1995 Wisconsin Act 448

961.41 (3g) (a) 2. It is unlawful for any person to possess or attempt If the person possesses or attempts to possess heroin unless it was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. Any or a controlled substance analog of heroin, the person who violates this paragraph may be fined not more than $5,000 or imprisoned for not more than one year or both.

448,257 Section 257 . 161.41 (2r) (c) of the statutes is renumbered 961.41 (3g) (a) 3. and amended to read:

961.41 (3g) (a) 3. For purposes of this subsection paragraph, an offense 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 under this chapter or under any statute of the United States or of any state relating to controlled substances, controlled substance analogs, narcotic drugs, marijuana or depressant, stimulant or hallucinogenic drugs.

448,258 Section 258 . 161.41 (3) of the statutes is renumbered 961.41 (3g) (b) and amended to read:

961.41 (3g) (b) Except as provided in subs. (3m), (3n), (3p) and (3r), it is unlawful for any pars. (c), (d) and (e), if the person to possess or attempt possesses or attempts to possess a controlled substance or controlled substance analog, other than a controlled substance classified included in schedule I or II that is a narcotic drug ,unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. Any or a controlled substance analog of a controlled substance included in schedule I or II that is a narcotic drug, the person who violates this subsection is guilty of a misdemeanor, punishable under s. 939.61.

448,259 Section 259 . 161.41 (3m) of the statutes is renumbered 961.41 (3g) (c) and amended to read:

961.41 (3g) (c) It is unlawful for any person to possess or attempt If a person possess or attempts to possess a controlled substance included under s. 161.16 (2) (b), unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. Any cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, the person who violates this subsection shall be fined not more than $5,000 and may be imprisoned for not more than one year in the county jail.

448,260 Section 260 . 161.41 (3n) of the statutes is renumbered 961.41 (3g) (d) and amended to read:

961.41 (3g) (d) It is unlawful for any person to possess or attempt If a person possesses or attempts to possess lysergic acid diethylamide, phencyclidine, amphetamine, methamphetamine, methcathinone, psilocin or psilocybin unless the substance was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. Any, or a controlled substance analog of lysergic acid diethylamide, phencyclidine, amphetamine, methamphetamine, methcathinone, psilocin or psilocybin, the person who violates this subsection may be fined not more than $5,000 or imprisoned for not more than one year in the county jail or both.

448,261 Section 261 . 161.41 (3p) of the statutes is repealed.

448,262 Section 262 . 161.41 (3r) of the statutes is renumbered 961.41 (3g) (e) and amended to read:

961.41 (3g) (e) It is unlawful for any person to possess or attempt If a person possesses or attempts to possess tetrahydrocannabinols, listed at included under s. 161.14 961.14 (4) (t), unless it was obtained directly from, or pursuant to a valid prescription or order of, a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. Any or a controlled substance analog of tetrahydrocannabinols, the person who violates this subsection may be fined not more than $1,000 or imprisoned for not more than 6 months or both.

448,263 Section 263 . 161.41 (4) (a) of the statutes is renumbered 961.41 (4) (am) 1. and amended to read:

961.41 (4) (am) 1. No person may knowingly distribute or deliver, attempt to distribute or deliver or cause to be distributed or delivered a noncontrolled substance and expressly or impliedly represent any of the following to the recipient:

a. The That the substance is a controlled substance; or.

b. The That the substance is of a nature, appearance or effect that will allow the recipient to display, sell, distribute, deliver or use the noncontrolled substance as a controlled substance, if the representation is made under circumstances in which the person has reasonable cause to believe that the noncontrolled substance will be used or distributed for use as a controlled substance.

448,264 Section 264 . 161.41 (4) (b) of the statutes is renumbered 961.41 (4) (am) 2., and 961.41 (4) (am) 2. (intro.) and d., as renumbered, are amended to read:

961.41 (4) (am) 2. Proof of any of the following is prima facie evidence of a representation specified in par. (a) 1. or 2. subd. 1. a. or b.:

d. The person distributing or delivering, attempting to distribute or deliver or causing distribution or delivery of the substance to be made states to the recipient that the substance may be resold at a price that substantially exceeds the value of the substance.

448,265 Section 265 . 161.41 (4) (c) of the statutes is renumbered 961.41 (4) (am) 3. and amended to read:

961.41 (4) (am) 3. A person convicted of violating this subsection paragraph may be fined not more than $5,000 or imprisoned for not more than one year or both.

448,266 Section 266 . 161.41 (5) of the statutes is renumbered 961.41 (5).

448,267 Section 267 . 161.42 of the statutes is renumbered 961.42.

448,268 Section 268 . 161.43 of the statutes is renumbered 961.43, and 961.43 (1) (b) (intro.) and 1., as renumbered, are amended to read:

961.43 (1) (b) (intro.) To Without authorization, to make, distribute or possess any punch, die, plate, stone or other thing designed to print, imprint or reproduce the trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as:

1. To make a counterfeit a drug substance; or

448,269 Section 269 . 161.435 of the statutes is renumbered 961.435 and amended to read:

961.435 Specific penalty. Any person who violates s. 161.38 961.38 (5) may be fined not more than $500 or imprisoned not more than 30 days or both.

448,270 Section 270 . 161.438 of the statutes is renumbered 961.438.

448,271 Section 271 . 161.44 of the statutes is renumbered 961.44.

448,272 Section 272 . 161.45 of the statutes is renumbered 961.45.

448,273 Section 273 . 161.455 (title) of the statutes is renumbered 961.455 (title).

448,274 Section 274 . 161.455 (1) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 961.455 (1) and amended to read:

961.455 (1) Any person who has attained the age of 17 years who knowingly solicits, hires, directs, employs or uses a person who is 17 years of age or under for the purpose of violating s. 161.41 961.41 (1) may be fined not more than $50,000 or imprisoned for not more than 10 years or both.

448,275 Section 275 . 161.455 (2), (3) and (4) of the statutes are renumbered 961.455 (2), (3) and (4), and 961.455 (4), as renumbered, is amended to read:

961.455 (4) If the conduct described under sub. (1) results in a violation under s. 161.41 961.41 (1), the actor is subject to prosecution and conviction under s. 161.41 961.41 (1) or this section or both.

448,276 Section 276 . 161.46 (title) of the statutes is renumbered 961.46 (title).

448,277 Section 277 . 161.46 (1) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 961.46 (1) and amended to read:

961.46 (1) Except as provided in sub. (3), any person 17 years of age or over who violates s. 161.41 961.41 (1) by distributing or delivering a controlled substance listed included in schedule I or II which is a narcotic drug or a controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug to a person 17 years of age or under who is at least 3 years his or her junior is punishable by the fine authorized by s. 161.41 961.41 (1) (a) or a term of imprisonment of up to twice that authorized by s. 161.41 961.41 (1) (a), or both.

448,278 Section 278 . 161.46 (2) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 961.46 (2) and amended to read:

961.46 (2) Except as provided in sub. (3), any person 17 years of age or over who violates s. 161.41 961.41 (1) by distributing or delivering any other controlled substance listed included in schedule I, II, III, IV or V or a controlled substance analog of any other controlled substance included in schedule I or II to a person 17 years of age or under who is at least 3 years his or her junior is punishable by the fine authorized by s. 161.41 961.41 (1) (b), (i) or (j) or a term of imprisonment of up to twice that authorized by s. 161.41 961.41 (1) (b), (i) or (j) or both.

448,279 Section 279 . 161.46 (3) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 961.46 (3) and amended to read:

961.46 (3) If any person 17 years of age or over violates s. 161.41 961.41 (1) (cm), (d), (e), (f), (g) or (h) by distributing a controlled substance included under s. 161.14 (7) (L) or 161.16 (2) (b) or delivering 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 to a person 17 years of age or under who is at least 3 years his or her junior, any applicable minimum and maximum fines and minimum and maximum periods of imprisonment under s. 161.41 961.41 (1) (cm), (d), (e), (f), (g) or (h) are doubled.

448,280 Section 280 . 161.465 (title) of the statutes is renumbered 961.465 (title).

448,281 Section 281 . 161.465 (1) of the statutes is renumbered 961.465 (1) and amended to read:

961.465 (1) Except as provided in sub. (2), any person who violates s. 161.41 961.41 (1) or (1m) by delivering, distributing or possessing with intent to deliver or distribute a controlled substance or controlled substance analog to a prisoner within the precincts of any prison, jail or house of correction is subject to the applicable fine under s. 161.41 961.41 (1) or (1m) or a term of imprisonment of up to twice that authorized by s. 161.41 961.41 (1) or (1m) or both.

448,282 Section 282 . 161.465 (2) of the statutes is renumbered 961.465 (2) and amended to read:

961.465 (2) If a person violates s. 161.41 961.41 (1) (cm), (d), (e), (f), (g) or (h) or (1m) (cm), (d), (e), (f), (g) or (h) by delivering, distributing or possessing with intent to deliver a controlled substance included under s. 161.14 (7) (L) or 161.16 (2) (b) 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, to a prisoner within the precincts of any prison, jail or house of correction, any applicable minimum and maximum fines and minimum and maximum periods of imprisonment under s. 161.41 961.41 (1) (cm), (d), (e), (f), (g) or (h) or (1m) (cm), (d), (e), (f), (g) or (h) are doubled.

448,283 Section 283 . 161.465 (2m) of the statutes is renumbered 961.465 (2m) and amended to read:

961.465 (2m) A person may be subject to increased penalties under both this section and s. 161.49 961.49 regarding the same unlawful act.

448,284 Section 284 . 161.465 (3) of the statutes is renumbered 961.465 (3).

448,285 Section 285 . 161.47 of the statutes is renumbered 961.47, and 961.47 (1), as renumbered, is amended to read:

961.47 (1) Whenever any person who has not previously been convicted of any offense under this chapter, or of any offense under any statute of the United States or of any state or of any county ordinance relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or stimulant, depressant or hallucinogenic drugs, pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s. 161.41 (3) 961.41 (3g) (b), the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him or her. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for 2nd or subsequent convictions under s. 161.48 961.48. There may be only one discharge and dismissal under this section with respect to any person.

448,286 Section 286 . 161.472 of the statutes is renumbered 961.472, and 961.472 (2) and (4), as renumbered, are amended to read:

961.472 (2) 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. 161.41 (2r) (b), (3m), (3n) or (3p) 961.41 (3g) (a) 2., (c) or (d), 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 and social 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. 161.475 961.475 is appropriate. The court shall also notify the person of the fee provisions under s. 46.03 (18) (fm).

(4) The court shall consider the assessment report in determining whether the treatment option under s. 161.475 961.475 is appropriate.

448,287 Section 287 . 161.475 of the statutes is renumbered 961.475 and amended to read:

961.475 Treatment option. 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. 161.41 (2r), (3), (3m), (3n), (3p) or (3r) 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.

448,288 Section 288 . 161.48 of the statutes is renumbered 961.48, and 961.48 (2), (3) and (4), as renumbered, are amended to read:

961.48 (2) If any person is convicted of a 2nd or subsequent offense under this chapter that is specified in s. 161.41 961.41 (1) (cm), (d), (e), (f), (g) or (h), (1m) (cm), (d), (e), (f), (g) or (h), (2r) (b), (3m), (3n), (3p) or (3r) or (3g) (a) 2., (c), (d) or (e), any applicable minimum and maximum fines and minimum and maximum periods of imprisonment under s. 161.41 961.41 (1) (cm), (d), (e), (f), (g) or (h), (1m) (cm), (d), (e), (f), (g) or (h), (2r) (b), (3m), (3n), (3p) or (3r) or (3g) (a) 2., (c), (d) or (e) are doubled. A 2nd or subsequent offense under s. 161.41 (3m), (3n), (3p) or (3r) 961.41 (3g) (c), (d) or (e) is a felony and the person may be imprisoned in state prison.

(3) For purposes of this section, an offense 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 under this chapter or under any statute of the United States or of any state relating to controlled substance controlled substances or controlled substance analogs, narcotic drugs, marijuana or depressant, stimulant or hallucinogenic drugs.

(4) This section does not apply to offenses under s. 161.41 (2r) 961.41 (3g) (a) 1. and (3) (b).

448,289 Section 289 . 161.49 of the statutes is renumbered 961.49 and amended to read:

961.49 Distribution of or possession with intent to deliver a controlled substance on or near certain places. (1) If any person violates s. 161.41 961.41 (1) (cm), (d), (e), (f), (g) or (h) by delivering or distributing, or violates s. 161.41 961.41 (1m) (cm), (d), (e), (f), (g) or (h) by possessing with intent to deliver, a controlled substance included under s. 161.14 (7) (L) or 161.16 (2) (b) 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 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 while in or on or otherwise within 1,000 feet of a school bus, as defined in s. 340.01 (56), the maximum term of imprisonment prescribed by law for that crime may be increased by 5 years.

(2) (a) Except as provided in par. (b), if any person violates s. 161.41 961.41 (1) by delivering or distributing, or violates s. 161.41 961.41 (1m) by possessing with intent to deliver or distribute, a controlled substance listed included in schedule I or II or a controlled substance analog of a controlled substance included in schedule I or II 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 while in or on or otherwise within 1,000 feet of a school bus, as defined in s. 340.01 (56), the court shall sentence the person to at least 3 years in prison, but otherwise the penalties for the crime apply. Except as provided in s. 161.438 961.438, the court shall not place the person on probation. The person is not eligible for parole until he or she has served at least 3 years, with no modification by the calculation under s. 302.11 (1).

(b) If the conduct described in par. (a) involves only the delivery or distribution, or the possession with intent to deliver or distribute, of not more than 25 grams of tetrahydrocannabinols, listed at s. 161.14 included in s. 961.14 (4) (t), or not more than 5 marijuana plants containing tetrahydrocannabinols, the court shall sentence the person to at least one year in prison, but otherwise the penalties for the crime apply. Except as provided in s. 161.438 961.438, the court shall not place the person on probation. The person is not eligible for parole until he or she has served at least one year, with no modification by the calculation under s. 302.11 (1).

448,290 Section 290 . 161.495 of the statutes is renumbered 961.495 and amended to read:

961.495 Possession or attempted possession of a controlled substance on or near certain places. If any person violates s. 161.41 (2r), (3), (3m), (3n), (3p) or (3r) 961.41 (3g) by possessing or attempting to possess a controlled substance listed included in schedule I or II or a controlled substance analog of a controlled substance included in schedule I or II 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 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.

448,291 Section 291 . 161.50 of the statutes is renumbered 961.50.

448,292 Section 292 . Subchapter V (title) of chapter 161 [precedes 161.51] of the statutes is renumbered subchapter V (title) of chapter 961 [precedes 961.51].

448,293 Section 293 . 161.51 of the statutes is renumbered 961.51.

448,294 Section 294 . 161.52 of the statutes is renumbered 961.52, and 961.52 (2) (a) 1. and 2., as renumbered, are amended to read:

961.52 (2) (a) 1. Places where persons authorized under s. 161.32 961.32 to possess controlled substances in this state are required by federal law to keep records; and

2. Places including factories, warehouses, establishments and conveyances in which persons authorized under s. 161.32 961.32 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.

448,295 Section 295 . 161.53 of the statutes is renumbered 961.53.

448,296 Section 296 . 161.54 of the statutes is renumbered 961.54, and 961.54 (3), as renumbered, is amended to read:

961.54 (3) 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. 161.335 961.335 (7); and

448,297 Section 297 . 161.55 (title) of the statutes is renumbered 961.55 (title).

448,298 Section 298 . 161.55 (1) of the statutes is renumbered 961.55 (1), and 961.55 (1) (a), (b), (c), (d) (intro.) and 3. and (g), as renumbered, are amended to read:

961.55 (1) (a) All controlled substances or controlled substance analogs which have been manufactured, delivered, distributed, dispensed or acquired in violation of this chapter;.

(b) 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;.

(c) All property which is used, or intended for use, as a container for property described in pars. (a) and (b); .

(d) (intro.) All vehicles, as defined in s. 939.22 (44), which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in pars. (a) and (b) or for the purpose of transporting any property or weapon used or to be used or received in the commission of any felony under this chapter, but:

3. A vehicle is not subject to forfeiture for a violation of s. 161.41 (3), (3m), (3n), (3p) or (3r) 961.41 (3g) (b), (c), (d) or (e); and

(g) Any drug paraphernalia, as defined in s. 161.571 961.571, used in violation of this chapter.

448,299 Section 299 . 161.55 (2) of the statutes is renumbered 961.55 (2), and 961.55 (2) (intro.), as renumbered, is amended to read:

961.55 (2) (intro.) Property subject to forfeiture under this chapter may be seized by any officer or employe designated in s. 161.51 961.51 (1) or (2) or a law enforcement officer upon process issued by any court of record having jurisdiction over the property. Seizure without process may be made if:

448,300 Section 300 . 161.55 (3) of the statutes is renumbered 961.55 (3), and 961.55 (3) (intro.), as renumbered, is amended to read:

961.55 (3) (intro.) In the event of seizure under sub. (2), proceedings under sub. (4) shall be instituted promptly. All dispositions and forfeitures under this section and ss. 161.555 961.555 and 161.56 961.56 shall be made with due provision for the rights of innocent persons under sub. (1) (d) 1., 2. and 4. Any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. 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 the right to possession is proved to the court's satisfaction, it shall order the property returned if: