AB560: Bill Text

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:

AB560,6,2 1. He or she is undergoing chemotherapy for treatment of cancer.

AB560,6,3 2. He or she is suffering from glaucoma.

AB560,6,7 3. He or she has tested positive for the presence of the human immunodeficiency virus, antigen or nonantigen products of the human immunodeficiency virus or an antibody to the human immunodeficiency virus, or he or she is suffering from acquired immunodeficiency syndrome.

AB560,6,9 4. He or she is suffering from an illness, other than an illness specified in subds. 1. to 3., that is acute, chronic, incurable or terminal.

AB560,6,13 (b) Conventional treatment for the condition or illness specified in par. (a) is not effective for the person or the person is suffering severe side effects from conventional treatment that is proving effective for the condition or illness specified in par. (a).

AB560,6,18 (c) A physician, acting under s. 448.30, informs the person in writing that the use of tetrahydrocannabinols may help control or treat the condition or illness specified in par. (a), relieve any symptoms of or any pain caused by the condition or illness or relieve any side effects of conventional treatment that the person is receiving for the condition or illness.

AB560,6,24 (2m) A dealer is exempt under sub. (1) as a primary caregiver of a person who has a medical need for tetrahydrocannabinols under sub. (2) only if the person who has the medical need designates, in a letter to the physician specified in sub. (2) (c), that the dealer is his or her primary caregiver. A physician receiving a letter of designation under this subsection shall retain the letter in the patient's medical records.

AB560,7,8 (3) The department shall establish a procedure by which a dealer may apply for a determination that the dealer is exempt from the occupational tax for tetrahydrocannabinols under sub. (1). In the procedure established under this subsection, the dealer has the burden of proving by a preponderance of the evidence that he or she is exempt under sub. (1). The procedure established under this subsection shall include an opportunity for the dealer who applies for the determination of exemption to submit evidence that he or she is exempt under sub. (1).

AB560,7,17 (4) A dealer may appeal an adverse determination of exemption by the department under sub. (3) to the circuit court for Dane County. Notwithstanding ss. 801.09 (1), 801.095, 802.04 (1) and 815.05 (intro.), in an appeal brought under this subsection the dealer may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The dealer or the dealer's attorney shall supply the court the name and other necessary identifying information of the dealer. The court shall maintain the name and other identifying information, and supply the information to the department, in a manner which maintains the confidentiality of the information.

AB560,8,2 (5) Unless the information was also obtained independently of the procedure or appeal, information obtained by the department in an application procedure under sub. (3) and information obtained in an appeal of an adverse determination under sub. (4) may not be used by the department to assess or collect any tax, penalty or interest due under this subchapter and may not be used against the dealer in any criminal or civil proceeding. A court may issue an injunction to prevent or delay the levying, assessment or collection of taxes or penalties under this subchapter if the levy, assessment or collection is based on information used in violation of this subsection.

AB560, s. 7 Section 7. 139.89 of the statutes is amended to read:

AB560,8,21 139.89 (title) Proof of payment or exemption. The department shall create a uniform system of providing, affixing and displaying stamps, labels or other evidence that the tax under s. 139.88 has been paid or that the dealer is exempt from tax under s. 139.885 (1). Stamps or other evidence of payment shall be sold at face value. Evidence of exemption under s. 139.885 (1) shall be issued without charge to a dealer who is determined to be exempt using the procedure under s. 139.885 (3). No dealer may possess any schedule I controlled substance or, any schedule II controlled substance or any plants or other material containing tetrahydrocannabinols unless the tax under s. 139.88 has been paid on it, as evidenced by a stamp or other official evidence issued by the department , or unless the dealer is exempt from tax under s. 139.885 (1). The tax under this subchapter is due and payable immediately upon acquisition or possessing of the schedule I controlled substance or, schedule II controlled substance or plants or other material containing tetrahydrocannabinols in this state, unless the dealer is exempt from tax under s. 139.885 (1), and the department at that time has a lien on all of the taxpayer's property. Late payments are subject to interest at the rate of 1% per month or part of a month. No person may transfer to another person a stamp or other evidence of payment or any evidence of exemption under s. 139.885 (1).

