A client calls from the jail lobby. The original case was a misdemeanor — unpleasant, survivable, the kind of thing that resolves. He has just been arrested again, and the new complaint has three counts on it. One of them is the new offense. The other two are bail jumping.
This is the single most common way a manageable Wisconsin case becomes an unmanageable one. The underlying charge does not go away; a second prosecution grows on top of it, with its own maximum penalty, its own conviction, and its own leverage for the district attorney. Understanding how Wis. Stat. § 946.49 works is worth more to most defendants than any amount of theorizing about the original charge.
What the statute actually says
Section 946.49 (1) is one sentence: “Whoever, having been released from custody under ch. 969, intentionally fails to comply with the terms of his or her bond” is guilty of a crime. That is the entire offense. There is no requirement that the violation be serious, that anyone be harmed, or that the defendant fail to appear in court. Missing a hearing is bail jumping. So is any other intentional departure from a bond term.
The court of appeals has broken the offense into three elements the State must prove: that the defendant was arrested for or charged with a felony or a misdemeanor; that the defendant was released from custody on a bond, under conditions established by the trial court; and that the defendant intentionally failed to comply with the terms of that bond — meaning the defendant knew of the terms and knew that his actions did not comply with them. State v. Dawson, 195 Wis. 2d 161 (Ct. App. 1995).
Dawson itself is a useful reminder that those elements are real rather than decorative. The defendant there had been released without bail, and the record was devoid of evidence that he had executed a bond of any kind, secured or unsecured. The evidence was therefore insufficient to support two of the three elements, and the conviction did not stand. The State must be able to point to an actual bond.
The grade follows the charge you were already facing
This is the part most people get wrong, and it is the part that matters most.
The classification of a bail-jumping charge has nothing to do with the seriousness of what the defendant actually did. It is set entirely by the offense he was already charged with when the bond was signed. Under § 946.49 (1) (a), if that offense was a misdemeanor, the bail jumping is a Class A misdemeanor. Under (1) (b), if that offense was a felony, the bail jumping is a Class H felony.
Put that next to the penalty schedule and the consequence is stark. A Class A misdemeanor carries, under § 939.51 (3) (a), a fine not to exceed $10,000 or imprisonment not to exceed nine months, or both. A Class H felony carries, under § 939.50 (3) (h), a fine not to exceed $10,000 or imprisonment not to exceed six years, or both — and that six-year maximum is a bifurcated term under § 973.01, of which the confinement portion may not exceed three years.
So a defendant on a felony bond who drives past an address he was told to stay away from, or who misses a court date by a day, is exposed to a Class H felony. The conduct would not be a crime at all but for the bond. The grade is borrowed from a case that has not yet been proven. If you are unsure which category your original charge falls into, our explanation of the difference between a Wisconsin misdemeanor and a felony is the place to start.
There is a separate provision for witnesses. Under § 946.49 (2), a witness who has been required to give bail under § 969.01 (3) — the mechanism for securing the presence of a material witness in a felony proceeding whose attendance may not be obtainable by subpoena — is guilty of a Class I felony for failing to appear.
The terms you forget are terms
A bail-jumping prosecution is only as broad as the bond, and Wisconsin bonds are broad.
Section 969.09 (1) supplies the baseline: the conditions of a pre-sentencing bond “shall include, without limitation,” that the defendant will appear in the court having jurisdiction on a day certain and thereafter as ordered until discharged on final order of the court, and that the defendant will submit to the orders and process of the court. That last clause is wider than it looks.
On top of it the judge may add conditions. For a felony defendant, § 969.03 (1) lists them: placement in the custody of a designated person or organization agreeing to supervise, restrictions on travel, association, or place of abode, a prohibition on possessing any dangerous weapon, an appearance bond with sureties or a cash deposit, and — under (1) (e) — bail following a finding under § 969.01 (1) (b) or any nonmonetary condition reasonably necessary to secure appearance in court, protect members of the community from serious harm, or prevent the intimidation of witnesses. Section 969.02 (3) gives the court a parallel list in misdemeanor cases.
Then there is the one nobody remembers. Section 969.10 requires a person released on bail or other conditions to give written notice to the clerk of any change of address within 48 hours, and directs that the requirement be printed on every bond. Moving without telling the clerk is a violation of a bond term.
Which is why § 969.09 (3) — the defendant “shall receive a copy of the bond” — is not a formality. Read the copy. Keep it. Most people who violate a bond in Wisconsin do so because they never read the document they signed on a bad morning in a crowded courtroom. Our discussion of how Wisconsin bail and signature bonds actually work covers the release side of this in detail.
Why the counts multiply
Bail jumping does not arrive singly, and the reason is doctrinal rather than prosecutorial excess.
First, the bail jumping and the underlying case are separate offenses. The charge underlying a bail-jumping count is not a lesser-included offense of it, and punishment for both does not offend double jeopardy. State v. Nelson, 146 Wis. 2d 442 (Ct. App. 1988). Nor does a bail-jumping conviction that results from a conviction for another crime committed while released on bail. State v. West, 181 Wis. 2d 792 (Ct. App. 1993). A new offense committed on bond therefore produces two prosecutions, not one.
Second, one bond can generate several counts. Charging a defendant with two counts of bail jumping for violating multiple conditions of a single bond is not multiplicitous. State v. Anderson, 219 Wis. 2d 739 (1998). And in State v. Eaglefeathers, 2009 WI App 2, two counts survived where the defendant failed to appear at two preliminary hearings scheduled for the same time on a single signed bond; proof of notification and failure to appear in one case would not prove it in the other, so the counts were different in fact.
Third, the sentencing court is entitled to look through the bail-jumping count to the conduct beneath it. State v. Schordie, 214 Wis. 2d 229 (Ct. App. 1997). The breadth of all this has drawn academic attention; see Johnson, The Use of Wisconsin’s Bail Jumping Statute: A Legal and Quantitative Analysis, 2018 Wis. L. Rev. 619.
Where the defenses actually live
Because the statute is so broad, real defenses cluster around two words: intentionally and released.
On intent, the case law is less forgiving than defendants hope. The threshold question is whether the bond condition itself covers the conduct at issue — not whether the evidence plausibly establishes that the defendant believed he was violating it. State v. Schaab, 2000 WI App 204. And a positive urine test was held sufficient to establish an intentional violation of a bond condition prohibiting the use of illegal drugs. State v. Taylor, 226 Wis. 2d 490 (Ct. App. 1999). The productive question is usually not “did he mean to break the rule” but “does the rule, as written, reach what he did” — which is an argument about the text of the bond, and it is won by reading the bond closely.
Where the count is premised on the commission of a further crime, there is a structural protection: the jury must be properly instructed on the elements of that further crime, and where the premise is a lesser-included offense, under the law of lesser-included offenses. State v. Henning, 2003 WI App 54, rev’d on other grounds, 2004 WI 89. The State does not get to prove a new crime by implication in order to win a bail-jumping count.
On release, two cases mark the boundaries. Release means posting the bond, signature or cash, and need not be accompanied by physically walking out of the jail — a defendant who signed a signature bond was subject to § 946.49 for violating its conditions even though two required cash bonds went unposted and he never left. State v. Dewitt, 2008 WI App 134. At the other end, State v. Jacobs, 2023 WI App 53, supplies a two-step test for when a defendant is no longer “having been released”: the defendant must be placed in physical custody on the bond at issue, and there must be some court action regarding the bond under which he was previously released — issuance of a bench warrant, revocation of the bond, or a modification such that he cannot obtain release. That question — whether the bond was still operating on the day of the alleged violation — is worth asking in every case with a custody interruption in it.
The other two things that happen
A bond violation sets off consequences that are not criminal charges and do not wait for one.
The money goes first. Under § 969.13 (1), if the conditions of the bond are not complied with, the court “shall enter an order declaring the bail to be forfeited.” Under (2) that order may be set aside on such conditions as the court imposes if it appears that justice does not require enforcement of the forfeiture — which is a motion worth making promptly, particularly where a relative posted the cash.
Then the release itself is at risk. Section 969.08 (1) lets either side petition to increase or reduce bail, alter the conditions, or grant bail where it has previously been revoked; the same subsection gives a defendant still detained 72 hours after the initial appearance because he cannot meet the conditions a right to have them reviewed. And § 969.08 (5) creates an expedited track: where the district attorney alleges that a defendant released on conditions for a serious crime has violated them by committing a serious crime, and provides the complaint charging it, the court proceeds under (5) (b), which authorizes a warrant.
What to do if you are on a bond right now
Three things, in order. Find your copy of the bond and read every line of it, including the address-notice requirement. If any term is ambiguous — and terms about contact, residence, and association frequently are — ask your lawyer to seek clarification or modification from the court under § 969.08 (1) rather than guessing. And if you think you have already violated a term, say so to your lawyer immediately and to no one else; a violation that is addressed by motion before the State charges it is a far smaller problem than one discovered by a prosecutor.
If a bail-jumping count has already been filed, the analysis begins with the bond and the calendar, not with the new allegation. What did the bond say. Was it still operating. What, exactly, is the State claiming the defendant knew. Those questions have dismissed counts before. If you were recently arrested and are unsure what you agreed to, our article on your rights during a stop, a search, and questioning covers what happens before the bond is ever signed.
Talk to a New Berlin criminal defense attorney
Bail jumping is the charge that turns one case into two, and it does so on facts that would otherwise be nothing at all. It is also a charge with more structure to it than most defendants realize — elements the State must prove, a bond whose text controls, and a release requirement that is not always satisfied.
Carson Law Office handles criminal defense matters for clients throughout New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities. If you are facing a bail-jumping count, or you are on a bond and unsure what it permits, call (262) 860-8932 or contact us here — and call before the next court date, not after it.
This article provides general information about Wisconsin criminal law and is not legal advice. Reading it does not create an attorney-client relationship. Statutes, penalty classifications, and case law change, and the effect of any bond condition depends on the facts of the particular case; for advice about your own situation, speak with a licensed Wisconsin attorney.