1997 - 1998 LEGISLATURE
October 17, 1997 - Introduced by Representatives Boyle and Baldwin. Referred
to Committee on Criminal Justice and Corrections.
1An Act to repeal
961.41 (1) (h), 961.41 (1m) (h), 961.41 (1q) (title) and 961.41 (3g) 2
(e); to renumber
139.90; to renumber and amend
139.91, 139.92, 961.14 (4) 3
(t) and 961.41 (1q); to amend
59.54 (25), 66.051 (1) (bm), 139.87 (7), 139.89, 4
139.90 (title), 139.93 (1), 139.93 (2), 139.93 (3), 139.93 (5), 139.95, 938.34 (14t), 5
961.18 (4) (intro.), 961.41 (1) (b), 961.41 (1m) (b), 961.41 (1r), 961.41 (1x), 961.41 6
(3g) (b), 961.46 (3), 961.465 (2), 961.48 (2), 961.49 (1), 961.49 (2) (a), 961.49 (2) 7
(b), 961.495, 961.55 (1) (d) 3., 961.56 (1) and 971.365; and to create
139.87 (4g), 8
139.87 (4r), 139.885, 139.90 (2) and (3), 139.92 (2), 139.955, 961.437 and 9
961.555 (2m) of the statutes; relating to: tetrahydrocannabinols and
10marijuana and providing penalties.
Analysis by the Legislative Reference Bureau
This bill makes the following changes to current law relating to
tetrahydrocannabinols (THC, which covers marijuana):
Schedule designation of THC
Current law places various restrictions on controlled substances (dangerous
drugs). The substances are regulated based on their schedule designations. The
legislature by law or the controlled substances board by rule places a controlled
substance in schedule I, II, III, IV or V based on the substance's accepted medical use
and the potential for abuse of the substance. Schedule I includes substances that
have a high potential for abuse and no currently accepted medical use in treatment
and that lack accepted safety for use in treatment. This bill moves THC from
schedule I to schedule III. Schedule III includes substances that have a currently
accepted medical use in treatment and that, if abused, lead to moderate or low
physical dependence or high psychological dependence.
Penalties for THC-related offenses
Moving THC from schedule I to schedule III has an impact on penalties for
certain THC-related offenses.
First, the penalties under current law for unlawful manufacture or delivery, or
possession with intent to manufacture or deliver, THC are as follows:
1. If the amount of THC is 500 grams or less, or the number of marijuana plants
is less than 10, the penalty is a fine of not less than $500 nor more than $25,000 and
imprisonment of not more than 3 years.
2. If the amount of THC is more than 500 grams but not more than 2,500 grams,
or the number of marijuana plants is more than 10 but not more than 50, the penalty
is a fine of not less than $1,000 nor more than $50,000 and imprisonment of not less
than 3 months nor more than 5 years.
3. If the amount of THC is more than 2,500 grams, or the number of marijuana
plants is more than 50, the penalty is a fine of not less than $1,000 nor more than
$100,000 and imprisonment of not less than 1 year nor more than 10 years.
This bill makes the penalty for unlawfully manufacturing or delivering, or
possessing with intent to manufacture or deliver, THC a fine of not more than
$15,000 or imprisonment for not more than 5 years or both.
Second, under current law a person who unlawfully possesses THC may be
fined not more than $1,000 or imprisoned for not more than 6 months or both. Under
this bill, the person may be fined not more than $500 or imprisoned for not more than
30 days or both. The bill also permits first-time THC possession offenders to receive
a conditional discharge. THC offenses remain subject to enhanced penalty
provisions for acts such as unlawfully delivering THC near a school or to a prisoner.
Medical necessity defense
Under current law, a person who has a valid prescription and certain others
may lawfully possess a controlled substance. This bill establishes a medical
necessity defense to THC-related prosecutions and property seizure (forfeiture)
actions. Under the bill, a person has a medical need for THC if all of the following
1. The person is: a) undergoing chemotherapy for treatment of cancer; b)
suffering from glaucoma; c) has tested positive for the human immunodeficiency
virus or has acquired immunodeficiency syndrome; or d) is suffering from an illness
that is acute, chronic, incurable or terminal.
2. Conventional treatment of the illness is either not effective for the person
or is causing severe side effects.
3. A physician informs the person in writing that the use of THC may help to
treat the illness, to relieve symptoms of or pain caused by the illness or to relieve side
effects of other treatment for the illness.
The medical necessity defense is available both to the person who has the
medical need and to persons who manufacture, distribute or deliver, or possesses
with intent to manufacture, distribute or deliver, THC to a person who has a medical
need for THC. If a person is determined to be exempt from the tax on dealers of THC
(see below), he or she is presumed to have a medical necessity defense unless the
state can prove beyond a reasonable doubt that the person's conduct exceeded the
scope of the exemption or that the medical necessity no longer exists. If a person has
not been determined to be exempt from the tax on dealers of THC and there is
evidence presented at a trial that the medical necessity defense applies to the person,
the person cannot be found guilty unless the prosecutor proves beyond a reasonable
doubt that the facts constituting the defense do not exist.
