives the right to a preliminary hearing in writing.

(b) The offender has given and signed a written statement which admits a violation.

(c) There has been a finding of probable cause in a felony matter and the offender is bound over for trial for the same or similar conduct.

(d) There has been an adjudication of guilt by a court for the same or similar conduct.

(e) The offender is not being held in custody under the department's authority.

(f) There has been a finding of probable cause for the same or similar conduct by a court or magistrate in another state.

(3)   Notice of preliminary hearing. Written notice shall be given to the offender and either the offender's attorney or the state public defender. The notice shall include all of the following:

(a) The rule or condition that the offender is alleged to have violated.

(b) A statement that the offender has a right to a preliminary hearing to determine if there is probable cause to believe the offender has violated a rule or condition of supervision.

(c) A statement that the offender has the right to waive the preliminary hearing.

(d) A statement that the offender has a qualified right to be represented by an attorney at the preliminary hearing.

(e) A statement that the offender or offender's attorney, if applicable, may review all relevant evidence to be considered at the preliminary hearing, except evidence that is determined to be confidential.

(f) An explanation of the possible consequences of any decision.

(g) An explanation of the offender's rights which shall include all of the following:

1. The right to be present.

2. The right to deny the allegation.

3. The right to present relevant evidence, including witnesses who can give relevant information regarding the violation of the rules or conditions of supervision.

4. The right to receive a written decision stating the reasons for the decision based on the evidence presented.

(4)   Time and place. The preliminary hearing shall take place as close as feasible to the area of the state in which the alleged violation occurred. It shall take place not sooner than one working day and not later than 5 working days after receipt by the offender of the notice of the preliminary hearing.

(5)   Qualified right to an attorney. If an attorney fails to appear at the preliminary hearing to represent the offender, the magistrate may either proceed with the hearing or postpone the hearing. The hearing shall be postponed to permit representation by an attorney if the offender, after being informed of his or her right to representation, requests an attorney based on a timely and plausible claim that he or she did not commit the alleged violation and the magistrate concludes either that the complexity of the issues will make it difficult for the offender to present his or her case or that the offender is otherwise not capable of speaking effectively for himself or herself.

(6)   Decision.

(a) After the preliminary hearing the magistrate shall issue a written decision stating findings, conclusions and reasons for the decision. The decision shall be based on the evidence presented.

(b) The magistrate shall provide copies to the offender within a reasonable time after the preliminary hearing.

(c) If probable cause was found, the division of hearings and appeals shall be contacted in writing to request the scheduling of a final revocation hearing.

(d) If no probable cause was found the revocation process terminates without prejudice.

(7)   Detention pending final hearing.

(a) When there is a preliminary hearing, the magistrate shall decide if the offender is to be detained pending the outcome of the final hearing. When a preliminary hearing is not required because the case meets one of the criteria under sub. (2) , a supervisor shall make the detention decision.

(b) The magistrate or supervisor shall consider factors including the following:

1. The offender is believed to be dangerous.

2. The offender is likely to flee.

3. The offender is likely to engage in criminal behavior before the revocation takes place.

4. The offender is likely to engage in an activity that does not comply with the rules and conditions of supervision.

5. The length of the term to be served upon revocation is great.

(c) A detained offender is not eligible for release, including temporary release for work.

(d) The detention decision made pursuant to par. (b) shall remain in effect until one of the following occurs:

1. The decision of the administrative law judge becomes final.

2. The offender is reinstated.

3. The violation warrant is vacated by the department.

(e) If the department requests review of the administrative law judge's decision, the custody decision made pursuant to par. (b) shall remain in effect.

(f) The secretary may alter the custody decision at any time if the public interest warrants it.

(8)   Reissuance of notice.

(a) If notice of the preliminary hearing is found to be improper and the impropriety itself results in the dismissal of the revocation proceedings, the department may issue a proper notice and begin the proceedings again.

(b) If a magistrate decides that there is no probable cause to believe the offender committed the violation and later the department learns of additional relevant information regarding the alleged violation, revocation proceedings may be started again with issuance of a new notice for the preliminary hearing.

CR 10-125 : cr. Register June 2013 No. 690 , eff. 7-1-13.