AB560: Bill Text

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:

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.