LRB-2309/1
MGD:wlj:pg
2005 - 2006 LEGISLATURE
March 10, 2005 - Introduced by Representatives Rhoades, Lamb, Pettis, Moulton,
Gronemus, Kreibich, Hubler, Krawczyk, Hahn, Hines, Van Roy, Travis,
Gunderson, Townsend, Ott, Hundertmark, Musser, Albers and Freese,
cosponsored by Senators Harsdorf, Brown, Roessler, Jauch, Decker,
Kapanke, Zien, Lassa, A. Lasee, Olsen and Stepp. Referred to Committee on
Criminal Justice and Homeland Security.
AB183,1,12
1An Act to renumber 961.437 (2) and 961.49;
to renumber and amend 961.437
2(3), 961.437 (4), 961.437 (5) and 961.46;
to amend 101.10 (title), 101.10 (3) (e),
3895.555 (title), 895.555 (1), 938.34 (14s) (am) (intro.), 939.62 (2m) (a) 2m. d.,
4939.62 (2m) (d), 948.015 (6), 961.23 (4), 961.23 (5), 961.41 (1r), 961.437 (title),
5961.49 (title) and 973.01 (2) (c) 2. a.; and
to create 101.10 (3) (f), 111.335 (1) (cs)
65., 125.12 (2) (ag) 5m., 125.12 (2) (ag) 6m., 125.12 (4) (ag) 7m., 125.12 (4) (ag)
78m., 939.32 (1) (g), 939.62 (2m) (a) 2m. am., 961.01 (14f), 961.22 (3) (b), 961.23
8(7), 961.437 (1) (title), 961.437 (2m), 961.437 (3m) (title), 961.46 (2), 961.49
9(2m), 973.017 (8) (a) 3. and 973.017 (8) (c) of the statutes;
relating to:
10pseudoephedrine hydrochloride and other materials used to produce
11methamphetamine, the distribution of methamphetamine to minors, and
12providing penalties.
Analysis by the Legislative Reference Bureau
This bill makes a number of changes in the law relating to the controlled
substance methamphetamine and materials used to make it.
Classification of pseudoephedrine hydrochloride as a controlled substance
Under current law, each controlled substance is classified in one of five separate
schedules. The classification is based on: 1) whether there is a currently accepted
medical use for the drug; 2) the drug's potential for being abused; and 3) the nature
of the psychological or physical dependence that of the drug use may produce.
Schedule I controlled substances are those that have a high potential for abuse and
no currently accepted medical use. Schedule V controlled substances are those that
have an accepted medical use and that have a lower potential for abuse and produce
less dependence when compared with other controlled substances.
(Methamphetamine is included in Schedule II.)
In general, a Schedule I controlled substance may not be dispensed, even with
a prescription. A Schedule II, III, or IV controlled substance may be dispensed with
a prescription. A Schedule V controlled substance may be dispensed without a
prescription, but only a registered pharmacist may sell it at retail and only then in
certain specified amounts. In addition, the pharmacist must record the name and
address of the purchaser of a Schedule V controlled substance and the quantity of the
product sold. Penalties for crimes relating to Schedule I and II controlled substances
are, in general, more severe than those relating to other controlled substances.
Penalties for crimes relating to Schedule V controlled substances are generally the
least severe. To illustrate, unlawful delivery of heroin (a Schedule I controlled
substance) is a Class C, D, E, or F felony, depending on the amount of the drug
involved, while unlawful delivery of any Schedule V controlled substance is a Class
I felony, regardless of the amount involved.
This bill classifies pseudoephedrine hydrochloride as a Schedule V controlled
substance. The bill also prohibits a person from purchasing more than nine grams
of pseudoephedrine hydrochloride within a 30-day period and requires the
purchaser to provide the pharmacist selling it with a photo ID. But the classification
and the resulting restrictions on sale do not apply if: 1) the pseudoephedrine
hydrochloride is in a product that contains therapeutically significant quantities of
another active medicinal ingredient; 2) the pseudoephedrine hydrochloride is in a
liquid or a soft gelatin capsule; or 3) the Controlled Substances Board has
determined that the pseudoephedrine hydrochloride involved cannot be used readily
in the manufacture of methamphetamine.
