Except as provided in sub. (5)
, if a person pleads guilty or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s. 961.41 (3g) (am)
, or (g)
, the court shall order the person to comply with an assessment of the person's use of controlled substances. The court's order shall designate a facility that is operated by or pursuant to a contract with the county department established under s. 51.42
and that is certified by the department of health services to provide assessment services to perform the assessment and, if appropriate, to develop a proposed treatment plan. The court shall notify the person that noncompliance with the order limits the court's ability to determine whether the treatment option under s. 961.475
is appropriate. The court shall also notify the person of the fee provisions under s. 46.03 (18) (fm)
The facility shall submit an assessment report within 14 days to the court. At the request of the facility, the court may extend the time period by not more than 20 additional workdays. The assessment report may include a proposed treatment plan.
The court shall consider the assessment report in determining whether the treatment option under s. 961.475
The court is not required to enter an order under sub. (2)
if any of the following applies:
The court finds that the person is already covered by or has recently completed an assessment under this section or a substantially similar assessment.
The person is participating in a substance abuse treatment program that meets the requirements of s. 165.95 (3)
, as determined by the department of justice under s. 165.95 (9)
Whenever any person pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s. 961.41 (3g)
, the court may, upon request of the person and with the consent of a treatment facility with special inpatient or outpatient programs for the treatment of drug dependent persons, allow the person to enter the treatment programs voluntarily for purposes of treatment and rehabilitation. Treatment shall be for the period the treatment facility feels is necessary and required, but shall not exceed the maximum sentence allowable unless the person consents to the continued treatment. At the end of the necessary and required treatment, with the consent of the court, the person may be released from sentence. If treatment efforts are ineffective or the person ceases to cooperate with treatment rehabilitation efforts, the person may be remanded to the court for completion of sentencing.
Second or subsequent offenses. 961.48(1)
If a person is charged under sub. (2m)
with a felony offense under this chapter that is a 2nd or subsequent offense as provided under sub. (3)
and the person is convicted of that 2nd or subsequent offense, the maximum term of imprisonment for the offense may be increased as follows:
By not more than 6 years, if the offense is a Class C or D felony.
By not more than 4 years, if the offense is a Class E, F, G, H, or I felony.
Whenever a person charged with a felony offense under this chapter may be subject to a conviction for a 2nd or subsequent offense, he or she is not subject to an enhanced penalty under sub. (1)
unless any applicable prior convictions are alleged in the complaint, indictment or information or in an amended complaint, indictment or information that is filed under par. (b) 1.
A person is not subject to an enhanced penalty under sub. (1)
for an offense if an allegation of applicable prior convictions is withdrawn by an amended complaint filed under par. (b) 2.
Notwithstanding s. 971.29 (1)
, at any time before entry of a guilty or no contest plea or the commencement of a trial, a district attorney may file without leave of the court an amended complaint, information or indictment that does any of the following:
Charges an offense as a 2nd or subsequent offense under this chapter by alleging any applicable prior convictions.
Withdraws the charging of an offense as a 2nd or subsequent offense under this chapter by withdrawing an allegation of applicable prior convictions.
For purposes of this section, a felony offense under this chapter is considered a 2nd or subsequent offense if, prior to the offender's conviction of the offense, the offender has at any time been convicted of any felony or misdemeanor offense under this chapter or under any statute of the United States or of any state relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or depressant, stimulant or hallucinogenic drugs.
The trial court erred in imposing a 2nd sentence on a defendant convicted of a 2nd violation of 161.41 (1) (a) and 161.14 (3) (k) [now s. 961.41 (1) (a) and 961.14 (3) (k)]. While the repeater statute, s. 161.48 [now s. 961.48], allows imposition of a penalty not exceeding twice that allowable for a 1st offense, it does not of itself create a crime and cannot support a separate and independent sentence. Olson v. State, 69 Wis. 2d 605
, 230 N.W.2d 634
For offenses under ch. 161 [now ch. 961], the court may apply this section or s. 939.62, but not both. State v. Ray, 166 Wis. 2d 855
, 481 N.W.2d 288
(Ct. App. 1992).
In sentencing a defendant when the maximum sentence is doubled under this section, the court considers the same factors it considers in all sentencing, including prior convictions. State v. Canadeo, 168 Wis. 2d 559
, 484 N.W.2d 340
(Ct. App. 1992).
Sentencing under this section was improper when the defendant did not admit a prior conviction and the state did not offer proof of one. State v. Coolidge, 173 Wis. 2d 783
, 496 N.W.2d 701
(Ct. App. 1993).
This section is self-executing; a prosecutor may not prevent the imposition of the sentences under this section by not charging the defendant as a repeater. State v. Young, 180 Wis. 2d 700
, 511 N.W.2d 309
(Ct. App. 1993).
Conviction under this section for a second or subsequent offense does not require proof of the prior offense at trial beyond a reasonable doubt. State v. Miles, 221 Wis. 2d 56
, 584 N.W.2d 703
(Ct. App. 1998), 97-1364
A conviction for possessing drug paraphernalia under s. 961.573 qualifies as a prior offense under sub. (3). State v. Moline, 229 Wis. 2d 38
, 598 N.W.2d 929
(Ct. App. 1999), 98-2176
A defendant convicted of a second or subsequent controlled substance offense is subject to the penalty enhancements provided for in both s. 939.62 and sub. (2) if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Maxey, 2003 WI App 94
, 264 Wis. 2d 878
, 663 N.W.2d 811
Offenses involving intent to deliver or distribute a controlled substance on or near certain places. 961.49(1m)(1m)
If any person violates s. 961.41 (1) (cm)
by delivering or distributing, or violates s. 961.41 (1m) (cm)
by possessing with intent to deliver or distribute, cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or any form of tetrahydrocannabinols or a controlled substance analog of any of these substances and the delivery, distribution or possession takes place under any of the following circumstances, the maximum term of imprisonment prescribed by law for that crime may be increased by 5 years:
While the person is in or on the premises of a scattered-site public housing project.
While the person is in or on or otherwise within 1,000 feet of any of the following:
While the person is in or on the premises of an approved treatment facility, as defined in s. 51.01 (2)
, that provides alcohol and other drug abuse treatment.
While the person is within 1,000 feet of the premises of an approved treatment facility, as defined in s. 51.01 (2)
, that provides alcohol and other drug abuse treatment, if the person knows or should have known that he or she is within 1,000 feet of the premises of the facility or if the facility is readily recognizable as a facility that provides alcohol and other drug abuse treatment.
If any person violates s. 961.65
and, during the violation, the person intends to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine under any of the circumstances listed under sub. (1m) (a)
, or (d)
, the maximum term of imprisonment for that crime is increased by 5 years.
History: 1985 a. 328
; 1987 a. 332
; 1989 a. 31
; 1991 a. 39
; 1993 a. 87
; 1995 a. 448
; Stats. 1995 s. 961.49; 1997 a. 283
; 1999 a. 32
; 2001 a. 109
; 2005 a. 14
; 2009 a. 302
A university campus is not a "school" within the meaning of s. 161.49 [now s. 961.49]. State v. Andrews, 171 Wis. 2d 217
, 491 N.W.2d 504
(Ct. App. 1992).
Anyone who passes within a zone listed in sub. (1) [now sub. (1m)] while in possession of a controlled substance with an intent to deliver it somewhere is subject to the penalty enhancer provided by this section whether or not the arrest is made within the zone and whether or not there is an intent to deliver the controlled substance within the zone. State v. Rasmussen, 195 Wis. 2d 109
, 536 N.W.2d 106
(Ct. App. 1995), 94-2400
The penalty enhancer for sales close to parks does not violate due process and is not unconstitutionally vague. The ordinary meaning of "parks" includes undeveloped parks. Proximity to a park is rationally related to protecting public health and safety from drug sale activities. State v. Lopez, 207 Wis. 2d 413
, 559 N.W.2d 264
(Ct. App. 1996), 95-3250
Day care centers are a subset of "youth centers" as defined in s. 961.01 (22) and come within the definition of places listed in sub. (2). State v. Van Riper, 222 Wis. 2d 197
, 586 N.W.2d 198
(Ct. App. 1998), 97-3367
This section contains two elemental facts, a distance requirement and a particularized protected place, both of which must be submitted to the jury and proven beyond a reasonable doubt. State v. Harvey, 2002 WI 93
, 254 Wis. 2d 442
, 647 N.W.2d 189
Possession or attempted possession of a controlled substance on or near certain places.
If any person violates s. 961.41 (3g)
by possessing or attempting to possess a controlled substance included in schedule I or II, a controlled substance analog of a controlled substance included in schedule I or II or ketamine or flunitrazepam while in or on the premises of a scattered-site public housing project, while in or on or otherwise within 1,000 feet of a state, county, city, village, or town park, a jail or correctional facility, a multiunit public housing project, a swimming pool open to members of the public, a youth center or a community center, while in or on or otherwise within 1,000 feet of any private or public school premises or of any premises of a tribal school, as defined in s. 115.001 (15m)
, or while in or on or otherwise within 1,000 feet of a school bus, as defined in s. 340.01 (56)
, the court shall, in addition to any other penalties that may apply to the crime, impose 100 hours of community service work for a public agency or a nonprofit charitable organization. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this section has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
Suspension or revocation of operating privilege. 961.50(1)(1)
If a person is convicted of any violation of this chapter, the court may, in addition to any other penalties that may apply to the crime, suspend the person's operating privilege, as defined in s. 340.01 (40)
, for not less than 6 months nor more than 5 years. If a court suspends a person's operating privilege under this subsection, the court may take possession of any suspended license. If the court takes possession of a license, it shall destroy the license. The court shall forward to the department of transportation the record of conviction and notice of the suspension. The person is eligible for an occupational license under s. 343.10
For the first such conviction, at any time.
For a 2nd conviction within a 5-year period, after the first 60 days of the suspension or revocation period.
For a 3rd or subsequent conviction within a 5-year period, after the first 90 days of the suspension or revocation period.
For purposes of counting the number of convictions under sub. (1)
, convictions under the law of a federally recognized American Indian tribe or band in this state, federal law or the law of another jurisdiction, as defined in s. 343.32 (1m) (a)
, for any offense therein which, if the person had committed the offense in this state and been convicted of the offense under the laws of this state, would have required suspension or revocation of such person's operating privilege under this section, shall be counted and given the effect specified under sub. (1)
. The 5-year period under this section shall be measured from the dates of the violations which resulted in the convictions.
If the person's license or operating privilege is currently suspended or revoked or the person does not currently possess a valid operator's license issued under ch. 343
, the suspension or revocation under this section is effective on the date on which the person is first eligible for issuance, renewal, or reinstatement of an operator's license under ch. 343
ENFORCEMENT AND ADMINISTRATIVE PROVISIONS
Powers of enforcement personnel. 961.51(1)
Any officer or employee of the pharmacy examining board designated by the examining board may:
Execute and serve search warrants, arrest warrants, administrative inspection warrants, subpoenas and summonses issued under the authority of this state;
Make arrests without warrant for any offense under this chapter committed in the officer's or employee's presence, or if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing a violation of this chapter which may constitute a felony; and
Make seizures of property pursuant to this chapter.
This section does not affect the responsibility of law enforcement officers and agencies to enforce this chapter, nor the authority granted the department of justice under s. 165.70
History: 1971 c. 219
; 1985 a. 29
; 1993 a. 482
; 1995 a. 448
; Stats. 1995 s. 961.51.
Administrative inspections and warrants. 961.52(1)(1)
Issuance and execution of administrative inspection warrants shall be as follows:
A judge of a court of record, upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections authorized by this chapter or rules hereunder, and seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this chapter or rules hereunder, sufficient to justify administrative inspection of the area, premises, building or conveyance in the circumstances specified in the application for the warrant.
A warrant shall issue only upon an affidavit of a designated officer or employee of the pharmacy examining board or the department of justice having knowledge of the facts alleged, sworn to before the judge and establishing the grounds for issuing the warrant. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the judge shall issue a warrant identifying the area, premises, building or conveyance to be inspected, the purpose of the inspection, and, if appropriate, the type of property to be inspected, if any. The warrant shall:
State the grounds for its issuance and the name of each person whose affidavit has been taken in support thereof;
Be directed to a person authorized by law to execute it;
Command the person to whom it is directed to inspect the area, premises, building or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified;
Identify the item or types of property to be seized, if any;
Direct that it be served during normal business hours and designate the judge to whom it shall be returned.
A warrant issued pursuant to this section must be executed and returned within 10 days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
The judge who has issued a warrant shall attach thereto a copy of the return and all papers returnable in connection therewith and file them with the clerk of court for the county in which the inspection was made.
The pharmacy examining board and the department of justice may make administrative inspections of controlled premises in accordance with the following provisions:
For purposes of this section only, "controlled premises" means:
Places where persons authorized under s. 961.32
to possess controlled substances in this state are required by federal law to keep records; and
Places including factories, warehouses, establishments and conveyances in which persons authorized under s. 961.32
to possess controlled substances in this state are permitted by federal law to hold, manufacture, compound, process, sell, deliver or otherwise dispose of any controlled substance.
When authorized by an administrative inspection warrant issued pursuant to sub. (1)
, an officer or employee designated by the pharmacy examining board or the department of justice, upon presenting the warrant and appropriate credentials to the owner, operator or agent in charge, may enter controlled premises for the purpose of conducting an administrative inspection.
When authorized by an administrative inspection warrant, an officer or employee designated by the pharmacy examining board or the department of justice may:
Inspect and copy records relating to controlled substances;
Inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and, except as provided in par. (e)
, all other things therein, including records, files, papers, processes, controls and facilities bearing on violation of this chapter; and