961.443 Immunity from criminal prosecution; possession.

(1) Definitions. In this section, “aider" means a person who does any of the following:

(a) Brings another person to an emergency room, hospital, fire station, or other health care facility and makes contact with an individual who staffs the emergency room, hospital, fire station, or other health care facility if the other person is, or if a reasonable person would believe him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.

(b) Summons and makes contact with a law enforcement officer, ambulance, emergency medical services practitioner, as defined in s. 256.01 (5), or other health care provider, in order to assist another person if the other person is, or if a reasonable person would believe him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.

(c) Calls the telephone number “911" or, in an area in which the telephone number “911" is not available, the number for an emergency medical service provider, and makes contact with an individual answering the number with the intent to obtain assistance for another person if the other person is, or if a reasonable person would believe him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.

(2) Immunity from criminal prosecution and revocation of parole, probation, or extended supervision.

(a) No aider may have his or her parole, probation, or extended supervision revoked, and an aider is immune from prosecution under s. 946.49 for bail jumping, under s. 961.573 for the possession of drug paraphernalia, under s. 961.41 (3g) for the possession of a controlled substance or a controlled substance analog, and under s. 961.69 (2) for possession of a masking agent, under the circumstances surrounding or leading to his or her commission of an act described in sub. (1) that occurs on or after July 19, 2017, if the aider's attempt to obtain assistance occurs immediately after the aider believes the other person is suffering from the overdose or other adverse reaction.

(b)

1. No aided person may have his or her parole, probation, or extended supervision revoked under the circumstances surrounding or leading to an aider's commission of an act described in sub. (1) that occurs on or after July 19, 2017, if the aided person completes a treatment program as a condition of his or her parole, probation, or extended supervision or, if a treatment program is unavailable or would be prohibitive financially, agrees to be imprisoned in the county jail for not less than 15 days.

2. If an aided person is subject to prosecution under s. 946.49 for bail jumping, under s. 961.573 for the possession of drug paraphernalia, under s. 961.41 (3g) for the possession of a controlled substance or a controlled substance analog, or under s. 961.69 (2) for possession of a masking agent under the circumstances surrounding or leading to an aider's commission of an act described in sub. (1) that occurs on or after July 19, 2017, the district attorney shall offer the aided person a deferred prosecution agreement that includes the completion of a treatment program. This subdivision does not apply to an aided person who is on parole, probation, or extended supervision and fails to meet a condition under subd. 1.

NOTE: Sub. (2) is repealed and recreated eff. 8-1-20 by 2017 Wis. Act 59 to read:

History: 2013 a. 194; 2015 a. 264; 2017 a. 12, 33, 59, 364.

The decision of whether immunity under sub. (2) applies should be made by the court pursuant to a pretrial motion. The defendant bears the burden of proving by a preponderance of the evidence his or her entitlement to immunity. State v. Williams, 2016 WI App 82, 372 Wis. 2d 365, 888 N.W.2d 1, 15-2044.

If the legislature had meant to provide immunity for bail jumping offenses founded in part upon violations of the statutes cited in sub. (2), it could have easily written that into this section. It did not. State v. Williams, 2016 WI App 82, 372 Wis. 2d 365, 888 N.W.2d 1, 15-2044.