WisBar News: Appeals Court Restricts "Blanket" Bail Programs, Downs Challenge to Bail Condition:

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    Appeals Court Restricts "Blanket" Bail Programs, Downs Challenge to Bail Condition

    Joe Forward
    Legal Writer

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    Jan. 18, 2013 – In Waukesha County, all drivers charged with two or more drunk-driving offenses must attend alcohol treatment as a condition of bail. One defendant argued that imposing this program as a condition violates constitutional rights.

    In State v. Wilcenski, 2012AP142-CR (Jan. 16, 2013), the District II Wisconsin Court of Appeals rejected Joseph Wilcenski’s constitutional arguments. But the three-judge panel ruled that Waukesha County can’t impose “blanket bail policies” based on the nature of the offense.

    Waukesha’s blanket policy requires treatment and monitoring for all persons charged with two or more drunk-driving offenses. However, conditions of bail must be based on individualized determinations, not the charged crime, the panel explained.

    “A circuit court that follows a blanket policy that mandates participation in a pretrial program as a condition of release for all persons based on only one factor (the nature of the offense), without making an individualized determination that the condition is appropriate, erroneously exercises its discretion in setting conditions of bail,” wrote Judge Paul Reilly.

    Waukesha’s pretrial “intoxicated driver intervention program” requires participants to submit to random drug and alcohol testing. Participants must also authorize release of medical records allowing access to information about prescribed drugs from physicians, and meet with a caseworker.

    In circuit court, Wilcenski argued that these pretrial conditions violated his right to be free from unreasonable searches and seizures, and a right to medical privacy. The circuit court ruled that the pretrial treatment program is reasonably necessary to protect the community.

    On appeal, the three-judge panel affirmed.

    Specifically, the panel ruled that a condition requiring defendants to give up some health care confidentiality rights to avoid jail is justified. “The fact that a defendant charged with a crime may have to give up some of his or her privacy protections in lieu of sitting in jail awaiting trial does not render such bail conditions unconstitutional,” wrote Judge Paul Reilly.

    The panel also rejected Wilcenski’s unreasonable search and seizure argument. The court held that drug and alcohol testing as a condition of bail does not run afoul of Fourth Amendment protections because those tests are required to protect public safety.

    However, the panel rejected the state’s claim that “blanket bail programs” are appropriate for certain classes of offenders, although this did not help Wilcenski.

    “We caution circuit courts that a mandatory condition of release based solely on the nature of a charged crime without considering a defendant’s circumstances constitutes an erroneous exercise of discretion in setting bail conditions,” Judge Reilly wrote.

    In Wilcenski’s case, the court made an individualized determination after Wilcenski moved the court to discharge him from the pretrial treatment program.

    And although Wilcenski pleaded guilty and served his jail sentence before appeal, rendering the case moot, the panel accepted the issue as one likely of repetition yet evading review.