Key Information

Relevant Statutes and Rules

Wis. Stat. Ann. § 971.13 through 971.14

What proceedings can occur while the defendant is incompetent

"(3) The fact that a defendant is not competent to proceed does not preclude any legal objection to the prosecution . . . which is susceptible of fair determination prior to trial and without the personal participation of the defendant.
(4) The fact that a defendant is not competent to proceed does not preclude a hearing [for order requiring defendant to undergo testing for sexually transmitted disease] unless the probable cause finding required to be made at the hearing cannot be fairly made without the personal participation of the defendant."

Wis. Stat. Ann. § 971.13 

"The court shall not proceed [with competency evaluation] until it has found that it is probable that the defendant committed the offense charged. The finding may be based upon the complaint or, if the defendant submits an affidavit alleging with particularity that the averments of the complaint are materially false, upon the complaint and the evidence presented at a hearing ordered by the court. . . . If the court finds that any charge lacks probable cause, it shall dismiss the charge without prejudice and release the defendant  . . . ."

Wis. Stat. Ann. § 971.14(1) (West)

Number of examiners required

1

Wis. Stat. Ann. § 971.14(2)(a) (West)

Qualifications of examiners

examiners having the specialized knowledge determined by the court to be appropriate to examine and report upon the condition of the defendant.

Wis. Stat. Ann. § 971.14(2)(a) (West)

What must the evaluation report contain

"(3) Report. The examiner shall submit to the court a written report which shall include all of the following:
(a) A description of the nature of the examination and an identification of the persons interviewed, the specific records reviewed and any tests administered to the defendant.
(b) The clinical findings of the examiner.
(c) The examiner's opinion regarding the defendant's present mental capacity to understand the proceedings and assist in his or her defense.
(d) If the examiner reports that the defendant lacks competency, the examiner's opinion regarding the likelihood that the defendant, if provided treatment, may be restored to competency within the time period permitted under sub. (5)(a). The examiner shall provide an opinion as to whether the defendant's treatment should occur in an inpatient facility designated by the department, in a community-based treatment program under the supervision of the department, or in a jail or a locked unit of a facility that has entered into a voluntary agreement with the state to serve as a location for treatment.
(dm) If sufficient information is available to the examiner to reach an opinion, the examiner's opinion on whether the defendant needs medication or treatment and whether the defendant is not competent to refuse medication or treatment. The defendant is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the defendant, one of the following is true:
1. The defendant is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.
2. The defendant is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.
(e) The facts and reasoning, in reasonable detail, upon which the findings and opinions under pars. (b) to (dm) are based."

Wis. Stat. Ann. § 971.14(3) (West)

Are low-level offenses excluded from restoration

None stated.

Is there a pathway for diversion following a finding of incompetence to stand trial

None stated.

What are the locations for restoration services

"The department shall determine whether the defendant will receive treatment in an appropriate institution designated by the department, while under the supervision of the department in a community-based treatment program under contract with the department, or in a jail or a locked unit of a facility that has entered into a voluntary agreement with the state to serve as a location for treatment."

Wis. Stat. Ann. § 971.14(6)(a)(1) (West)

What is the test for restorability

"unlikely that the defendant will become competent within the remaining commitment period"

Wis. Stat. Ann. § 971.14(6)(a) (West)

What is the procedure after restoration

Reports due every three months. "Upon receiving a report under par. (b) indicating the defendant has regained competency or is not competent and unlikely to become competent in the remaining commitment period, the court shall hold a hearing within 14 days of receipt of the report and the court shall proceed under sub. (4). If the court determines that the defendant has become competent, the defendant shall be discharged from commitment and the criminal proceeding shall be resumed."

Wis. Stat. Ann. § 971.14(5)(c) (West)

What is the procedure if there is a finding of unrestorability

"[The court] shall discharge the defendant from the commitment and release him or her, except . . . it may order that the defendant be taken immediately into custody by a law enforcement official and promptly delivered to a[n] [inpatient treatment] facility. . ., an approved public treatment facility [for substance abuse], or an appropriate medical or protective placement facility. Thereafter, detention of the defendant shall be governed by [commitment statutes]."

No provision for dismissal of charges.

Wis. Stat. Ann. § 971.14(6)(a), (b) (West)

What are the time limits on initial transfer to restoration services

None stated.

What are the time limits for treatment

N/A

What is the process if time limit is reached without restoration

None stated.

Are there prohibitions on revoking pretrial release or competency as a pre-trial release factor

None stated.

Time limits on treatment

12 mos., or maximum sentence for the most serious offense, whichever is less.

Wis. Stat. Ann. § 971.14(5)(a)(1)