LRBs0095/4
MGD:wlj:jf
2005 - 2006 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 2,
TO 2005 SENATE BILL 78
May 6, 2005 - Offered by Senator Harsdorf.
SB78-SSA2,2,2 1An Act to renumber 961.437, 961.49, 961.61 and 961.62; to renumber and
2amend
450.07 (4) (b); to amend 101.10 (title), 895.555 (1), 938.34 (14s) (am)
3(intro.), 939.62 (2m) (a) 2m. d., 939.62 (2m) (d), 961.11 (6) (a), 961.22 (3) (title),
4961.23 (1), 961.23 (2), 961.23 (3), 961.23 (4), 961.23 (5) and 961.49 (title); and
5to create 101.10 (3) (f), 111.335 (1) (cs) 5., 125.12 (2) (ag) 5m., 125.12 (2) (ag)
66m., 125.12 (4) (ag) 7m., 125.12 (4) (ag) 8m., 450.07 (4) (b) 1., 450.07 (4) (b) 2.,
7939.32 (1) (g), 939.62 (2m) (a) 2m. am., 961.01 (11t), 961.01 (12t), 961.01 (20c),
8961.01 (20e), 961.22 (2m), 961.23 (6), 961.23 (8), 961.235, 961.41 (3j), 961.452,
9961.453, 961.49 (2m), 961.65, 973.017 (8) (a) 3. and 973.017 (8) (c) of the
10statutes; relating to: pseudoephedrine and other materials used to produce

1methamphetamine and rules regarding the storage of drugs and drug products
2and providing penalties.
Analysis by the Legislative Reference Bureau
This substitute amendment makes a number of changes in the law relating to
pseudoephedrine and other materials used to make the controlled substance
methamphetamine.
Classification of pseudoephedrine products as controlled substances
Under current law, each controlled substance is classified in one of five separate
schedules. The classification is based on: 1) whether there is a currently accepted
medical use for the drug; 2) the drug's potential for being abused; and 3) the nature
of the psychological or physical dependence that use of the drug may produce.
Controlled substances that have a high potential for abuse and no currently accepted
medical use are included in schedule I. Controlled substances that have an accepted
medical use and that have the lowest potential for abuse and produce the least
dependence when compared with other controlled substances are included in
schedule V. (Methamphetamine is included in schedule II.)
In general, a schedule I controlled substance may not be dispensed, even with
a prescription. A schedule II, III, or IV controlled substance may be dispensed, but
only with a prescription. A schedule V controlled substance may be dispensed
without a prescription, but only a registered pharmacist may sell it at retail and only
then, in most cases, in certain specified amounts. In addition, the pharmacist must
record the name and address of the purchaser of a schedule V controlled substance
and the quantity of the product sold.
Penalties for crimes relating to schedule I and II controlled substances are, in
general, more severe than those relating to other controlled substances. Penalties
for crimes relating to schedule V controlled substances are generally the least severe.
To illustrate, unlawful delivery of heroin (a schedule I controlled substance) is a
Class C, D, E, or F felony, depending on the amount of the drug involved, while
unlawful delivery of any schedule V controlled substance is a Class I felony,
regardless of the amount involved.
Under this substitute amendment, pseudoephedrine products are classified as
schedule V controlled substances. The substitute amendment defines a
"pseudoephedrine product" as any product containing pseudoephedrine unless: 1)
the Controlled Substances Board (CSB) has determined that the product cannot be
used readily in the manufacture of methamphetamine; or 2) the pseudoephedrine is
in a liquid or in a soft, liquid-filled gelatin capsule, but not if the CSB has determined
that the liquid or gelatin capsule can be used readily in the manufacture of
methamphetamine.
The substitute amendment also establishes a number of restrictions on the sale
of pseudoephedrine products in conjunction with its classification as a schedule V
controlled substance. First, no person may purchase more than seven and a half
grams of a pseudoephedrine product within a 30-day period (the "quantity

restriction"). Second, a person purchasing a pseudoephedrine product must present
a photo ID at the time of the purchase. Third, a pharmacist must sign a record of the
sale. Fourth, pharmacists must maintain records relating to sales of
pseudoephedrine products for at least two years in an electronic or paper format. The
records, however, are to be made available only to a pharmacist or a law enforcement
officer. Fifth, the substitute amendment prohibits a person from purchasing or
selling a pseudoephedrine product if the purchaser is under 18 (the "age restriction").
At the same time, the substitute amendment also creates an exception to the
requirement that all retail sales of schedule V controlled substances be made by a
registered pharmacist. Under the exception, a person working under the direction
of a registered pharmacist may sell pseudoephedrine products.
As noted above, the unlawful delivery of any schedule V controlled substance
is a Class I felony. (See the table near the end of this analysis for the penalties that
apply to felonies created in this substitute amendment.) This would include a sale
of a pseudoephedrine product in violation of any of the restrictions established under
current law or under the substitute amendment. But a person has a defense to such
a prosecution involving a pseudoephedrine product if the person did not knowingly
or recklessly violate the applicable restriction and either: 1) he or she reports it to
a law enforcement officer within 30 days thereafter; or 2) the violation stemmed from
the conduct of one or his or her employees, but only if the person had provided
training to the employee regarding those restrictions. The substitute amendment
also provides a defense to a prosecution based on a violation of the quantity
restriction for pseudoephedrine products if: 1) the purchaser presented a fake ID
that an ordinary and prudent person would think was legitimate; and 2) the sale was
made in good faith, in reasonable reliance on the ID card and the appearance of the
purchaser, and with the belief that the ID card contained the purchaser's true name
and address. In addition, the substitute amendment provides a defense to a
prosecution based on a violation of the age restriction for pseudoephedrine products
if: 1) the purchaser presented an ID card indicating that he or she was 18 or over; 2)
an ordinary and prudent person would believe that the purchaser, based on his or her
appearance, was 18 or over; and 3) the sale was made in good faith, in reasonable
reliance on the ID card and the appearance of the purchaser, and with the belief that
the purchaser was 18 or over. If a person raises one of these defenses, he or she must
prove each element by a preponderance of the evidence.
Additional crimes relating to pseudoephedrine purchases
The substitute amendment creates three new crimes related to
pseudoephedrine products. First, the substitute amendment prohibits a person from
purchasing more than seven and a half grams of a pseudoephedrine product within
a 30-day period, other than by purchasing it in person from a pharmacy or
pharmacist. A person who violates this prohibition is guilty of a Class I felony. This
prohibition does not apply to purchases by a physician, dentist, veterinarian, or
pharmacist or to purchases that are authorized by a physician, dentist, or
veterinarian. Second, the substitute amendment prohibits purchases of
pseudoephedrine products made to enable a person to avoid the quantity restriction.
A person who knowingly uses another person to do so is guilty of a Class I felony,

unless he or she uses an individual who is under 18 to do so. In that case, the person
is guilty of a Class H felony. Third, the substitute amendment prohibits a person
from purchasing a pseudoephedrine product on behalf of another person with intent
to facilitate another person's manufacture of methamphetamine. A person who
violates this prohibition is guilty of a Class I felony.
Possession of methamphetamine precursors
Current law generally prohibits possessing or disposing of waste resulting from
the manufacture of methamphetamine. This prohibition does not apply to legitimate
storage, treatment, or clean-up operations. A violation of this prohibition is a Class
F felony. Second and subsequent offenses are Class H felonies.
Current law also prohibits possessing or attempting to possess
methamphetamine itself. A violation of that prohibition is a Class I felony. In
addition, current law prohibits manufacturing, distributing, and delivering
methamphetamine and possessing methamphetamine with intent to manufacture,
distribute, or deliver. A violation of one of these prohibitions is a Class C, D, E, or
F felony, depending on the amount of the drug involved.
This substitute amendment prohibits possessing a variety of materials with
intent to manufacture methamphetamine. A person who violates this prohibition is
guilty of a Class H felony. The materials that are covered by this prohibition are
pseudoephedrine products, products containing ephedrine (a schedule IV controlled
substance), phenylpropanolamine, red phosphorus, lithium metal, sodium metal,
iodine, anhydrous ammonia, and pressurized ammonia. Possession of more than
nine grams of pseudoephedrine or ephedrine creates a rebuttable presumption of the
person's intent to manufacture methamphetamine.
In general, a person who is convicted of possessing the materials listed above
with intent to manufacture methamphetamine is subject to the same
disqualifications, disabilities, increased penalties, and other adverse or unfavorable
treatments as a person who is convicted of possessing a controlled substance with
intent to manufacture, distribute, or deliver ("possession with intent" crimes). For
example, like possession with intent crimes, this new offense is classified as a
"three-strikes" crime, which means that a person who is convicted of this crime and
two other offenses that are covered by the three-strikes statute is sentenced, upon
conviction for the last of those three offenses, to life imprisonment without the
possibility of parole or extended supervision.
Agricultural chemicals used to make methamphetamine
Current law prohibits the theft of anhydrous ammonia or equipment used to
apply anhydrous ammonia for an agricultural purpose or to store, hold, transport,
or transfer anhydrous ammonia (anhydrous ammonia equipment). Current law also
contains other prohibitions regarding storing, holding, transporting, and
transferring anhydrous ammonia. A person who violates one of these prohibitions
is guilty of a Class I felony (unless the violation occurs during agricultural activity
or while the person is working on anhydrous ammonia equipment with its owner's
consent, in which case the person is subject to a civil monetary penalty).
This substitute amendment prohibits a person from intentionally releasing
another person's anhydrous ammonia without the other person's consent. A person

who violates this prohibition is guilty of a Class I felony. The substitute amendment
also specifies that attempted theft of anhydrous ammonia or anhydrous ammonia
equipment is subject to the same penalties as those that apply to the completed
offense. (With most other crimes, an attempt is punishable by half of the fine and
half of the term of imprisonment that may be imposed for a completed offense.)
Rules regarding storage of certain schedule V controlled substances
Under current law, the Pharmacy Examining Board must adopt rules setting
minimum standards regarding manufacturing and distributing drugs. This
substitute amendment prohibits the Pharmacy Examining Board from adopting
rules that impose requirements regarding the storage of a controlled substance in a
safe, a steel cabinet, a vault, or any other secure storage compartment, area, room,
or building unless: 1) the controlled substance is included in schedule I, II, III, or IV;
or 2) the controlled substance is also a controlled substance under federal law.
(Under the substitute amendment, this prohibition would apply only to
pseudoephedrine products. All other controlled substances are included in schedule
I, II, III, or IV or are controlled substances under federal law.)
Penalties - See PDF for table PDF
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB78-SSA2, s. 1 1Section 1. 101.10 (title) of the statutes is amended to read:
SB78-SSA2,5,3 2101.10 (title) Storage and handling of anhydrous ammonia; theft of
3anhydrous ammonia and anhydrous ammonia equipment
.
SB78-SSA2, s. 2 4Section 2. 101.10 (3) (f) of the statutes is created to read:
SB78-SSA2,5,85 101.10 (3) (f) Intentionally release or allow the escape of anhydrous ammonia
6belonging to another into the atmosphere. This paragraph does not apply if the
7owner has authorized the actor to exercise control over the anhydrous ammonia or
8has consented to its release.
SB78-SSA2, s. 3 9Section 3. 111.335 (1) (cs) 5. of the statutes is created to read:
SB78-SSA2,6,3
1111.335 (1) (cs) 5. Possessing any of the materials listed in s. 961.65 with intent
2to manufacture methamphetamine under that section or under a federal law or a law
3of another state that is substantially similar to s. 961.65.
SB78-SSA2, s. 4 4Section 4. 125.12 (2) (ag) 5m. of the statutes is created to read:
SB78-SSA2,6,85 125.12 (2) (ag) 5m. The person has been convicted of possessing any of the
6materials listed in s. 961.65 with intent to manufacture methamphetamine under
7that subsection or under a federal law or a law of another state that is substantially
8similar to s. 961.65.
SB78-SSA2, s. 5 9Section 5. 125.12 (2) (ag) 6m. of the statutes is created to read:
SB78-SSA2,6,1210 125.12 (2) (ag) 6m. The person knowingly allows another person, who is on the
11premises for which the license under this chapter is issued, to possess any of the
12materials listed in s. 961.65 with the intent to manufacture methamphetamine.
SB78-SSA2, s. 6 13Section 6. 125.12 (4) (ag) 7m. of the statutes is created to read:
SB78-SSA2,6,1714 125.12 (4) (ag) 7m. That the licensee has been convicted of possessing any of
15the materials listed in s. 961.65 with intent to manufacture methamphetamine
16under that section or under a federal law or a law of another state that is
17substantially similar to s. 961.65.
SB78-SSA2, s. 7 18Section 7. 125.12 (4) (ag) 8m. of the statutes is created to read:
SB78-SSA2,6,2119 125.12 (4) (ag) 8m. That the licensee knowingly allows another person, who is
20on the premises for which the license under this chapter is issued, to possess any of
21the materials listed in s. 961.65 with the intent to manufacture methamphetamine.
SB78-SSA2, s. 8 22Section 8. 450.07 (4) (b) of the statutes is renumbered 450.07 (4) (b) (intro.)
23and amended to read:
SB78-SSA2,7,324 450.07 (4) (b) (intro.) The board shall adopt rules prescribing minimum
25standards for manufacturing and distributing drugs. Rules adopted under this

1paragraph may not impose requirements regarding the storage of a controlled
2substance in a safe, a steel cabinet, a vault, or any other secure storage compartment,
3area, room, or building unless one of the following applies:
SB78-SSA2, s. 9 4Section 9. 450.07 (4) (b) 1. of the statutes is created to read:
SB78-SSA2,7,65 450.07 (4) (b) 1. The controlled substance is included in schedule I, II, III, or
6IV under ch. 961.
SB78-SSA2, s. 10 7Section 10. 450.07 (4) (b) 2. of the statutes is created to read:
SB78-SSA2,7,98 450.07 (4) (b) 2. The controlled substance is also a controlled substance under
9federal law.
SB78-SSA2, s. 11 10Section 11. 895.555 (1) of the statutes is amended to read:
SB78-SSA2,7,1711 895.555 (1) Liability exemption. Except as provided under sub. (2), any person
12who owns, maintains, or installs anhydrous ammonia equipment, as defined in s.
13101.10 (1) (b), or who uses anhydrous ammonia for any legal purpose is immune from
14any civil liability for acts or omissions relating to the anhydrous ammonia equipment
15or to anhydrous ammonia that cause damage or injury to an individual, if that
16damage or injury occurs during the individual's violation of s. 101.10 (3) (c), (d), or
17(e), or (f).
SB78-SSA2, s. 12 18Section 12. 938.34 (14s) (am) (intro.) of the statutes is amended to read:
SB78-SSA2,7,2119 938.34 (14s) (am) (intro.) In addition to any other dispositions imposed under
20this section, if the juvenile is found to have violated s. 961.41 (1) or (1m) or 961.65,
21the court shall order one of the following penalties:
SB78-SSA2, s. 13 22Section 13. 939.32 (1) (g) of the statutes is created to read:
SB78-SSA2,7,2423 939.32 (1) (g) Whoever attempts to commit a crime under s. 101.10 (3) (e) is
24subject to the penalty for the completed act, as provided in s. 101.10 (4) (b).
SB78-SSA2, s. 14 25Section 14. 939.62 (2m) (a) 2m. am. of the statutes is created to read:
SB78-SSA2,8,1
1939.62 (2m) (a) 2m. am. A crime under s. 961.65.
SB78-SSA2, s. 15 2Section 15. 939.62 (2m) (a) 2m. d. of the statutes is amended to read:
SB78-SSA2,8,53 939.62 (2m) (a) 2m. d. A crime at any time under federal law or the law of any
4other state or, prior to April 28, 1994, under the law of this state that is comparable
5to a crime specified in this subd. 2m. a., am., b., or c.
SB78-SSA2, s. 16 6Section 16. 939.62 (2m) (d) of the statutes is amended to read:
SB78-SSA2,8,127 939.62 (2m) (d) If a prior conviction is being considered as being covered under
8par. (a) 1m. b. or 2m. d. as comparable to a felony specified under par. (a) 1m. a. or
92m. a., am., b., or c., the conviction may be counted as a prior conviction under par.
10(b) only if the court determines, beyond a reasonable doubt, that the violation
11relating to that conviction would constitute a felony specified under par. (a) 1m. a.
12or 2m. a., am., b., or c. if committed by an adult in this state.
SB78-SSA2, s. 17 13Section 17. 961.01 (11t) of the statutes is created to read:
SB78-SSA2,8,1614 961.01 (11t) "Ephedrine product" means any material, compound, mixture, or
15preparation that contains any quantity of ephedrine or any of its salts, isomers, and
16salts of isomers.
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