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 Wisconsin Statutes (Last Updated: January 10, 2017)
 Chapter 946. Crimes Against Government And Its Administration
 SubChapter IV. INTERFERENCE WITH LAW ENFORCEMENT

  Section 946.42. Escape.  

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    (1)  In this section:
    (a)
    1. “Custody" includes without limitation all of the following:
    a. Actual custody of an institution, including a juvenile correctional facility, as defined in s. 938.02 (10p) , a secured residential care center for children and youth, as defined in s. 938.02 (15g) , a juvenile detention facility, as defined in s. 938.02 (10r) , a Type 2 residential care center for children and youth, as defined in s. 938.02 (19r) , a facility used for the detention of persons detained under s. 980.04 (1) , a facility specified in s. 980.065 , or a juvenile portion of a county jail.
    b. Actual custody of a peace officer or institution guard.
    bm. Actual custody or authorized physical control of a correctional officer.
    c. Actual custody or authorized physical control of a probationer, parolee, or person on extended supervision by the department of corrections.
    e. Constructive custody of persons placed on supervised release under ch. 980 .
    f. Constructive custody of prisoners and juveniles subject to an order under s. 938.183 , 938.34 (4d) , (4h) , or (4m) , or 938.357 (4) or (5) (e) temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068 , a temporary leave or furlough granted to a juvenile, or otherwise.
    g. Custody of the sheriff of the county to which the prisoner was transferred after conviction.
    h. Custody of a person subject to a confinement order under s. 973.09 (4) .
    2. “Custody" does not include the constructive custody of a probationer, parolee, or person on extended supervision by the department of corrections or a probation, extended supervision, or parole agent or, subject to s. 938.533 (3) (a) , the constructive custody of a person who has been released to community supervision or aftercare supervision under ch. 938 .
    (b) “Escape" means to leave in any manner without lawful permission or authority.
    (c) “Legal arrest" includes without limitation an arrest pursuant to process fair on its face notwithstanding insubstantial irregularities and also includes taking a juvenile into custody under s. 938.19 .
    (2)  A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class A misdemeanor:
    (a) Pursuant to a legal arrest for or lawfully charged with or convicted of a violation of a statutory traffic regulation, a statutory offense for which the penalty is a forfeiture or a municipal ordinance.
    (b) Lawfully taken into custody under s. 938.19 for a violation of or lawfully alleged or adjudged under ch. 938 to have violated a statutory traffic regulation, a statutory provision for which the penalty is a forfeiture or a municipal ordinance.
    (c) Pursuant to a civil arrest or body execution.
    (2m)  A person who is in the custody of a probation, parole, or extended supervision agent, or a correctional officer, based on an allegation or a finding that the person violated the rules or conditions of probation, parole, or extended supervision and who intentionally escapes from custody is guilty of a Class H felony.
    (3)  A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class H felony:
    (a) Pursuant to a legal arrest for, lawfully charged with or convicted of or sentenced for a crime.
    (b) Lawfully taken into custody under s. 938.19 for or lawfully alleged or adjudged under ch. 938 to be delinquent on the basis of a violation of a criminal law.
    (c) Subject to a disposition under s. 938.34 (4d) , (4h) , or (4m) , to a placement under s. 938.357 (4) or 938.533 (3) (a) , or to community supervision or aftercare revocation under s. 938.357 (5) (e) .
    (e) In custody under the circumstances described in sub. (2) and leaves the state to avoid apprehension. Leaving the state and failing to return is prima facie evidence of intent to avoid apprehension.
    (f) Pursuant to a legal arrest as a fugitive from justice in another state.
    (g) Committed to the department of health services under ch. 971 or 975 .
    (3m)  A person who intentionally escapes from custody under any of the following circumstances is guilty of a Class F felony:
    (a) While subject to a detention order under s. 980.04 (1) or a custody order under s. 980.04 (3) .
    (b) While subject to an order issued under s. 980.06 committing the person to custody of the department of health services, regardless of whether the person is placed in institutional care or on supervised release.
    (4)  If a person is convicted of an escape under this section, the maximum term of imprisonment for the escape may be increased by not more than 5 years if an individual who had custody of the person who escaped is injured during the course of the escape.

