Wisconsin Statutes
Wis. Stat. § 980.04 (2026)
Detention; probable cause hearing; transfer for examination
✓ current as of July 2026
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980.04(1)(1) Upon the filing of a petition under s. 980.02, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition. The person shall be detained only if there is probable cause to believe that the person is eligible for commitment under s. 980.05 (5). A person detained under this subsection shall be held in a facility approved by the department. If the person is serving a sentence of imprisonment, is in a juvenile correctional facility, as defined in s. 938.02 (10p), or a secured residential care center for children and youth, as defined in s. 938.02 (15g), or is committed to institutional care, and the court orders detention under this subsection, the court shall order that the person be transferred to a detention facility approved by the department. A detention order under this subsection remains in effect until the petition is dismissed after a hearing under sub. (3) or after a trial under s. 980.05 (5) or until the effective date of a commitment order under s. 980.06, whichever is applicable.
980.04(2)(a)(a) Whenever a petition is filed under s. 980.02, the court shall hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person.
980.04(2)(b)1.1. Except as provided in subd. 2., the court shall hold the probable cause hearing within 30 days, excluding Saturdays, Sundays, and legal holidays, after the filing of the petition, unless that time is extended by the court for good cause shown upon its own motion, the motion of any party, or the stipulation of the parties.
980.04(2)(b)2.2. If the person named in the petition is in custody under a sentence, dispositional order, or commitment and the probable cause hearing will be held after the date on which the person is scheduled to be released or discharged from the sentence, dispositional order, or commitment, the probable cause hearing under par. (a) shall be held no later than 10 days after the person’s scheduled release or discharge date, excluding Saturdays, Sundays, and legal holidays, unless that time is extended by the court for good cause shown upon its own motion, the motion of any party, or the stipulation of the parties.
980.04(3)(3) If the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be taken into custody if he or she is not in custody and shall order the person to be transferred within a reasonable time to an appropriate facility specified by the department for an evaluation by the department as to whether the person is a sexually violent person. If the court determines that probable cause does not exist to believe that the person is a sexually violent person, the court shall dismiss the petition.
980.04(4)(4) The department shall promulgate rules that provide the qualifications for persons conducting evaluations under sub. (3).
980.04(5)(5) If the person named in the petition claims or appears to be indigent, the court shall, prior to the probable cause hearing under sub. (2) (a), refer the person to the authority for indigency determinations under s. 977.07 (1) and, if applicable, the appointment of counsel.
980.04 AnnotationThe rules of evidence apply to probable cause hearings under this chapter. The exceptions to the rules for preliminary examinations also apply. Although s. 907.03 allows an expert to base an opinion on hearsay, an expert’s opinion based solely on hearsay cannot constitute probable cause. State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), 95-1067.
980.04 AnnotationIn sub. (2), “in custody” means in custody pursuant to this chapter and does not apply to custody under a previously imposed sentence. State v. Brissette, 230 Wis. 2d 82, 601 N.W.2d 678 (Ct. App. 1999), 98-2152.
980.04 AnnotationThis chapter provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of actions under this chapter. State v. Wolfe, 2001 WI App 136, 246 Wis. 2d 233, 631 N.W.2d 240, 99-2145.
980.04 AnnotationThe 72-hour time limit in sub. (2) is directory rather than mandatory. However, the individual’s due process rights prevent the state from indefinitely delaying the probable cause hearing when the subject of the petition is in custody awaiting the hearing and has made a request for judicial substitution. State v. Beyer, 2001 WI App 167, 247 Wis. 2d 13, 633 N.W.2d 627, 00-0036.
980.04 AnnotationSub. (3) is not a rule regarding the admissibility of expert testimony. It provides the procedure for determining probable cause to believe a person is a sexually violent offender. The general rule for determining the qualification of an expert applies. State v. Sprosty, 2001 WI App 231, 248 Wis. 2d 480, 636 N.W.2d 213, 00-2404.
Notes of Decisions
Cited in 32
cases (4 in the last 5 years), 1995–2022 · leading case: State v. Joseph J. Spaeth, 2014 WI 71 (Wis. 2014).
State v. Joseph J. Spaeth, 2014 WI 71 (Wis. 2014). “The State still bears the burden of establishing "probable cause to believe that the person named in the petition is a sexually violent person" at a probable cause hearing, Wis. Stat. § 980.04 (3), and if it does so, the State must prove these allegations "beyond a reasonable…”
State v. Watson, 595 N.W.2d 403 (Wis. 1999). “02 , a probable cause hearing, Wis. Stat. § 980.04 , and a trial, by jury if requested, in which the State has the burden of proving its allegations beyond a reasonable doubt.”
State v. Post, 541 N.W.2d 115 (Wis. 1995). “Wis. Stat. §§ 980.04 (1)-(3). When required to submit to an examination, a person may retain his or her own examiner (or one will be appointed upon proof of indigency) who will have reasonable access to the subject of the petition and to past and present treatment records.”
State v. Ronald Knipfer, 2015 WI 3 (Wis. 2015). “23 Wis. Stat. § 980.04 . 24 Wis. Stat. § 980.”
