Wis. Stat. § 971.31 — WI Code / Chapter 971 / Section 971.31
Motions before trial.
Status: in_force

(1) Any motion which is capable of determination without the trial of the general issue may be made before trial.

(2) Except as provided in sub. (5) , defenses and objections based on defects in the institution of the proceedings, insufficiency of the complaint, information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence shall be raised before trial by motion or be deemed waived. The court may, however, entertain such motion at the trial, in which case the defendant waives any jeopardy that may have attached. The motion to suppress evidence shall be so entertained with waiver of jeopardy when it appears that the defendant is surprised by the state’s possession of such evidence.

(3) The admissibility of any statement of the defendant shall be determined at the trial by the court in an evidentiary hearing out of the presence of the jury, unless the defendant, by motion, challenges the admissibility of such statement before trial.

(4) Except as provided in sub. (3) , a motion shall be determined before trial of the general issue unless the court orders that it be deferred for determination at the trial. All issues of fact arising out of such motion shall be tried by the court without a jury.

(5)

(a) Motions before trial shall be served and filed within 10 days after the initial appearance of the defendant in a misdemeanor action or 10 days after arraignment in a felony action unless the court otherwise permits.

(b) In felony actions, motions to suppress evidence or motions under s. 971.23 or objections to the admissibility of statements of a defendant shall not be made at a preliminary examination and not until an information has been filed.

(c) In felony actions, objections based on the insufficiency of the complaint shall be made prior to the preliminary examination or waiver thereof or be deemed waived.

(6) If the court grants a motion to dismiss based upon a defect in the indictment, information or complaint, or in the institution of the proceedings, it may order that the defendant be held in custody or that the defendant’s bail be continued for not more than 72 hours pending issuance of a new summons or warrant or the filing of a new indictment, information or complaint.

(7) If the motion to dismiss is based upon a misnomer, the court shall forthwith amend the indictment, information or complaint in that respect, and require the defendant to plead thereto.

(8) No complaint, indictment, information, process, return or other proceeding shall be dismissed or reversed for any error or mistake where the case and the identity of the defendant may be readily understood by the court; and the court may order an amendment curing such defects.

(9) A motion required to be served on a defendant may be served upon the defendant’s attorney of record.

(10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon a plea of guilty or no contest to the information or criminal complaint.

(11) In actions under s. 940.225 , 948.02 , 948.025 , 948.051 , 948.085 , or 948.095 , or under s. 940.302 (2) , if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5) , evidence which is admissible under s. 972.11 (2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial.

(12) In actions under s. 940.22 , the court may determine the admissibility of evidence under s. 972.11 only upon a pretrial motion.

(13)

(a) A juvenile over whom the court has jurisdiction under s. 938.183 (1) (b) or (c) on a misdemeanor action may make a motion before trial to transfer jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 . The motion may allege that the juvenile did not commit the violation under the circumstances described in s. 938.183 (1) (b) or (c) , whichever is applicable, or that transfer of jurisdiction would be appropriate because of all of the following:

1. If convicted, the juvenile could not receive adequate treatment in the criminal justice system.

2. Transferring jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 would not depreciate the seriousness of the offense.

3. Retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violation of which the juvenile is accused under the circumstances specified in s. 938.183 (1) (b) or (c) , whichever is applicable.

(b) The court shall retain jurisdiction unless the juvenile proves by a preponderance of the evidence that he or she did not commit the violation under the circumstances described in s. 938.183 (1) (b) or (c) , whichever is applicable, or that transfer would be appropriate because all of the factors specified in par. (a) 1. , 2. and 3. are met.

History: 1975 c. 184 ; 1985 a. 275 ; 1987 a. 332 s. 64 ; 1993 a. 227 , 486 ; 1995 a. 352 , 387 , 456 ; 1997 a. 205 ; 2005 a. 277 ; 2007 a. 116 ; 2009 a. 27 .