Note

Subd. 2. is shown as amended eff. 7-1-17, or on the 2nd day after publication of the 2017-19 biennial budget act, whichever is later, by 2015 Wis. Act 55 . Prior to that date it reads: Microsoft Windows NT 6.1.7601 Service Pack 1 2. “Custody" does not include the constructive custody of a probationer, parolee, or person on extended supervision by the department of corrections or a probation, extended supervision, or parole agent or the constructive custody of a person who has been released to aftercare supervision under ch. 938. Microsoft Windows NT 6.1.7601 Service Pack 1 Par. (c) is shown as amended eff. 7-1-17, or on the 2nd day after publication of the 2017-19 biennial budget act, whichever is later, by 2015 Wis. Act 55 . Prior to that date it reads: Microsoft Windows NT 6.1.7601 Service Pack 1 (c) Subject to a disposition under s. 938.34 (4d), (4h) or (4m), to a placement under s. 938.357 (4) or to aftercare revocation under s. 938.357 (5) (e). Microsoft Windows NT 6.1.7601 Service Pack 1 There is no denial of equal protection in the punishment under sub. (3) (d) [now (3) (g)] of persons committed under the sex crimes law when persons civilly committed are not subject to the same statute. State v. Neutz, 69 Wis. 2d 292 , 230 N.W.2d 806 (1975). Microsoft Windows NT 6.1.7601 Service Pack 1 A defendant's escape under the work-release statute was an escape under s. 946.42 (3). Brown v. State, 73 Wis. 2d 703 , 245 N.W.2d 670 (1976). Microsoft Windows NT 6.1.7601 Service Pack 1 The sentence for an escape conviction may be consecutive to a sex crime commitment. State v. Kruse, 101 Wis. 2d 387 , 305 N.W.2d 85 (1981). Microsoft Windows NT 6.1.7601 Service Pack 1 It is not necessary to leave the physical boundaries of an institution to complete an act of escape. State v. Sugden, 143 Wis. 2d 728 , 422 N.W.2d 624 (1988). Microsoft Windows NT 6.1.7601 Service Pack 1 Under sub. (5) (b) [now sub. (1) (a)], an individual is “in custody" once freedom of movement is restricted; one lawfully arrested may not leave without permission. State v. Adams, 152 Wis. 2d 68 , 447 N.W.2d 90 (Ct. App. 1989). Microsoft Windows NT 6.1.7601 Service Pack 1 A person can be “in custody" without being under “legal arrest," but a person cannot be under “legal arrest" without being “in custody." State v. Hoffman, 163 Wis. 2d 752 , 472 N.W.2d 558 (Ct. App. 1991). Microsoft Windows NT 6.1.7601 Service Pack 1 A traffic regulation under sub. (2) (a) does not include any offense punishable as a crime. State v. Beasley, 165 Wis. 2d 97 , 477 N.W.2d 57 (Ct. App. 1991). Microsoft Windows NT 6.1.7601 Service Pack 1 Upon conviction of a crime, a person is in custody regardless of physical control. Leaving without the court's granting release is escape. State v. Scott, 191 Wis. 2d 146 , 528 N.W.2d 46 (Ct. App. 1995). Microsoft Windows NT 6.1.7601 Service Pack 1 As used in sub. (1) (a), “medical care" includes treatment at drug and alcohol rehabilitation centers. State v. Sevelin, 204 Wis. 2d 127 , 554 N.W.2d 521 (Ct. App. 1996), 96-0729 . Microsoft Windows NT 6.1.7601 Service Pack 1 Failure to return to jail while on work release from incarceration for failure to pay a municipal forfeiture is escape under this section. State v. Smith, 214 Wis. 2d 541 , 571 N.W.2d 472 (Ct. App. 1997), 97-0266 . Microsoft Windows NT 6.1.7601 Service Pack 1 Custody under sub. (1) (a) does not include the custody of a parole or probation officer. State v. Zimmerman, 2001 WI App 238 , 248 Wis. 2d 370 , 635 N.W.2d 864 , 00-3173 . Microsoft Windows NT 6.1.7601 Service Pack 1 Detention at the Wisconsin Resource Center while awaiting evaluation and trial on a petition for commitment as a sexually violent person under Chapter 980 does not subject the detainee to escape charges under this section. Thorson v. Schwarz, 2004 WI 96 , 274 Wis. 2d 1 , 681 N.W.2d 914 , 02-3380 . Microsoft Windows NT 6.1.7601 Service Pack 1 Testimony adduced at trial may establish the element of being sentenced for a crime, regardless of whether the jury actually sees the certified judgment of conviction. State v. Hughes, 2011 WI App 87 , 334 Wis. 2d 445 , 799 N.W.2d 504 , 10-1322 . Microsoft Windows NT 6.1.7601 Service Pack 1