LRB-3720/2
CMH&MGD&MJL:wlj:pg
2003 - 2004 LEGISLATURE
February 23, 2004 - Introduced by Representatives Underheim, Boyle, Sherman,
Hahn, Musser, Plouff, Pope-Roberts, Schneider, Black, Zepnick, Pocan,
Berceau and Taylor, cosponsored by Senator Carpenter. Referred to
Committee on Health.
AB892,1,10
1An Act to renumber 961.01 (1);
to renumber and amend 59.54 (25), 968.19
2and 968.20 (1);
to amend 60.23 (21), 66.0107 (1) (bm), 173.12 (1m), 289.33 (3)
3(d), 349.02 (2) (b) 4., 961.55 (8), 961.555 (2) (a), 961.56 (1), 968.20 (3) (a) and
4968.20 (3) (b); and
to create 20.285 (1) (fw), 36.25 (47), 59.54 (25) (b) 2., 59.54
5(25) (b) 3., 146.45, 961.01 (1g), 961.01 (5m), 961.01 (11t), 961.01 (14g), 961.01
6(19m), 961.01 (20hm), 961.01 (20ht), 961.01 (20t), 961.37, 961.436, 961.555 (2)
7(e), 961.555 (2m), 961.5755, 968.073, 968.12 (5), 968.19 (2), 968.20 (1d) and
8968.20 (1j) of the statutes;
relating to: medical use of marijuana, requiring the
9exercise of rule-making authority, making an appropriation, and providing a
10penalty.
Analysis by the Legislative Reference Bureau
Current prohibitions and penalties regarding marijuana
Current law prohibits the manufacture, distribution, and delivery of marijuana
and the possession of marijuana with intent to manufacture, distribute, or deliver
it. Penalties for violating these prohibitions depend on the amount of marijuana
involved. If the crime involves 200 grams or less or four or fewer marijuana plants,
the person is subject to a fine not to exceed $10,000 or imprisonment not to exceed
three years and six months, or both. If the crime involves more than 200 grams but
not more than 1,000 grams, or more than four plants but not more than 20 plants,
the person is subject to a fine not to exceed $10,000 or imprisonment not to exceed
six years, or both. If the crime involves more than 1,000 grams but not more than
2,500 grams, or more than 20 plants but not more than 50 plants, the person is
subject to a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or
both. If the crime involves more than 2,500 grams but not more than 10,000 grams,
or more than 50 plants but not more than 200 plants, the person is subject to a fine
not to exceed $25,000 or imprisonment not to exceed 12 years and 6 months, or both.
If the crime involves more than 10,000 grams or more than 200 plants, the person
is subject to a fine not to exceed $50,000 or imprisonment not to exceed 15 years, or
both.
Current law also prohibits a person from possessing or attempting to possess
marijuana. A person who violates this prohibition may be fined not more than $1,000
or imprisoned for not more than six months or both for a first conviction. For a second
or subsequent conviction, the person may be subject to a fine not to exceed $10,000
or imprisonment not to exceed three years and six months, or both. In addition, a
town, village, city, or county may enact an ordinance that prohibits the possession
of 25 grams or less of marijuana. A person who violates the ordinance is subject to
a forfeiture.
Current law also contains certain prohibitions regarding drug paraphernalia,
which includes equipment, products, and materials used to produce, distribute, and
use controlled substances, such as marijuana. Under current law, a person who uses
drug paraphernalia or who possesses it with the primary intent to use it to produce,
distribute, or use a controlled substance unlawfully may be fined not more than $500
or imprisoned for not more than 30 days, or both. A person who delivers drug
paraphernalia, possesses it with intent to deliver it, or manufactures it with intent
to deliver it, knowing that it will be primarily used to produce, distribute, or use a
controlled substance unlawfully, may be fined not more than $1,000 or imprisoned
for not more than 90 days, or both.
Medical necessity defense and immunity from arrest and prosecution
This bill establishes a medical necessity defense to marijuana-related
prosecutions and property seizure (forfeiture) actions. A person may invoke this
defense if he or she is a qualifying patient or, under certain circumstances, the
primary caregiver for a qualifying patient. A "qualifying patient" is someone having
or undergoing a debilitating medical condition or treatment, and a "primary
caregiver" is a person who is at least 18 years old who has agreed to be responsible
for managing a qualifying patient's medical use of marijuana. The bill defines a
debilitating medical condition to mean any of the following: 1) cancer, glaucoma,
AIDS, a positive HIV test, or the treatment of these conditions; 2) a chronic or
debilitating disease or medical condition or the treatment of such a disease or
condition that causes cachexia (wasting away), severe pain, severe nausea, seizures,
or severe and persistent muscle spasms; 3) any other medical condition or any other
treatment for a medical condition designated as a debilitating medical condition or
treatment in rules promulgated by the Department of Health and Family Services
(DHFS).
A person may invoke this defense if he or she acquires, possesses, cultivates,
transports, or uses marijuana to alleviate the symptoms or effects of his or her
debilitating medical condition or treatment or, as a primary caregiver, acquires,
possesses, cultivates, or transports marijuana to facilitate the qualifying patient's
medical use of it, but only if no more than a reasonable amount of marijuana is
involved. The defense applies also to defenses involving drug paraphernalia if the
qualifying patient uses the paraphernalia for the medical use of marijuana. A person
is presumed to have the defense if the person has a valid registry identification card
from DHFS (see Registry for medical users of marijuana below) if no more than
a reasonable amount of marijuana is involved.
The bill also prohibits the arrest or prosecution of a person who acquires,
possesses, cultivates, transports, or uses marijuana to alleviate the symptoms or
effects of his or her debilitating medical condition or treatment or, as a primary
caregiver, acquires, possesses, cultivates, or transports marijuana to facilitate the
qualifying patient's medical use of it, if the person has a valid registry identification
card from DHFS. This prohibition applies also to offenses involving drug
paraphernalia if the qualifying patient uses the drug paraphernalia for the medical
use of marijuana. This prohibition, however, applies only if no more than a
reasonable amount of marijuana is involved. In addition, the bill prohibits the arrest
or prosecution of or the imposition of any penalty on a physician who provides a
written certification to a person in good faith. (See Registry for medical users of
marijuana below.)
The defense provided under the bill and the prohibition on arrest and
prosecution contained in the bill do not apply if the person possesses or attempts to
possess marijuana under the following circumstances: 1) the person drives or
operates a motor vehicle while under the influence of marijuana; 2) while under the
influence of marijuana, the person operates heavy machinery or engages in any other
conduct that endangers the health or well-being of another person; 3) the person
smokes marijuana on a bus, at the person's workplace, on school premises, in an
adult or juvenile correctional facility or jail, at a public park, beach, or recreation
center, or at a youth center; or 4) the person has been convicted of distributing or
delivering, or possessing with the intent to distribute and deliver, marijuana to
another person. In addition, if the putative qualifying patient is under 18 years of
age, the defense provided under the bill and the prohibition on arrest and
prosecution contained in the bill apply only if the person's parent, guardian, or legal
custodian agrees to serve as a primary caregiver for the person.
Registry for medical users of marijuana
The bill requires DHFS to establish a registry for medical users of marijuana.
Under the bill, a person claiming to be a qualifying patient may apply for a registry
identification card by submitting to DHFS a signed application, accompanied by a
statement from his or her physician documenting that the person has or is
undergoing a debilitating medical condition or treatment and that the potential
benefits to the person of using marijuana outweigh the health risks involved (a
"written certification"). DHFS must then verify the information. If it is complete and
correct, DHFS must issue the person a registry identification card. A qualifying
patient and one of his or her primary caregivers may also jointly apply for a registry
identification card for the primary caregiver. DHFS may not disclose that it has
issued to a person a registry identification card, or information from an application
for one, except to a law enforcement agency for the purpose of verifying that a person
possesses a valid registry identification card. A registry identification card is valid
for one year, unless revoked sooner by DHFS based on a change of circumstances, and
may be renewed. DHFS may not charge a fee for issuing a registry identification
card.
Registered marijuana distribution organizations
The bill authorizes certain nonprofit corporations to deliver or distribute
tetrahydrocannabinols or drug paraphernalia or possess or manufacture them with
the intent to deliver or distribute them to facilitate the medical use of marijuana.
Such an organization may deliver or distribute marijuana or drug paraphernalia to
a qualifying patient or a qualifying patient's primary caregiver only to facilitate the
qualifying patient's medical use of marijuana. A nonprofit corporation is eligible to
engage in these activities if it is organized for the purpose of manufacturing,
delivering, distributing, or possessing marijuana, drug paraphernalia, and
educational materials to facilitate the medical use of marijuana. It may not employ
or utilize the services of any person who has been convicted of a drug offense or obtain
marijuana from outside the state in violation of federal law. The organization must
register annually with DHFS.
Study
This bill requires the Board of Regents of the University of Wisconsin System
to conduct a study on the medical use of smokable marijuana using randomized,
controlled trials and to deposit any private funding for the study into the general
fund to offset the amount appropriated for the study.
Effect on federal law
This bill changes only state law regarding marijuana. Federal law generally
prohibits persons from manufacturing, delivering, or possessing marijuana and
applies to both intrastate and interstate violations.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
For further information see the state and local 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:
AB892, s. 1
1Section
1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert
2the following amounts for the purposes indicated:
-
See PDF for table ![PDF](https://docs.legis.wisconsin.gov/assets/image/file_acrobat.gif)
AB892, s. 2
3Section
2. 20.285 (1) (fw) of the statutes is created to read:
AB892,5,54
20.285
(1) (fw)
Medical use of marijuana study. The amounts in the schedule
5for the study under s. 36.25 (47).
AB892, s. 3
6Section
3. 36.25 (47) of the statutes is created to read:
AB892,5,127
36.25
(47) Medical use of marijuana study. Beginning no later than July 1,
82004, the board shall conduct a study on the medical use of smokable marijuana
9using randomized, controlled trials. The board may use funds appropriated under
10s. 20.285 (1) (fw) for the study under this subsection. If the board receives any private
11funds for the study under this subsection, the board shall deposit those funds into
12the general fund.
AB892, s. 4
13Section
4. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended
14to read:
AB892,6,515
59.54
(25) (a) The board may enact and enforce an ordinance to prohibit the
16possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to
17par. (b) and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a
18violation of the ordinance
; except that any person who is charged with possession of
19more than 25 grams of marijuana, or who is charged with possession of any amount
1of marijuana following a conviction for possession of marijuana, in this state shall
2not be prosecuted under this subsection. Any ordinance enacted under this
3paragraph shall provide a person who is prosecuted under it with the defenses that
4the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or
5(3g) (e).
AB892,6,8
6(b) 1. Any ordinance enacted under
this subsection par. (a) does not apply in
7any municipality that has enacted an ordinance prohibiting the possession of
8marijuana.
AB892, s. 5
9Section
5. 59.54 (25) (b) 2. of the statutes is created to read:
AB892,6,1210
59.54
(25) (b) 2. A person may not be prosecuted under an ordinance enacted
11under par. (a) if, under s. 968.073 (2), the person would not be subject to prosecution
12under s. 961.41 (3g) (e).
AB892, s. 6
13Section
6. 59.54 (25) (b) 3. of the statutes is created to read:
AB892,6,1714
59.54
(25) (b) 3. No person who is charged with possession of more than 25
15grams of marijuana, or who is charged with possession of any amount of marijuana
16following a conviction for possession of marijuana, in this state may be prosecuted
17under an ordinance enacted under par. (a).
AB892, s. 7
18Section
7. 60.23 (21) of the statutes is amended to read:
AB892,6,2519
60.23
(21) Drug paraphernalia. Adopt an ordinance to prohibit conduct that
20is the same as that prohibited by s. 961.573 (2), 961.574 (2) or 961.575 (2).
Any
21ordinance enacted under this subsection shall provide a person prosecuted under it
22with the defenses that the person has under s. 961.5755 to prosecutions under s.
23961.573 (1), 961.574 (1), or 961.575 (1). A person may not be prosecuted under an
24ordinance enacted under this subsection if, under s. 968.073 (3), the person would
25not be subject to prosecution under s. 961.573 (2) or 961.574 (2).
AB892, s. 8
1Section
8. 66.0107 (1) (bm) of the statutes is amended to read:
AB892,7,132
66.0107
(1) (bm) Enact and enforce an ordinance to prohibit the possession of
325 grams or less of marijuana, as defined in s. 961.01 (14), subject to
this paragraph
4and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation
5of the ordinance
; except that any.. Any ordinance enacted under this paragraph shall
6provide a person prosecuted under it with the defenses that the person has under s.
7961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e). A person may not
8be prosecuted under an ordinance enacted under this paragraph if, under s. 968.073
9(2), the person would not be subject to prosecution under s. 961.41 (3g) (e). No person
10who is charged with possession of more than 25 grams of marijuana, or who is
11charged with possession of any amount of marijuana following a conviction for
12possession of marijuana, in this state
shall not
may be prosecuted under this
13paragraph.
AB892, s. 9
14Section
9. 146.45 of the statutes is created to read:
AB892,7,16
15146.45 Medical marijuana registry program. (1) Definitions. In this
16section:
AB892,7,1817
(a) "Applicant" means a person who is applying for a registry identification card
18under sub. (2) (a).
AB892,7,2019
(b) "Debilitating medical condition or treatment" has the meaning given in s.
20961.01 (5m).
AB892,7,2221
(c) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01
22(14g).
AB892,7,2323
(d) "Primary caregiver" has the meaning given in s. 961.01 (19m).
AB892,7,2424
(e) "Qualifying patient" has the meaning given in s. 961.01 (20hm).
AB892,8,2
1(f) "Registrant" means a person to whom a registry identification card is issued
2under sub. (4).
AB892,8,53
(g) "Registry identification card" means a document issued by the department
4under this section that identifies a person as a qualifying patient or primary
5caregiver.
AB892,8,76
(h) "Written certification" means a statement made by a person's physician if
7all of the following apply:
AB892,8,118
1. The statement indicates that, in the physician's professional opinion, the
9person has or is undergoing a debilitating medical condition or treatment and the
10potential benefits of the person's use of tetrahydrocannabinols under s. 961.01 (14g)
11(a) would likely outweigh the health risks for the person.
AB892,8,1412
2. The statement indicates that the opinion described in subd. 1. was formed
13after a full assessment, made in the course of a bona fide physician-patient
14relationship, of the person's medical history and current medical condition.
AB892,8,1615
3. The statement is signed by the physician or is contained in the person's
16medical records.
AB892,8,19
17(2) Application. (a) An adult who is claiming to be a qualifying patient may
18apply for a registry identification card by submitting a signed application form
19containing or accompanied by all of the following to the department:
AB892,8,2020
1. His or her name, address, and date of birth.
AB892,8,2121
2. A written certification.
AB892,8,2322
3. The name, address, and telephone number of the person's current physician,
23as listed in the written certification.