State v. Carpenter, 541 N.W.2d 105 (Wis. 1995). “Wis. Stat. § 980.04 . If a court or jury determines that the person is sexually violent as defined by the statute, the person is committed to the Department of Health and Social *260 Services (DHSS) "for control, care and treatment until such time as the person is no longer a…”
State v. Beyer, 2001 WI App 167 (Wis. Ct. App. 2001). “Pursuant to Wis. Stat. § 980.04 (1995-96), 1 the trial court ordered that Beyer continue *18 to be detained for purposes of the petition and that a probable cause hearing be held within seventy-two hours.”
Cnty. of Jefferson v. Renz, 603 N.W.2d 541 (Wis. 1999). “The same principles governing preliminary hearings in felony prosecutions also apply to probable cause hearings held pursuant to Wis. Stat. § 980.04 (2) (1995-96) to determine whether a defendant is a sexually violent person.”
State v. Gilbert, 2012 WI 72 (Wis. 2012). “Second, the plain language of Wis. Stat. § 980.04 states that upon the filing of a petition, an incarcerated person will not be subjected to continued incarceration.”
State v. Stephen LeMere, 2016 WI 41 (Wis. 2016). “Wis. Stat. § 980.04 . If the court finds probable cause and orders the person's continued detention, the person will receive a trial, which may be to a jury, to determine whether he or she is sexually violent.”
State v. Gilbert, 2011 WI App 61 (Wis. Ct. App. 2011). “That same day, the circuit court reviewed the petition as required by Wis. Stat. § 980.04 (1) (2005-06), found probable cause, and ordered Gilbert detained by the DOC and transferred "to a detention facility approved by the [DHS].”
State v. Brissette, 601 N.W.2d 678 (Wis. Ct. App. 1999). “See § 980.04(2), Stats. We conclude that the phrase "in custody" in § 980.”
State v. Sprosty, 2001 WI App 231 (Wis. Ct. App. 2001). “Sprosty asserts next that under Wis. Stat. § 980.04 (3) and Wis. Admin. Code §§ HFS 99.”
— Wis. Stat. § 980.04(1) — 3 cases
State v. Gilbert, 2012 WI 72 (Wis. 2012). “Second, the plain language of Wis. Stat. § 980.04 states that upon the filing of a petition, an incarcerated person will not be subjected to continued incarceration.”
State v. Wolfe, 2001 WI App 136 (Wis. Ct. App. 2001).
State v. Gilbert, 2011 WI App 61 (Wis. Ct. App. 2011). “That same day, the circuit court reviewed the petition as required by Wis. Stat. § 980.04 (1) (2005-06), found probable cause, and ordered Gilbert detained by the DOC and transferred "to a detention facility approved by the [DHS].”
— Wis. Stat. § 980.04(2) — 6 cases
State v. Brissette, 601 N.W.2d 678 (Wis. Ct. App. 1999). “See § 980.04(2), Stats. We conclude that the phrase "in custody" in § 980.”
State v. Zanelli, 569 N.W.2d 301 (Wis. Ct. App. 1997).
State v. Matthew A.B., 605 N.W.2d 598 (Wis. Ct. App. 1999).
State v. Beyer, 2001 WI App 167 (Wis. Ct. App. 2001). “Pursuant to Wis. Stat. § 980.04 (1995-96), 1 the trial court ordered that Beyer continue *18 to be detained for purposes of the petition and that a probable cause hearing be held within seventy-two hours.”
State v. Zanelli, 589 N.W.2d 687 (Wis. Ct. App. 1998).
— Wis. Stat. § 980.04(2)(a) — 1 case
State v. Joseph J. Spaeth, 2014 WI 71 (Wis. 2014). “The State still bears the burden of establishing "probable cause to believe that the person named in the petition is a sexually violent person" at a probable cause hearing, Wis. Stat. § 980.04 (3), and if it does so, the State must prove these allegations "beyond a reasonable…”
— Wis. Stat. § 980.04(2)(b) — 2 cases
State v. Gilbert, 2011 WI App 61 (Wis. Ct. App. 2011). “That same day, the circuit court reviewed the petition as required by Wis. Stat. § 980.04 (1) (2005-06), found probable cause, and ordered Gilbert detained by the DOC and transferred "to a detention facility approved by the [DHS].”
State v. Tavodess Matthews (Wis. Ct. App. 2020).
— Wis. Stat. § 980.04(3) — 6 cases
State v. Sprosty, 2001 WI App 231 (Wis. Ct. App. 2001). “Sprosty asserts next that under Wis. Stat. § 980.04 (3) and Wis. Admin. Code §§ HFS 99.”
State v. Tavodess Matthews, 2021 WI 42 (Wis. 2021).
State v. Gilbert, 2012 WI 72 (Wis. 2012). “Second, the plain language of Wis. Stat. § 980.04 states that upon the filing of a petition, an incarcerated person will not be subjected to continued incarceration.”
State v. Joseph J. Spaeth, 2014 WI 71 (Wis. 2014). “The State still bears the burden of establishing "probable cause to believe that the person named in the petition is a sexually violent person" at a probable cause hearing, Wis. Stat. § 980.04 (3), and if it does so, the State must prove these allegations "beyond a reasonable…”
State v. Gilbert, 2011 WI App 61 (Wis. Ct. App. 2011). “That same day, the circuit court reviewed the petition as required by Wis. Stat. § 980.04 (1) (2005-06), found probable cause, and ordered Gilbert detained by the DOC and transferred "to a detention facility approved by the [DHS].”
— Wis. Stat. § 980.04(4)(cg) — 1 case
Town of Mentor v. State, 2021 WI App 85 (Wis. Ct. App. 2021).
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