AB224: Bill Text

LRB-0188/2

CMH/JK/EVM:sac&kjf

2015 - 2016 LEGISLATURE

2015 Assembly BILL 224

May 19, 2015 - Introduced by Representatives Sargent, Ohnstad, Pope, Johnson, Brostoff, Zepnick, Bowen, Berceau, Kessler, Barnes, Subeck and Hesselbein, cosponsored by Senators Harris Dodd, L. Taylor and C. Larson. Referred to Committee on Criminal Justice and Public Safety.

AB224,3,7 An Act to repeal 23.33 (1) (jo) 5., 30.50 (10m) (e), 340.01 (50m) (e), 350.01 (10v) (e), 885.235 (1) (d) 5., 939.22 (33) (e), 961.14 (4) (t), 961.41 (1) (h), 961.41 (1m) (h), 961.41 (1q), 961.41 (3g) (e), 961.571 (1) (a) 7., 961.571 (1) (a) 11. e., 961.571 (1) (a) 11. k. and L. and 967.055 (1m) (b) 5.; to renumber 30.681 (1) (bn) and subchapter IV (title) of chapter 50 [precedes 50.90]; to renumber and amend 23.33 (4c) (a) 5., 30.681 (1) (d), 346.63 (1) (d), 350.101 (1) (e), 961.01 (14) and 961.34; to amend 20.435 (6) (jm), 23.33 (1) (jo) 1., 23.33 (4c) (a) 4., 23.33 (4c) (b) 3., 23.33 (4c) (b) 4. a., 23.33 (4c) (b) 4. b., 23.33 (4p) (d), 23.33 (13) (b) 1., 23.33 (13) (b) 2., 23.33 (13) (b) 3., 23.33 (13) (e), 30.50 (10m) (a), 30.681 (1) (b) (title), 30.681 (1) (bn) (title), 30.681 (1) (c), 30.681 (2) (b) (title), 30.681 (2) (c), 30.681 (2) (d) 1. a., 30.681 (2) (d) 1. b., 30.684 (4), 30.80 (6) (d), 50.56 (3), 59.54 (25) (title), 59.54 (25) (a) (intro.), 66.0107 (1) (bm), 85.53 (1) (d), 139.87 (7), 146.40 (1) (bo), 146.81 (1) (L), 146.997 (1) (d) 18., 149.14 (3) (nm), 289.33 (3) (d), 340.01 (50m) (a), 343.10 (5) (a) 1., 343.10 (5) (a) 2., 343.12 (7) (a) 11., 343.16 (2) (b), 343.16 (5) (a), 343.30 (1p), 343.30 (1q) (h), 343.305 (2), 343.305 (3) (a), 343.305 (3) (am), 343.305 (3) (ar) 1., 343.305 (3) (b), 343.305 (5) (b), 343.305 (5) (d), 343.305 (7) (a), 343.305 (8) (b) 2. bm., 343.305 (8) (b) 2. d., 343.305 (8) (b) 4m. a., 343.305 (8) (b) 5. b., 343.305 (8) (b) 6. b., 343.305 (9) (a) 5. a., 343.305 (9) (am) 5. a., 343.305 (9) (am) 5. c., 343.305 (9) (d), 343.305 (10) (em), 343.307 (1) (d), 343.307 (2) (e), 343.31 (1) (am), 343.31 (2), 343.315 (2) (a) 2., 343.315 (2) (a) 5., 343.315 (2) (a) 6., 343.315 (2) (bm) 2., 343.32 (2) (bj), 344.576 (2) (b), 346.63 (1) (b), 346.63 (2) (a) 2., 346.63 (2) (b) 1., 346.63 (2) (b) 2., 346.65 (2m) (a), 346.65 (2q), 349.02 (2) (b) 4., 349.03 (2m), 349.06 (1m), 350.01 (10v) (a), 350.101 (1) (d), 350.101 (2) (c), 350.101 (2) (d) 1., 350.101 (2) (d) 2., 350.104 (4), 350.11 (3) (d), 767.41 (5) (am) (intro.), 767.451 (5m) (a) (intro.), 885.235 (1) (d) 1., 885.235 (1g) (intro.), 885.235 (1m), 885.235 (4), 895.047 (3) (a), 905.04 (4) (f), 939.22 (33) (a), 940.09 (1m) (a), 940.09 (1m) (b), 940.09 (2) (a), 940.09 (2) (b), 940.25 (1m), 940.25 (2), 941.20 (1) (bm), 961.38 (1n), 961.41 (1r), 961.41 (3g) (c), 961.41 (3g) (d), 961.41 (3g) (em), 961.47 (1), 961.48 (3), 961.48 (5), 961.49 (1m) (intro.), 961.571 (1) (a) 11. (intro.), 967.055 (1) (a), 967.055 (1) (b), 967.055 (1m) (b) 1., 967.055 (2) (a), 971.365 (1) (a), 971.365 (1) (b), 971.365 (1) (c) and 971.365 (2); and to create 20.435 (1) (gq) and (jm), 20.566 (1) (v), 23.33 (1) (k), 23.33 (4c) (a) 2g., 23.33 (4c) (a) 3g., 23.33 (4c) (b) 2n., 25.56, 30.50 (13p), 30.681 (1) (b) 1g., 30.681 (1) (bn) 2., 30.681 (2) (b) 1g., subchapter V of chapter 50 [precedes 50.60], 66.0408, subchapter V (title) of chapter 139 [precedes 139.97], 139.97, 139.971, 139.972, 139.973, 139.974, 139.975, 139.976, 139.977, 139.978, 139.979, 139.980, 146.44, 340.01 (66m), 343.305 (5) (dm), 346.63 (2p), 350.01 (21g), 350.101 (1) (bg), 350.101 (1) (cg), 350.101 (2) (bg), 767.41 (5) (d), 767.451 (5m) (d), 885.235 (1) (e), 885.235 (1g) (ag), 885.235 (1g) (cg), 885.235 (1L), 939.22 (39g), 940.09 (1) (bg), 940.09 (1) (dg), 940.09 (1g) (bg), 940.09 (1g) (dg), 940.25 (1) (bg), 940.25 (1) (dg), 941.20 (1) (bg) and subchapter VIII of chapter 961 [precedes 961.70] of the statutes; relating to: marijuana possession, regulation of marijuana distribution and cultivation, medical marijuana, operating a motor vehicle while under the influence of marijuana, making appropriations, requiring the exercise of rule-making authority, and providing criminal penalties.

