The trial court erred in imposing a 2nd sentence on a defendant convicted of a 2nd violation of ss. 161.41 (1) (a) and 161.14 (3) (k) [now ss. 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).
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)(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 (1m)
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 (1m)
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
Inventory any stock of any controlled substance therein and obtain samples thereof.
This section does not prevent entries and administrative inspections, including seizures of property, without a warrant:
If the owner, operator or agent in charge of the controlled premises consents;
In situations presenting imminent danger to health or safety;
In situations involving inspection of conveyances if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant;
In any other exceptional or emergency circumstance where time or opportunity to apply for a warrant is lacking; or
In all other situations in which a warrant is not constitutionally required.
An inspection authorized by this section shall not extend to financial data, sales data, other than shipment data, or pricing data unless the owner, operator or agent in charge of the controlled premises consents in writing.
Violations constituting public nuisance.
Violations of this chapter constitute public nuisances under ch. 823
, irrespective of any criminal prosecutions which may be or are commenced based on the same acts.
History: 1971 c. 219
; Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1995 a. 448
; Stats. 1995 s. 961.53.
Cooperative arrangements and confidentiality.
The department of justice shall cooperate with federal, state and local agencies in discharging its responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances. To this end, it may:
Arrange for the exchange of information among governmental officials concerning the use and abuse of controlled substances;
Coordinate and cooperate in training programs concerning controlled substance law enforcement at local and state levels;
Cooperate with the bureau by establishing a centralized unit to accept, catalog, file and collect statistics, including records of drug dependent persons and other controlled substance law offenders within the state, and make the information available for federal, state and local law enforcement purposes. It shall not furnish the name or identity of a patient or research subject whose identity could not be obtained under s. 961.335 (7)
Conduct programs of eradication aimed at destroying wild or illicit growth of plant species from which controlled substances may be extracted.
History: 1971 c. 219
; 1975 c. 110
; 1995 a. 448
; Stats. 1995 s. 961.54.
Subject to subs. (1g)
, the following are subject to forfeiture:
All controlled substances or controlled substance analogs which have been manufactured, delivered, distributed, dispensed or acquired in violation of this chapter.
All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, distributing, importing or exporting any controlled substance or controlled substance analog in violation of this chapter.
All property which is used, or intended for use, as a container for property described in pars. (a)