LRB-2455/1
CMH:kjf:jf
2007 - 2008 LEGISLATURE
October 23, 2007 - Introduced by Representatives Boyle, Pocan, Berceau, Black,
Grigsby, Gronemus, Parisi, Pope-Roberts, Schneider, Sherman, Travis, Wood
and Zepnick. Referred to Committee on Health and Healthcare Reform.
AB550,1,10
1An Act to renumber and amend 59.54 (25), 961.55 (8), 968.19 and 968.20 (1);
2to amend 59.54 (25m), 66.0107 (1) (bm), 66.0107 (1) (bp), 173.12 (1m), 289.33
3(3) (d), 349.02 (2) (b) 4., 961.555 (2) (a), 961.56 (1) and 968.20 (3) (a) and (b); and
4to create 20.435 (6) (gm), 59.54 (25) (b) 2., 59.54 (25) (b) 3., 146.45, 961.01 (5m),
5961.01 (11v), 961.01 (14c), 961.01 (14g), 961.01 (19m), 961.01 (20hm), 961.01
6(20ht), 961.01 (20t), 961.01 (21f), 961.01 (21t), 961.436, 961.55 (8) (b), 961.55 (8)
7(c), 961.55 (8) (d), 961.555 (2) (e), 961.555 (2m), 961.5755, 968.072, 968.12 (5),
8968.19 (2), 968.20 (1d) and 968.20 (1j) of the statutes;
relating to: medical use
9of marijuana, requiring the exercise of rule-making authority, making an
10appropriation, and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill makes certain changes to current law with respect to marijuana (also
known as tetrahydrocannabinols).
Current prohibitions and penalties
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 guilty of a felony and may be fined up to $10,000, sentenced to a term
of imprisonment of up to three years and six months (which, if the sentence is for
more than one year, includes a term of extended supervision), 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 guilty of a felony and may be fined
up to $10,000, sentenced to a term of imprisonment of up to six years (which, if the
sentence is for more than one year, includes a term of extended supervision), 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 guilty of a felony and may
be fined up to $25,000, sentenced to a term of imprisonment of up to ten years (which,
if the sentence is for more than one year, includes a term of extended supervision),
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 guilty of
a felony and may be fined up to $25,000, sentenced to a term of imprisonment of up
to 12 years and 6 months (which, if the sentence is for more than one year, includes
a term of extended supervision), or both. If the crime involves more than 10,000
grams or more than 200 plants, the person is guilty of a felony and may be fined up
to $50,000, sentenced to a term of imprisonment of up to 15 years (which, if the
sentence is for more than one year, includes a term of extended supervision), or both.
Current law also prohibits a person from possessing or attempting to possess
marijuana. A person who violates this prohibition and who has no prior drug
convictions is guilty of a misdemeanor and may be fined not more than $1,000,
sentenced to the county jail for up to six months, or both. For a second or subsequent
offense, a person is guilty of a Class I felony.
Current law also contains certain prohibitions regarding drug paraphernalia,
which includes equipment, products, and materials used to produce, distribute, and
use controlled substances, including marijuana. Under current law, a person who
uses drug paraphernalia or who possesses it with the primary intent to produce,
distribute, or use a controlled substance unlawfully (other than methamphetamine)
is guilty of a misdemeanor and may be fined not more than $500, 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 (other than methamphetamine), may be fined not more than $1,000,
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 — that is, someone having or undergoing
a debilitating medical condition or treatment. The bill defines a debilitating medical
condition or treatment 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 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 qualifying patient 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, but only if no more than the
maximum authorized amount of marijuana (that is, ten marijuana plants and three
ounces — approximately 85 grams — of marijuana leaves or flowers) is involved. If
a person has obtained a valid registry identification card from DHFS (see Registry
for medical users of marijuana below) or has 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"), the person
is presumed to have this defense if no more than the maximum authorized amount
of marijuana is involved.
The bill also prohibits the arrest or prosecution of a qualifying patient who
acquires, possesses, cultivates, transports, or uses marijuana to alleviate the
symptoms or effects of his or her debilitating medical condition or treatment if the
person possesses a valid registry identification card or a written certification. This
prohibition, however, only applies if no more than the maximum authorized 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.
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 and if: 1) while under the influence of marijuana, the person
drives or operates a motor vehicle; 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; or 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. 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. The bill defines a primary
caregiver as a person who is at least 18 years old and who has agreed to be responsible
for managing a qualifying patient's medical use of marijuana.
The defense provided under the bill and the prohibition on arrest and
prosecution contained in the bill also apply to a primary caregiver for any qualifying
patient (regardless of the qualifying patient's age), if the primary caregiver acquires,
possesses, cultivates, transfers, or transports marijuana to facilitate the qualifying
patient's medical use of it. The defense and the prohibition apply to the primary
caregiver only if it is not practicable for the qualifying patient to acquire, possess,
cultivate, or transport marijuana independently or if the qualifying patient is under
18. The defense and the prohibition apply also to offenses involving drug
paraphernalia if the qualifying patient uses the drug paraphernalia for the medical
use of marijuana.
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
written certification and a registration fee of not more than $150. 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.
Effect on federal law
This bill changes state law regarding marijuana. It does not affect federal law,
which 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:
AB550, s. 1
1Section
1. 20.435 (6) (gm) of the statutes is created to read:
AB550,4,42
20.435
(6) (gm)
Medical marijuana registry. All moneys received from
3applicants, as defined in s. 146.45 (1) (a), as fees under s. 146.45 (2) (a) 4., for the
4purposes of the Medical Marijuana Registry Program under s. 146.45.
AB550, s. 2
5Section
2. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended
6to read:
AB550,5,10
159.54
(25) (a) The board may enact and enforce an ordinance to prohibit the
2possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to
3par. (b) and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a
4violation of the ordinance
; except that any person who is charged with possession of
5more than 25 grams of marijuana, or who is charged with possession of any amount
6of marijuana following a conviction for possession of marijuana, in this state shall
7not be prosecuted under this subsection. Any ordinance enacted under this
8paragraph shall provide a person who is prosecuted under it with the defenses that
9the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or
10(3g) (e).
AB550,5,12
11(b) 1. Any ordinance enacted under
this subsection par. (a) applies in every
12municipality within the county.
AB550, s. 3
13Section
3. 59.54 (25) (b) 2. of the statutes is created to read:
AB550,5,1614
59.54
(25) (b) 2. A person may not be prosecuted under an ordinance enacted
15under par. (a) if, under s. 968.072 (2), the person would not be subject to prosecution
16under s. 961.41 (3g) (e).
AB550, s. 4
17Section
4. 59.54 (25) (b) 3. of the statutes is created to read:
AB550,5,2118
59.54
(25) (b) 3. No person who is charged with possession of more than 25
19grams of marijuana, or who is charged with possession of any amount of marijuana
20following a conviction for possession of marijuana, in this state may be prosecuted
21under an ordinance enacted under par. (a).
AB550, s. 5
22Section
5. 59.54 (25m) of the statutes is amended to read:
AB550,6,723
59.54
(25m) Drug paraphernalia. The board may enact an ordinance to
24prohibit conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574
25(1) or (2), or 961.575 (1) or (2) and provide a forfeiture for violation of the ordinance.
1Any ordinance enacted under this subsection shall provide a person prosecuted
2under it with the defenses that the person has under s. 961.5755 to prosecutions
3under s. 961.573 (1), 961.574 (1), or 961.575 (1). A person may not be prosecuted
4under an ordinance enacted under this subsection if, under s. 968.072 (3), the person
5would not be subject to prosecution under s. 961.573 (1), 961.574 (1), or 961.575 (1). 6The board may enforce an ordinance enacted under this subsection in any
7municipality within the county.
AB550, s. 6
8Section
6. 66.0107 (1) (bm) of the statutes is amended to read:
AB550,6,209
66.0107
(1) (bm) Enact and enforce an ordinance to prohibit the possession of
1025 grams or less of marijuana, as defined in s. 961.01 (14), subject to
this paragraph
11and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation
12of the ordinance
; except that any. Any ordinance enacted under this paragraph shall
13provide a person prosecuted under it with the defenses that the person has under s.
14961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e). A person may not
15be prosecuted under an ordinance enacted under this paragraph if, under s. 968.072
16(2), the person would not be subject to prosecution under s. 961.41 (3g) (e). No person
17who is charged with possession of more than 25 grams of marijuana, or who is
18charged with possession of any amount of marijuana following a conviction for
19possession of marijuana, in this state
shall not
may be prosecuted under this
20paragraph.
AB550, s. 7
21Section
7. 66.0107 (1) (bp) of the statutes is amended to read:
AB550,7,422
66.0107
(1) (bp) Enact and enforce an ordinance to prohibit conduct that is the
23same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or
24(2) and provide a forfeiture for violation of the ordinance.
