AB892: Bill Text

LRB-3720/2

CMH&MGD&MJL:wlj:pg

2003 - 2004 LEGISLATURE

2003 Assembly BILL 892

February 23, 2004 - Introduced by Representatives Underheim, Boyle, Sherman, Hahn, Musser, Plouff, Pope-Roberts, Schneider, Black, Zepnick, Pocan, Berceau and Taylor, cosponsored by Senator Carpenter. Referred to Committee on Health.

AB892,1,10 An Act to renumber 961.01 (1); to renumber and amend 59.54 (25), 968.19 and 968.20 (1); to amend 60.23 (21), 66.0107 (1) (bm), 173.12 (1m), 289.33 (3) (d), 349.02 (2) (b) 4., 961.55 (8), 961.555 (2) (a), 961.56 (1), 968.20 (3) (a) and 968.20 (3) (b); and to create 20.285 (1) (fw), 36.25 (47), 59.54 (25) (b) 2., 59.54 (25) (b) 3., 146.45, 961.01 (1g), 961.01 (5m), 961.01 (11t), 961.01 (14g), 961.01 (19m), 961.01 (20hm), 961.01 (20ht), 961.01 (20t), 961.37, 961.436, 961.555 (2) (e), 961.555 (2m), 961.5755, 968.073, 968.12 (5), 968.19 (2), 968.20 (1d) and 968.20 (1j) of the statutes; relating to: medical use of marijuana, requiring the exercise of rule-making authority, making an appropriation, 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 subject to a fine not to exceed $10,000 or imprisonment not to exceed three years and six months, 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 subject to a fine not to exceed $10,000 or imprisonment not to exceed six years, 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 subject to a fine not to exceed $25,000 or imprisonment not to exceed 10 years, 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 subject to a fine not to exceed $25,000 or imprisonment not to exceed 12 years and 6 months, or both. If the crime involves more than 10,000 grams or more than 200 plants, the person is subject to a fine not to exceed $50,000 or imprisonment not to exceed 15 years, 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 may be subject to a fine not to exceed $10,000 or imprisonment not to exceed three years and six months, 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 (forfeiture) 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 defenses 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 offenses 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 also 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.

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 deliver or distribute marijuana or drug paraphernalia to a qualifying patient or a qualifying patient's primary caregiver only to facilitate the qualifying patient's medical use of marijuana. 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.

Study

This bill requires the Board of Regents of the University of Wisconsin System to conduct a study on the medical use of smokable marijuana using randomized, controlled trials and to deposit any private funding for the study into the general fund to offset the amount appropriated for the study.

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:

AB892, s. 1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

AB892, s. 2 Section 2. 20.285 (1) (fw) of the statutes is created to read:

AB892,5,5 20.285 (1) (fw) Medical use of marijuana study. The amounts in the schedule for the study under s. 36.25 (47).

AB892, s. 3 Section 3. 36.25 (47) of the statutes is created to read:

AB892,5,12 36.25 (47) Medical use of marijuana study. Beginning no later than July 1, 2004, the board shall conduct a study on the medical use of smokable marijuana using randomized, controlled trials. The board may use funds appropriated under s. 20.285 (1) (fw) for the study under this subsection. If the board receives any private funds for the study under this subsection, the board shall deposit those funds into the general fund.

AB892, s. 4 Section 4. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended to read:

AB892,6,5 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).

AB892,6,8 (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.

AB892, s. 5 Section 5. 59.54 (25) (b) 2. of the statutes is created to read:

AB892,6,12 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).

AB892, s. 6 Section 6. 59.54 (25) (b) 3. of the statutes is created to read:

AB892,6,17 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).

AB892, s. 7 Section 7. 60.23 (21) of the statutes is amended to read:

AB892,6,25 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).

AB892, s. 8 Section 8. 66.0107 (1) (bm) of the statutes is amended to read:

AB892,7,13 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.

AB892, s. 9 Section 9. 146.45 of the statutes is created to read:

AB892,7,16 146.45 Medical marijuana registry program. (1) Definitions. In this section:

AB892,7,18 (a) "Applicant" means a person who is applying for a registry identification card under sub. (2) (a).

AB892,7,20 (b) "Debilitating medical condition or treatment" has the meaning given in s. 961.01 (5m).

AB892,7,22 (c) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01 (14g).

AB892,7,23 (d) "Primary caregiver" has the meaning given in s. 961.01 (19m).