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2005 - 2006 LEGISLATURE
October 11, 2005 - Introduced by Representatives Underheim, Boyle, Berceau,
Gronemus, Zepnick, Black, Sherman, Pocan, Pope-Roberts, Hahn, Wood,
Musser, Owens, Grigsby
and Parisi, cosponsored by Senator Carpenter.
Referred to Committee on Health.
AB740,1,9 1An Act to renumber 961.01 (1); to renumber and amend 59.54 (25), 968.19
2and 968.20 (1); to amend 59.54 (25m), 60.23 (21), 66.0107 (1) (bm), 173.12 (1m),
3289.33 (3) (d), 349.02 (2) (b) 4., 961.55 (8), 961.555 (2) (a), 961.56 (1), 968.20 (3)
4(a) and 968.20 (3) (b); and to create 59.54 (25) (b) 2., 59.54 (25) (b) 3., 146.45,
5961.01 (1g), 961.01 (5m), 961.01 (11v), 961.01 (14g), 961.01 (19m), 961.01
6(20hm), 961.01 (20ht), 961.01 (20t), 961.436, 961.555 (2) (e), 961.555 (2m),
7961.5755, 968.073, 968.12 (5), 968.19 (2), 968.20 (1d) and 968.20 (1j) of the
8statutes; relating to: medical use of marijuana, requiring the exercise of
9rule-making authority, and providing a penalty.
Analysis by the Legislative Reference Bureau
Current prohibitions and penalties regarding marijuana
Current law prohibits the manufacture, distribution, and delivery of marijuana
and the possession of marijuana with intent to manufacture, distribute, or deliver
it. Penalties for violating these prohibitions depend on the amount of marijuana
involved. If the crime involves 200 grams or less or four or fewer marijuana plants,
the person is guilty of a felony and may be fined up to $10,000 or sentenced to a term
of imprisonment of up to three years and six months (which, if the sentence is for

more than one year, includes a term of extended supervision) or both. If the crime
involves more than 200 grams but not more than 1,000 grams, or more than four
plants but not more than 20 plants, the person is guilty of a felony and may be fined
up to $10,000 or sentenced to a term of imprisonment of up to six years (which, if the
sentence is for more than one year, includes a term of extended supervision) or both.
If the crime involves more than 1,000 grams but not more than 2,500 grams, or more
than 20 plants but not more than 50 plants, the person is guilty of a felony and may
be fined up to $25,000 or sentenced to a term of imprisonment of up to ten years
(which, if the sentence is for more than one year, includes a term of extended
supervision) or both. If the crime involves more than 2,500 grams but not more than
10,000 grams, or more than 50 plants but not more than 200 plants, the person is
guilty of a felony and may be fined up to $25,000 or sentenced to a term of
imprisonment of up to 12 years and 6 months (which, if the sentence is for more than
one year, includes a term of extended supervision) or both. If the crime involves more
than 10,000 grams or more than 200 plants, the person is guilty of a felony and may
be fined up to $50,000 or sentenced to a term of imprisonment of up to 15 years
(which, if the sentence is for more than one year, includes a term of extended
supervision) or both.
Current law also prohibits a person from possessing or attempting to possess
marijuana. A person who violates this prohibition may be fined not more than $1,000
or imprisoned for not more than six months or both for a first conviction. For a second
or subsequent conviction, the person is guilty of a felony and may be fined up to
$10,000 or sentenced to a term of imprisonment of up to three years and six months
(which, if the sentence is for more than one year, includes a term of extended
supervision) or both. In addition, a town, village, city, or county may enact an
ordinance that prohibits the possession of 25 grams or less of marijuana. A person
who violates the ordinance is subject to a forfeiture.
Current law also contains certain prohibitions regarding drug paraphernalia,
which includes equipment, products, and materials used to produce, distribute, and
use controlled substances, such as marijuana. Under current law, a person who uses
drug paraphernalia, or who possesses it with the primary intent to use it, to produce,
distribute, or use a controlled substance unlawfully may be fined not more than $500
or imprisoned for not more than 30 days, or both. A person who delivers drug
paraphernalia, possesses it with intent to deliver it, or manufactures it with intent
to deliver it, knowing that it will be primarily used to produce, distribute, or use a
controlled substance unlawfully, may be fined not more than $1,000 or imprisoned
for not more than 90 days, or both.
Medical necessity defense and immunity from arrest and prosecution
This bill establishes a medical necessity defense to marijuana-related
prosecutions and property seizure actions. A person may invoke this defense if he
or she is a qualifying patient or, under certain circumstances, the primary caregiver
for a qualifying patient. A "qualifying patient" is someone having or undergoing a
debilitating medical condition or treatment, and a "primary caregiver" is a person
who is at least 18 years old who has agreed to be responsible for managing a
qualifying patient's medical use of marijuana. The bill defines a debilitating medical

condition to mean any of the following: 1) cancer, glaucoma, AIDS, a positive HIV
test, or the treatment of these conditions; 2) a chronic or debilitating disease or
medical condition or the treatment of such a disease or condition that causes
cachexia (wasting away), severe pain, severe nausea, seizures, or severe and
persistent muscle spasms; 3) any other medical condition or any other treatment for
a medical condition designated as a debilitating medical condition or treatment in
rules promulgated by the Department of Health and Family Services (DHFS).
A person may invoke this defense if he or she acquires, possesses, cultivates,
transports, or uses marijuana to alleviate the symptoms or effects of his or her
debilitating medical condition or treatment or, as a primary caregiver, acquires,
possesses, cultivates, or transports marijuana to facilitate the qualifying patient's
medical use of it, but only if no more than a reasonable amount of marijuana is
involved. The defense applies also to prosecutions involving drug paraphernalia if
the qualifying patient uses the paraphernalia for the medical use of marijuana. A
person is presumed to have the defense if the person has a valid registry
identification card from DHFS (see Registry for medical users of marijuana
below) if no more than a reasonable amount of marijuana is involved.
The bill also prohibits the arrest or prosecution of a person who acquires,
possesses, cultivates, transports, or uses marijuana to alleviate the symptoms or
effects of his or her debilitating medical condition or treatment or, as a primary
caregiver, acquires, possesses, cultivates, or transports marijuana to facilitate the
qualifying patient's medical use of it, if the person has a valid registry identification
card from DHFS. This prohibition applies also to arrests or prosecutions involving
drug paraphernalia if the qualifying patient uses the drug paraphernalia for the
medical use of marijuana. This prohibition, however, applies only if no more than a
reasonable amount of marijuana is involved. In addition, the bill prohibits the arrest
or prosecution of or the imposition of any penalty on a physician who provides a
written certification to a person in good faith. (See Registry for medical users of
marijuana
below.)
The defense provided under the bill and the prohibition on arrest and
prosecution contained in the bill do not apply if the person possesses or attempts to
possess marijuana under the following circumstances: 1) the person drives or
operates a motor vehicle while under the influence of marijuana; 2) while under the
influence of marijuana, the person operates heavy machinery or engages in any other
conduct that endangers the health or well-being of another person; 3) the person
smokes marijuana on a bus, at the person's workplace, on school premises, in an
adult or juvenile correctional facility or jail, at a public park, beach, or recreation
center, or at a youth center; or 4) the person has been convicted of distributing or
delivering, or possessing with the intent to distribute and deliver, marijuana to
another person. In addition, if the putative qualifying patient is under 18 years of
age, the defense provided under the bill and the prohibition on arrest and
prosecution contained in the bill apply only if the person's parent, guardian, or legal
custodian agrees to serve as a primary caregiver for the person.

Registry for medical users of marijuana
The bill requires DHFS to establish a registry for medical users of marijuana.
Under the bill, a person claiming to be a qualifying patient may apply for a registry
identification card by submitting to DHFS a signed application, accompanied by a
statement from his or her physician documenting that the person has or is
undergoing a debilitating medical condition or treatment and that the potential
benefits to the person of using marijuana outweigh the health risks involved (a
"written certification"). DHFS must then verify the information. If it is complete and
correct, DHFS must issue the person a registry identification card. A qualifying
patient and one of his or her primary caregivers may jointly apply for a registry
identification card for the primary caregiver. DHFS may not disclose that it has
issued to a person a registry identification card, or information from an application
for one, except to a law enforcement agency for the purpose of verifying that a person
possesses a valid registry identification card. A registry identification card is valid
for one year, unless revoked sooner by DHFS based on a change of circumstances, and
may be renewed. DHFS may not charge a fee for issuing a registry identification
card.
Effect on federal law
This bill changes only state law regarding marijuana. Federal law generally
prohibits persons from manufacturing, delivering, or possessing marijuana and
applies to both intrastate and interstate violations.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB740, s. 1 1Section 1. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended
2to read:
AB740,5,53 59.54 (25) (a) The board may enact and enforce an ordinance to prohibit the
4possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to
5par. (b) and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a
6violation of the ordinance; except that any person who is charged with possession of
7more than 25 grams of marijuana, or who is charged with possession of any amount

1of marijuana following a conviction for possession of marijuana, in this state shall
2not be prosecuted under this subsection
. Any ordinance enacted under this
3paragraph shall provide a person who is prosecuted under it with the defenses that
4the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or
5(3g) (e)
.
AB740,5,10 6(b) 1. Any ordinance enacted under this subsection par. (a) by a county with a
7population of less than 500,000 does not apply in any municipality that has enacted
8an ordinance prohibiting the possession of marijuana. Any ordinance enacted under
9this subsection par. (a) by a county with a population of 500,000 or more applies in
10every municipality within the county.
AB740, s. 2 11Section 2. 59.54 (25) (b) 2. of the statutes is created to read:
AB740,5,1412 59.54 (25) (b) 2. A person may not be prosecuted under an ordinance enacted
13under par. (a) if, under s. 968.073 (2), the person would not be subject to prosecution
14under s. 961.41 (3g) (e).
AB740, s. 3 15Section 3. 59.54 (25) (b) 3. of the statutes is created to read:
AB740,5,1916 59.54 (25) (b) 3. No person who is charged with possession of more than 25
17grams of marijuana, or who is charged with possession of any amount of marijuana
18following a conviction for possession of marijuana, in this state may be prosecuted
19under an ordinance enacted under par. (a).
AB740, s. 4 20Section 4. 59.54 (25m) of the statutes is amended to read:
AB740,6,521 59.54 (25m) Drug paraphernalia. The board of a county with a population of
22500,000 or more may enact an ordinance to prohibit conduct that is the same as that
23prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2) and provide
24a forfeiture for violation of the ordinance. Any ordinance enacted under this
25subsection shall provide a person prosecuted under it with the defenses that the

1person has under s. 961.5755 to prosecutions under s. 961.573 (1), 961.574 (1), or
2961.575 (1). A person may not be prosecuted under an ordinance enacted under this
3subsection if, under s. 968.073 (3), the person would not be subject to prosecution
4under s. 961.573 (1), 961.574 (1), or 961.575 (1).
The board may enforce an ordinance
5enacted under this subsection in any municipality within the county.
AB740, s. 5 6Section 5. 60.23 (21) of the statutes is amended to read:
AB740,6,137 60.23 (21) Drug paraphernalia. Adopt an ordinance to prohibit conduct that
8is the same as that prohibited by s. 961.573 (2), 961.574 (2) or 961.575 (2). Any
9ordinance enacted under this subsection shall provide a person prosecuted under it
10with the defenses that the person has under s. 961.5755 to prosecutions under s.
11961.573 (1), 961.574 (1), or 961.575 (1). A person may not be prosecuted under an
12ordinance enacted under this subsection if, under s. 968.073 (3), the person would
13not be subject to prosecution under s. 961.573 (1), 961.574 (1), or 961.575 (1).
AB740, s. 6 14Section 6. 66.0107 (1) (bm) of the statutes is amended to read:
AB740,7,215 66.0107 (1) (bm) Enact and enforce an ordinance to prohibit the possession of
1625 grams or less of marijuana, as defined in s. 961.01 (14), subject to this paragraph
17and
the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation
18of the ordinance; except that any. Any ordinance enacted under this paragraph shall
19provide a person prosecuted under it with the defenses that the person has under s.
20961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e). A person may not
21be prosecuted under an ordinance enacted under this paragraph if, under s. 968.073
22(2), the person would not be subject to prosecution under s. 961.41 (3g) (e). No
person
23who is charged with possession of more than 25 grams of marijuana, or who is
24charged with possession of any amount of marijuana following a conviction for

1possession of marijuana, in this state shall not may be prosecuted under this
2paragraph.
AB740, s. 7 3Section 7. 146.45 of the statutes is created to read:
AB740,7,5 4146.45 Medical marijuana registry program. (1) Definitions. In this
5section:
AB740,7,76 (a) "Applicant" means a person who is applying for a registry identification card
7under sub. (2) (a).
AB740,7,98 (b) "Debilitating medical condition or treatment" has the meaning given in s.
9961.01 (5m).
AB740,7,1110 (c) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01
11(14g).
AB740,7,1212 (d) "Primary caregiver" has the meaning given in s. 961.01 (19m).
AB740,7,1313 (e) "Qualifying patient" has the meaning given in s. 961.01 (20hm).
AB740,7,1514 (f) "Registrant" means a person to whom a registry identification card is issued
15under sub. (4).
AB740,7,1816 (g) "Registry identification card" means a document issued by the department
17under this section that identifies a person as a qualifying patient or primary
18caregiver.
AB740,7,2019 (h) "Written certification" means a statement made by a person's physician if
20all of the following apply:
AB740,7,2521 1. The statement indicates that, in the physician's professional opinion, the
22person has or is undergoing a debilitating medical condition or treatment and the
23potential benefits of the person's use of tetrahydrocannabinols in the manner
24described under s. 961.01 (14g) (a) would likely outweigh the health risks for the
25person.
AB740,8,3
12. The statement indicates that the opinion described in subd. 1. was formed
2after a full assessment, made in the course of a bona fide physician-patient
3relationship, of the person's medical history and current medical condition.
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