AB810: Bill Text

LRB-3671/1

CMH/JK/EVM:sac:jf

2013 - 2014 LEGISLATURE

2013 Assembly BILL 810

February 24, 2014 - Introduced by Representatives Sargent, Ohnstad, Berceau, Clark, Pope and Hulsey, cosponsored by Senator Harris. Referred to Committee on Criminal Justice.

AB810,3,2 An Act to repeal 23.33 (1) (jo) 5., 30.50 (10m) (e), 340.01 (50m) (e), 350.01 (10v) (e), 885.235 (1) (d) 5., 939.22 (33) (e), 961.14 (4) (t), 961.41 (1) (h), 961.41 (1m) (h), 961.41 (1q), 961.41 (3g) (e), 961.571 (1) (a) 7., 961.571 (1) (a) 11. e., 961.571 (1) (a) 11. k. and L. and 967.055 (1m) (b) 5.; to renumber 30.681 (1) (bn); to renumber and amend 961.01 (14) and 961.34; to amend 23.33 (1) (jo) 1., 23.33 (4c) (a) 4., 23.33 (4c) (a) 5., 23.33 (4c) (b) 3., 23.33 (4c) (b) 4. a., 23.33 (4c) (b) 4. b., 23.33 (4p) (d), 23.33 (13) (b) 1., 23.33 (13) (b) 2., 23.33 (13) (b) 3., 23.33 (13) (e), 30.50 (10m) (a), 30.681 (1) (b) (title), 30.681 (1) (bn) (title), 30.681 (1) (c), 30.681 (1) (d), 30.681 (2) (b) (title), 30.681 (2) (c), 30.681 (2) (d) 1. a., 30.681 (2) (d) 1. b., 30.684 (4), 30.80 (6) (d), 59.54 (25), 66.0107 (1) (bm), 85.53 (1) (d), 139.87 (7), 340.01 (50m) (a), 343.10 (5) (a) 1., 343.10 (5) (a) 2., 343.12 (7) (a) 11., 343.16 (2) (b), 343.16 (5) (a), 343.30 (1p), 343.30 (1q) (h), 343.305 (2), 343.305 (3) (a), 343.305 (3) (am), 343.305 (3) (ar) 1., 343.305 (3) (b), 343.305 (5) (b), 343.305 (5) (d), 343.305 (7) (a), 343.305 (8) (b) 2. bm., 343.305 (8) (b) 2. d., 343.305 (8) (b) 4m. a., 343.305 (8) (b) 5. b., 343.305 (8) (b) 6. b., 343.305 (9) (a) 5. a., 343.305 (9) (am) 5. a., 343.305 (9) (am) 5. c., 343.305 (9) (d), 343.305 (10) (em), 343.307 (1) (d), 343.307 (2) (e), 343.31 (1) (am), 343.31 (2), 343.315 (2) (a) 2., 343.315 (2) (a) 5., 343.315 (2) (a) 6., 343.315 (2) (bm) 2., 343.32 (2) (bj), 344.576 (2) (b), 346.63 (1) (b), 346.63 (1) (d), 346.63 (2) (a) 2., 346.63 (2) (b) 1., 346.63 (2) (b) 2., 346.65 (2m) (a), 346.65 (2q), 349.03 (2m), 349.06 (1m), 350.01 (10v) (a), 350.101 (1) (d), 350.101 (1) (e), 350.101 (2) (c), 350.101 (2) (d) 1., 350.101 (2) (d) 2., 350.104 (4), 350.11 (3) (d), 885.235 (1) (d) 1., 885.235 (1g) (intro.), 885.235 (1m), 885.235 (4), 895.047 (3) (a), 905.04 (4) (f), 939.22 (33) (a), 940.09 (1m) (a), 940.09 (1m) (b), 940.09 (2) (a), 940.09 (2) (b), 940.25 (1m), 940.25 (2), 941.20 (1) (bm), 961.41 (1r), 961.41 (3g) (c), 961.41 (3g) (d), 961.41 (3g) (em), 961.47 (1), 961.48 (3), 961.48 (5), 961.49 (1m) (intro.), 961.571 (1) (a) 11. (intro.), 967.055 (1) (a), 967.055 (1) (b), 967.055 (1m) (b) 1., 967.055 (2) (a), 971.365 (1) (a), 971.365 (1) (b), 971.365 (1) (c) and 971.365 (2); and to create 20.566 (1) (v), 23.33 (1) (k), 23.33 (4c) (a) 2g., 23.33 (4c) (a) 3g., 23.33 (4c) (b) 2n., 25.56, 30.50 (13p), 30.681 (1) (b) 1g., 30.681 (1) (bn) 2., 30.681 (2) (b) 1g., subchapter V (title) of chapter 139 [precedes 139.97], 139.97, 139.971, 139.972, 139.973, 139.974, 139.975, 139.976, 139.977, 139.978, 340.01 (66m), 343.305 (5) (dm), 346.63 (2p), 350.01 (21g), 350.101 (1) (bg), 350.101 (1) (cg), 350.101 (2) (bg), 885.235 (1) (e), 885.235 (1g) (ag), 885.235 (1g) (cg), 885.235 (1L), 939.22 (39g), 940.09 (1) (bg), 940.09 (1) (dg), 940.09 (1g) (bg), 940.09 (1g) (dg), 940.25 (1) (bg), 940.25 (1) (dg), 941.20 (1) (bg) and subchapter VIII of chapter 961 [precedes 961.70] of the statutes; relating to: marijuana possession, regulation of marijuana distribution, operating a motor vehicle while under the influence of marijuana, making an appropriation, requiring the exercise of rule-making authority, and providing penalties.

