AB715: Bill Text

The defense provided under the bill and the prohibition on arrest and prosecution contained in the bill also apply to a primary caregiver for any qualifying patient (regardless of the qualifying patient's age), if the primary caregiver acquires, possesses, cultivates, transfers, or transports marijuana to facilitate the qualifying patient's medical use of it. The defense and the prohibition apply to the primary caregiver only if it is not practicable for the qualifying patient to acquire, possess, cultivate, or transport marijuana independently or if the qualifying patient is under 18. The defense and the prohibition also apply to offenses involving drug paraphernalia if the qualifying patient uses the drug paraphernalia for the medical use of marijuana.

Registered marijuana distribution organizations

The bill authorizes certain nonprofit corporations to deliver or distribute tetrahydrocannabinols or drug paraphernalia or possess or manufacture them with the intent to deliver or distribute them to facilitate the medical use of marijuana. Such an organization may only deliver or distribute marijuana or drug paraphernalia to a qualifying patient or a qualifying patient's primary caregiver to facilitate the qualifying patient's medical use of marijuana, and only after verifying the validity of the qualifying patient's written certification. A nonprofit corporation is eligible to engage in these activities if it is organized for the purpose of manufacturing, delivering, distributing, or possessing marijuana, drug paraphernalia, and educational materials to facilitate the medical use of marijuana. It may not employ or utilize the services of any person who has been convicted of a drug offense or obtain marijuana from outside the state in violation of federal law. The organization must register annually with DHFS.

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.

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:

AB715, s. 1 Section 1. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended to read:

AB715,4,12 59.54 (25) (a) The board may enact and enforce an ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to par. (b) and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance; except that any person who is charged with possession of more than 25 grams of marijuana, or who is charged with possession of any amount of marijuana following a conviction for possession of marijuana, in this state shall not be prosecuted under this subsection. Any ordinance enacted under this paragraph shall provide a person who is prosecuted under it with the defenses that the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e).

AB715,4,15 (b) 1. Any ordinance enacted under this subsection par. (a) does not apply in any municipality that has enacted an ordinance prohibiting the possession of marijuana.

AB715, s. 2 Section 2. 59.54 (25) (b) 2. of the statutes is created to read:

AB715,5,3 59.54 (25) (b) 2. A person may not be prosecuted under an ordinance enacted under par. (a) if, under s. 968.073 (2), the person would not be subject to prosecution under s. 961.41 (3g) (e).

AB715, s. 3 Section 3. 59.54 (25) (b) 3. of the statutes is created to read:

AB715,5,8 59.54 (25) (b) 3. No person who is charged with possession of more than 25 grams of marijuana, or who is charged with possession of any amount of marijuana following a conviction for possession of marijuana, in this state may be prosecuted under an ordinance enacted under par. (a).

AB715, s. 4 Section 4. 60.23 (21) of the statutes is amended to read:

AB715,5,16 60.23 (21) Drug paraphernalia. Adopt an ordinance to prohibit conduct that is the same as that prohibited by s. 961.573 (2), 961.574 (2) or 961.575 (2). Any ordinance enacted under this subsection shall provide a person prosecuted under it with the defenses that the person has under s. 961.5755 to prosecutions under s. 961.573 (1), 961.574 (1), or 961.575 (1). A person may not be prosecuted under an ordinance enacted under this subsection if, under s. 968.073 (3), the person would not be subject to prosecution under s. 961.573 (2) or 961.574 (2).

AB715, s. 5 Section 5. 66.0107 (1) (bm) of the statutes is amended to read:

AB715,6,4 66.0107 (1) (bm) Enact and enforce an ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to this paragraph and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance; except that any. Any ordinance enacted under this paragraph shall provide a person prosecuted under it with the defenses that the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e). A person may not be prosecuted under an ordinance enacted under this paragraph if, under s. 968.073 (2), the person would not be subject to prosecution under s. 961.41 (3g) (e). No person who is charged with possession of more than 25 grams of marijuana, or who is charged with possession of any amount of marijuana following a conviction for possession of marijuana, in this state shall not may be prosecuted under this paragraph.

AB715, s. 6 Section 6. 173.12 (1m) of the statutes is amended to read:

AB715,6,12 173.12 (1m) If an animal has been seized because it is alleged that the animal has been used in or constitutes evidence of any crime specified in s. 951.08, the animal may not be returned to the owner by an officer under s. 968.20 (2). In any hearing under s. 968.20 (1) (1f), the court shall determine if the animal is needed as evidence or there is reason to believe that the animal has participated in or been trained for fighting. If the court makes such a finding, the animal shall be retained in custody.

AB715, s. 7 Section 7. 289.33 (3) (d) of the statutes is amended to read:

AB715,7,5 289.33 (3) (d) "Local approval" includes any requirement for a permit, license, authorization, approval, variance or exception or any restriction, condition of approval or other restriction, regulation, requirement or prohibition imposed by a charter ordinance, general ordinance, zoning ordinance, resolution or regulation by a town, city, village, county or special purpose district, including without limitation because of enumeration any ordinance, resolution or regulation adopted under s. 59.03 (2), 59.11 (5), 59.42 (1), 59.48, 59.51 (1) and (2), 59.52 (2), (5), (6), (7), (8), (9), (11), (12), (13), (15), (16), (17), (18), (19), (20), (21), (22), (23), (24), (25), (26) and (27), 59.53 (1), (2), (3), (4), (5), (7), (8), (9), (11), (12), (13), (14), (15), (19), (20) and (23), 59.535 (2), (3) and (4), 59.54 (1), (2), (3), (4), (4m), (5), (6), (7), (8), (10), (11), (12), (16), (17), (18), (19), (20), (21), (22), (23), (24), (25) (a), and (26), 59.55 (3), (4), (5) and (6), 59.56 (1), (2), (4), (5), (6), (7), (9), (10), (11), (12), (12m), (13) and (16), 59.57 (1), 59.58 (1) and (5), 59.62, 59.69, 59.692, 59.693, 59.696, 59.697, 59.698, 59.70 (1), (2), (3), (5), (7), (8), (9), (10), (11), (21), (22) and (23), 59.79 (1), (2), (3), (4), (5), (6), (7), (8), (10) and (11), 59.792 (2) and (3), 59.80, 59.82, 60.10, 60.22, 60.23, 60.54, 60.77, 61.34, 61.35, 61.351, 61.354, 62.11, 62.23, 62.231, 62.234, 66.0101, 66.0415, 87.30, 91.73, 196.58, 200.11 (8), 236.45, 281.43 or 349.16 or subch. VIII of ch. 60.

AB715, s. 8 Section 8. 349.02 (2) (b) 4. of the statutes is amended to read:

AB715,7,8 349.02 (2) (b) 4. Local ordinances enacted under s. 59.54 (25) (a), 60.23 (21) or 66.0107 (1) (bm).

AB715, s. 9 Section 9. 961.01 (1) of the statutes is renumbered 961.01 (1m).

AB715, s. 10 Section 10. 961.01 (1g) of the statutes is created to read:

AB715,7,13 961.01 (1g) "Adequate supply" means an amount of tetrahydrocannabinols that is not more than is reasonably necessary to ensure the uninterrupted availability of tetrahydrocannabinols for their medical use by a treatment team.

AB715, s. 11 Section 11. 961.01 (5m) of the statutes is created to read:

AB715,7,16 961.01 (5m) "Debilitating medical condition or treatment" means any of the following:

AB715,7,19 (a) Cancer, glaucoma, acquired immunodeficiency syndrome, a positive test for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV, or the treatment of these conditions.

AB715,7,22 (b) A chronic or debilitating disease or medical condition or the treatment of such a disease or condition that causes cachexia, severe pain, severe nausea, seizures, or severe and persistent muscle spasms.

AB715,7,25 (c) 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 under s. 961.436 (5).

AB715, s. 12 Section 12. 961.01 (11t) of the statutes is created to read:

AB715,8,3 961.01 (11t) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

AB715, s. 13 Section 13. 961.01 (14g) of the statutes is created to read:

AB715,8,6 961.01 (14g) "Medical use of tetrahydrocannabinols" means any of the following:

AB715,8,8 (a) The use of tetrahydrocannabinols by a qualifying patient to alleviate the symptoms or effects of the patient's debilitating medical condition or treatment.

AB715,8,11 (b) The acquisition, possession, cultivation, or transportation of tetrahydrocannabinols by a qualifying patient if done to facilitate his or her use of the tetrahydrocannabinols under par. (a).

AB715,8,16 (c) The acquisition, possession, cultivation, or transportation of tetrahydrocannabinols by a primary caregiver of a qualifying patient, the transfer of tetrahydrocannabinols between a qualifying patient and his or her primary caregivers, or the transfer of tetrahydrocannabinols between persons who are primary caregivers for the same qualifying patient if all of the following apply:

AB715,8,19 1. The acquisition, possession, cultivation, transportation, or transfer of the tetrahydrocannabinols is done to facilitate the qualifying patient's use of tetrahydrocannabinols under par. (a) or (b).

AB715,8,22 2. It is not practicable for the qualifying patient to acquire, possess, cultivate, or transport the tetrahydrocannabinols independently or the qualifying patient is under 18 years of age.

AB715, s. 14 Section 14. 961.01 (19m) of the statutes is created to read:

AB715,9,3 961.01 (19m) "Primary caregiver" means a person who is at least 18 years of age and who has agreed to help a qualifying patient in his or her medical use of tetrahydrocannabinols.

AB715, s. 15 Section 15. 961.01 (20hm) of the statutes is created to read:

AB715,9,8 961.01 (20hm) "Qualifying patient" means a person who has been diagnosed by a physician as having or undergoing a debilitating medical condition or treatment but does not include a person under the age of 18 years unless all of the following apply:

AB715,9,11 (a) The person's physician has explained the potential risks and benefits of the medical use of tetrahydrocannabinols to the person and to a parent, guardian, or person having legal custody of the person.

AB715,9,13 (b) The parent, guardian, or person having legal custody provides the physician a written statement consenting to do all of the following:

AB715,9,14 1. Allow the person's medical use of tetrahydrocannabinols.

AB715,9,15 2. Serve as a primary caregiver for the person.

AB715,9,16 3. Manage the person's medical use of tetrahydrocannabinols.

AB715, s. 16 Section 16. 961.01 (20t) of the statutes is created to read:

AB715,9,19 961.01 (20t) "Treatment team" means a qualifying patient and his or her primary caregivers.

AB715, s. 17 Section 17. 961.01 (21t) of the statutes is created to read:

AB715,9,22 961.01 (21t) "Written certification" means a statement made by a person's physician if all of the following apply:

AB715,9,24 (a) The statement indicates that, in the physician's professional opinion, the person has or is undergoing a debilitating medical condition or treatment and the potential benefits of the person's use of tetrahydrocannabinols under sub. (14g) (a) would likely outweigh the health risks for the person.

AB715,10,5 (b) The statement indicates that the opinion described in par. (a) was formed after a full assessment, made in the course of a bona fide physician-patient relationship, of the person's medical history and current medical condition.

AB715,10,7 (c) The statement is signed by the physician or is contained in the person's medical records.

AB715, s. 18 Section 18. 961.37 of the statutes is created to read:

AB715,10,9 961.37 Distribution of medical marijuana. (1) In this section:

AB715,10,10 (a) "Department" means the department of health and family services.

AB715,10,11 (b) "Drug paraphernalia" has the meaning given in s. 961.571 (1).

AB715,10,15 (c) "Registered organization" means a nonprofit corporation that is registered under sub. (4) and that is organized for the purpose of manufacturing, delivering, distributing, or possessing tetrahydrocannabinols, drug paraphernalia, and educational materials to facilitate the medical use of tetrahydrocannabinols.

AB715,10,18 (2) (a) Subject to par. (c), a registered organization may deliver or distribute tetrahydrocannabinols or drug paraphernalia to any of the following to facilitate the medical use of tetrahydrocannabinols by a qualifying patient's treatment team:

AB715,10,20 1. The qualifying patient, if he or she provides the registered organization a copy of his or her written certification.

AB715,10,22 2. A primary caregiver for the qualifying patient, if he or she provides the registered organization a copy of the qualifying patient's written certification.

AB715,10,25 (b) Subject to par. (c), a registered organization may possess or manufacture tetrahydrocannabinols or drug paraphernalia with the intent to deliver or distribute them under par. (a).

AB715,11,3 (c) A registered organization may not deliver, distribute, possess, or manufacture tetrahydrocannabinols under par. (a) or (b) without first doing all of the following:

AB715,11,5 1. Contacting the office of the qualifying patient's physician to verify the validity of the qualifying patient's written certification.

AB715,11,7 2. Contacting the medical examining board to verify that the physician is licensed to practice medicine and surgery under ch. 448.

AB715,11,9 (d) A federal, state, or local law enforcement agency may deliver or distribute tetrahydrocannabinols or drug paraphernalia to a registered organization.

AB715,11,13 (3) A registered organization may not employ or utilize the services of any person who has been convicted of a crime under this chapter nor may it, notwithstanding sub. (2), obtain tetrahydrocannabinols from outside the state in violation of federal law.

AB715,11,17 (4) Before engaging in any conduct authorized under sub. (2), a registered organization shall file with the department a registration statement in a form to be determined by the department. Thereafter, the organization shall annually file a registration statement with the department in accordance with department rules.

AB715,11,19 (5) The department shall promulgate rules to implement this section, including rules doing all of the following:

AB715,11,21 (a) Setting specifications for the membership of the staff and the boards of directors of registered organizations.

AB715,11,23 (b) Managing transfers to registered organizations of tetrahydrocannabinols or drug paraphernalia seized by law enforcement agencies.

AB715,11,25 (c) Establishing record-keeping and reporting requirements for registered organizations.

AB715,12,1 (d) Establishing registration requirements under sub. (4).

AB715,12,3 (e) Establishing procedures for the oversight of registered organizations and for suspending or terminating the registration of registered organizations.

AB715, s. 19 Section 19. 961.436 of the statutes is created to read:

AB715,12,9 961.436 Medical use defense in cases involving tetrahydrocannabinols. (1) A member of a qualifying patient's treatment team has a defense to prosecution under s. 961.41 (1) (h) or (1m) (h) for manufacturing, or possessing with intent to manufacture, tetrahydrocannabinols if all of the following apply:

AB715,12,11 (a) The manufacture or possession is a medical use of tetrahydrocannabinols by the treatment team.

AB715,12,12 (b) The amount of tetrahydrocannabinols does not exceed an adequate supply.

AB715,12,16 (2) A member of a qualifying patient's treatment team has a defense to prosecution under s. 961.41 (1) (h) or (1m) (h) for distributing or delivering, or possessing with intent to distribute or deliver, tetrahydrocannabinols to another member of the treatment team if all of the following apply:

AB715,12,18 (a) The distribution, delivery, or possession is a medical use of tetrahydrocannabinols by the treatment team.

AB715,12,19 (b) The amount of tetrahydrocannabinols does not exceed an adequate supply.

AB715,12,22 (3) (a) Except as provided in par. (b), a member of a qualifying patient's treatment team has a defense to a prosecution under s. 961.41 (3g) (e) if all of the following apply:

AB715,12,24 1. The possession or attempted possession is a medical use of tetrahydrocannabinols by the treatment team.