LRB-1129/2
JEO:kaf:jf
1997 - 1998 LEGISLATURE
October 17, 1997 - Introduced by Representatives Boyle and Baldwin. Referred
to Committee on Criminal Justice and Corrections.
AB560,1,10
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,
4139.90 (title), 139.93 (1), 139.93 (2), 139.93 (3), 139.93 (5), 139.95, 938.34 (14t),
5961.18 (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),
8139.87 (4r), 139.885, 139.90 (2) and (3), 139.92 (2), 139.955, 961.437 and
9961.555 (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
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
1Section
1. 59.54 (25) of the statutes is amended to read:
AB560,4,102
59.54
(25) Possession of marijuana. The board may enact and enforce an
3ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in
4s. 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
6that any person who is charged with possession of more than 25 grams of marijuana,
7or who is charged with possession of any amount of marijuana following a conviction
8for possession of marijuana, in this state shall not be prosecuted under this
9subsection. Any ordinance enacted under this subsection does not apply in any
10municipality that has enacted an ordinance prohibiting the possession of marijuana.
AB560, s. 2
11Section
2. 66.051 (1) (bm) of the statutes is amended to read:
AB560,5,212
66.051
(1) (bm) Enact and enforce an ordinance to prohibit the possession of
1325 grams or less of marijuana, as defined in s. 961.01 (14), subject to the exceptions
14in s. 961.41 (3g) (intro.)
and to the defense specified in s. 961.437, and provide a
15forfeiture for a violation of the ordinance; except that any person who is charged with
16possession of more than 25 grams of marijuana, or who is charged with possession
1of any amount of marijuana following a conviction for possession of marijuana, in this
2state shall not be prosecuted under this paragraph; and
AB560, s. 3
3Section
3. 139.87 (4g) of the statutes is created to read:
AB560,5,54
139.87
(4g) "Immediate family member" has the meaning given in s. 254.64 (4)
5(a).
AB560, s. 4
6Section
4. 139.87 (4r) of the statutes is created to read:
AB560,5,87
139.87
(4r) "Primary caregiver" means an individual who has assumed
8responsibility for the housing, health or safety of another.
AB560, s. 5
9Section
5. 139.87 (7) of the statutes is amended to read:
AB560,5,1110
139.87
(7) "Tetrahydrocannabinols" means a substance included in s.
961.14
11(4) (t) 961.18 (4) (c).
AB560, s. 6
12Section
6. 139.885 of the statutes is created to read:
AB560,5,15
13139.885 Medical need; exemption from tax. (1) A dealer is exempt from
14the occupational tax under s. 139.88 on material containing tetrahydrocannabinols
15or plants containing tetrahydrocannabinols if one of the following applies:
AB560,5,1716
(a) The dealer has a medical need to possess tetrahydrocannabinols under sub.
17(2).
AB560,5,2318
(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
20tetrahydrocannabinols under sub. (2) and the dealer is possessing, manufacturing,
21producing or importing tetrahydrocannabinols for, or shipping, transporting,
22delivering, distributing, selling or transferring tetrahydrocannabinols to, the person
23who has the medical need to possess tetrahydrocannabinols under sub. (2).
AB560,5,25
24(2) A person has a medical need to possess tetrahydrocannabinols if all of the
25following conditions are satisfied:
AB560,6,1
1(a) One or more of the following applies to the person:
AB560,6,22
1. He or she is undergoing chemotherapy for treatment of cancer.
AB560,6,33
2. He or she is suffering from glaucoma.
AB560,6,74
3. He or she has tested positive for the presence of the human
5immunodeficiency virus, antigen or nonantigen products of the human
6immunodeficiency virus or an antibody to the human immunodeficiency virus, or he
7or she is suffering from acquired immunodeficiency syndrome.
AB560,6,98
4. He or she is suffering from an illness, other than an illness specified in subds.
91. to 3., that is acute, chronic, incurable or terminal.
AB560,6,1310
(b) Conventional treatment for the condition or illness specified in par. (a) is
11not effective for the person or the person is suffering severe side effects from
12conventional treatment that is proving effective for the condition or illness specified
13in par. (a).
AB560,6,1814
(c) A physician, acting under s. 448.30, informs the person in writing that the
15use of tetrahydrocannabinols may help control or treat the condition or illness
16specified in par. (a), relieve any symptoms of or any pain caused by the condition or
17illness or relieve any side effects of conventional treatment that the person is
18receiving for the condition or illness.
AB560,6,24
19(2m) A dealer is exempt under sub. (1) as a primary caregiver of a person who
20has a medical need for tetrahydrocannabinols under sub. (2) only if the person who
21has the medical need designates, in a letter to the physician specified in sub. (2) (c),
22that the dealer is his or her primary caregiver. A physician receiving a letter of
23designation under this subsection shall retain the letter in the patient's medical
24records.
AB560,7,8
1(3) The department shall establish a procedure by which a dealer may apply
2for a determination that the dealer is exempt from the occupational tax for
3tetrahydrocannabinols under sub. (1). In the procedure established under this
4subsection, the dealer has the burden of proving by a preponderance of the evidence
5that he or she is exempt under sub. (1). The procedure established under this
6subsection shall include an opportunity for the dealer who applies for the
7determination of exemption to submit evidence that he or she is exempt under sub.
8(1).
AB560,7,17
9(4) A dealer may appeal an adverse determination of exemption by the
10department under sub. (3) to the circuit court for Dane County. Notwithstanding ss.
11801.09 (1), 801.095, 802.04 (1) and 815.05 (intro.), in an appeal brought under this
12subsection the dealer may substitute his or her initials, or fictitious initials, and his
13or her age and county of residence for his or her name and address on the summons
14and complaint. The dealer or the dealer's attorney shall supply the court the name
15and other necessary identifying information of the dealer. The court shall maintain
16the name and other identifying information, and supply the information to the
17department, in a manner which maintains the confidentiality of the information.
AB560,8,2
18(5) Unless the information was also obtained independently of the procedure
19or appeal, information obtained by the department in an application procedure
20under sub. (3) and information obtained in an appeal of an adverse determination
21under sub. (4) may not be used by the department to assess or collect any tax, penalty
22or interest due under this subchapter and may not be used against the dealer in any
23criminal or civil proceeding. A court may issue an injunction to prevent or delay the
24levying, assessment or collection of taxes or penalties under this subchapter if the
1levy, assessment or collection is based on information used in violation of this
2subsection.
AB560, s. 7
3Section
7. 139.89 of the statutes is amended to read:
AB560,8,21
4139.89 (title)
Proof of payment or exemption. The department shall create
5a uniform system of providing, affixing and displaying stamps, labels or other
6evidence that the tax under s. 139.88 has been paid
or that the dealer is exempt from
7tax under s. 139.885 (1). Stamps or other evidence of payment shall be sold at face
8value.
Evidence of exemption under s. 139.885 (1) shall be issued without charge to
9a dealer who is determined to be exempt using the procedure under s. 139.885 (3). 10No dealer may possess any schedule I controlled substance
or, any schedule II
11controlled substance
or any plants or other material containing
12tetrahydrocannabinols unless the tax under s. 139.88 has been paid on it, as
13evidenced by a stamp or other official evidence issued by the department
, or unless
14the dealer is exempt from tax under s. 139.885 (1). The tax under this subchapter
15is due and payable immediately upon acquisition or possessing of the schedule I
16controlled substance
or, schedule II controlled substance
or plants or other material
17containing tetrahydrocannabinols in this state,
unless the dealer is exempt from tax
18under s. 139.885 (1), and the department at that time has a lien on all of the
19taxpayer's property. Late payments are subject to interest at the rate of 1% per
20month or part of a month. No person may transfer to another person a stamp or other
21evidence of payment
or any evidence of exemption under s. 139.885 (1).
AB560, s. 8
22Section
8. 139.90 (title) of the statutes is amended to read:
AB560,8,23
23139.90 (title)
No Limited immunity; presumption.
AB560, s. 9
24Section
9. 139.90 of the statutes is renumbered 139.90 (1).
AB560, s. 10
25Section
10. 139.90 (2) and (3) of the statutes are created to read:
AB560,9,3
1139.90
(2) A dealer to whom the department has issued evidence of exemption
2under s. 139.885 (1) is immune from collection action under s. 139.95 (1) and criminal
3prosecution under s. 139.95 (2).