AB560: Bill Text

LRB-1129/2

JEO:kaf:jf

1997 - 1998 LEGISLATURE

1997 Assembly BILL 560

October 17, 1997 - Introduced by Representatives Boyle and Baldwin. Referred to Committee on Criminal Justice and Corrections.

AB560,1,10 An Act to repeal 961.41 (1) (h), 961.41 (1m) (h), 961.41 (1q) (title) and 961.41 (3g) (e); to renumber 139.90; to renumber and amend 139.91, 139.92, 961.14 (4) (t) and 961.41 (1q); to amend 59.54 (25), 66.051 (1) (bm), 139.87 (7), 139.89, 139.90 (title), 139.93 (1), 139.93 (2), 139.93 (3), 139.93 (5), 139.95, 938.34 (14t), 961.18 (4) (intro.), 961.41 (1) (b), 961.41 (1m) (b), 961.41 (1r), 961.41 (1x), 961.41 (3g) (b), 961.46 (3), 961.465 (2), 961.48 (2), 961.49 (1), 961.49 (2) (a), 961.49 (2) (b), 961.495, 961.55 (1) (d) 3., 961.56 (1) and 971.365; and to create 139.87 (4g), 139.87 (4r), 139.885, 139.90 (2) and (3), 139.92 (2), 139.955, 961.437 and 961.555 (2m) of the statutes; relating to: tetrahydrocannabinols and marijuana 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 apply:

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 Section 1. 59.54 (25) of the statutes is amended to read:

AB560,4,10 59.54 (25) Possession of marijuana. The board may enact and enforce an ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to the exceptions in s. 961.41 (3g) (intro.) and to the defense specified in s. 961.437, and provide a forfeiture for a violation of the ordinance; except that any person who is charged with 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 state shall not be prosecuted under this subsection. Any ordinance enacted under this subsection does not apply in any municipality that has enacted an ordinance prohibiting the possession of marijuana.

AB560, s. 2 Section 2. 66.051 (1) (bm) of the statutes is amended to read:

AB560,5,2 66.051 (1) (bm) Enact and enforce an ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to the exceptions in s. 961.41 (3g) (intro.) and to the defense specified in s. 961.437, and provide a forfeiture for a violation of the ordinance; except that any person who is charged with 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 state shall not be prosecuted under this paragraph; and

AB560, s. 3 Section 3. 139.87 (4g) of the statutes is created to read:

AB560,5,5 139.87 (4g) "Immediate family member" has the meaning given in s. 254.64 (4) (a).

AB560, s. 4 Section 4. 139.87 (4r) of the statutes is created to read:

AB560,5,8 139.87 (4r) "Primary caregiver" means an individual who has assumed responsibility for the housing, health or safety of another.

AB560, s. 5 Section 5. 139.87 (7) of the statutes is amended to read:

AB560,5,11 139.87 (7) "Tetrahydrocannabinols" means a substance included in s. 961.14 (4) (t) 961.18 (4) (c).

AB560, s. 6 Section 6. 139.885 of the statutes is created to read:

AB560,5,15 139.885 Medical need; exemption from tax. (1) A dealer is exempt from the occupational tax under s. 139.88 on material containing tetrahydrocannabinols or plants containing tetrahydrocannabinols if one of the following applies:

AB560,5,17 (a) The dealer has a medical need to possess tetrahydrocannabinols under sub. (2).

AB560,5,23 (b) The dealer is an immediate family member, legal guardian or, subject to sub. (2m), primary caregiver of a person who has a medical need to possess tetrahydrocannabinols under sub. (2) and the dealer is possessing, manufacturing, producing or importing tetrahydrocannabinols for, or shipping, transporting, delivering, distributing, selling or transferring tetrahydrocannabinols to, the person who has the medical need to possess tetrahydrocannabinols under sub. (2).

AB560,5,25 (2) A person has a medical need to possess tetrahydrocannabinols if all of the following conditions are satisfied:

AB560,6,1 (a) One or more of the following applies to the person: