SB368: Bill Text

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).

SB368,26,10 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).

SB368,26,15 (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.

SB368, s. 44 Section 44. 961.56 (1) of the statutes is amended to read:

SB368,26,22 961.56 (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.

SB368, s. 45 Section 45. 961.5755 of the statutes is created to read:

SB368,27,3 961.5755 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.

SB368,27,5 (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., or 3. applies.

SB368,27,10 (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.

SB368,27,17 (3) For the purposes of a defense raised under sub. (1) (a) or (2), 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 valid registry identification card or valid out-of-state registry identification 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, s. 46 Section 46. 968.072 of the statutes is created to read:

SB368,27,20 968.072 Medical use of marijuana; arrest and prosecution. (1) Definitions. In this section:

SB368,27,21 (a) "Lockable, enclosed facility" has the meaning given in s. 961.01 (12v).

SB368,27,22 (am) "Maximum authorized amount" has the meaning given in s. 961.01 (14c).

SB368,27,24 (b) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01 (14g).

SB368,28,2 (bm) "Out-of-state registry identification card" has the meaning given in s. 146.44 (1) (cm).

SB368,28,3 (c) "Primary caregiver" has the meaning given in s. 961.01 (19m).

SB368,28,4 (d) "Qualifying patient" has the meaning given in s. 961.01 (20hm).

SB368,28,5 (e) "Registry identification card" has the meaning given in s. 146.44 (1) (g).

SB368,28,6 (f) "Treatment team" has the meaning given in s. 961.01 (20t).

SB368,28,7 (g) "Written certification" has the meaning given in s. 961.01 (21t).

SB368,28,11 (2) Limitations on arrests and prosecution; medical use of marijuana. Unless s. 961.436 (3) (b) 1., 2., or 3. 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:

SB368,28,13 (a) The person manufactures, distributes, delivers, or possesses tetrahydrocannabinols for their medical use by the treatment team.

SB368,28,16 (b) The person possesses a valid registry identification card, a valid out-of-state registry identification card, or a copy of the qualifying patient's written certification.

SB368,28,18 (c) The quantity of tetrahydrocannabinols does not exceed the maximum authorized amount.

SB368,28,20 (d) Any live marijuana plants are in a lockable, enclosed facility unless the person is accessing the plants or has the plants in his or her possession.

SB368,28,22 (e) If the member is a primary caregiver, he or she is not a primary caregiver to more than 5 qualifying patients.

SB368,29,2 (3) Limitations on arrests and prosecution; drug paraphernalia for medical use of marijuana. (a) Unless s. 961.436 (3) (b) 1., 2., or 3. 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:

SB368,29,5 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.

SB368,29,7 2. The person possesses a valid registry identification card, a valid out-of-state registry identification card, or a copy of the qualifying patient's written certification.

SB368,29,9 3. The person does not possess more than the maximum authorized amount of tetrahydrocannabinols.

SB368,29,11 4. Any live marijuana plants are in a lockable, enclosed facility unless the person is accessing the plants or has the plants in his or her possession.

SB368,29,13 5. If the member is a primary caregiver, he or she is not a primary caregiver to more than 5 qualifying patients.

SB368,29,16 (b) Unless s. 961.436 (3) (b) 1., 2., or 3. 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:

SB368,29,20 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.

SB368,29,22 2. The person possesses a valid registry identification card, a valid out-of-state registry identification card, or a copy of the qualifying patient's written certification.