SB368: Bill Text

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.

SB368,29,24 3. The person does not possess more than the maximum authorized amount of tetrahydrocannabinols.

SB368,30,2 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.

SB368,30,4 5. If the member is a primary caregiver, he or she is not a primary caregiver to more than 5 qualifying patients.

SB368,30,8 (4) Limitations on arrests, prosecution, and other sanctions. (a) 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 in good faith.

SB368,30,12 (b) An employee of a compassion center licensed under subch. IV of ch. 50 may not be arrested and such employee or compassion center licensed under subch. IV of ch. 50 may not be subject to prosecution, denied any right or privilege, or penalized in any manner for any good faith action under subch. IV of ch. 50.

SB368,30,16 (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.

SB368, s. 47 Section 47. 968.12 (5) of the statutes is created to read:

SB368,30,24 968.12 (5) Medical use of marijuana. A person's possession, use, or submission of or connection with an application for a registry identification card under s. 146.44 (2), the issuance of such a card under s. 146.44 (4), or a person's possession of such a card, a valid out-of-state registry identification card, as defined in s. 146.44 (1) (cm), or an original or a copy of a written certification, as defined in s. 961.01 (21t), may not, by itself, constitute probable cause under sub. (1) or otherwise subject any person or the property of any person to inspection by any governmental agency.

SB368, s. 48 Section 48. 968.19 of the statutes is renumbered 968.19 (1) and amended to read:

SB368,31,6 968.19 (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.

SB368, s. 49 Section 49. 968.19 (2) of the statutes is created to read:

SB368,31,9 968.19 (2) A law enforcement agency that has seized a live marijuana plant is not responsible for the plant's care and maintenance.

SB368, s. 50 Section 50. 968.20 (1) of the statutes is renumbered 968.20 (1f), and 968.20 (1f) (intro.), as renumbered, is amended to read:

SB368,31,20 968.20 (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:

SB368, s. 51 Section 51. 968.20 (1d) of the statutes is created to read:

SB368,31,22 968.20 (1d) In this section:

SB368,31,23 (a) "Drug paraphernalia" has the meaning given in s. 961.571 (1) (a).

SB368,31,24 (b) "Tetrahydrocannabinols" means a substance included in s. 961.14 (4) (t).

SB368, s. 52 Section 52. 968.20 (1j) of the statutes is created to read:

SB368,32,3 968.20 (1j) (a) Except as provided in par. (b), sub. (1f) does not apply to contraband or property covered under sub. (1m) or (1r) or s. 173.12, 173.21 (4), or 968.205.

SB368,32,6 (b) Under sub. (1f), 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:

SB368,32,9 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).

SB368,32,13 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, s. 53 Section 53. 968.20 (3) (a) and (b) of the statutes are amended to read:

SB368,33,14 968.20 (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 or for use under s. 29.938.

SB368,34,13 (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 or for use under s. 29.938.

SB368, s. 54 Section 54. Effective dates. This act takes effect on the day after publication, except as follows:

SB368,34,17 (1) The treatment of section 146.44 and subchapter IV of chapter 50 of the statutes takes effect on the first day of the 6th month beginning after publication.

SB368,34,18 (End)