AB740: Bill Text

AB740,14,12 961.01 (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:

AB740,14,15 (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.

AB740,14,17 (b) The parent, guardian, or person having legal custody provides the physician a written statement consenting to do all of the following:

AB740,14,18 1. Allow the person's medical use of tetrahydrocannabinols.

AB740,14,19 2. Serve as a primary caregiver for the person.

AB740,14,20 3. Manage the person's medical use of tetrahydrocannabinols.

AB740, s. 18 Section 18. 961.01 (20ht) of the statutes is created to read:

AB740,14,23 961.01 (20ht) "Registry identification card" has the meaning given in s. 146.45 (1) (g).

AB740, s. 19 Section 19. 961.01 (20t) of the statutes is created to read:

AB740,15,2 961.01 (20t) "Treatment team" means a qualifying patient and his or her primary caregivers.

AB740, s. 20 Section 20. 961.436 of the statutes is created to read:

AB740,15,8 961.436 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:

AB740,15,10 (a) The manufacture or possession is a medical use of tetrahydrocannabinols by the treatment team.

AB740,15,11 (b) The amount of tetrahydrocannabinols does not exceed an adequate supply.

AB740,15,15 (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:

AB740,15,17 (a) The distribution, delivery, or possession is a medical use of tetrahydrocannabinols by the treatment team.

AB740,15,18 (b) The amount of tetrahydrocannabinols does not exceed an adequate supply.

AB740,15,21 (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:

AB740,15,23 1. The possession or attempted possession is a medical use of tetrahydrocannabinols by the treatment team.

AB740,15,24 2. The amount of tetrahydrocannabinols does not exceed an adequate supply.

AB740,16,2 (b) A person may not assert the defense described in par. (a) if, while he or she possesses or attempts to possess tetrahydrocannabinols, any of the following applies:

AB740,16,5 1. The person drives or operates a motor vehicle while under the influence of tetrahydrocannabinols in violation of s. 346.63 (1) or a local ordinance in conformity with s. 346.63 (1).

AB740,16,8 2. While under the influence of tetrahydrocannabinols, the person operates heavy machinery or engages in any other conduct that endangers the health or well-being of another person.

AB740,16,9 3. The person smokes marijuana in, on, or at any of the following places:

AB740,16,10 a. A school bus or a public transit vehicle.

AB740,16,11 b. The person's place of employment.

AB740,16,12 c. Public or private school premises.

AB740,16,13 d. A juvenile correctional facility.

AB740,16,14 e. A jail or adult correctional facility.

AB740,16,15 f. A public park, beach, or recreation center.

AB740,16,16 g. A youth center.

AB740,16,17 4. The person has been convicted under s. 961.41 (1) (h) or (1m) (h).

AB740,16,22 (4) For the purposes of a defense raised under sub. (1), (2), or (3) (a), a valid registry identification card is presumptive evidence that the person identified on the card as a qualifying patient is a qualifying patient and that if the person uses tetrahydrocannabinols he or she does so to alleviate the symptoms or effects of his or her debilitating medical condition or treatment.

AB740,16,24 (5) (a) In this subsection, "department" means the department of health and family services.

AB740,17,8 (b) Notwithstanding s. 227.12 (1), any person may petition the department to promulgate a rule to designate a medical condition or treatment as a debilitating medical condition or treatment. The department shall promulgate rules providing for public notice of and a public hearing regarding any such petition, with the public hearing providing persons an opportunity to comment upon the petition. After the hearing, but no later than 180 days after the submission of the petition, the department shall approve or deny the petition. The department's decision to approve or deny a petition is subject to judicial review under s. 227.52.

AB740, s. 21 Section 21. 961.55 (8) of the statutes is amended to read:

AB740,17,15 961.55 (8) The failure, upon demand by any officer or employee designated in s. 961.51 (1) or (2), of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate federal registration, or proof that the person is the holder thereof, or an appropriate valid registry identification card for the person constitutes authority for the seizure and forfeiture of the plants.

AB740, s. 22 Section 22. 961.555 (2) (a) of the statutes is amended to read:

AB740,18,2 961.555 (2) (a) The Except as provided in par. (e), the district attorney of the county within which the property was seized shall commence the forfeiture action within 30 days after the seizure of the property, except that the defendant may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.

AB740, s. 23 Section 23. 961.555 (2) (e) of the statutes is created to read:

AB740,18,6 961.555 (2) (e) The court shall adjourn forfeiture proceedings until after adjudication of any charge concerning a crime that was the basis for the seizure of the property if any of the following applies:

AB740,18,7 1. The defendant requests an adjournment.

AB740,18,8 2. The defendant invokes a defense to the crime under s. 961.436 or 961.5755.

AB740, s. 24 Section 24. 961.555 (2m) of the statutes is created to read:

AB740,18,12 961.555 (2m) Medical necessity defense. (a) In an action to forfeit property seized under s. 961.55, the person who was in possession of the property when it was seized has a defense to the forfeiture of the property if any of the following applies:

AB740,18,15 1. The person was prosecuted under s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) in connection with the seized property but had a valid defense under s. 961.436 (1), (2), or (3) (a) or 961.5755 (1) (a) or (2).

AB740,18,19 2. The person was not prosecuted under s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) in connection with the seized property, but, if the person had been, he or she would have had a valid defense under s. 961.436 (1), (2), or (3) (a) or 961.5755 (1) (a) or (2).

AB740,18,24 (b) The owner of property seized under s. 961.55 who is raising a defense under par. (a) shall do so in the answer to the complaint that he or she serves under sub. (2) (b). If a property owner raises such a defense in his or her answer, the state must, as part of the burden of proof specified in sub. (3), prove that the facts constituting the defense do not exist.

AB740, s. 25 Section 25. 961.56 (1) of the statutes is amended to read:

AB740,19,6 961.56 (1) It Except as provided in s. 961.555 (2m) (b) and except for any presumption arising under s. 961.436 (4) or 961.5755 (3), it is not necessary for the state to negate any exemption or exception in this chapter in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this chapter. The, and the burden of proof of any exemption or exception is upon the person claiming it.

AB740, s. 26 Section 26. 961.5755 of the statutes is created to read:

AB740,19,12 961.5755 Medical use of marijuana defense in drug paraphernalia cases. (1) (a) Except as provided in par. (b), a member of a treatment team has a defense to prosecution under s. 961.573 (1) if he or she uses, or possesses with the primary intent to use, drug paraphernalia only for the medical use of tetrahydrocannabinols by the treatment team.

AB740,19,14 (b) This subsection does not apply if, while the person uses, or possesses with the primary intent to use, drug paraphernalia, s. 961.436 (3) (b) 1., 2., 3., or 4. applies.

AB740,19,19 (2) A member of a treatment team has a defense to prosecution under s. 961.574 (1) or 961.575 (1) if he or she delivers, possesses with intent to deliver, or manufactures with intent to deliver to another member of his or her treatment team drug paraphernalia, knowing that it will be primarily used for the medical use of tetrahydrocannabinols by the treatment team.

AB740,19,24 (3) For the purposes of a defense raised under sub. (1) (a) or (2), a valid registry identification card is presumptive evidence that the person identified on the card as a qualifying patient is a qualifying patient and that, if the person uses tetrahydrocannabinols, he or she does so to alleviate the symptoms or effects of his or her debilitating medical condition or treatment.

AB740, s. 27 Section 27. 968.073 of the statutes is created to read:

AB740,20,2 968.073 Medical use of marijuana; arrest and prosecution. (1) Definitions. In this section:

AB740,20,3 (a) "Adequate supply" has the meaning given in s. 961.01 (1g).

AB740,20,5 (b) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01 (14g).

AB740,20,6 (c) "Primary caregiver" has the meaning given in s. 961.01 (19m).

AB740,20,7 (d) "Qualifying patient" has the meaning given in s. 961.01 (20hm).

AB740,20,8 (e) "Registry identification card" has the meaning given in s. 146.45 (1) (g).

AB740,20,9 (f) "Treatment team" has the meaning given in s. 961.01 (20t).

AB740,20,13 (2) Limitations on arrests and prosecution; medical use of marijuana. Unless s. 961.436 (3) (b) 1., 2., 3., or 4. applies, a member of a qualifying patient's treatment team may not be arrested or prosecuted for a violation of s. 961.41 (1) (h), (1m) (h), or (3g) (e) if all of the following apply:

AB740,20,15 (a) The person manufactures, distributes, delivers, or possesses tetrahydrocannabinols only for their medical use by the treatment team.

AB740,20,17 (b) The person possesses a copy of the qualifying patient's or primary caregiver's valid registry identification card.

AB740,20,18 (c) The quantity of tetrahydrocannabinols does not exceed an adequate supply.

AB740,20,22 (3) Limitations on arrests and prosecution; drug paraphernalia for medical use of marijuana. (a) Unless s. 961.436 (3) (b) 1., 2., 3., or 4. applies, a member of a treatment team may not be arrested or prosecuted for a violation of s. 961.573 (1) if all of the following apply:

AB740,20,25 1. The person uses, or possesses with the primary intent to use, drug paraphernalia only for the medical use of tetrahydrocannabinols by the treatment team.

AB740,21,2 2. The person possesses a copy of the qualifying patient's or primary caregiver's valid registry identification card.

AB740,21,4 3. The person does not possess more than an adequate supply of tetrahydrocannabinols.

AB740,21,7 (b) Unless s. 961.436 (3) (b) 1., 2., 3., or 4. applies, a member of a treatment team may not be arrested or prosecuted for a violation of s. 961.574 (1) or 961.575 (1) if all of the following apply:

AB740,21,11 1. The person delivers, possesses with intent to deliver, or manufactures with intent to deliver to another member of his or her treatment team drug paraphernalia, knowing that it will be primarily used for the medical use of tetrahydrocannabinols by the treatment team.

AB740,21,13 2. The person possesses a copy of the qualifying patient's or primary caregiver's valid registry identification card.

AB740,21,15 3. The person does not possess more than an adequate supply of tetrahydrocannabinols.

AB740,21,19 (4) Limitations on arrests, prosecution, and other sanctions; physicians. A physician may not be arrested and a physician, hospital, or clinic may not be subject to prosecution, denied any right or privilege, or penalized in any manner for making or providing a written certification, as defined in s. 146.45 (1) (h), in good faith.

AB740,21,23 (5) Penalty for false statements. Whoever intentionally provides false information to a law enforcement officer in an attempt to avoid arrest or prosecution under this section for a violation of s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) may be fined not more than $500.

AB740, s. 28 Section 28. 968.12 (5) of the statutes is created to read:

AB740,22,6 968.12 (5) Medical use of marijuana registry cards. An application for a registry identification card under s. 146.45 (2), the issuance of such a card under s. 146.45 (4), or a person's possession of such a card shall not, by itself, constitute probable cause under sub. (1) or otherwise subject the person or property of the person who is applying for, issued, or possessing the card to inspection by any governmental agency.

AB740, s. 29 Section 29. 968.19 of the statutes is renumbered 968.19 (1) and amended to read:

AB740,22,12 968.19 (1) Property Except as provided in sub. (2), property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer, who may leave it in the custody of the sheriff and take a receipt therefor, so long as necessary for the purpose of being produced as evidence on any trial.

AB740, s. 30 Section 30. 968.19 (2) of the statutes is created to read:

AB740,22,15 968.19 (2) A law enforcement agency that has seized a live marijuana plant is not responsible for the plant's care and maintenance.

AB740, s. 31 Section 31. 968.20 (1) of the statutes is renumbered 968.20 (1f), and 968.20 (1f) (intro.), as renumbered, is amended to read:

AB740,23,2 968.20 (1f) (intro.) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If Except as provided in sub. (1j), if the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband or property covered under sub. (1m) or (1r) or s. 173.12, 173.21 (4), or 968.205, returned if:

AB740, s. 32 Section 32. 968.20 (1d) of the statutes is created to read:

AB740,23,4 968.20 (1d) In this section:

AB740,23,5 (a) "Drug paraphernalia" has the meaning given in s. 961.571 (1).

AB740,23,6 (b) "Tetrahydrocannabinols" means a substance included in s. 961.14 (4) (t).