AB560, s. 8 Section 8. 139.90 (title) of the statutes is amended to read:

AB560,8,23 139.90 (title) No Limited immunity; presumption.

AB560, s. 9 Section 9. 139.90 of the statutes is renumbered 139.90 (1).

AB560, s. 10 Section 10. 139.90 (2) and (3) of the statutes are created to read:

AB560,9,3 139.90 (2) A dealer to whom the department has issued evidence of exemption under s. 139.885 (1) is immune from collection action under s. 139.95 (1) and criminal prosecution under s. 139.95 (2).

AB560,9,7 (3) Acquisition of evidence of exemption under s. 139.885 (1) does not create immunity for a dealer from criminal prosecution under ch. 961 but does provide the presumption under s. 961.437 (5) (a) that the medical necessity defense under s. 961.437 applies to the dealer.

AB560, s. 11 Section 11. 139.91 of the statutes is renumbered 139.91 (1) and amended to read:

AB560,9,12 139.91 (1) The department may not reveal facts obtained in administering this subchapter, except that the department may publish statistics that do not reveal the identities of dealers.

AB560,9,16 (2) Dealers may not be required to provide any identifying information in connection with the purchase of stamps, but dealers may be required to provide identifying information in connection with an application for exemption under s. 139.885 (1). No information

AB560,9,19 (3) (a) Except as provided in par. (b) and s. 139.885 (5), information obtained by the department may be used against a dealer in any criminal proceeding unless only if that information has been independently obtained, except in.

AB560,9,24 (b) The department may use information obtained in administering this subchapter, other than information specified in s. 139.885 (5), in connection with a proceeding involving possession of schedule I controlled substances or schedule II controlled substances on which the tax has not been paid or in connection with taxes due under s. 139.88 from the dealer.

AB560, s. 12 Section 12. 139.92 of the statutes is renumbered 139.92 (1) and amended to read:

AB560,10,12 139.92 (1) For Except as provided in sub. (2), for the purposes of determining the amount of tax that should have been paid, determining whether or not the dealer should have paid taxes or collecting any taxes under s. 139.88, the department may examine, or cause to be examined, any books, papers, records or memoranda that may be relevant to making those determinations, whether the books, papers, records or memoranda are the property of or in the possession of the dealer or another person. The department may require the attendance of any person having knowledge or information that may be relevant, compel the production of books, papers, records or memoranda by persons required to attend, take testimony on matters material to the determination, issue subpoenas and administer oaths or affirmations.

AB560, s. 13 Section 13. 139.92 (2) of the statutes is created to read:

AB560,10,19 139.92 (2) For the purpose of determining whether or not a dealer is exempt under s. 139.885 (1), the department may examine, cause to be examined or compel the production of only those parts of the medical records of the dealer or of the person with the medical need that relate to whether the dealer or the person with the medical need satisfies the requirements under s. 139.885 (2) and, if applicable, s. 139.885 (2m).

AB560, s. 14 Section 14. 139.93 (1) of the statutes is amended to read:

AB560,10,24 139.93 (1) The taxes, penalties and interest under this subchapter shall be assessed, collected and reviewed as are income taxes under ch. 71, except that applications for determination of exemption shall be reviewed as provided under s. 139.885.

AB560, s. 15 Section 15. 139.93 (2) of the statutes is amended to read:

AB560,11,25 139.93 (2) If Except as provided in s. 139.885, if the department finds that the collection of the tax under this subchapter is jeopardized by delay, the department may issue, in person or by registered mail to the last-known address of the taxpayer, a notice of its intent to proceed under this subsection, may make a demand for immediate payment of the taxes, penalties and interest due and may proceed by the methods under s. 71.91 (5) and (6). If the taxes, penalties and interest are not immediately paid, the department may seize any of the taxpayer's assets. Immediate seizure of assets does not nullify the taxpayer's right to a hearing on the department's determination that the collection of the assessment will be jeopardized by delay, nor does it nullify the taxpayer's right to post a bond. Within 5 days after giving notice of its intent to proceed under this subsection, the department shall, by mail or in person, provide the taxpayer in writing with its reasons for proceeding under this subsection. The warrant of the department shall not issue and the department may not take other action to collect if the taxpayer within 10 days after the notice of intent to proceed under this subsection is given furnishes a bond in the amount, not exceeding double the amount of the tax, and with such sureties as the department of revenue approves, conditioned upon the payment of so much of the taxes as shall finally be determined to be due, together with interest thereon. Within 20 days after notice of intent to proceed under this subsection is given by the department of revenue, the person against whom the department intends to proceed under this subsection may appeal to the department the department's determination that the collection of the assessment will be jeopardized by delay. Any statement that the department files may be admitted into evidence and is prima facie evidence of the facts it contains. Taxpayers may appeal adverse determinations by the department to the circuit court for Dane county.

AB560, s. 16 Section 16. 139.93 (3) of the statutes is amended to read:

AB560,12,4 139.93 (3) The taxes and penalties assessed by the department are presumed to be valid and correct. The Except as provided in s. 139.955 (2) and (3), the burden is on the taxpayer to show their invalidity or incorrectness.

AB560, s. 17 Section 17. 139.93 (5) of the statutes is amended to read:

AB560,12,8 139.93 (5) No Except as provided in s. 139.885 (5), no court may issue an injunction to prevent or delay the levying, assessment or collection of taxes or penalties under this subchapter.

AB560, s. 18 Section 18. 139.95 of the statutes is amended to read:

AB560,12,16 139.95 Penalties. (1) Any dealer who possesses a schedule I controlled substance or, a schedule II controlled substance or plants or other material containing tetrahydrocannabinols that does do not bear evidence that the tax under s. 139.88 has been paid or that the dealer is exempt under s. 139.885 (1) shall pay, in addition to the tax under s. 139.88, a penalty equal to the tax due. The department shall collect penalties under this subchapter in the same manner as it collects the tax under this subchapter.

AB560,12,21 (2) A dealer who possesses a schedule I controlled substance or, a schedule II controlled substance or plants or other material containing tetrahydrocannabinols that does do not bear evidence that the tax under s. 139.88 has been paid or that the dealer is exempt under s. 139.885 (1) may be fined not more than $10,000 or imprisoned for not more than 5 years or both.

AB560,13,5 (3) Any person who falsely or fraudulently makes, alters or counterfeits any stamp or procures or causes the same to be done or who knowingly utters, publishes, passes or tenders as true any false, altered or counterfeit stamp or who affixes a counterfeit stamp to a schedule I controlled substance or , a schedule II controlled substance or plants or other material containing tetrahydrocannabinols or who possesses a schedule I controlled substance or, a schedule II controlled substance or plants or other material containing tetrahydrocannabinols to which a false, altered or counterfeit stamp is affixed may be fined not more than $10,000 or imprisoned for not less than one year nor more than 10 years or both.

AB560, s. 19 Section 19. 139.955 of the statutes is created to read:

AB560,13,12 139.955 Medical necessity defense in cases involving tetrahydrocannabinols. (1) A dealer has a defense to any proceeding brought against the dealer under s. 139.95 (1) or (2) relating to the possession, manufacture, production, shipping, transporting, delivery, importation, sale or transfer of tetrahydrocannabinols that he or she is exempt from the tax under s. 139.885. A dealer may raise the defense under this subsection even if any of the following apply:

AB560,13,14 (a) The dealer did not apply for a determination of exemption under s. 139.885 (3).

AB560,13,17 (b) The dealer applied for a determination of exemption under s. 139.885 (3) and the department or, if the dealer appealed under s. 139.885 (4), a court determined that the dealer was not exempt under s. 139.885.

AB560,13,21 (2) When the existence of a defense under sub. (1) has been placed in issue by the evidence in a proceeding to collect a penalty under s. 139.95 (1), the department must prove by clear and convincing evidence that the facts constituting the defense do not exist in order to collect the penalty specified under s. 139.95 (1).

AB560,13,25 (3) When the existence of a defense under sub. (1) has been placed in issue by the evidence in a prosecution under s. 139.95 (2), the state must prove beyond a reasonable doubt that the facts constituting the defense do not exist in order to sustain a finding of guilt under s. 139.95 (2).

AB560, s. 20 Section 20. 938.34 (14t) of the statutes is amended to read:

AB560,14,16 938.34 (14t) Possession of a controlled substance or controlled substance analog on or near certain premises. If the juvenile is adjudicated delinquent under a violation of s. 961.41 (3g) by possessing or attempting to possess a controlled substance included in schedule I or II under ch. 961 or , a controlled substance analog of a controlled substance included in schedule I or II under ch. 961 or a controlled substance included in s. 961.18 (4) (c) while in or on the premises of a scattered-site public housing project, as defined in s. 961.01 (20i), while in or on or otherwise within 1,000 feet of a state, county, city, village or town park, a jail or correctional facility, as defined in s. 961.01 (12m), a multiunit public housing project, as defined in s. 961.01 (14m), a swimming pool open to members of the public, a youth center, as defined in s. 961.01 (22), 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 require that the juvenile participate for 100 hours in a supervised work program or other community service work under sub. (5g).

AB560, s. 21 Section 21. 961.14 (4) (t) of the statutes is renumbered 961.18 (4) (c) and amended to read:

AB560,14,21 961.18 (4) (c) Tetrahydrocannabinols, commonly known as "THC", in any form including tetrahydrocannabinols contained in marijuana, obtained from marijuana or chemically synthesized;.

AB560, s. 22 Section 22. 961.18 (4) (intro.) of the statutes is amended to read:

AB560,15,3 961.18 (4) Other substances. (intro.) Any material, compound, mixture or preparation which contains any quantity of any of the following substances, including any of their salts, isomers and salts of isomers that are theoretically possible within the specific chemical designation, in any form including a substance, salt, isomer or salt of an isomer contained in a plant, obtained from a plant or chemically synthesized:

AB560, s. 23 Section 23. 961.41 (1) (b) of the statutes is amended to read:

AB560,15,8 961.41 (1) (b) Except as provided in pars. (cm) and (e) to (h) (g), any other controlled substance included in schedule I, II or III, or a controlled substance analog of any other controlled substance included in schedule I or II, may be fined not more than $15,000 or imprisoned for not more than 5 years or both.

AB560, s. 24 Section 24. 961.41 (1) (h) of the statutes is repealed.

AB560, s. 25 Section 25. 961.41 (1m) (b) of the statutes is amended to read:

AB560,15,14 961.41 (1m) (b) Except as provided in pars. (cm) and (e) to (h) (g), any other controlled substance included in schedule I, II or III, or a controlled substance analog of any other controlled substance included in schedule I or II, may be fined not more than $15,000 or imprisoned for not more than 5 years or both.

AB560, s. 26 Section 26. 961.41 (1m) (h) of the statutes is repealed.

AB560, s. 27 Section 27. 961.41 (1q) (title) of the statutes is repealed.

AB560, s. 28 Section 28. 961.41 (1q) of the statutes is renumbered 961.49 (4) and amended to read:

AB560,15,22 961.49 (4) Under subs. (1) (h) and (1m) (h) and s. 961.49 sub. (2), if different penalty provisions apply to a person depending on whether the weight of tetrahydrocannabinols or the number of plants containing tetrahydrocannabinols is considered, the greater penalty provision applies.

AB560, s. 29 Section 29. 961.41 (1r) of the statutes is amended to read:

AB560,16,8 961.41 (1r) Determining weight of substance. In determining amounts under subs. (1) and (1m) and s. 961.49 (2) (b), an amount includes the weight of cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or tetrahydrocannabinols or, if the substance has a controlled substance analog, any controlled substance analog of any of these substances together with any compound, mixture, diluent, plant material or other substance mixed or combined with the controlled substance or controlled substance analog. In addition, in determining amounts under subs. (1) (h) and (1m) (h), the amount of tetrahydrocannabinols means anything included under s. 961.14 (4) (t) and includes the weight of any marijuana.

AB560, s. 30 Section 30. 961.41 (1x) of the statutes is amended to read:

AB560,16,12 961.41 (1x) Conspiracy. Any person who conspires, as specified in s. 939.31, to commit a crime under sub. (1) (cm) to (h) (g) or (1m) (cm) to (h) (g) is subject to the applicable penalties under sub. (1) (cm) to (h) (g) or (1m) (cm) to (h) (g).

AB560, s. 31 Section 31. 961.41 (3g) (b) of the statutes is amended to read:

AB560,16,19 961.41 (3g) (b) Except as provided in pars. (c), and (d) and (e), if the person possesses or attempts to possess a controlled substance or controlled substance analog, other than a controlled substance included in schedule I or II that is a narcotic drug or a controlled substance analog of a controlled substance included in schedule I or II that is a narcotic drug, the person is guilty of a misdemeanor, punishable under s. 939.61.

AB560, s. 32 Section 32. 961.41 (3g) (e) of the statutes is repealed.

AB560, s. 33 Section 33. 961.437 of the statutes is created to read:

AB560,17,2 961.437 Medical necessity defense in cases involving tetrahydrocannabinols. (1) A person has a defense to prosecution under s. 961.41 (1) (b) or (1m) (b) if he or she manufactures, or possesses with intent to manufacture, tetrahydrocannabinols for a person who has a medical need for tetrahydrocannabinols under sub. (4).

AB560,17,6 (2) A person has a defense to prosecution under s. 961.41 (1) (b) or (1m) (b) if he or she distributes or delivers, or possesses with intent to distribute or deliver, tetrahydrocannabinols to a person who has a medical need for tetrahydrocannabinols under sub. (4).

AB560,17,9 (3) A person has a defense to a prosecution under s. 961.41 (3g) (b) for possessing or attempting to possess tetrahydrocannabinols if the person has a medical need for tetrahydrocannabinols under sub. (4).

AB560,17,11 (4) A person has a medical need for tetrahydrocannabinols if all of the following conditions are satisfied:

AB560,17,12 (a) One or more of the following applies to the person:

AB560,17,13 1. He or she is undergoing chemotherapy for treatment of cancer.

AB560,17,14 2. He or she is suffering from glaucoma.

AB560,17,18 3. He or she has tested positive for the presence of the human immunodeficiency virus, antigen or nonantigen products of the human immunodeficiency virus or an antibody to the human immunodeficiency virus, or he or she is suffering from acquired immunodeficiency syndrome.

AB560,17,20 4. He or she is suffering from an illness, other than an illness specified in subds. 1. to 3., that is acute, chronic, incurable or terminal.

AB560,17,24 (b) Conventional treatment for the condition or illness specified in par. (a) is not effective for the person or the person is suffering severe side effects from conventional treatment that is proving effective for the condition or illness specified in par. (a).

AB560,18,5 (c) A physician, acting under s. 448.30, informs the person in writing that the use of tetrahydrocannabinols may help control or treat the condition or illness specified in par. (a), relieve any symptoms of or any pain caused by the condition or illness or relieve any side effects of conventional treatment that the person is receiving for the condition or illness.

AB560,18,10 (5) (a) A person shall be presumed to have a defense under sub. (1), (2) or (3) if the person has been issued evidence of exemption under s. 139.885 from the occupational tax on material or plants containing tetrahydrocannabinols under subch. IV of ch. 139. The presumption under this paragraph may be rebutted by proof beyond a reasonable doubt of any of the following:

AB560,18,12 1. That the conduct on which the prosecution is based is not within the scope of the exemption under s 139.885 (1).

AB560,18,13 2. That the medical need no longer exists.