Possession of methamphetamine precursors
Current law generally prohibits possessing or disposing of waste resulting from
the manufacture of methamphetamine. This prohibition does not apply to legitimate
storage, treatment, or clean-up operations. A violation of this prohibition is a Class
F felony. Second and subsequent offenses are Class H felonies.
Current law also prohibits possessing or attempting to possess
methamphetamine itself. A violation of that prohibition is a Class I felony. In
addition, current law prohibits manufacturing, distributing, and delivering
methamphetamine and possessing methamphetamine with intent to manufacture,
distribute, or deliver. A violation of one of these prohibitions is a Class C, D, E, or
F felony, depending on the amount of the drug involved.
This bill prohibits possessing a variety of materials with intent to manufacture
methamphetamine. A person who violates this prohibition is guilty of a Class H
felony. (See the table near the end of this analysis for the penalties that apply to
felonies created in this bill.) The materials that are covered by this prohibition are
pseudoephedrine hydrochloride, ephedrine (a Schedule IV controlled substance),
phenylpropanolamine, red phosphorus, lithium metal, sodium metal, iodine,
anhydrous ammonia, pressurized ammonia, and liquid nitrogen. Possession of more
than 24 grams of pseudoephedrine hydrochloride, ephedrine, or
phenylpropanolamine can be used to prove the person's intent to manufacture
methamphetamine.
In general, a person who is convicted of possessing the materials listed above
with intent to manufacture methamphetamine is subject to the same
disqualifications, disabilities, increased penalties, and other adverse or unfavorable
treatments as a person who is convicted of possessing a controlled substance with
intent to manufacture, distribute, or deliver ("possession with intent" crimes). For
example, like possession with intent crimes, this new offense is classified as a
"three-strikes" crime, which means that a person who is convicted of this crime and
two other offenses that are covered by the relevant statute is sentenced, upon
conviction for the last of those three offenses, to life imprisonment without the
possibility of parole or extended supervision.
Agricultural chemicals used to make methamphetamine
Current law prohibits the theft of anhydrous ammonia or equipment used to
apply it for an agricultural purpose or to store, hold, transport, or transfer it
(anhydrous ammonia equipment). Current law also contains other prohibitions
regarding storing, holding, transporting, and transferring anhydrous ammonia. A
person who violates one of these prohibitions is guilty of a Class I felony (unless the
violation occurs during agricultural activity or while the person is working on
anhydrous ammonia equipment with its owner's consent, in which case the person
is subject to a civil monetary penalty).
This bill prohibits a person from intentionally releasing another person's
anhydrous ammonia without the other person's consent. A person who violates this
prohibition is guilty of a Class I felony. The bill also makes the statute relating to
theft of anhydrous ammonia or anhydrous ammonia equipment applicable to liquid
nitrogen and specifies that attempted theft under that statute is subject to the same
penalties as those that apply to the completed offense. (Most other attempts are
punishable by half of the fine and half of the term of imprisonment that may be
imposed for a completed offense.)
Distributing methamphetamine to minors
Under current law, if a person distributes or delivers a controlled substance to
someone who is under the age of 18 and who is at least three years younger than he
or she is, the applicable maximum term of imprisonment for the crime is increased
by five years. Under this bill, if a person distributes or delivers methamphetamine
to someone who is under the age of 18 and who is at least two years younger than he
or she is, the person is guilty of a Class B felony.
Other information
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:
AB183, s. 1
1Section
1. 101.10 (title) of the statutes is amended to read:
AB183,4,3
2101.10 (title)
Storage and handling of anhydrous ammonia; theft of
3liquid nitrogen, anhydrous ammonia, and anhydrous ammonia equipment.
AB183, s. 2
4Section
2. 101.10 (3) (e) of the statutes is amended to read:
AB183,4,95
101.10
(3) (e) Intentionally take, carry away, use, conceal, or retain possession
6of
liquid nitrogen, anhydrous ammonia
belonging to another, or anhydrous ammonia
7equipment belonging to another, without the other's consent and with intent to
8deprive the owner permanently of possession of the
liquid nitrogen, anhydrous
9ammonia
, or anhydrous ammonia equipment.