Analysis by the Legislative Reference Bureau

Current law prohibits a person from manufacturing, distributing, or delivering marijuana; possessing marijuana with the intent to manufacture, distribute, or deliver it; possessing or attempting to possess marijuana; using drug paraphernalia; or possessing drug paraphernalia with the intent to produce, distribute, or use a controlled substance. This bill changes state law so that state law permits a Wisconsin resident who is over the age of 21 to possess no more than one-half an ounce of marijuana, 8 ounces of marijuana-infused product in solid form, or 36 ounces of marijuana-infused product in liquid form and so that state law permits a nonresident of Wisconsin who is over the age of 21 to possess no more than a quarter ounce of marijuana, 4 ounces of marijuana-infused product in solid form, or 18 ounces of marijuana-infused product in liquid form. This bill also eliminates the prohibition on possessing or using drug paraphernalia that relates to marijuana consumption. A person who possesses more than the maximum amount but not more than 20 grams of marijuana is subject to a civil forfeiture not to exceed $1,000 or imprisonment not to exceed 90 days or both and a person who possesses more than 20 grams of marijuana is guilty of a Class I felony. In addition, under the bill, the cultivation of marijuana is a Class I felony and the use of marijuana in public is subject to a civil forfeiture of not more than $100.

This bill also creates a process by which a person may obtain a permit to sell marijuana. Under this bill, a person who does not have a permit to sell marijuana may not sell, distribute, or transfer marijuana, or possess marijuana with the intent to sell or distribute it. A person who violates the prohibition is guilty of a Class I felony except that the felony classification increases to a Class H felony if the person sells, distributes, or transfers the marijuana to a person who is under the age of 21 (minor) and the person is at least three years older than the minor.

This bill prohibits a permittee from selling, distributing, or transferring marijuana to a minor and from permitting a minor to be on premises for which a permit is issued. If a permittee violates one of those prohibitions, the permittee may be subject to a civil forfeiture of not more than $500 and the permit may be suspended for up to 30 days.

Under this bill, a minor who does any of the following is subject to a forfeiture of not less than $250 nor more than $500: procures or attempts to procure marijuana from a permittee; falsely represents his or her age to receive marijuana from a permittee; knowingly possesses marijuana; or knowingly enters any premises for which a permit has been issued.

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.

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:

AB810,1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

AB810,2 Section 2. 20.566 (1) (v) of the statutes is created to read:

AB810,4,8 20.566 (1) (v) Administration and enforcement of marijuana tax and regulation. From the marijuana fund, the amounts in the schedule for the purposes of administering the marijuana tax imposed under subch. V of ch. 139 and for the costs incurred in enforcing the taxing and regulation of marijuana producers, marijuana processors, and marijuana retailers under subch. V of ch. 139.

AB810,3 Section 3. 23.33 (1) (jo) 1. of the statutes is amended to read:

AB810,4,11 23.33 (1) (jo) 1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB810,4 Section 4. 23.33 (1) (jo) 5. of the statutes is repealed.

AB810,5 Section 5. 23.33 (1) (k) of the statutes is created to read:

AB810,4,15 23.33 (1) (k) "Tetrahydrocannabinols concentration" means the number of nanograms of tetrahydrocannabinols per milliliter of blood.

AB810,6 Section 6. 23.33 (4c) (a) 2g. of the statutes is created to read:

AB810,5,4 23.33 (4c) (a) 2g. `Operating with a tetrahydrocannabinols concentration at or above specified levels.' No person may engage in the operation of an all-terrain vehicle or utility terrain vehicle while the person has a tetrahydrocannabinols concentration of 5.0 or more.

AB810,7 Section 7. 23.33 (4c) (a) 3g. of the statutes is created to read:

AB810,5,10 23.33 (4c) (a) 3g. `Operating with a tetrahydrocannabinols concentration at specified levels; below age 21.' If a person has not attained the age of 21, the person may not engage in the operation of an all-terrain vehicle or utility terrain vehicle while he or she has a tetrahydrocannabinols concentration of more than 0.0 but less than 5.0.

AB810,8 Section 8. 23.33 (4c) (a) 4. of the statutes is amended to read:

AB810,5,20 23.33 (4c) (a) 4. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., 2g., or 2m., the offenses shall be joined. If the person is found guilty of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. Subdivisions 1., 2., 2g., and 2m. each require proof of a fact for conviction which the others do not require.

AB810,9 Section 9. 23.33 (4c) (a) 5. of the statutes is amended to read:

AB810,6,5 23.33 (4c) (a) 5. `Defenses.' In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood or in an action under subd. 2g. or 3g. that is based on the defendant allegedly having a prohibited tetrahydrocannabinols concentration in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

AB810,10 Section 10. 23.33 (4c) (b) 2n. of the statutes is created to read:

AB810,6,10 23.33 (4c) (b) 2n. `Causing injury while operating with tetrahydrocannabinols concentration at or above specified levels.' No person who has a tetrahydrocannabinols concentration of 5.0 or more may cause injury to another person by the operation of an all-terrain vehicle or utility terrain vehicle.

AB810,11 Section 11. 23.33 (4c) (b) 3. of the statutes is amended to read:

AB810,6,21 23.33 (4c) (b) 3. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., or 2m., or 2n. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., or 2m., or 2n. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of any combination of subd. 1., 2., or 2m. , or 2n. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. Subdivisions 1., 2., and 2m., and 2n. each require proof of a fact for conviction which the others do not require.

AB810,12 Section 12. 23.33 (4c) (b) 4. a. of the statutes is amended to read:

AB810,7,4 23.33 (4c) (b) 4. a. In an action under this paragraph, the defendant has a defense if he or she proves by a preponderance of the evidence that the injury would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have an alcohol concentration of 0.08 or more, or did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have a tetrahydrocannabinols concentration of 5.0 or more.

AB810,13 Section 13. 23.33 (4c) (b) 4. b. of the statutes is amended to read:

AB810,7,14 23.33 (4c) (b) 4. b. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood or in an action under subd. 2n. that is based on the defendant allegedly having a prohibited tetrahydrocannabinols concentration in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

AB810,14 Section 14. 23.33 (4p) (d) of the statutes is amended to read:

AB810,8,2 23.33 (4p) (d) Admissibility; effect of test results; other evidence. The results of a chemical test required or administered under par. (a), (b) or (c) are admissible in any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have violated the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law on the issue of whether the person was under the influence of an intoxicant or the issue of whether the person had alcohol concentrations or tetrahydrocannabinols concentrations at or above specified levels or a detectable amount of a restricted controlled substance in his or her blood. Results of these chemical tests shall be given the effect required under s. 885.235. This subsection does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.

AB810,15 Section 15. 23.33 (13) (b) 1. of the statutes is amended to read:

AB810,8,6 23.33 (13) (b) 1. Except as provided under subds. 2. and 3., a person who violates sub. (4c) (a) 1., 2., 2g., or 2m. or (4p) (e) shall forfeit not less than $150 nor more than $300.

AB810,16 Section 16. 23.33 (13) (b) 2. of the statutes is amended to read:

AB810,8,13 23.33 (13) (b) 2. Except as provided under subd. 3., a person who violates sub. (4c) (a) 1., 2., 2g., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted previously under the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law or the refusal law shall be fined not less than $300 nor more than $1,100 and shall be imprisoned not less than 5 days nor more than 6 months.

AB810,17 Section 17. 23.33 (13) (b) 3. of the statutes is amended to read:

AB810,8,20 23.33 (13) (b) 3. A person who violates sub. (4c) (a) 1., 2., 2g., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted 2 or more times previously under the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law or refusal law shall be fined not less than $600 nor more than $2,000 and shall be imprisoned not less than 30 days nor more than one year in the county jail.

AB810,18 Section 18. 23.33 (13) (e) of the statutes is amended to read:

AB810,9,6 23.33 (13) (e) Alcohol, controlled substances or controlled substance analogs, tetrahydrocannabinols; assessment. In addition to any other penalty or order, a person who violates sub. (4c) (a) or (b) or (4p) (e) or who violates s. 940.09 or 940.25 if the violation involves the operation of an all-terrain vehicle or utility terrain vehicle, shall be ordered by the court to submit to and comply with an assessment by an approved public treatment facility for an examination of the person's use of alcohol, controlled substances or controlled substance analogs, or tetrahydrocannabinols. The assessment order shall comply with s. 343.30 (1q) (c) 1. a. to c. Intentional failure to comply with an assessment ordered under this paragraph constitutes contempt of court, punishable under ch. 785.

AB810,19 Section 19. 25.56 of the statutes is created to read: