1995 Wisconsin Act 448

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:

448,301 Section 301 . 161.55 (4) of the statutes is renumbered 961.55 (4).

448,302 Section 302 . 161.55 (5) of the statutes is renumbered 961.55 (5).

448,303 Section 303 . 161.55 (6) of the statutes is renumbered 961.55 (6) and amended to read:

961.55 (6) Controlled substances listed included in schedule I and controlled substance analogs of controlled substances included in schedule I that are possessed, transferred, sold, offered for sale or attempted to be possessed in violation of this chapter are contraband and shall be seized and summarily forfeited to the state. Controlled substances listed included in schedule I and controlled substance analogs of controlled substances included in schedule I that are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state.

448,304 Section 304 . 161.55 (7) of the statutes is renumbered 961.55 (7).

448,305 Section 305 . 161.55 (8) of the statutes is renumbered 961.55 (8) and amended to read:

961.55 (8) The failure, upon demand by any officer or employe designated in s. 161.51 961.51 (1) or (2), of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate federal registration, or proof that the person is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.

448,306 Section 306 . 161.555 of the statutes is renumbered 961.555, and 961.555 (1), (3) and (4) (intro.), as renumbered, are amended to read:

961.555 (1) Type of action; where brought. In an action brought to cause the forfeiture of any property seized under s. 161.55 961.55, the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Any property seized may be the subject of a federal forfeiture action.

(3) Burden of proof. The state shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the property is subject to forfeiture under s. 161.55 961.55.

(4) Action against other property of the person. (intro.) The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under s. 161.55 961.55 if the property subject to forfeiture meets any of the following conditions:

448,307 Section 307 . 161.56 of the statutes is renumbered 961.56.

448,308 Section 308 . 161.565 of the statutes is renumbered 961.565.

448,309 Section 309 . Subchapter VI (title) of chapter 161 [precedes 161.571] of the statutes is renumbered subchapter VI (title) of chapter 961 [precedes 961.571].

448,310 Section 310 . 161.571 of the statutes is renumbered 961.571, and 961.571 (1) (a) (intro.), 1., 2., 4., 5., 6., 8., 9. and 10., as renumbered, are amended to read:

961.571 (1) (a) (intro.) “Drug paraphernalia" means all equipment, products and materials of any kind that are used, designed for use or primarily intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance or controlled substance analog in violation of this chapter. “Drug paraphernalia" includes, but is not limited to, any of the following:

1. Kits used, designed for use or primarily intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant that is a controlled substance or from which a controlled substance or controlled substance analog can be derived.

2. Kits used, designed for use or primarily intended for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances or controlled substance analogs.

4. Testing equipment used, designed for use or primarily intended for use in identifying, or in analyzing the strength, effectiveness or purity of, controlled substances or controlled substance analogs.

5. Scales and balances used, designed for use or primarily intended for use in weighing or measuring controlled substances or controlled substance analogs.

6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, designed for use or primarily intended for use in cutting controlled substances or controlled substance analogs.

8. Blenders, bowls, containers, spoons and mixing devices used, designed for use or primarily intended for use in compounding controlled substances or controlled substance analogs.

9. Capsules, balloons, envelopes and other containers used, designed for use or primarily intended for use in packaging small quantities of controlled substances or controlled substance analogs.

10. Containers and other objects used, designed for use or primarily intended for use in storing or concealing controlled substances or controlled substance analogs.

448,311 Section 311 . 161.572 of the statutes is renumbered 961.572, and 961.572 (1) (c) and (d), as renumbered, are amended to read:

961.572 (1) (c) The proximity of the object to controlled substances or controlled substance analogs.

(d) The existence of any residue of controlled substances or controlled substance analogs on the object.

448,312 Section 312 . 161.573 (title) of the statutes is renumbered 961.573 (title).

448,313 Section 313 . 161.573 (1) of the statutes is renumbered 961.573 (1) and amended to read:

961.573 (1) No person may use, or possess with the primary intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this chapter. Any person who violates this section may be fined not more than $500 or imprisoned for not more than 30 days or both.

448,314 Section 314 . 161.573 (2) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 961.573 (2).

448,315 Section 315 . 161.574 (title) of the statutes is renumbered 961.574 (title).

448,316 Section 316 . 161.574 (1) of the statutes is renumbered 961.574 (1) and amended to read:

961.574 (1) No person may deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing that it will be primarily used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this chapter. Any person who violates this section may be fined not more than $1,000 or imprisoned for not more than 90 days or both.

448,317 Section 317 . 161.574 (2) of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 961.574 (2).

448,318 Section 318 . 161.575 of the statutes, as affected by 1995 Wisconsin Act 27, is renumbered 961.575, and 961.575 (1), as renumbered, is amended to read:

961.575 (1) Any person 17 years of age or over who violates s. 161.574 961.574 by delivering drug paraphernalia to a person 17 years of age or under who is at least 3 years younger than the violator may be fined not more than $10,000 or imprisoned for not more than 9 months or both.

448,319 Section 319 . 161.576 of the statutes is renumbered 961.576.

448,320 Section 320 . 161.577 of the statutes is renumbered 961.577 and amended to read:

961.577 Municipal ordinances. Nothing in this subchapter precludes a city, village or town from prohibiting conduct that is the same as that prohibited by s. 161.573 961.573 (2), 161.574 961.574 (2) or 161.575 961.575 (2).

448,321 Section 321 . Subchapter VII (title) of chapter 161 [precedes 161.61] of the statutes is renumbered subchapter VII (title) of chapter 961 [precedes 961.61].

448,322 Section 322 . 161.61 of the statutes is renumbered 961.61.