Any ordinance enacted
25under this paragraph shall provide a person prosecuted under it with the defenses
1that the person has under s. 961.5755 to prosecutions under s. 961.573 (1), 961.574
2(1), or 961.575 (1). A person may not be prosecuted under an ordinance enacted
3under this paragraph if, under s. 968.072 (3), the person would not be subject to
4prosecution under s. 961.573 (1), 961.574 (1), or 961.575 (1).
AB550, s. 8
5Section
8. 146.45 of the statutes is created to read:
AB550,7,7
6146.45 Medical Marijuana Registry Program. (1) Definitions. In this
7section:
AB550,7,98
(a) "Applicant" means a person who is applying for a registry identification card
9under sub. (2) (a).
AB550,7,1110
(b) "Debilitating medical condition or treatment" has the meaning given in s.
11961.01 (5m).
AB550,7,1312
(c) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01
13(14g).
AB550,7,1414
(d) "Primary caregiver" has the meaning given in s. 961.01 (19m).
AB550,7,1515
(e) "Qualifying patient" has the meaning given in s. 961.01 (20hm).
AB550,7,1716
(f) "Registrant" means a person to whom a registry identification card is issued
17under sub. (4).
AB550,7,2018
(g) "Registry identification card" means a document issued by the department
19under this section that identifies a person as a qualifying patient or primary
20caregiver.
AB550,7,2121
(h) "Written certification" has the meaning given in s. 961.01 (21t).
AB550,7,24
22(2) Application. (a) An adult who is claiming to be a qualifying patient may
23apply for a registry identification card by submitting to the department a signed
24application form containing or accompanied by all of the following:
AB550,7,2525
1. His or her name, address, and date of birth.
AB550,8,1
12. A written certification.
AB550,8,32
3. The name, address, and telephone number of the person's current physician,
3as listed in the written certification.
AB550,8,54
4. A registration fee in an amount determined by the department, but not to
5exceed $150.
AB550,8,126
(b) A qualifying patient who is an adult and who has been issued a registry
7identification card under sub. (4) or an applicant may jointly apply with another
8adult to the department for a registry identification card for the other adult,
9designating him or her as a primary caregiver for the qualifying patient or the
10applicant. Both persons who jointly apply for a registry identification card under this
11paragraph shall sign the application form, which shall contain the name, address,
12and date of birth of the individual applying to be registered as a primary caregiver.
AB550,8,1613
(c) The department shall promulgate rules specifying how a parent, guardian,
14or person having legal custody of a child may apply for a registry identification card
15for himself or herself and for the child and the circumstances under which the
16department may approve or deny the application.
AB550,8,22
17(3) Processing the application. The department shall verify the information
18contained in or accompanying an application submitted under sub. (2) and shall
19approve or deny the application within 30 days after receiving it. Except as provided
20in sub. (2) (c), the department may deny an application submitted under sub. (2) only
21if the required information has not been provided or if false information has been
22provided.
AB550,9,3
23(4) Issuing a registry identification card. The department shall issue a
24registry identification card within 5 days after approving an application under sub.
25(3). Unless voided under sub. (5) (b) or (c) or revoked under rules issued by the
1department under sub. (7) (d), a registry identification card shall expire one year
2from the date of issuance. A registry identification card shall contain all of the
3following:
AB550,9,44
(a) The name, address, and date of birth of all of the following:
AB550,9,55
1. The registrant.
AB550,9,66
2. The primary caregivers, if the registrant is a qualifying patient.
AB550,9,77
3. The qualifying patient, if the registrant is a primary caregiver.
AB550,9,88
(b) The date of issuance and expiration date of the registry identification card.
AB550,9,99
(c) A photograph of the registrant.
AB550,9,1010
(d) Other information that the department may require by rule.
AB550,9,17
11(5) Additional information to be provided by registrant. (a) 1. An adult
12registrant shall notify the department of any change in the registrant's name and
13address. An adult registrant who is a qualifying patient shall notify the department
14of any change in his or her physician, of any significant improvement in his or her
15health as it relates to his or her debilitating medical condition or treatment, and if
16a registered primary caregiver no longer assists the registrant with the medical use
17of tetrahydrocannabinols.
AB550,9,2118
2. If a qualifying patient is a child, a primary caregiver for the child shall
19provide the department with any information that the child, if he or she were an
20adult, would have to provide under subd. 1. within 10 days after the date of the
21change to which the information relates.