Tax on dealers of THC
Under current law, a dealer of THC (a person who possesses, manufactures,
produces, ships, transports, delivers, distributes, imports, sells or transfers to
another person more than 42.5 grams of material containing THC or more than 5
plants containing THC) may not possess material or plants containing THC unless
he or she pays to the department of revenue (DOR) an occupational tax on the
material or plants containing THC. A dealer who pays the tax is issued a stamp or
other evidence of payment by DOR. A dealer who possesses material or plants
containing THC that does not bear evidence that the tax has been paid must pay a
penalty equal to the tax due and may also be fined not more than $10,000 or
imprisoned for not more than 5 years or both.
This bill provides an exemption from the occupational tax on dealers of THC for
the following persons: 1) a dealer who has a medical need for THC; and 2) a dealer
who is an immediate family member, legal guardian or primary caregiver of a person
with a medical need for THC and who possesses THC for the person with the medical
need for THC. The criteria for having a medical need for THC for purposes of the
occupational tax exemption are the same as those established by the bill for the
medical necessity defense to THC-related prosecutions (see above).
The bill also requires DOR to establish a procedure for a dealer to apply to DOR
for a determination of whether he or she is exempt from the occupational tax under
the bill. Under the procedure, the dealer has the burden of establishing that he or
she is exempt, and a dealer who is denied the exemption by DOR may appeal the
denial to the circuit court for Dane County. Information provided by a dealer in an
exemption determination proceeding must be kept confidential.
Finally, if a dealer did not apply to DOR for a determination of exemption or if
a dealer was determined not to be exempt by DOR or by the Dane County circuit
court, the dealer may still raise as a defense that he or she is exempt from the tax
if a proceeding is brought against the dealer for possessing THC without evidence
that the occupational tax has been paid. As with the medical necessity defense in
THC-related prosecutions, if there is evidence presented in the case that the dealer
is exempt from the occupational tax, DOR or the prosecutor, whichever is applicable,
must prove that the facts constituting the exemption do not exist.
Effect on federal law
This bill changes only state law regarding THC and marijuana. Federal law
generally prohibits persons from manufacturing, delivering or possessing THC or
marijuana, classifies THC and marijuana as schedule I substances and applies to
both intrastate and interstate violations.
For further information see the state 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:
AB560, s. 1
59.54 (25) of the statutes is amended to read:
59.54 (25) Possession of marijuana.
The board may enact and enforce an 3
ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in 4
s. 961.01 (14), subject to the exceptions in s. 961.41 (3g) (intro.)
and to the defense
5specified in s. 961.437
, and provide a forfeiture for a violation of the ordinance; except 6
that any person who is charged with possession of more than 25 grams of marijuana, 7
or who is charged with possession of any amount of marijuana following a conviction 8
for possession of marijuana, in this state shall not be prosecuted under this 9
subsection. Any ordinance enacted under this subsection does not apply in any 10
municipality that has enacted an ordinance prohibiting the possession of marijuana.
AB560, s. 2
66.051 (1) (bm) of the statutes is amended to read:
(bm) Enact and enforce an ordinance to prohibit the possession of 13
25 grams or less of marijuana, as defined in s. 961.01 (14), subject to the exceptions 14
in s. 961.41 (3g) (intro.) and to the defense specified in s. 961.437
, and provide a 15
forfeiture for a violation of the ordinance; except that any person who is charged with 16
possession of more than 25 grams of marijuana, or who is charged with possession
of any amount of marijuana following a conviction for possession of marijuana, in this 2
state shall not be prosecuted under this paragraph; and
AB560, s. 3
139.87 (4g) of the statutes is created to read:
"Immediate family member" has the meaning given in s. 254.64 (4) 5
AB560, s. 4
139.87 (4r) of the statutes is created to read:
"Primary caregiver" means an individual who has assumed 8
responsibility for the housing, health or safety of another.
AB560, s. 5
139.87 (7) of the statutes is amended to read:
"Tetrahydrocannabinols" means a substance included in s. 961.14
11(4) (t) 961.18 (4) (c)
AB560, s. 6
139.885 of the statutes is created to read:
13139.885 Medical need; exemption from tax. (1)
A dealer is exempt from 14
the occupational tax under s. 139.88 on material containing tetrahydrocannabinols 15
or plants containing tetrahydrocannabinols if one of the following applies:
(a) The dealer has a medical need to possess tetrahydrocannabinols under sub. 17
(b) The dealer is an immediate family member, legal guardian or, subject to sub. 19
(2m), primary caregiver of a person who has a medical need to possess 20
tetrahydrocannabinols under sub. (2) and the dealer is possessing, manufacturing, 21
producing or importing tetrahydrocannabinols for, or shipping, transporting, 22
delivering, distributing, selling or transferring tetrahydrocannabinols to, the person 23
who has the medical need to possess tetrahydrocannabinols under sub. (2).
A person has a medical need to possess tetrahydrocannabinols if all of the 25
following conditions are satisfied:
(a) One or more of the following applies to the person: