AB817: Bill Text

LRB-3152/3

JEO&BF&RAC:skg:ks

1995 - 1996 LEGISLATURE

CORRECTED COPY

1995 Assembly BILL 817

January 25, 1996 - Introduced by Special committee on Controlled Substances. Referred to Special committee on Controlled Substances.

AB817,5,6 An Act to repeal 46.60 (1), 46.60 (2) (title), 139.87 (4), 161.01 (3), 161.01 (15) (b), 161.14 (1) (title), 161.16 (1) (title), 161.18 (1) (title), 161.20 (1) (title), 161.20 (3m) (title), 161.22 (1) (title), 161.41 (1p) (a) (intro.) and 161.41 (3p); to renumber 46.60 (title), chapter 161 (title), 161.001 (intro.), 161.001 (1), 161.001 (2), 161.001 (3), subchapter I (title) of chapter 161 [precedes 161.01], 161.01 (intro.), 161.01 (5), 161.01 (7), 161.01 (8), 161.01 (10), 161.01 (10m), 161.01 (12), 161.01 (12m), 161.01 (14m), 161.01 (15) (intro.), 161.01 (18), 161.01 (20g), 161.01 (20i), 161.01 (22), subchapter II (title) of chapter 161 [precedes 161.11], 161.11 (title), 161.115, 161.13 (title), 161.14 (title), 161.15 (title), 161.16 (title), 161.17 (title), 161.18 (title), 161.18 (3) (b), 161.18 (3) (d), 161.18 (3) (e), 161.18 (3) (f), 161.18 (3) (h), 161.18 (3) (j), 161.19 (title), 161.20 (title), 161.20 (2m) (a), 161.20 (2m) (d), 161.20 (2m) (e), 161.21 (title), 161.22 (title), subchapter III (title) of chapter 161 [precedes 161.31], 161.31, 161.32, 161.38 (title), 161.38 (3), 161.38 (5), subchapter IV (title) of chapter 161 [precedes 161.41], 161.41 (title), 161.41 (1p) (a) 1., 161.41 (1p) (a) 2., 161.41 (1x), 161.41 (5), 161.42, 161.438, 161.44, 161.45, 161.455 (title), 161.46 (title), 161.465 (title), 161.465 (3), 161.50, subchapter V (title) of chapter 161 [precedes 161.51], 161.51, 161.53, 161.55 (title), 161.55 (4), 161.55 (5), 161.55 (7), 161.56, 161.565, subchapter VI (title) of chapter 161 [precedes 161.571], 161.573 (title), 161.573 (2), 161.574 (title), 161.574 (2), 161.576, subchapter VII (title) of chapter 161 [precedes 161.61], 161.61 and 161.62; to renumber and amend 46.60 (2), 146.0255 (1), 161.01 (1), 161.01 (2), 161.01 (4), 161.01 (6), 161.01 (9), 161.01 (11), 161.01 (13), 161.01 (14), 161.01 (15) (a), 161.01 (15) (c), 161.01 (16), 161.01 (17), 161.01 (19), 161.01 (20), 161.01 (20m), 161.01 (21), 161.11 (1) (intro.), 161.11 (1) (a) to (h), 161.11 (2), 161.11 (3), 161.11 (4), 161.11 (5), 161.11 (6), 161.12, 161.13, 161.14 (1), 161.14 (2), 161.14 (3), 161.14 (4), 161.14 (5), 161.14 (6), 161.14 (7), 161.15, 161.16 (1), 161.16 (2), 161.16 (2) (a), 161.16 (2) (b), 161.16 (3), 161.16 (5), 161.16 (7), 161.16 (8), 161.16 (10), 161.17, 161.18 (1), 161.18 (2m), 161.18 (3) (intro.), 161.18 (3) (a), 161.18 (3) (k), 161.18 (3) (km), 161.18 (3) (m), 161.18 (3) (n), 161.18 (4), 161.18 (5), 161.18 (6), 161.18 (7), 161.19, 161.20 (1), 161.20 (2), 161.20 (2m) (intro.), 161.20 (2m) (ag), 161.20 (2m) (ar), 161.20 (2m) (b), 161.20 (2m) (bm), 161.20 (2m) (c), 161.20 (3), 161.20 (3m), 161.20 (4), 161.20 (5), 161.21, 161.22 (1), 161.22 (1m), 161.22 (2), 161.23, 161.24, 161.335, 161.36, 161.38 (1), 161.38 (2), 161.38 (4), 161.39, 161.41 (1), 161.41 (1m), 161.41 (1p) (b), 161.41 (1q), 161.41 (1r), 161.41 (2), 161.41 (2m), 161.41 (2r) (a), 161.41 (2r) (b), 161.41 (2r) (c), 161.41 (3), 161.41 (3m), 161.41 (3n), 161.41 (3r), 161.41 (4) (a), 161.41 (4) (b), 161.41 (4) (c), 161.43, 161.435, 161.455 (1), 161.455 (2), (3) and (4), 161.46 (1), 161.46 (2), 161.46 (3), 161.465 (1), 161.465 (2), 161.465 (2m), 161.47, 161.472, 161.475, 161.48, 161.49, 161.495, 161.52, 161.54, 161.55 (1), 161.55 (2), 161.55 (3), 161.55 (6), 161.55 (8), 161.555, 161.571, 161.572, 161.573 (1), 161.574 (1), 161.575 and 161.577; to amend 16.20 (1) (cg), 20.435 (6) (gb), 20.475 (1) (i), 23.33 (1) (e), 23.33 (1) (i), 23.33 (13) (e), 30.50 (3g), 30.50 (4e), 30.80 (6) (d), 36.11 (21), 38.12 (10), 46.03 (18) (fm), 46.238 (title), 46.715 (1) (intro.), 46.973 (1) (a), 46.973 (2m) (c) 2., 48.02 (1e), 48.02 (2d), 48.17 (2) (c), 48.17 (2) (d), 48.17 (2) (e), 48.18 (1) (a) 1., 48.18 (1) (a) 2., 48.24 (2m) (a) 1., 48.24 (2m) (a) 3., 48.245 (2) (a) 3., 48.245 (2) (a) 4., 48.295 (1c) (b), 48.295 (1c) (c), 48.295 (1g), 48.31 (4), 48.32 (1g) (intro.), 48.34 (4r) (a), 48.34 (4r) (b), 48.34 (4s) (a) (intro.), 48.34 (4s) (am) (intro.), 48.34 (7m), 48.34 (13) (a), 48.34 (13) (b), 48.343 (10) (intro.), 48.344 (2e) (a) (intro.), 48.344 (2e) (b), 48.344 (3), 48.345 (13) (a), 48.345 (13) (b), 48.396 (1m), 48.396 (2) (c), 48.396 (7) (b), 48.547 (1), 59.07 (107), 59.20 (5) (b), 59.395 (5), 60.23 (21), 66.051 (1) (bm), 100.182 (4), 100.37 (1) (hm), 101.22 (1m) (g), 102.58, 106.04 (1m) (g), 106.215 (1) (cg), 108.04 (5), 108.04 (6), 111.335 (1) (cs) 1., 111.335 (1) (cs) 2., 111.335 (1) (cs) 3., 111.335 (1) (cs) 4., 111.37 (5) (c), 114.09 (1) (b), 114.103 (1) (a), 114.103 (2) (a), 115.35 (1), 118.01 (2) (d) 2. c., 118.01 (2) (d) 6., 118.01 (2) (d) 7., 118.257 (1) (a), 118.257 (1) (b), 118.257 (2), 125.12 (2) (ag) 5., 125.12 (2) (ag) 6., 125.12 (4) (ag) 7., 125.12 (4) (ag) 8., 139.34 (1) (c) 3., 139.37 (1) (c) 3., 139.87 (2), 139.87 (5), 139.87 (6), 139.88 (1), 139.88 (1d), 146.0255 (title), 146.0255 (2), 165.70 (1) (b), 165.72 (3), 165.83 (2) (a) 2., 302.11 (1g) (a) 1., 302.11 (1p), 302.375 (1) (b), 302.375 (4) (a), 304.06 (1) (b), 304.06 (4) (a), 304.071 (2), 340.01 (9m), 343.06 (1) (d), 343.10 (1) (a), 343.10 (5) (a) 1., 343.10 (5) (b), 343.16 (5) (a), 343.30 (1q) (c) 1. (intro.), 343.30 (1q) (d), 343.30 (5), 343.303, 343.305 (2), 343.305 (3) (am), 343.305 (3) (b), 343.305 (5) (b), 343.305 (5) (d), 343.305 (6) (a), 343.305 (9) (a) 5. a., 343.305 (9) (a) 5. c., 343.305 (9) (am) 5. a., 343.305 (9) (am) 5. c., 343.305 (10) (c) 1. (intro.), 343.305 (10) (d), 343.307 (1) (d), 343.307 (2) (e), 343.31 (1) (am), 343.31 (1) (b), 343.31 (2), 343.31 (3) (b), 343.315 (2) (a) 1., 343.315 (2) (a) 6., 343.315 (2) (e), 343.32 (1m) (b) (intro.), 343.32 (1m) (c), 346.63 (1) (a), 346.63 (2) (a) 1., 346.63 (2) (b), 346.63 (6) (c), 346.637 (1), 346.637 (2), 346.64 (1), 349.02 (2) (b) 2., 349.13 (5) (b) 5., 350.01 (2), 350.01 (9), 350.11 (3) (d), 351.02 (1) (a) 10., 441.16 (1) (b) 2., 447.07 (3) (L), 448.01 (11), 450.01 (4), 450.01 (20) (b), 450.02 (3) (d), 450.10 (1) (a) 2., 450.10 (3) (b), 450.17, 453.04, 632.32 (6) (b) 4., 753.061 (2), 778.25 (1) (a) 1., 814.60 (2) (cn), 818.02 (7), 823.113 (1), 885.235 (1) (a) 1., 885.235 (1) (a) 2., 885.235 (5) (b), 895.437 (1) (b), 895.437 (2) (b), 895.437 (3), 895.53 (2), 939.22 (21) (a), 939.22 (42), 939.30 (1), 939.31, 939.62 (2m) (a) 1., 939.625 (1) (a), 939.63 (1) (c), 940.02 (2) (a), 940.02 (2) (b), 941.296 (2) (intro.), 941.38 (1) (b) 1., 946.82 (4), 948.015 (6), 948.07 (6), 948.35 (1) (a), 949.08 (2) (e), 949.08 (2) (em), 951.06, 967.055 (1) (a), 967.055 (1) (b), 967.055 (2) (a), 967.055 (2) (b), 968.13 (1) (a), 968.28, 970.035, 971.17 (1), 971.365 (1) (a), 971.365 (1) (b), 971.365 (1) (c), 971.365 (2), 973.0135 (1) (b) 1., 973.03 (5) (c), 973.05 (1), 973.06 (1) (am) 1., 973.075 (6), 978.05 (6) (a) and 978.13 (1) (b); to repeal and recreate 48.31 (4), 48.547 (1), 304.06 (1) (b), 343.30 (5), 778.25 (1) (a) 1., 938.02 (1p), 938.02 (2d), 938.17 (2) (c), 938.17 (2) (d), 938.17 (2) (e), 938.18 (1) (a) 1., 938.18 (1) (a) 2., 938.24 (2m) (a) 1., 938.24 (2m) (a) 3., 938.245 (2) (a) 3., 938.295 (1c) (b), 938.295 (1c) (c), 938.295 (1g), 938.32 (1g) (intro.), 938.34 (6r) (a), 938.34 (6r) (b), 938.34 (6s), 938.34 (14r) (title), 938.34 (14r) (a), 938.34 (14r) (b), 938.34 (14s) (title), 938.34 (14s) (a) (intro.), 938.34 (14s) (am) (intro.), 938.34 (14t), 938.343 (10) (intro.), 938.344 (2e) (a) (intro.), 938.344 (2e) (b), 938.344 (3), 938.396 (1m) (a), 938.396 (2) (c), 938.396 (7) (b), 938.547 (1), 961.573 (2), 961.574 (2), 961.575 (2) and 970.035; and to create 23.33 (1) (f), 30.50 (3h), 48.02 (2e), 114.103 (1) (am), 118.257 (1) (am), 139.87 (7), 146.0255 (1) (b), 302.375 (4) (am), 340.01 (9n), 350.01 (2d), 885.235 (5) (bd), 895.437 (1) (bd), 938.02 (2e), 961.001 (1g), 961.001 (1m), 961.01 (4m), 961.01 (11m), 961.01 (12g), 961.01 (15) (bm), 961.01 (15) (d), 961.11 (1r), 961.11 (4m), 961.13 (2m), 961.15 (2m), 961.16 (3) (cm), 961.17 (2m), 961.18 (3) (m) 1., 2. and 3., 961.18 (3) (n) 1., 2. and 3., 961.19 (2m), 961.20 (2m) (ad), 961.20 (2m) (br), 961.21 (2m), 961.22 (3), 961.25, 961.38 (1g), 961.38 (4g), 961.38 (4r), 961.395, 961.41 (1n), 961.41 (1x) (title), 961.41 (4) (title), 961.41 (5) (title) and 961.49 (3) of the statutes; relating to: controlled substances and providing a penalty.

Analysis by the Legislative Reference Bureau

Current law places various restrictions on the manufacture, distribution and possession of controlled substances (dangerous drugs). The substances are regulated based on their schedule designations. The legislature by law or the controlled substances board (CSB) by rule places a controlled substance in one of 5 possible schedules (numbered I, II, III, IV and V) based on the substance's potential for abuse, the substance's accepted medical usage and whether, and to what extent, the substance will cause physical or psychological dependence. In addition, under current law a substance may be listed as a controlled substance if CSB finds that the substance is an "immediate precursor", which means that: 1) the substance is a principal compound commonly used or produced primarily for use in the manufacture of a controlled substance; and 2) the substance is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance.

This bill makes numerous changes in current law relating to controlled substances. The changes are based in part on the revised uniform controlled substances act drafted by the national conference of commissioners on uniform state laws. The bill updates chemical names in the schedules of controlled substances, makes uniform across all of the schedules general language concerning the substances included in schedules, and reorganizes certain material in current law in a more logical fashion. The bill also makes the following specific changes in current law relating to controlled substances:

Controlled substance analogs

This bill provides for the regulation of controlled substance analogs. The bill defines "controlled substance analog" to mean a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II, and which: 1) has a stimulant, depressant, narcotic or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, narcotic or hallucinogenic effect on the central nervous system of a controlled substance included in schedule I or II; or 2) a particular individual represents or intends to have a stimulant, depressant, narcotic or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, narcotic or hallucinogenic effect on the central nervous system of a controlled substance included in schedule I or II.

The bill places the same restrictions on the manufacture, distribution and possession of controlled substance analogs that current law places on the manufacture, distribution and possession of controlled substances. Under the bill, the unlawful manufacture, distribution or possession of a controlled substance analog is subject to the same penalties as the unlawful manufacture, distribution or possession of the controlled substance for which it is an analog. Thus, for example, the unlawful possession of an amount of a controlled substance analog of cocaine is subject to the same penalties as the unlawful possession of an identical amount of cocaine. Under the bill a district attorney must, no later than 60 days after starting a prosecution concerning a controlled substance analog, provide CSB with information relevant to the emergency scheduling of the controlled substance analog (see Scheduling procedure, below). If CSB determines that the controlled substance analog should not be scheduled as a controlled substance, no prosecution relating to that substance as a controlled substance analog may be started or continued.

In addition, the bill provides that controlled substance analogs are treated in the same way that controlled substances are treated under current law. Thus, for example, under current law a person may not operate a vehicle under the influence of alcohol or a controlled substance or any combination of alcohol or a controlled substance. Under the bill, a person may not operate a vehicle under the influence of alcohol, a controlled substance or a controlled substance analog or any combination of alcohol, a controlled substance and a controlled substance analog.

Scheduling procedure

Under current law, CSB may add a substance to a schedule, move a scheduled substance to a different schedule or remove a substance from the schedules of controlled substances. In deciding how to treat a substance, CSB must consider all of the following factors: 1) the actual or relative potential for abuse of the substance; 2) the scientific evidence of the substance's pharmacological effect, if known; 3) the state of current scientific knowledge regarding the substance; 4) the history and current pattern of abuse of the substance; 5) the scope, duration and significance of abuse of the substance; 6) the risk of the substance to public health; 7) the potential of the substance to produce psychic or physical dependence; and 8) whether the substance is an immediate precursor. After considering these factors, CSB must make findings concerning the factors and promulgate a rule controlling the substance if it finds the substance has a potential for abuse.

In addition, if a substance is designated, rescheduled or removed as a controlled substance under federal law and notice of the designation, rescheduling or removal is given to CSB, CSB must treat the substance in the same way federal law treats it unless CSB objects to the treatment of the substance by federal law. If CSB objects to the treatment of the substance by federal law, CSB must publish its reasons for objecting and hold a hearing. At the conclusion of the hearing, CSB must publish its decision, which is final unless altered by the legislature by law.

This bill makes the following changes in the procedure for adding, rescheduling or removing a substance as a controlled substance:

1. Under the bill, CSB may, without considering the 8 factors specified above, include a controlled substance analog in schedule I regardless of whether the substance is substantially similar to a controlled substance in schedule I or II if: a) CSB finds that scheduling of the substance on an emergency basis is necessary to avoid an imminent hazard to the public safety; b) the substance is not included in any other schedule or no exemption or approval is in effect for the substance under federal law; and c) CSB begins a standard proceeding for scheduling the substance. In addition, if CSB receives notice from a district attorney that he or she has started a prosecution against a person for the unlawful manufacture, distribution or possession of a controlled substance analog, CSB must initiate emergency scheduling of the controlled substance analog as provided under the bill. The emergency scheduling of a substance under the bill expires one year after the adoption of the scheduling rule or upon the conclusion of the standard proceeding for scheduling the substance.

2. The bill provides that, in addition to CSB, any party interested in the designation, rescheduling or removal of a substance under federal law may object to CSB having to treat that substance in the same way federal law treats it. The bill also specifies that after a hearing on an objection, whether made by CSB or another interested party, CSB must make findings concerning the 8 factors specified above.

3. The bill provides that CSB may add a substance to a schedule without considering the 8 factors specified above if the substance is controlled under that schedule under federal law by a federal agency as the result of an international treaty, convention or protocol.

4. The bill provides that CSB may consider findings of the federal food and drug administration or the drug enforcement administration as sufficient evidence of any of the 8 factors specified above.

5. The bill provides that CSB may, without considering the 8 factors specified above, add an immediate precursor to the same schedule as that of the controlled substance of which it is an immediate precursor or to any other schedule.

Definition of isomer

Current law refers in various places to isomers of particular controlled substances. (An isomer is a chemical compound that has the same chemical elements in the same proportion as a substance included in a schedule, but which has a different structure than that substance.) Current law does not define "isomer", and the references to isomer in current law include references both to isomers generally, without any specific limitation, and to specific kinds of isomers that have physical or psychological effects that are similar to a substance included in a schedule. This bill defines "isomer" to include only an isomer that merits treatment as a controlled substance because it is structurally similar enough to have physical or psychological effects that are similar to the physical or psychological effects of the controlled substance of which it is an isomer.

Possession of piperidine

Current law does not explicitly regulate piperidine or its salts. This bill prohibits a person from possessing any quantity of piperidine or its salts with the intent to use the piperidine or its salts in the unlawful manufacture of a controlled substance or controlled substance analog. The bill also prohibits a person from possessing any quantity of piperidine or its salts if he or she knows or has reason to know that the piperidine or its salts will be used in the unlawful manufacture of a controlled substance or controlled substance analog. A person who violates one of these prohibitions may be fined not more than $250,000 or imprisoned for not more than 10 years or both.

Test for schedule I substances

Under current law, a substance is placed in schedule I if the substance has a high potential for abuse and the substance either: 1) has no accepted medical use in this country; or 2) lacks accepted safety for use in treatment under medical supervision. This bill changes this standard by providing that the substance must both: 1) have no currently accepted medical use in this country; and 2) lack accepted safety for use in treatment under medical supervision.

Addition of substances to schedules II, IV and V

The bill places carfentanal in schedule II. The schedule II standard covers substances that have a high potential for abuse and a currently accepted medical use, and abuse of which may lead to severe psychological or physical dependence.

In addition, the bill places cathine and mefenorex in schedule IV. The schedule IV standard covers substances that have a low potential for abuse compared to substances in schedule III and a currently accepted medical use, and abuse of which may lead to limited psychological or physical dependence compared to substances in schedule III.

Finally, the bill places pyrovalerone in schedule V. The schedule V standard covers substances that have a low potential for abuse compared to substances in schedule IV and a currently accepted medical use, and abuse of which may lead to limited psychological or physical dependence compared to substances in schedule IV.

Prescription of controlled substances

Current law provides, with certain exceptions, that a controlled substance may be dispensed only directly by, or under the written prescription of, a practitioner (a person permitted to distribute, dispense or administer a controlled substance in the course of professional practice or research, such as a physician, dentist, veterinarian or scientific researcher, or an institution such as a hospital or pharmacy). This bill provides that a practitioner may dispense or deliver a controlled substance to or for an individual or animal only for medical treatment or authorized research in the ordinary course of that practitioner's profession. The bill also provides that a pharmacist is immune from any civil or criminal liability and from discipline by the pharmacy examining board for any act taken by the pharmacist in reliance on a reasonable belief that an order purporting to be a prescription was issued by a practitioner in the usual course of professional treatment or in authorized research.

Also, under current law an advanced practice nurse may be certified by the board of nursing (board) to prescribe drugs if he or she satisfies the education, training and examination requirements established by the board by rule. The board must promulgate rules regulating the prescription of drugs by advanced practice nurses.

This bill provides that an advanced practice nurse who is certified to prescribe drugs may prescribe controlled substances only as permitted by the rules promulgated by the board that regulate the prescription of drugs by advanced practice nurses. The bill also provides that an advanced practice nurse certified to prescribe drugs may deliver a controlled substance to an ultimate user or research subject only by prescribing or administering the controlled substance, unless the rules promulgated by the board that regulate the prescription of drugs by advanced practice nurses permit other ways of delivering a controlled substance. Finally, the bill provides that an advanced practice nurse certified to prescribe drugs must include all of the following with a prescription order that he or she prepares for a controlled substance: 1) a statement that he or she is certified by the board to prescribe drugs; and 2) the indication use of the controlled substance that he or she is prescribing.

For further information see the state 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:

AB817, s. 1 Section 1. 16.20 (1) (cg) of the statutes is amended to read:

AB817,9,9 16.20 (1) (cg) "Disability" means a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment or being regarded as having such an impairment. "Disability" includes any physical disability or developmental disability, as defined in s. 51.01 (5) (a). "Disability" does not include the current illegal use of a controlled substance, as defined in s. 161.01 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m), unless the individual is participating in a supervised drug rehabilitation program.

AB817, s. 2 Section 2. 20.435 (6) (gb) of the statutes is amended to read:

AB817,10,4 20.435 (6) (gb) Alcohol and drug abuse initiatives. All moneys received from the state treasurer under s. 161.41 961.41 (5) (c), to be expended on programs providing prevention, intervention and treatment for alcohol and other drug abuse problems.

AB817, s. 3 Section 3. 20.475 (1) (i) of the statutes, as created by 1995 Wisconsin Act 27, is amended to read:

AB817,10,12 20.475 (1) (i) Other employes. The amounts in the schedule to reimburse Milwaukee County for the costs of clerks necessary for the prosecution of violent crime cases under s. 978.13 (1) (c) and clerks providing clerical services under s. 978.13 (1) (b) to prosecutors handling cases involving felony violations under ch. 161 961. All moneys received under s. 814.635 (1m) shall be credited to this appropriation account.

AB817, s. 4 Section 4. 23.33 (1) (e) of the statutes is amended to read:

AB817,10,15 23.33 (1) (e) "Controlled substance" has the meaning specified under s. 161.01 961.01 (4).

AB817, s. 5 Section 5. 23.33 (1) (f) of the statutes is created to read: