AB740: Bill Text

2005 - 2006 LEGISLATURE

2005 Assembly BILL 740

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 An Act to renumber 961.01 (1); to renumber and amend 59.54 (25), 968.19 and 968.20 (1); to amend 59.54 (25m), 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 59.54 (25) (b) 2., 59.54 (25) (b) 3., 146.45, 961.01 (1g), 961.01 (5m), 961.01 (11v), 961.01 (14g), 961.01 (19m), 961.01 (20hm), 961.01 (20ht), 961.01 (20t), 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, 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 Section 1. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended to read:

AB740,5,5 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).

AB740,5,10 (b) 1. Any ordinance enacted under this subsection par. (a) by a county with a population of less than 500,000 does not apply in any municipality that has enacted an ordinance prohibiting the possession of marijuana. Any ordinance enacted under this subsection par. (a) by a county with a population of 500,000 or more applies in every municipality within the county.

AB740, s. 2 Section 2. 59.54 (25) (b) 2. of the statutes is created to read:

AB740,5,14 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).

AB740, s. 3 Section 3. 59.54 (25) (b) 3. of the statutes is created to read:

AB740,5,19 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).

AB740, s. 4 Section 4. 59.54 (25m) of the statutes is amended to read:

AB740,6,5 59.54 (25m) Drug paraphernalia. The board of a county with a population of 500,000 or more may enact an ordinance to prohibit conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2) and provide a forfeiture for violation of the ordinance. 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 (1), 961.574 (1), or 961.575 (1). The board may enforce an ordinance enacted under this subsection in any municipality within the county.

AB740, s. 5 Section 5. 60.23 (21) of the statutes is amended to read:

AB740,6,13 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 (1), 961.574 (1), or 961.575 (1).

AB740, s. 6 Section 6. 66.0107 (1) (bm) of the statutes is amended to read:

AB740,7,2 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.

AB740, s. 7 Section 7. 146.45 of the statutes is created to read:

AB740,7,5 146.45 Medical marijuana registry program. (1) Definitions. In this section:

AB740,7,7 (a) "Applicant" means a person who is applying for a registry identification card under sub. (2) (a).

AB740,7,9 (b) "Debilitating medical condition or treatment" has the meaning given in s. 961.01 (5m).

AB740,7,11 (c) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01 (14g).

AB740,7,12 (d) "Primary caregiver" has the meaning given in s. 961.01 (19m).

AB740,7,13 (e) "Qualifying patient" has the meaning given in s. 961.01 (20hm).

AB740,7,15 (f) "Registrant" means a person to whom a registry identification card is issued under sub. (4).

AB740,7,18 (g) "Registry identification card" means a document issued by the department under this section that identifies a person as a qualifying patient or primary caregiver.

AB740,7,20 (h) "Written certification" means a statement made by a person's physician if all of the following apply:

AB740,7,25 1. 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 in the manner described under s. 961.01 (14g) (a) would likely outweigh the health risks for the person.

AB740,8,3 2. The statement indicates that the opinion described in subd. 1. 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.

AB740,8,5 3. The statement is signed by the physician or is contained in the person's medical records.

AB740,8,8 (2) Application. (a) An adult who is claiming to be a qualifying patient may apply for a registry identification card by submitting to the department a signed application form containing or accompanied by all of the following:

AB740,8,9 1. His or her name, address, and date of birth.

AB740,8,10 2. A written certification.

AB740,8,12 3. The name, address, and telephone number of the person's current physician, as listed in the written certification.

AB740,8,19 (b) A qualifying patient who is an adult and who has been issued a registry identification card under sub. (4) or an applicant may jointly apply with another adult to the department for a registry identification card for the other adult, designating him or her as a primary caregiver for the qualifying patient or the applicant. Both persons who jointly apply for a registry identification card under this paragraph shall sign the application form, which shall contain the name, address, and date of birth of the individual applying to be registered as a primary caregiver.

AB740,8,23 (c) The department shall promulgate rules specifying how a parent, guardian, or person having legal custody of a child may apply for a registry identification card for himself or herself and for the child and the circumstances under which the department may approve or deny the application.

AB740,8,25 (d) The department may not charge any fees in connection with an application for or the issuance of a registry identification card.

AB740,9,6 (3) Processing the application. The department shall verify the information contained in or accompanying an application submitted under sub. (2) and shall approve or deny the application within 30 days after receiving it. Except as provided in sub. (2) (c), the department may deny an application submitted under sub. (2) only if the required information has not been provided or if false information has been provided.

AB740,9,12 (4) Issuing a registry identification card. The department shall issue a registry identification card within 5 days after approving an application under sub. (3). Unless voided under sub. (5) (b) or (c) or revoked under rules issued by the department under sub. (7) (d), a registry identification card shall expire one year from the date of issuance. A registry identification card shall contain all of the following:

AB740,9,15 (a) The name, address, and date of birth of the registrant and the name, address, and date of birth of the primary caregivers, if the registrant is a qualifying patient, or of the qualifying patient, if the registrant is a primary caregiver.

AB740,9,16 (b) The date of issuance and expiration date of the registry identification card.

AB740,9,17 (c) A photograph of the registrant.

AB740,9,18 (d) Other information that the department may require by rule.

AB740,9,25 (5) Additional information to be provided by registrant. (a) 1. An adult registrant shall notify the department of any change in the registrant's name and address. An adult registrant who is a qualifying patient shall notify the department of any change in his or her physician, of any significant improvement in his or her health as it relates to his or her debilitating medical condition or treatment, and if a registered primary caregiver no longer assists the registrant with the medical use of tetrahydrocannabinols.

AB740,10,4 2. If a qualifying patient is a child, a primary caregiver for the child shall provide the department with any information that the child, if he or she were an adult, would have to provide under subd. 1. within 10 days after the date of the change to which the information relates.

AB740,10,9 (b) If a registrant fails to notify the department within 10 days after any change for which notification is required under par. (a) 1., his or her registry identification card is void. If a registrant fails to comply with par. (a) 2., the registry identification card for the qualifying patient to whom the information under par. (a) 2. relates is void.

AB740,10,13 (c) If a qualifying patient's registry identification card becomes void under par. (b), the registry identification card for each of the qualifying patient's primary caregivers is void. The department shall send written notice of this fact to each such primary caregiver.

AB740,10,14 (6) Records. (a) The department shall maintain a list of all registrants.

AB740,10,17 (b) Notwithstanding s. 19.35 and except as provided in par. (c), the department may not disclose information from an application submitted or a registry identification card issued under this section.

AB740,10,21 (c) The department may disclose to a state or local law enforcement agency information from an application submitted by, or from a registry identification card issued to, a specific person under this section, for the purpose of verifying that the person possesses a valid registry identification card.

AB740,10,23 (7) Rules. The department shall promulgate rules to implement this section, including the rules required under sub. (2) (c) and rules doing all of the following:

AB740,10,24 (a) Creating forms for applications to be used under sub. (2).

AB740,11,2 (b) Specifying how the department will verify the truthfulness of information submitted on an application under sub. (2).

AB740,11,4 (c) Specifying how and under what circumstances registry identification cards may be renewed.

AB740,11,6 (d) Specifying how and under what changed circumstances a registry identification card may be revoked.

AB740,11,8 (e) Specifying under what circumstances a person whose application for a registry identification card is denied may reapply.

AB740, s. 8 Section 8. 173.12 (1m) of the statutes is amended to read:

AB740,11,16 173.12 (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.

AB740, s. 9 Section 9. 289.33 (3) (d) of the statutes is amended to read:

AB740,12,9 289.33 (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.

AB740, s. 10 Section 10. 349.02 (2) (b) 4. of the statutes is amended to read:

AB740,12,12 349.02 (2) (b) 4. Local ordinances enacted under s. 59.54 (25) (a) or (25m), 60.23 (21), or 66.0107 (1) (bm).

AB740, s. 11 Section 11. 961.01 (1) of the statutes is renumbered 961.01 (1m).

AB740, s. 12 Section 12. 961.01 (1g) of the statutes is created to read:

AB740,12,17 961.01 (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.