Analysis by the Legislative Reference Bureau

Current law prohibits a person from manufacturing, distributing, or delivering marijuana; possessing marijuana with the intent to manufacture, distribute, or deliver it; possessing or attempting to possess marijuana; using drug paraphernalia; or possessing drug paraphernalia with the intent to produce, distribute, or use a controlled substance. This bill changes state law so that state law permits both recreational use of marijuana and medical use of marijuana.

First, with respect to recreational use of marijuana, this bill changes state law to permit a Wisconsin resident who is over the age of 21 to possess no more than one-half an ounce of marijuana and to permit a nonresident of Wisconsin who is over the age of 21 to possess no more than a quarter ounce of marijuana. Generally, a person who possesses more than the maximum amount he or she is allowed to possess, but not more than 28 grams of marijuana is subject to a civil forfeiture not to exceed $1,000 or imprisonment not to exceed 90 days or both. A person who possesses more than 28 grams of marijuana is guilty of a Class B misdemeanor, except that, if the person takes action to hide the amount of marijuana he or she has and the person has in place a security system to alert him or her to the presence of law enforcement, a method of intimidation, or a trap that could injure or kill a person approaching the area containing the marijuana, the person is guilty of a Class I felony.

This bill prohibits the sale for recreational use of product intended for human consumption that contains marijuana or marijuana extracts and that is edible. This bill prohibits the sale of marijuana for recreational use via mail, telephone, or Internet. A person who violates either of these prohibitions is guilty of a Class A misdemeanor. This bill prohibits the use of marijuana in public. A person who violates this prohibition is subject to a civil forfeiture of not more than $100. This bill also eliminates the prohibition on possessing or using drug paraphernalia that relates to marijuana consumption.

This bill also creates a process by which a person may obtain a permit to sell marijuana for recreational use and pay a tax equal to 25 percent of the sales price. Under this bill, a person who does not have a permit to sell marijuana may not sell, distribute, or transfer marijuana, or possess marijuana with the intent to sell or distribute it. A person who violates the prohibition is guilty of a Class I felony except that the felony classification increases to a Class H felony if the person sells, distributes, or transfers the marijuana to a person who is under the age of 21 (minor) and the person is at least three years older than the minor. This bill prohibits a permittee from selling, distributing, or transferring marijuana to a minor and from permitting a minor to be on premises for which a permit is issued. If a permittee violates one of those prohibitions, the permittee may be subject to a civil forfeiture of not more than $500 and the permit may be suspended for up to 30 days. Under this bill, a minor who does any of the following is subject to a forfeiture of not less than $250 nor more than $500: procures or attempts to procure marijuana from a permittee; falsely represents his or her age to receive marijuana from a permittee; knowingly possesses marijuana for recreational use; or knowingly enters any premises for which a permit has been issued without being accompanied by his or her parent, guardian, or spouse who is at least 21 years of age.

In addition, under this bill, a person may obtain a permit for a $250 fee to cultivate no more than 12 marijuana plants at one time. A permit is valid for one year and may be renewed. A person without a permit who cultivates plants, and the number of plants is not more than 12, is subject to a civil forfeiture that is no more than twice the fee to obtain a permit. If any person cultivates more than 12 plants at one time but not more than 24, the person is subject to a civil forfeiture not to exceed $1,000 or imprisonment not to exceed 90 days or both. If any person cultivates more than 24 plants at one time, the person is guilty of a Class B misdemeanor, except that, if the person takes action to hide the number of plants he or she has and the person has in place a security system to alert him or her to the presence of law enforcement, a method of intimidation, or a trap that could injure or kill a person approaching the area containing the plants, the person is guilty of a Class I felony.

With respect to the medical use of marijuana, this bill changes state law to permit a person registered with the Department of Health Services (DHS) to use marijuana for medical use to alleviate the symptoms or effects of a debilitating medical condition or treatment. A person's primary caregiver also may acquire, possess, cultivate, or transport marijuana for a person registered with DHS if it is not practicable for the person to acquire, possess, cultivate, or transport marijuana independently or the person is under the age of 18.

The bill requires DHS to establish a registry for persons who use marijuana for medical use. Under the bill, a person may apply for a registry identification card by submitting to DHS a signed application, a written certification by the person's physician that the person has or is undergoing a debilitating medical condition or treatment and that the potential benefits of the person's use of tetrahydrocannabinols would likely outweigh the health risks for the person, and a registration fee of not more than $150. DHS must verify the information and issue the person a registry identification card. A registry identification card is generally valid for two years and may be renewed. DHS 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. This bill also requires DHS to promulgate a rule listing other jurisdictions that allow the medical use of marijuana by a visiting person or allow a person to assist with a person's medical use of marijuana. This bill treats documents issued by these entities the same as registry identification cards issued by DHS.

The bill requires DHS to license and regulate nonprofit corporations, known as compassion centers, that distribute or deliver marijuana or drug paraphernalia or possess or manufacture marijuana or drug paraphernalia with the intent to deliver or distribute to facilitate the medical use of marijuana. This bill prohibits compassion centers from being located within 500 feet of a school, prohibits a compassion center from distributing to a person more than 12 live marijuana plants and three ounces of usable marijuana (maximum medicinal amount), and prohibits an organization from possessing a quantity that exceeds, by an amount determined by DHS, the total maximum medicinal amount of marijuana of all of the persons it serves. An applicant for a license must pay an initial application fee of $250, and a compassion center must pay an annual fee of $5,000. This bill also requires DHS to register entities as tetrahydrocannabinols-testing laboratories. The laboratories must test marijuana for contaminants; research findings on the use of medical marijuana; and provide training on safe and efficient cultivation, harvesting, packaging, labeling, and distribution of marijuana, security and inventory accountability, and research on medical marijuana.

Finally, under current law, a person may not operate a vehicle with a detectable amount of a restricted controlled substance, which includes delta-9-tetrahydrocannabinol (THC), in his or her blood, regardless of impairment. Penalties for violating this provision increase with the number of violations. Under this bill, a person may not operate a vehicle with a THC concentration of 5.0 ng/mL or more, instead of a detectable amount, in his or her blood. This bill does not change the penalty structure.

This bill changes state law regarding marijuana. It does not affect federal law, which 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:

AB224,1 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 - See PDF for table

AB224,2 Section 2. 20.435 (1) (gq) and (jm) of the statutes are created to read:

AB224,6,4 20.435 (1) (gq) Medical marijuana registry. All moneys received from applicants, as defined in s. 146.44 (1) (a), as fees under s. 146.44 (2) (a) 4., for the purposes of the Medical Marijuana Registry Program under s. 146.44.

AB224,6,7 (jm) Licensing and support services for compassion centers. All moneys received under s. 50.64 to regulate and license compassion centers under subch. V of ch. 50.

AB224,3 Section 3. 20.435 (6) (jm) of the statutes is amended to read:

AB224,7,5 20.435 (6) (jm) Licensing and support services. The amounts in the schedule for the purposes specified in ss. 48.685 (2) (am) and (b) 1., (3) (a), (am), (b), and (bm), and (5) (a), 49.45 (47), 50.02 (2), 50.025, 50.065 (2) (am) and (b) 1., (3) (a) and (b), and (5), 50.13, 50.135, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.981, and 146.40 (4r) (b) and (er), and subch. IV VI of ch. 50 and to conduct health facilities plan and rule development activities, for accrediting nursing homes, convalescent homes, and homes for the aged, to conduct capital construction and remodeling plan reviews under ss. 50.02 (2) (b) and 50.36 (2), and for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection. All moneys received under ss. 48.685 (8), 49.45 (42) (c), 49.45 (47) (c), 50.02 (2), 50.025, 50.065 (8), 50.13, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.93 (1) (c), and 50.981, all moneys received from fees for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection, and all moneys received under s. 50.135 (2) shall be credited to this appropriation account.

AB224,4 Section 4. 20.566 (1) (v) of the statutes is created to read:

AB224,7,11 20.566 (1) (v) Administration and enforcement of marijuana tax and regulation. From the marijuana fund, the amounts in the schedule for the purposes of administering the marijuana tax imposed under subch. V of ch. 139 and for the costs incurred in enforcing the taxing and regulation of marijuana producers, marijuana processors, and marijuana retailers under subch. V of ch. 139.

AB224,5 Section 5. 23.33 (1) (jo) 1. of the statutes is amended to read:

AB224,7,14 23.33 (1) (jo) 1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB224,6 Section 6. 23.33 (1) (jo) 5. of the statutes is repealed.

AB224,7 Section 7. 23.33 (1) (k) of the statutes is created to read:

AB224,7,18 23.33 (1) (k) "Tetrahydrocannabinols concentration" means the number of nanograms of tetrahydrocannabinols per milliliter of blood.

AB224,8 Section 8. 23.33 (4c) (a) 2g. of the statutes is created to read:

AB224,7,23 23.33 (4c) (a) 2g. `Operating with a tetrahydrocannabinols concentration at or above specified levels.' No person may engage in the operation of an all-terrain vehicle or utility terrain vehicle while the person has a tetrahydrocannabinols concentration of 5.0 or more.

AB224,9 Section 9. 23.33 (4c) (a) 3g. of the statutes is created to read:

AB224,8,5 23.33 (4c) (a) 3g. `Operating with a tetrahydrocannabinols concentration at specified levels; below age 21.' If a person has not attained the age of 21, the person may not engage in the operation of an all-terrain vehicle or utility terrain vehicle while he or she has a tetrahydrocannabinols concentration of more than 0.0 but less than 5.0.

AB224,10 Section 10. 23.33 (4c) (a) 4. of the statutes is amended to read:

AB224,8,15 23.33 (4c) (a) 4. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., 2g., or 2m., the offenses shall be joined. If the person is found guilty of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. Subdivisions 1., 2., 2g., and 2m. each require proof of a fact for conviction which the others do not require.

AB224,11 Section 11. 23.33 (4c) (a) 5. of the statutes is renumbered 23.33 (4c) (a) 5. a. and amended to read:

AB224,8,24 23.33 (4c) (a) 5. a. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or.

AB224,9,6 b. In an action under subd. 2g. or 3g. that is based on the defendant allegedly having a prohibited tetrahydrocannabinols concentration, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for delta-9-tetrahydrocannabinol or he or she was a qualifying patient, as defined in s. 50.60 (6).

AB224,12 Section 12. 23.33 (4c) (b) 2n. of the statutes is created to read:

AB224,9,11 23.33 (4c) (b) 2n. `Causing injury while operating with tetrahydrocannabinols concentration at or above specified levels.' No person who has a tetrahydrocannabinols concentration of 5.0 or more may cause injury to another person by the operation of an all-terrain vehicle or utility terrain vehicle.

AB224,13 Section 13. 23.33 (4c) (b) 3. of the statutes is amended to read:

AB224,9,22 23.33 (4c) (b) 3. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., or 2m., or 2n. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., or 2m., or 2n. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of any combination of subd. 1., 2., or 2m. , or 2n. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. Subdivisions 1., 2., and 2m., and 2n. each require proof of a fact for conviction which the others do not require.

AB224,14 Section 14. 23.33 (4c) (b) 4. a. of the statutes is amended to read:

AB224,9,25 23.33 (4c) (b) 4. a. In an action under this paragraph, the defendant has a defense if he or she proves by a preponderance of the evidence that the injury would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have an alcohol concentration of 0.08 or more, or did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have a tetrahydrocannabinols concentration of 5.0 or more.

AB224,15 Section 15. 23.33 (4c) (b) 4. b. of the statutes is amended to read:

AB224,10,13 23.33 (4c) (b) 4. b. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or.