SB368: Bill Text

SB368, s. 23 Section 23. 767.451 (5m) (d) of the statutes is created to read:

SB368,18,2 767.451 (5m) (d) In an action to modify a legal custody order, the court may not consider as a factor in making a determination whether a parent or potential custodian holds, or has applied for, a registry identification card, as defined in s. 146.44 (1) (g), is or has been the subject of a written certification, as defined in s. 961.01 (21t), or is or has been a qualified patient, as defined in s. 961.01 (20hm), or a primary caregiver, as defined in s. 961.01 (19m), unless the parent or potential custodian's behavior creates an unreasonable danger to the child that can be clearly articulated and substantiated.

SB368, s. 24 Section 24. 961.01 (5m) of the statutes is created to read:

SB368,18,5 961.01 (5m) "Debilitating medical condition or treatment" means any of the following:

SB368,18,10 (a) Cancer, glaucoma, acquired immunodeficiency syndrome, a positive test for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV, Crohn's disease, a Hepatitis C virus infection, Alzheimer's disease, Amytrophic Lateral Sclerosis, nail patella syndrome, Ehlers-Danlos Syndrome, post-traumatic stress disorder, or the treatment of these conditions.

SB368,18,14 (b) A chronic or debilitating disease or medical condition or the treatment of such a disease or condition that causes cachexia, severe pain, severe nausea, seizures, including those characteristic of epilepsy, or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.

SB368,18,17 (c) 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 services under s. 961.436 (5).

SB368, s. 25 Section 25. 961.01 (11v) of the statutes is created to read:

SB368,18,20 961.01 (11v) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

SB368, s. 26 Section 26. 961.01 (12v) of the statutes is created to read:

SB368,18,24 961.01 (12v) "Lockable, enclosed facility" means an enclosed area that is lockable, or may use a security device, to permit access only by a member of a qualifying patient's treatment team.

SB368, s. 27 Section 27. 961.01 (14c) of the statutes is created to read:

SB368,19,2 961.01 (14c) "Maximum authorized amount" means 12 live marijuana plants and 3 ounces of usable marijuana.

SB368, s. 28 Section 28. 961.01 (14g) of the statutes is created to read:

SB368,19,5 961.01 (14g) "Medical use of tetrahydrocannabinols" means any of the following:

SB368,19,8 (a) The use of tetrahydrocannabinols by a qualifying patient to alleviate the symptoms or effects of the qualifying patient's debilitating medical condition or treatment.

SB368,19,11 (b) The acquisition, possession, cultivation, or transportation of tetrahydrocannabinols by a qualifying patient if done to facilitate his or her use of the tetrahydrocannabinols under par. (a).

SB368,19,16 (c) The acquisition, possession, cultivation, or transportation of tetrahydrocannabinols by a primary caregiver of a qualifying patient, the transfer of tetrahydrocannabinols between a qualifying patient and his or her primary caregivers, or the transfer of tetrahydrocannabinols between persons who are primary caregivers for the same qualifying patient if all of the following apply:

SB368,19,19 1. The acquisition, possession, cultivation, transportation, or transfer of the tetrahydrocannabinols is done to facilitate the qualifying patient's use of tetrahydrocannabinols under par. (a) or (b).

SB368,19,22 2. It is not practicable for the qualifying patient to acquire, possess, cultivate, or transport the tetrahydrocannabinols independently, or the qualifying patient is under 18 years of age.

SB368, s. 29 Section 29. 961.01 (17k) of the statutes is created to read:

SB368,19,25 961.01 (17k) "Out-of-state registry identification card" has the meaning given in s. 146.44 (1) (cm).

SB368, s. 30 Section 30. 961.01 (19m) of the statutes is created to read:

SB368,20,4 961.01 (19m) "Primary caregiver" means a person who is at least 18 years of age and who has agreed to help a qualifying patient in his or her medical use of tetrahydrocannabinols.

SB368, s. 31 Section 31. 961.01 (20hm) of the statutes is created to read:

SB368,20,9 961.01 (20hm) "Qualifying patient" means a person who has been diagnosed by a physician as having or undergoing a debilitating medical condition or treatment but does not include a person under the age of 18 years unless all of the following apply:

SB368,20,12 (a) The person's physician has explained the potential risks and benefits of the medical use of tetrahydrocannabinols to the person and to a parent, guardian, or person having legal custody of the person.

SB368,20,14 (b) The parent, guardian, or person having legal custody provides the physician a written statement consenting to do all of the following:

SB368,20,15 1. Allow the person's medical use of tetrahydrocannabinols.

SB368,20,16 2. Serve as a primary caregiver for the person.

SB368,20,17 3. Manage the person's medical use of tetrahydrocannabinols.

SB368, s. 32 Section 32. 961.01 (20ht) of the statutes is created to read:

SB368,20,20 961.01 (20ht) "Registry identification card" has the meaning given in s. 146.44 (1) (g).

SB368, s. 33 Section 33. 961.01 (20t) of the statutes is created to read:

SB368,20,23 961.01 (20t) "Treatment team" means a qualifying patient and his or her primary caregivers.

SB368, s. 34 Section 34. 961.01 (21f) of the statutes is created to read:

SB368,21,2 961.01 (21f) "Usable marijuana" means dried marijuana leaves or flowers but does not include marijuana seeds, stalks, or roots.

SB368, s. 35 Section 35. 961.01 (21t) of the statutes is created to read:

SB368,21,5 961.01 (21t) "Written certification" means a statement made by a person's physician if all of the following apply:

SB368,21,9 (a) The statement indicates that, in the physician's professional opinion, the person has or is undergoing a debilitating medical condition or treatment and the potential benefits of the person's use of tetrahydrocannabinols under sub. (14g) (a) would likely outweigh the health risks for the person.

SB368,21,12 (b) The statement indicates that the opinion described in par. (a) was formed after a full assessment, made in the course of a bona fide physician-patient relationship, of the person's medical history and current medical condition.

SB368,21,14 (c) The statement is signed by the physician or is contained in the person's medical records.

SB368, s. 36 Section 36. 961.436 of the statutes is created to read:

SB368,21,20 961.436 Medical use defense in cases involving tetrahydrocannabinols. (1) A member of a qualifying patient's treatment team has a defense to prosecution under s. 961.41 (1) (h) or (1m) (h) for manufacturing, or possessing with intent to manufacture, tetrahydrocannabinols if all of the following apply:

SB368,21,22 (a) The manufacture or possession is a medical use of tetrahydrocannabinols by the treatment team.

SB368,21,24 (b) The amount of tetrahydrocannabinols does not exceed the maximum authorized amount.

SB368,22,3 (c) Any live marijuana plants are in a lockable, enclosed facility unless a member of a qualifying patient's treatment team is accessing the plants or has the plants in his or her possession.

SB368,22,5 (d) If the member is a primary caregiver, he or she is not a primary caregiver to more than 5 qualifying patients.

SB368,22,9 (2) A member of a qualifying patient's treatment team has a defense to prosecution under s. 961.41 (1) (h) or (1m) (h) for distributing or delivering, or possessing with intent to distribute or deliver, tetrahydrocannabinols to another member of the treatment team if all of the following apply:

SB368,22,11 (a) The distribution, delivery, or possession is a medical use of tetrahydrocannabinols by the treatment team.

SB368,22,13 (b) The amount of tetrahydrocannabinols does not exceed the maximum authorized amount.

SB368,22,16 (c) Any live marijuana plants are in a lockable, enclosed facility unless a member of a qualifying patient's treatment team is accessing the plants or has the plants in his or her possession.

SB368,22,18 (d) If the member is a primary caregiver, he or she is not a primary caregiver to more than 5 qualifying patients.

SB368,22,21 (3) (a) Except as provided in par. (b), a member of a qualifying patient's treatment team has a defense to a prosecution under s. 961.41 (3g) (e) if all of the following apply:

SB368,22,23 1. The possession or attempted possession is a medical use of tetrahydrocannabinols by the treatment team.

SB368,22,25 2. The amount of tetrahydrocannabinols does not exceed the maximum authorized amount.

SB368,23,3 3. Any live marijuana plants are in a lockable, enclosed facility unless a member of a qualifying patient's treatment team is accessing the plants or has the plants in his or her possession.

SB368,23,5 4. If the member is a primary caregiver, he or she is not a primary caregiver to more than 5 qualifying patients.

SB368,23,7 (b) A person may not assert the defense described in par. (a) if, while he or she possesses or attempts to possess tetrahydrocannabinols, any of the following applies:

SB368,23,10 1. The person drives or operates a motor vehicle while under the influence of tetrahydrocannabinols in violation of s. 346.63 (1) or a local ordinance in conformity with s. 346.63 (1).

SB368,23,13 2. While under the influence of tetrahydrocannabinols, the person operates heavy machinery or engages in any other conduct that endangers the health or well-being of another person.

SB368,23,14 3. The person smokes marijuana in, on, or at any of the following places:

SB368,23,15 a. A school bus or a public transit vehicle.

SB368,23,16 b. The person's place of employment.

SB368,23,17 c. Public or private school premises.

SB368,23,18 d. A juvenile correctional facility.

SB368,23,19 e. A jail or adult correctional facility.

SB368,23,20 f. A public park, beach, or recreation center.

SB368,23,21 g. A youth center.

SB368,24,3 (4) For the purposes of a defense raised under sub. (1), (2), or (3) (a), a valid registry identification card, a valid out-of-state registry identification card, or a written certification is presumptive evidence that the person identified on the card as a qualifying patient or the subject of the written certification 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.

SB368,24,12 (5) Notwithstanding s. 227.12 (1), any person may petition the department of health services to promulgate a rule to designate a medical condition or treatment as a debilitating medical condition or treatment. The department of health services 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 of health services 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.

SB368, s. 37 Section 37. 961.55 (8) of the statutes is renumbered 961.55 (8) (intro.) and amended to read:

SB368,24,18 961.55 (8) (intro.) 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 any of the following constitutes authority for the seizure and forfeiture of the plants:

SB368,24,20 (a) An appropriate federal registration, or proof that the person is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.

SB368, s. 38 Section 38. 961.55 (8) (b) of the statutes is created to read:

SB368,24,23 961.55 (8) (b) A valid registry identification card or a valid out-of-state registry identification card.

SB368, s. 39 Section 39. 961.55 (8) (c) of the statutes is created to read:

SB368,25,2 961.55 (8) (c) The person's written certification, if the person is a qualifying patient.

SB368, s. 40 Section 40. 961.55 (8) (d) of the statutes is created to read:

SB368,25,5 961.55 (8) (d) A written certification for a qualifying patient for whom the person is a primary caregiver.

SB368, s. 41 Section 41. 961.555 (2) (a) of the statutes is amended to read:

SB368,25,17 961.555 (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.

SB368, s. 42 Section 42. 961.555 (2) (e) of the statutes is created to read:

SB368,25,21 961.555 (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:

SB368,25,22 1. The defendant requests an adjournment.

SB368,25,23 2. The defendant invokes a defense to the crime under s. 961.436 or 961.5755.

SB368, s. 43 Section 43. 961.555 (2m) of the statutes is created to read:

SB368,26,3 961.555 (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:

SB368,26,6 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).