AB740: Bill Text

AB740,16,16 g. A youth center.

AB740,16,17 4. The person has been convicted under s. 961.41 (1) (h) or (1m) (h).

AB740,16,22 (4) For the purposes of a defense raised under sub. (1), (2), or (3) (a), a valid registry identification card is presumptive evidence that the person identified on the card as a qualifying patient is a qualifying patient and that if the person uses tetrahydrocannabinols he or she does so to alleviate the symptoms or effects of his or her debilitating medical condition or treatment.

AB740,16,24 (5) (a) In this subsection, "department" means the department of health and family services.

AB740,17,8 (b) Notwithstanding s. 227.12 (1), any person may petition the department to promulgate a rule to designate a medical condition or treatment as a debilitating medical condition or treatment. The department shall promulgate rules providing for public notice of and a public hearing regarding any such petition, with the public hearing providing persons an opportunity to comment upon the petition. After the hearing, but no later than 180 days after the submission of the petition, the department shall approve or deny the petition. The department's decision to approve or deny a petition is subject to judicial review under s. 227.52.

AB740, s. 21 Section 21. 961.55 (8) of the statutes is amended to read:

AB740,17,15 961.55 (8) The failure, upon demand by any officer or employee designated in s. 961.51 (1) or (2), of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate federal registration, or proof that the person is the holder thereof, or an appropriate valid registry identification card for the person constitutes authority for the seizure and forfeiture of the plants.

AB740, s. 22 Section 22. 961.555 (2) (a) of the statutes is amended to read:

AB740,18,2 961.555 (2) (a) The Except as provided in par. (e), the district attorney of the county within which the property was seized shall commence the forfeiture action within 30 days after the seizure of the property, except that the defendant may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.

AB740, s. 23 Section 23. 961.555 (2) (e) of the statutes is created to read:

AB740,18,6 961.555 (2) (e) The court shall adjourn forfeiture proceedings until after adjudication of any charge concerning a crime that was the basis for the seizure of the property if any of the following applies:

AB740,18,7 1. The defendant requests an adjournment.

AB740,18,8 2. The defendant invokes a defense to the crime under s. 961.436 or 961.5755.

AB740, s. 24 Section 24. 961.555 (2m) of the statutes is created to read:

AB740,18,12 961.555 (2m) Medical necessity defense. (a) In an action to forfeit property seized under s. 961.55, the person who was in possession of the property when it was seized has a defense to the forfeiture of the property if any of the following applies:

AB740,18,15 1. The person was prosecuted under s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) in connection with the seized property but had a valid defense under s. 961.436 (1), (2), or (3) (a) or 961.5755 (1) (a) or (2).

AB740,18,19 2. The person was not prosecuted under s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) in connection with the seized property, but, if the person had been, he or she would have had a valid defense under s. 961.436 (1), (2), or (3) (a) or 961.5755 (1) (a) or (2).

AB740,18,24 (b) The owner of property seized under s. 961.55 who is raising a defense under par. (a) shall do so in the answer to the complaint that he or she serves under sub. (2) (b). If a property owner raises such a defense in his or her answer, the state must, as part of the burden of proof specified in sub. (3), prove that the facts constituting the defense do not exist.

AB740, s. 25 Section 25. 961.56 (1) of the statutes is amended to read:

AB740,19,6 961.56 (1) It Except as provided in s. 961.555 (2m) (b) and except for any presumption arising under s. 961.436 (4) or 961.5755 (3), it is not necessary for the state to negate any exemption or exception in this chapter in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this chapter. The, and the burden of proof of any exemption or exception is upon the person claiming it.

AB740, s. 26 Section 26. 961.5755 of the statutes is created to read:

AB740,19,12 961.5755 Medical use of marijuana defense in drug paraphernalia cases. (1) (a) Except as provided in par. (b), a member of a treatment team has a defense to prosecution under s. 961.573 (1) if he or she uses, or possesses with the primary intent to use, drug paraphernalia only for the medical use of tetrahydrocannabinols by the treatment team.

AB740,19,14 (b) This subsection does not apply if, while the person uses, or possesses with the primary intent to use, drug paraphernalia, s. 961.436 (3) (b) 1., 2., 3., or 4. applies.

AB740,19,19 (2) A member of a treatment team has a defense to prosecution under s. 961.574 (1) or 961.575 (1) if he or she delivers, possesses with intent to deliver, or manufactures with intent to deliver to another member of his or her treatment team drug paraphernalia, knowing that it will be primarily used for the medical use of tetrahydrocannabinols by the treatment team.

AB740,19,24 (3) For the purposes of a defense raised under sub. (1) (a) or (2), a valid registry identification card is presumptive evidence that the person identified on the card as a qualifying patient is a qualifying patient and that, if the person uses tetrahydrocannabinols, he or she does so to alleviate the symptoms or effects of his or her debilitating medical condition or treatment.

AB740, s. 27 Section 27. 968.073 of the statutes is created to read:

AB740,20,2 968.073 Medical use of marijuana; arrest and prosecution. (1) Definitions. In this section:

AB740,20,3 (a) "Adequate supply" has the meaning given in s. 961.01 (1g).

AB740,20,5 (b) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01 (14g).

AB740,20,6 (c) "Primary caregiver" has the meaning given in s. 961.01 (19m).

AB740,20,7 (d) "Qualifying patient" has the meaning given in s. 961.01 (20hm).

AB740,20,8 (e) "Registry identification card" has the meaning given in s. 146.45 (1) (g).

AB740,20,9 (f) "Treatment team" has the meaning given in s. 961.01 (20t).

AB740,20,13 (2) Limitations on arrests and prosecution; medical use of marijuana. Unless s. 961.436 (3) (b) 1., 2., 3., or 4. applies, a member of a qualifying patient's treatment team may not be arrested or prosecuted for a violation of s. 961.41 (1) (h), (1m) (h), or (3g) (e) if all of the following apply:

AB740,20,15 (a) The person manufactures, distributes, delivers, or possesses tetrahydrocannabinols only for their medical use by the treatment team.

AB740,20,17 (b) The person possesses a copy of the qualifying patient's or primary caregiver's valid registry identification card.

AB740,20,18 (c) The quantity of tetrahydrocannabinols does not exceed an adequate supply.

AB740,20,22 (3) Limitations on arrests and prosecution; drug paraphernalia for medical use of marijuana. (a) Unless s. 961.436 (3) (b) 1., 2., 3., or 4. applies, a member of a treatment team may not be arrested or prosecuted for a violation of s. 961.573 (1) if all of the following apply:

AB740,20,25 1. The person uses, or possesses with the primary intent to use, drug paraphernalia only for the medical use of tetrahydrocannabinols by the treatment team.

AB740,21,2 2. The person possesses a copy of the qualifying patient's or primary caregiver's valid registry identification card.

AB740,21,4 3. The person does not possess more than an adequate supply of tetrahydrocannabinols.

AB740,21,7 (b) Unless s. 961.436 (3) (b) 1., 2., 3., or 4. applies, a member of a treatment team may not be arrested or prosecuted for a violation of s. 961.574 (1) or 961.575 (1) if all of the following apply:

AB740,21,11 1. The person delivers, possesses with intent to deliver, or manufactures with intent to deliver to another member of his or her treatment team drug paraphernalia, knowing that it will be primarily used for the medical use of tetrahydrocannabinols by the treatment team.

AB740,21,13 2. The person possesses a copy of the qualifying patient's or primary caregiver's valid registry identification card.

AB740,21,15 3. The person does not possess more than an adequate supply of tetrahydrocannabinols.

AB740,21,19 (4) Limitations on arrests, prosecution, and other sanctions; physicians. A physician may not be arrested and a physician, hospital, or clinic may not be subject to prosecution, denied any right or privilege, or penalized in any manner for making or providing a written certification, as defined in s. 146.45 (1) (h), in good faith.

AB740,21,23 (5) Penalty for false statements. Whoever intentionally provides false information to a law enforcement officer in an attempt to avoid arrest or prosecution under this section for a violation of s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) may be fined not more than $500.

AB740, s. 28 Section 28. 968.12 (5) of the statutes is created to read:

AB740,22,6 968.12 (5) Medical use of marijuana registry cards. An application for a registry identification card under s. 146.45 (2), the issuance of such a card under s. 146.45 (4), or a person's possession of such a card shall not, by itself, constitute probable cause under sub. (1) or otherwise subject the person or property of the person who is applying for, issued, or possessing the card to inspection by any governmental agency.

AB740, s. 29 Section 29. 968.19 of the statutes is renumbered 968.19 (1) and amended to read:

AB740,22,12 968.19 (1) Property Except as provided in sub. (2), property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer, who may leave it in the custody of the sheriff and take a receipt therefor, so long as necessary for the purpose of being produced as evidence on any trial.

AB740, s. 30 Section 30. 968.19 (2) of the statutes is created to read:

AB740,22,15 968.19 (2) A law enforcement agency that has seized a live marijuana plant is not responsible for the plant's care and maintenance.

AB740, s. 31 Section 31. 968.20 (1) of the statutes is renumbered 968.20 (1f), and 968.20 (1f) (intro.), as renumbered, is amended to read:

AB740,23,2 968.20 (1f) (intro.) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If Except as provided in sub. (1j), if the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband or property covered under sub. (1m) or (1r) or s. 173.12, 173.21 (4), or 968.205, returned if:

AB740, s. 32 Section 32. 968.20 (1d) of the statutes is created to read:

AB740,23,4 968.20 (1d) In this section:

AB740,23,5 (a) "Drug paraphernalia" has the meaning given in s. 961.571 (1).

AB740,23,6 (b) "Tetrahydrocannabinols" means a substance included in s. 961.14 (4) (t).

AB740, s. 33 Section 33. 968.20 (1j) of the statutes is created to read:

AB740,23,10 968.20 (1j) (a) Except as provided in par. (b), the court may not order the return of contraband or property covered under sub. (1m) or (1r) or s. 173.12, 173.21 (4), or 968.205.

AB740,23,13 (b) The court may return drug paraphernalia or tetrahydrocannabinols that have been seized to the person from whom they were seized if any of the following applies:

AB740,23,16 1. The person was prosecuted under s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) in connection with the seized property but had a valid defense under s. 961.436 (1), (2), or (3) (a) or 961.5755 (1) (a) or (2).

AB740,23,20 2. The person was not prosecuted under s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) in connection with the seized property, but, if the person had been, he or she would have had a valid defense under s. 961.436 (1), (2), or (3) (a) or 961.5755 (1) (a) or (2).

AB740, s. 34 Section 34. 968.20 (3) (a) of the statutes is amended to read:

AB740,24,21 968.20 (3) (a) First class cities shall dispose of dangerous weapons or ammunition seized 12 months after taking possession of them if the owner, authorized under sub. (1m), has not requested their return and if the dangerous weapon or ammunition is not required for evidence or use in further investigation and has not been disposed of pursuant to a court order at the completion of a criminal action or proceeding. Disposition procedures shall be established by ordinance or resolution and may include provisions authorizing an attempt to return to the rightful owner any dangerous weapons or ammunition which appear to be stolen or are reported stolen. If enacted, any such provision shall include a presumption that if the dangerous weapons or ammunition appear to be or are reported stolen an attempt will be made to return the dangerous weapons or ammunition to the authorized rightful owner. If the return of a seized dangerous weapon other than a firearm is not requested by its rightful owner under sub. (1) (1f) and is not returned by the officer under sub. (2), the city shall safely dispose of the dangerous weapon or, if the dangerous weapon is a motor vehicle, as defined in s. 340.01 (35), sell the motor vehicle following the procedure under s. 973.075 (4) or authorize a law enforcement agency to retain and use the motor vehicle. If the return of a seized firearm or ammunition is not requested by its authorized rightful owner under sub. (1) (1f) and is not returned by the officer under sub. (2), the seized firearm or ammunition shall be shipped to and become property of the state crime laboratories. A person designated by the department of justice may destroy any material for which the laboratory has no use or arrange for the exchange of material with other public agencies. In lieu of destruction, shoulder weapons for which the laboratories have no use shall be turned over to the department of natural resources for sale and distribution of proceeds under s. 29.934.

AB740, s. 35 Section 35. 968.20 (3) (b) of the statutes is amended to read:

AB740,25,20 968.20 (3) (b) Except as provided in par. (a) or sub. (1m) or (4), a city, village, town or county or other custodian of a seized dangerous weapon or ammunition, if the dangerous weapon or ammunition is not required for evidence or use in further investigation and has not been disposed of pursuant to a court order at the completion of a criminal action or proceeding, shall make reasonable efforts to notify all persons who have or may have an authorized rightful interest in the dangerous weapon or ammunition of the application requirements under sub. (1) (1f). If, within 30 days after the notice, an application under sub. (1) (1f) is not made and the seized dangerous weapon or ammunition is not returned by the officer under sub. (2), the city, village, town or county or other custodian may retain the dangerous weapon or ammunition and authorize its use by a law enforcement agency, except that a dangerous weapon used in the commission of a homicide or a handgun, as defined in s. 175.35 (1) (b), may not be retained. If a dangerous weapon other than a firearm is not so retained, the city, village, town or county or other custodian shall safely dispose of the dangerous weapon or, if the dangerous weapon is a motor vehicle, as defined in s. 340.01 (35), sell the motor vehicle following the procedure under s. 973.075 (4). If a firearm or ammunition is not so retained, the city, village, town or county or other custodian shall ship it to the state crime laboratories and it is then the property of the laboratories. A person designated by the department of justice may destroy any material for which the laboratories have no use or arrange for the exchange of material with other public agencies. In lieu of destruction, shoulder weapons for which the laboratory has no use shall be turned over to the department of natural resources for sale and distribution of proceeds under s. 29.934.

AB740, s. 36 Section 36. Effective date.

AB740,25,22 (1) This act takes effect on July 1, 2007.

AB740,25,23 (End)