(1) In this section: (a) “Controlled substance” has the meaning given in s. 961.01 (4). (b) “Testing” means a procedure for determining the presence and level of alcohol or a controlled substance in an individual’s blood, breath, or urine, and includes any combination of the use of breath testing, drug patch testing, urinalysis, or continuous or transdermal alcohol monitoring. (2) The department of justice may designate up to 5 counties to participate in a voluntary frequent sobriety testing program. If a county opts not to participate in the program, the department of justice may designate another county to replace it. (3) The department of justice may, by rule, establish the following: (a) A standard for frequent testing for the use of alcohol or a controlled substance that is an alternative to the testing described in sub. (4) (b) 1. This paragraph does not apply to testing required pursuant to an order under s. 343.301 (1g) (am) 2. that a court imposes on a person who meets the criteria under s. 343.301 (1g) (a) 2. b. (b) A standard for setting fees that counties may collect under sub. (4) (d). The standard may include a component that allows the department of justice to recoup its costs under this section, and as provided in sub. (5) (a). (c) A timeline and procedure for counties to submit to the department of justice the information required under sub. (6). (4) Each frequent sobriety testing program shall meet all of the following criteria: (a) The program limits participation to persons whose number of convictions under ss. 940.09 (1) and 940.25, plus the total number of suspensions, revocations, and other convictions counted under s. 343.307 (1) equals 2 or more, and to whom one of the following applies: 1. The person is ordered by a judge or by the department of corrections as a condition of bond, release under s. 969.01 (1) (a), probation or deferred prosecution, release to parole, or release to extended supervision, to totally abstain from using alcohol or a controlled substance, and whose participation in the program is ordered by the judge or by the department of corrections as a condition of bond, release under s. 969.01 (1) (a), probation, release to parole, or release to extended supervision. 2. The person agrees to totally abstain from using alcohol or a controlled substance while he or she is released on bond, on release under s. 969.01 (1) (a), on probation, participating in a deferred prosecution agreement, or on parole or extended supervision and agrees to participate in the program even though his or her participation is not ordered by a judge or by the department of corrections as a condition of bond, release pursuant to s. 969.01 (1) (a), probation or deferred prosecution, or release to parole or to extended supervision. This subdivision does not apply to any person who meets the criteria under s. 343.301 (1g) (a) 2. b. and who is subject to an order under s. 343.301 (1g) (am) 2. (b) 1. Except as provided in subd. 2. or 2m., the program requires participants to be tested for the use of alcohol at least twice daily, at approximately 12-hour intervals, or for the use of a controlled substance as frequently as practicable. 2. If the standard for frequent testing described in subd. 1. creates an unreasonable hardship for the county administering the program, the program may utilize the standard established by the department of justice under sub. (3) (a). This subdivision does not apply to any person who meets the criteria under s. 343.301 (1g) (a) 2. b. and who is subject to an order under s. 343.301 (1g) (am) 2. 2m. Any person who meets the criteria under s. 343.301 (1g) (a) 2. b. and who is subject to an order under s. 343.301 (1g) (am) 2. shall be tested as required under 23 USC 405 (d) (7) (A) (ii) and regulations adopted thereunder. (c) The program informs a participant that, if he or she fails to appear for a scheduled test or if his or her test results indicate that the participant used alcohol or a controlled substance, he or she may be placed under immediate arrest and referred to the department of corrections and to the appropriate prosecuting agency for violating a condition of his or her bond, release under s. 969.01 (1) (a), probation or deferred prosecution, or of his or her release to parole or extended supervision. (d) The program requires participants to pay a fee, except that a county may allow a participant to pay a reduced fee or no fee, subject to the participant’s ability to pay. Each county may establish fees that are consistent with any standard established under sub. (3) (b) and that the county determines are sufficient to fund its frequent sobriety testing program. Except as provided in sub. (5), the county may retain the fees it collects pursuant to this paragraph to administer its program. (5) (a) The department of justice may enter into an agreement with each designated county that requires the county to pay a portion of the fees the county collects under sub. (4) (d) to the department of justice to pay the actual costs of performing the analysis and reporting under sub. (7). (b) The department of justice shall deposit in the state treasury for deposit into the general fund all moneys it collects under this subsection. These moneys shall be credited to the appropriation account under s. 20.455 (2) (gu). (6) Each county that establishes a frequent sobriety testing program after being designated by the department of justice under sub. (2) shall, annually, provide the following information to the department of justice: (a) The number of participants in the program. (b) The costs associated with the program. (c) The failure or dropout rate of participants. (d) Other information requested by the department of justice. (7) (a) Not later than June 30, 2016, the department of justice shall provide to the legislature under s. 13.172 (2) a list of counties it designated under sub. (2). For each county it designates, the department of justice shall inform the legislature of the reasons it chose the county for participation. If the department of justice designated a county to replace a different county, the department of justice shall include that information in the report. (b) Beginning January 15, 2017, and annually thereafter until January 15, 2021, the department of justice shall analyze the information it receives pursuant to sub. (6) and shall submit a report to the legislature under s. 13.172 (2). The report shall include all of the following information relating to the prior year’s frequent sobriety testing programs: 1. A list of counties designated under sub. (2) that established a frequent sobriety testing program. 2. The number of participants in each county’s frequent sobriety testing program. 3. A description of each county’s frequent sobriety testing program. 4. The recidivism rates for participants in each county’s frequent sobriety testing program. (c) By January 15, 2021, the department of justice shall submit a final report to the legislature under s. 13.172 (2) that includes all of the information required under par. (b) and contains a recommendation as to whether the frequent sobriety testing programs should be continued, discontinued, or modified. (8) The department of justice may use the emergency rules procedure under s. 227.24 to promulgate rules specified in sub. (3). Notwithstanding s. 227.24 (1) (a) and (3), the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this section. (9) This section does not apply after June 30, 2021.
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