Wisconsin Administrative Code
Department of Administration-Division of Hearings and Appeals
Chapter HA 2 - Procedure And Practice For Corrections Hearings
Section HA 2.05 - Revocation hearing
Universal Citation: WI Admin Code ยง HA 2.05
Current through August 26, 2024
(1) NOTICE. Notice of a final revocation hearing shall be sent by the division within 5 days of receipt of a hearing request from the department to the offender, the offender's attorney, if any, and the department's representative. The notice shall include:
(a) The date, time, and place of the
hearing;
(b) The conduct that the
client is alleged to have committed and the rule or condition that the offender
is alleged to have violated;
(c) A
statement of the rights established under sub. (2);
(d) Unless otherwise confidential or
disclosure would threaten the safety of a witness or another, a list of the
potential evidence and potential witnesses to be considered at the hearing
which may include any of the following:
1. Any
documents.
2. Any physical or
chemical evidence.
3. Results of a
breathalyzer test.
4. Any
statements by the offender.
5.
Police reports regarding the allegation.
6. Warrants issued.
7. Photographs.
8. Witness statements.
(e) A statement that whatever information or
evidence is in the possession of the department is available from the
department for inspection unless otherwise confidential;
(f) In parole revocation cases:
1. The department's recommendation for
forfeiture of good time and any sentence credit in accordance with s.
973.155, Stats.;
or
2. The department's
recommendation for a period of reincarceration and any sentence credit in
accordance with statutes.
(g) In extended supervision cases under s.
302.113(9) (am), Stats., the department's recommended
period of reconfinement.
(h) In
extended supervision cases under s.
302.114(9) (am), Stats., for persons serving a life
sentence, the department's recommended period of time for which the person
shall be reconfined before being released again to extended
supervision.
(2) AMENDMENTS. Any notice information required under s. HA 2.05(1) may be amended and additional allegations may be added by the department if the client and the attorney, if any, are given written notice of the amendment at least 5 days prior to the hearing and the amendment does not materially prejudice the client's right to a fair hearing.
(3) OFFENDER'S RIGHTS. The offender's rights at the hearing include any of the following:
(a) The right to attend the hearing in person
or by electronic means.
(b) The
right to deny the allegation.
(c)
The right to be heard and to present witnesses.
(d) The right to present documentary
evidence.
(e) The right to question
witnesses.
(f) The right to the
assistance of counsel.
(g) The
right to waive the hearing.
(h) The
right to receive a written decision stating the reasons for it based upon the
evidence presented.
(4) TIME.
(a) If a client is detained in a county
jail or other county facility pending disposition of the hearing, the division
shall begin a hearing within 50 calendar days after the person is detained by
the department in the county jail or county facility. If not so detained, the
hearing shall begin within a reasonable time from the date the hearing request
is received.
(b) A hearing may be
rescheduled or adjourned for good cause taking into consideration the following
factors:
1. The timeliness of the
request;
2. The reason for the
change;
3. Whether the client is
detained;
4. Where the client is
detained;
5. Why the client is
detained;
6. How long the client
has been detained;
7. Whether any
party objects;
8. The length of any
resulting delay;
9. The convenience
or inconvenience to the parties, witnesses and the division; and
10. Whether the client and the client's
attorney, if any, have had adequate notice and time to prepare for the
hearing.
(c) Any party
requesting that a hearing be rescheduled shall give notice of such request to
the opposing party.
(5) PROTECTION OF A WITNESS.
(a) The identity of a
witness may be withheld from the client if disclosure of the identity would
threaten the safety of the witness or another.
(b) Testimony of a witness may be taken
outside the presence of the client when there is substantial likelihood that
the witness will suffer significant psychological or emotional trauma if the
witness testifies in the presence of the client or when there is substantial
likelihood that the witness will not be able to give effective, truthful
testimony in the presence of the client at hearing. The administrative law
judge shall indicate in the record that such testimony has been taken and the
reasons for it and must give the client an opportunity to submit questions to
be asked of the witness.
(c) The
hearing examiner [administrative law judge] shall give the client and the
client's attorney an opportunity on the record to oppose protection of a
witness before any such action is taken.
(6) PROCEDURE.
(a) The hearing may be closed to the public
and shall be conducted in accordance with this chapter. The administrative law
judge may conduct the hearing by video conference. The hearing may also be
conducted by telephone conference if all parties agree. If all parties do not
agree to conduct a hearing by telephone conference, the administrative law
judge may conduct the hearing by telephone conference if there is no factual
dispute regarding the violations alleged by the department or when the
administrative law judge determines that good cause exists to conduct the
hearing by telephone conference. All witnesses for and against the offender,
including the offender, shall have a chance to speak and respond to
questions.
(b) The administrative
law judge shall weigh the credibility of the witnesses.
(c) Evidence to support or rebut the
allegation may be offered. Evidence gathered by means not consistent with ch.
DOC 328 or in violation of the law may be admitted as evidence at the
hearing.
(d) The administrative law
judge may accept hearsay evidence.
(e) The rules of evidence other than ch. 905,
Stats., with respect to privileges do not apply except that unduly repetitious
or irrelevant questions may be excluded.
(f) The department has the burden of proof to
establish, by a preponderance of the evidence, that the client violated the
rules or conditions of supervision. A violation is proven by a judgment of
conviction arising from conduct underlying an allegation.
(g) The administrative law judge may take an
active role to elicit facts not raised by the client or the client's attorney,
if any, or the department's representative.
(h) Alternatives to revocation and any alibi
defense offered by the client or the client's attorney, if any, shall be
considered only if the administrative law judge and the department's
representative have received notice of them at least 5 days before the hearing,
unless the administrative law judge allows a shorter notice for
cause.
(i) The administrative law
judge may issue any necessary recommendation to give the department's
representative and the client reasonable opportunity to present a full and fair
record.
(7) DECISION.
(a) The administrative law judge shall
consider only the evidence presented in making the decision.
(b) The administrative law judge shall:
1. Decide whether the client committed the
conduct underlying the alleged violation;
2. Decide, if the client committed the
conduct, whether the conduct constitutes a violation of the rules or conditions
of supervision;
3. Decide, if the
client violated the rules or conditions of supervision, whether revocation
should result or whether there are appropriate alternatives to revocation.
Violation of a rule or condition is both a necessary and a sufficient ground
for revocation of supervision. Revocation may not be the disposition, however,
unless the administrative law judge finds on the basis of the original offense
and the intervening conduct of the client that:
a. Confinement is necessary to protect the
public from further criminal activity by the client; or
b. The client is in need of correctional
treatment which can most effectively be provided if confined; or
c. It would unduly depreciate the seriousness
of the violation if supervision were not revoked.
4. Decide, if the client violated the rules
or conditions of supervision, whether or not the department should toll all or
any part of the period of time between the date of the violation and the date
an order is entered, subject to credit according to s.
973.155,
Stats.
5. Decide, if supervision is
revoked, whether the client is entitled to any sentence credits under s.
973.155,
Stats.
(c) If the
administrative law judge finds that the client did not violate the rules or
conditions of supervision, revocation shall not result and the client shall
continue with supervision under the established rules and conditions.
(d) The administrative law judge shall issue
a written decision based upon the evidence with findings of fact and
conclusions of law stating the reasons to revoke or not revoke the client's
supervision. The administrative law judge may, but is not required to, announce
the decision at the hearing.
(e) If
an administrative law judge decides to revoke the offender's parole, the
decision shall apply the criteria established in s. HA 2.06(6) (b) and shall
include a determination of:
1. Good time
forfeited, if any, under ch. 302, Stats., and, for mandatory release parolees,
whether the offender may earn additional good time; or
2. The period of reincarceration, if any,
under ch. 302, Stats.
(f) If an administrative law judge decides to
revoke a period of extended supervision under s.
302.113(9) (am), Stats., the administrative law judge
shall include a determination of the period of reconfinement taking into
consideration the following criteria:
1. The
nature and severity of the original offense;
2. The offender's institutional conduct
record;
3. The offender's conduct
and behavior while on community supervision;
4. The amount of reconfinement that is
necessary to protect the public from the risk of further criminal activity, to
prevent the undue depreciation of the seriousness of the violation or to
provide confined correctional treatment.
(g) If an administrative law judge decides to
revoke a period of extended supervision for a person serving a life sentence
under s.
302.114(9) (am), Stats., the decision shall consider the
criteria established in s. HA 2.05(7) (f), and shall include a determination of
the period of time for which the person shall be incarcerated before being
eligible for release to extended supervision.
(h) The administrative law judge's decision
shall be written and forwarded within 10 days after the hearing to the client,
the client's attorney, if any, and the department's representative. An
extension of 5 days is permitted if there is cause for the extension and the
administrative law judge notifies the parties of the reasons for it.
(i) The administrative law judge's decision
shall take effect and be final 10 days after the date it is issued unless the
client or the client's attorney, if any, or the department's representative
files an appeal under sub. (8).
(8) APPEAL.
(a) The client, the client's attorney, if
any, or the department representative may appeal the administrative law judge's
decision by filing a written appeal with arguments and supporting materials, if
any, with the administrator within 10 days of the date of the administrative
law judge's written decision.
(b)
The appellant shall submit a copy of the appeal to the other party who has 7
days to respond. An appeal may be dismissed if the other party does not receive
a timely copy of the appeal.
(9) ADMINISTRATOR'S DECISION.
(a) The administrator may modify, sustain,
reverse, or remand the administrative law judge's decision based upon the
evidence presented at the hearing and the materials submitted for
review.
(b) The administrator shall
forward a written appeal decision to the client, the client's attorney, if any,
and the department's representative within 21 days after receipt of the appeal,
unless the time is extended by the administrator.
Disclaimer: These regulations may not be the most recent version. Wisconsin may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
