SB368: Bill Text

LRB-3644/1

CMH:jld:md

2009 - 2010 LEGISLATURE

2009 Senate BILL 368

October 27, 2009 - Introduced by Senators Erpenbach, Taylor and Miller, cosponsored by Representatives Pocan, Black, Roys, Hilgenberg, Berceau, Parisi, Kessler, Zepnick, Danou, Pope-Roberts, Grigsby, Pasch, Toles and Sherman. Referred to Committee on Health, Health Insurance, Privacy, Property Tax Relief, and Revenue.

SB368,2,2 An Act to renumber subchapter IV of chapter 50 [precedes 50.90]; to renumber and amend 59.54 (25), 961.55 (8), 968.19 and 968.20 (1); to amend 20.435 (6) (jm), 50.56 (3), 59.54 (25m), 66.0107 (1) (bm), 66.0107 (1) (bp), 146.40 (1) (bo), 146.81 (1) (L), 146.997 (1) (d) 18., 149.14 (3) (nm), 173.12 (1m), 289.33 (3) (d), 349.02 (2) (b) 4., 767.41 (5) (am) (intro.), 961.555 (2) (a), 961.56 (1) and 968.20 (3) (a) and (b); and to create 20.435 (1) (gq), 20.435 (1) (jm), subchapter IV of chapter 50 [precedes 50.60], 59.54 (25) (b) 2., 59.54 (25) (b) 3., 146.44, 767.41 (5) (d), 767.451 (5m) (d), 961.01 (5m), 961.01 (11v), 961.01 (12v), 961.01 (14c), 961.01 (14g), 961.01 (17k), 961.01 (19m), 961.01 (20hm), 961.01 (20ht), 961.01 (20t), 961.01 (21f), 961.01 (21t), 961.436, 961.55 (8) (b), 961.55 (8) (c), 961.55 (8) (d), 961.555 (2) (e), 961.555 (2m), 961.5755, 968.072, 968.12 (5), 968.19 (2), 968.20 (1d) and 968.20 (1j) of the statutes; relating to: medical use of marijuana, the regulation of marijuana distribution organizations, requiring the exercise of rule-making authority, making appropriations, and providing a penalty.

Analysis by the Legislative Reference Bureau

Current prohibitions and penalties

Current law prohibits the manufacture, distribution, and delivery of marijuana (also known as tetrahydrocannabinols) 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, 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, 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, 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, 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, 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, other than methamphetamine, unlawfully 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, other than methamphetamine, unlawfully 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 forfeiture actions. A person having or undergoing a debilitating medical condition or treatment (qualifying patient) may invoke this defense. A debilitating medical condition or treatment means any of the following: 1) cancer, glaucoma, AIDS, a positive HIV test, 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; 2) a chronic or debilitating disease or medical condition, or the treatment of such a disease or condition, that causes wasting away, severe pain, severe nausea, seizures, or severe and persistent muscle spasms; or 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 Services (DHS).

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, 12 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 DHS or a valid out-of-state registry identification card (see Registry and distribution centers for medical users of marijuana below) or has a written certification 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, 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, a valid out-of-state registry identification card, or a written certification. This prohibition, however, applies only 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 his or her 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 apply also to a primary caregiver for any qualifying patient, 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 and distribution centers for medical users of marijuana

The bill requires DHS 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 DHS a signed application, accompanied by a written certification and a registration fee of not more than $150. DHS must verify the information and 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. DHS 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 DHS based on a change of circumstances, and may be renewed. This bill also requires DHS to promulgate a rule listing any state, district, commonwealth, territory, or insular possession thereof that allows the medical use of marijuana by a visiting qualifying patient or allows a person to assist with a visiting qualifying patient's medical use of marijuana. Under this bill, documents issued by these entities identifying a person as a qualifying patient, primary caregiver, or equivalent are treated the same as registry identification cards issued by DHS.

The bill requires DHS to license and regulate nonprofit corporations, known as compassion centers, that distribute or deliver marijuana or drug paraphernalia or possess or manufacture marijuana or drug paraphernalia with the intent to deliver or distribute to facilitate the medical use of marijuana. This bill prohibits compassion centers from being located less than 500 feet from a school, prohibits a compassion center from distributing to a qualifying patient more than a maximum amount of marijuana, and prohibits an organization from possessing a quantity that exceeds, by an amount determined by DHS, the total maximum amount of marijuana of all of the qualifying patients it serves. An applicant for a license must pay an initial application fee of $250, and a compassion center must pay an annual fee of $5,000.

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:

SB368, s. 1 Section 1. 20.435 (1) (gq) of the statutes is created to read:

SB368,5,4 20.435 (1) (gq) Medical marijuana registry. All moneys received from applicants, as defined in s. 146.44 (1) (a), as fees under s. 146.44 (2) (a) 4., for the purposes of the Medical Marijuana Registry Program under s. 146.44.

SB368, s. 2 Section 2. 20.435 (1) (jm) of the statutes is created to read:

SB368,5,8 20.435 (1) (jm) Licensing and support services for compassion centers. All moneys received under s. 50.64 to regulate and license compassion centers under subch. IV of ch. 50.

SB368, s. 3 Section 3. 20.435 (6) (jm) of the statutes, as affected by 2008 Wisconsin Act 28, is amended to read:

SB368,6,7 20.435 (6) (jm) Licensing and support services. The amounts in the schedule for the purposes specified in ss. 48.685 (2) (am) and (b) 1., (3) (a) and (b), and (5) (a), 49.45 (47), 50.02 (2), 50.025, 50.031, 50.065 (2) (am) and (b) 1., (3) (a) and (b), and (5), 50.13, 50.135, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.981, and 146.40 (4r) (b) and (er), and subch. IV V of ch. 50 and to conduct health facilities plan and rule development activities, for accrediting nursing homes, convalescent homes, and homes for the aged, to conduct capital construction and remodeling plan reviews under ss. 50.02 (2) (b) and 50.36 (2), and for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection. All moneys received under ss. 48.685 (8), 49.45 (42) (c), 49.45 (47) (c), 50.02 (2), 50.025, 50.031 (6), 50.065 (8), 50.13, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.93 (1) (c), and 50.981, all moneys received from fees for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection, and all moneys received under s. 50.135 (2) shall be credited to this appropriation account.

SB368, s. 4 Section 4. 50.56 (3) of the statutes is amended to read:

SB368,6,12 50.56 (3) Notwithstanding sub. (2), insofar as a conflict exists between this subchapter, or the rules promulgated under this subchapter, and subch. I, II or IV V, or the rules promulgated under subch. I, II or IV V, the provisions of this subchapter and the rules promulgated under this subchapter control.

SB368, s. 5 Section 5. Subchapter IV of chapter 50 [precedes 50.60] of the statutes is created to read:

SB368,6,15 CHAPTER 50

SB368,6,16 SUBCHAPTER IV

SB368,6,17 Distribution Centers

SB368,6,18 50.60 Definitions. In this subchapter:

SB368,6,20 (1) "Compassion center" means a licensed organization that grows and distributes marijuana for the medical use of tetrahydrocannabinols.

SB368,6,21 (2) "Maximum authorized amount" has the meaning given in s. 961.01 (14c).

SB368,6,23 (3) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01 (14g).

SB368,6,24 (4) "Qualifying patient" has the meaning given in s. 961.01 (20hm).

SB368,6,25 (5) "Registry identification card" has the meaning given in s. 146.44 (1) (g).

SB368,7,1 (6) "Treatment team" has the meaning given in s. 961.01 (20t).

SB368,7,2 (7) "Usable marijuana" has the meaning given in s. 961.01 (21f).

SB368,7,3 (8) "Written certification" has the meaning given in s. 961.01 (21t).

SB368,7,5 50.61 Departmental powers and duties. The department shall provide licensing, regulation, record keeping, and security for compassion centers.

SB368,7,8 50.62 Licensing. The department shall issue licenses to operate as a compassion center and shall decide which and how many applicants for a license receive a license based on all of the following:

SB368,7,9 (1) Convenience to treatment teams and the preferences of treatment teams.

SB368,7,11 (2) The ability of an applicant to provide to treatment teams a sufficient amount of medical marijuana for the medical use of tetrahydrocannabinols.

SB368,7,13 (3) The experience the applicant has running a nonprofit organization or a business.

SB368,7,15 (4) The preferences of the governing bodies with jurisdiction over the area in which the applicants are located.

SB368,7,17 (5) The ability of the applicant to keep records confidential and maintain a safe and secure facility.

SB368,7,18 (6) The ability of the applicant to abide by the prohibitions under s. 50.63.

SB368,7,20 50.63 Prohibitions. The department may not issue a license to, and must revoke a license of, any organization to which any of the following applies:

SB368,7,22 (1) The organization does not qualify as a nonprofit organization, as defined in s. 108.02 (19).

SB368,7,24 (2) The organization is located less than 500 feet from a public or private elementary or secondary school, including a charter school.

SB368,8,4 (3) The compassion center distributes to a treatment team an amount of plants or ounces of usable marijuana that, in the period of distribution, results in the treatment team possessing an amount that exceeds the maximum authorized amount.

SB368,8,8 (4) The compassion center possesses an amount of plants or ounces of usable marijuana that exceeds the combined maximum authorized amount for all of the treatment teams that use the organization by an amount determined by the department by rule to be unacceptable.

SB368,8,9 50.64 Licensing procedure. (1) The application for a license shall:

SB368,8,10 (a) Be in writing on a form provided by the department.

SB368,8,11 (b) Include the licensing application fee under sub. (2) (a).

SB368,8,12 (2) (a) A licensing application fee is $250.

SB368,8,13 (b) The annual fee for a compassion center is $5,000.

SB368,8,16 (3) A compassion center license is valid until revoked. Each license shall be issued only for the applicant named in the application and may not be transferred or assigned.

SB368,8,20 50.65 Distribution of medical marijuana. (1) A compassion center may deliver or distribute tetrahydrocannabinols or drug paraphernalia to a member of a treatment team if the compassion center receives a copy of the qualifying patient's written certification or registry identification card.

SB368,8,22 (2) A compassion center may possess or manufacture tetrahydrocannabinols or drug paraphernalia with the intent to deliver or distribute under sub. (1).

SB368,8,24 (3) A compassion center may have 2 locations, one for cultivation and one for distribution.

SB368, s. 6 Section 6. Subchapter IV of chapter 50 [precedes 50.90] of the statutes is renumbered subchapter V of chapter 50.

SB368, s. 7 Section 7. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended to read:

SB368,9,14 59.54 (25) (a) The board may enact and enforce an ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in s. 961.01 (14), subject to par. (b) and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance; except that any person who is charged with possession of more than 25 grams of marijuana, or who is charged with possession of any amount of marijuana following a conviction for possession of marijuana, in this state shall not be prosecuted under this subsection. Any ordinance enacted under this paragraph shall provide a person who is prosecuted under it with the defenses that the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e).

SB368,9,16 (b) 1. Any ordinance enacted under this subsection par. (a) applies in every municipality within the county.

SB368, s. 8 Section 8. 59.54 (25) (b) 2. of the statutes is created to read:

SB368,9,20 59.54 (25) (b) 2. A person may not be prosecuted under an ordinance enacted under par. (a) if, under s. 968.072 (2) or (4) (b), the person would not be subject to prosecution under s. 961.41 (3g) (e).

SB368, s. 9 Section 9. 59.54 (25) (b) 3. of the statutes is created to read:

SB368,9,25 59.54 (25) (b) 3. No person who is charged with possession of more than 25 grams of marijuana, or who is charged with possession of any amount of marijuana following a conviction for possession of marijuana, in this state may be prosecuted under an ordinance enacted under par. (a).