AB183, s. 3
10Section
3. 101.10 (3) (f) of the statutes is created to read:
AB183,4,1411
101.10
(3) (f) Intentionally release or allow the escape of anhydrous ammonia
12belonging to another into the atmosphere. This paragraph does not apply if the
13owner has authorized the actor to exercise control over the anhydrous ammonia or
14has consented to its release.
AB183, s. 4
1Section
4. 111.335 (1) (cs) 5. of the statutes is created to read:
AB183,5,42
111.335
(1) (cs) 5. Possessing any of the materials listed in s. 961.437 (2m) with
3intent to manufacture methamphetamine under that subsection or under a federal
4law or a law of another state that is substantially similar to s. 961.437 (2m).
AB183, s. 5
5Section
5. 125.12 (2) (ag) 5m. of the statutes is created to read:
AB183,5,96
125.12
(2) (ag) 5m. The person has been convicted of possessing any of the
7materials listed in s. 961.437 (2m) with intent to manufacture methamphetamine
8under that subsection or under a federal law or a law of another state that is
9substantially similar to s. 961.437 (2m).
AB183, s. 6
10Section
6. 125.12 (2) (ag) 6m. of the statutes is created to read:
AB183,5,1411
125.12
(2) (ag) 6m. The person knowingly allows another person, who is on the
12premises for which the license under this chapter is issued, to possess any of the
13materials listed in s. 961.437 (2m) with the intent to manufacture
14methamphetamine.
AB183, s. 7
15Section
7. 125.12 (4) (ag) 7m. of the statutes is created to read:
AB183,5,1916
125.12
(4) (ag) 7m. That the licensee has been convicted of possessing any of
17the materials listed in s. 961.437 (2m) with intent to manufacture
18methamphetamine under that subsection or under a federal law or a law of another
19state that is substantially similar to s. 961.437 (2m).
AB183, s. 8
20Section
8. 125.12 (4) (ag) 8m. of the statutes is created to read:
AB183,5,2421
125.12
(4) (ag) 8m. That the licensee knowingly allows another person, who is
22on the premises for which the license under this chapter is issued, to possess any of
23the materials listed in s. 961.437 (2m) with the intent to manufacture
24methamphetamine.
AB183, s. 9
25Section
9. 895.555 (title) of the statutes is amended to read:
AB183,6,2
1895.555 (title)
Liability exemption; anhydrous ammonia and liquid
2nitrogen.
AB183, s. 10
3Section
10. 895.555 (1) of the statutes is amended to read:
AB183,6,104
895.555
(1) Liability exemption. Except as provided under sub. (2), any person
5who owns, maintains, or installs anhydrous ammonia equipment, as defined in s.
6101.10 (1) (b), or who uses anhydrous ammonia
or liquid nitrogen for any legal
7purpose is immune from any civil liability for acts or omissions relating to the
8anhydrous ammonia equipment or to anhydrous ammonia
or liquid nitrogen that
9cause damage or injury to an individual, if that damage or injury occurs during the
10individual's violation of s. 101.10 (3) (c), (d),
or (e)
, or (f).
AB183, s. 11
11Section
11. 938.34 (14s) (am) (intro.) of the statutes is amended to read:
AB183,6,1412
938.34
(14s) (am) (intro.) In addition to any other dispositions imposed under
13this section, if the juvenile is found to have violated s. 961.41 (1) or (1m)
or 961.437
14(2m), the court shall order one of the following penalties:
AB183, s. 12
15Section
12. 939.32 (1) (g) of the statutes is created to read:
AB183,6,1716
939.32
(1) (g) Whoever attempts to commit a crime under s. 101.10 (3) (e) is
17subject to the penalty for the completed act, as provided in s. 101.10 (4) (b).
AB183, s. 13
18Section
13. 939.62 (2m) (a) 2m. am. of the statutes is created to read:
AB183,6,1919
939.62
(2m) (a) 2m. am. A crime under s. 961.437 (2m).
AB183, s. 14
20Section
14. 939.62 (2m) (a) 2m. d. of the statutes is amended to read: