Under current law, a person who has a valid prescription and certain others
may lawfully possess a controlled substance. This bill establishes a medical
necessity defense to THC-related prosecutions and property seizure (forfeiture)
actions. Under the bill, a person has a medical need for THC if all of the following
apply:
1. The person is: a) undergoing chemotherapy for treatment of cancer; b)
suffering from glaucoma; c) has tested positive for the human immunodeficiency
virus or has acquired immunodeficiency syndrome; or d) is suffering from an illness
that is acute, chronic, incurable or terminal.
2. Conventional treatment of the illness is either not effective for the person
or is causing severe side effects.

3. A physician informs the person in writing that the use of THC may help to
treat the illness, to relieve symptoms of or pain caused by the illness or to relieve side
effects of other treatment for the illness.
The medical necessity defense is available both to the person who has the
medical need and to persons who manufacture, distribute or deliver, or possesses
with intent to manufacture, distribute or deliver, THC to a person who has a medical
need for THC. If a person is determined to be exempt from the tax on dealers of THC
(see below), he or she is presumed to have a medical necessity defense unless the
state can prove beyond a reasonable doubt that the person's conduct exceeded the
scope of the exemption or that the medical necessity no longer exists. If a person has
not been determined to be exempt from the tax on dealers of THC and there is
evidence presented at a trial that the medical necessity defense applies to the person,
the person cannot be found guilty unless the prosecutor proves beyond a reasonable
doubt that the facts constituting the defense do not exist.
Tax on dealers of THC
Under current law, a dealer of THC (a person who possesses, manufactures,
produces, ships, transports, delivers, distributes, imports, sells or transfers to
another person more than 42.5 grams of material containing THC or more than 5
plants containing THC) may not possess material or plants containing THC unless
he or she pays to the department of revenue (DOR) an occupational tax on the
material or plants containing THC. A dealer who pays the tax is issued a stamp or
other evidence of payment by DOR. A dealer who possesses material or plants
containing THC that does not bear evidence that the tax has been paid must pay a
penalty equal to the tax due and may also be fined not more than $10,000 or
imprisoned for not more than 5 years or both.
This bill provides an exemption from the occupational tax on dealers of THC for
the following persons: 1) a dealer who has a medical need for THC; and 2) a dealer
who is an immediate family member, legal guardian or primary caregiver of a person
with a medical need for THC and who possesses THC for the person with the medical
need for THC. The criteria for having a medical need for THC for purposes of the
occupational tax exemption are the same as those established by the bill for the
medical necessity defense to THC-related prosecutions (see above).
The bill also requires DOR to establish a procedure for a dealer to apply to DOR
for a determination of whether he or she is exempt from the occupational tax under
the bill. Under the procedure, the dealer has the burden of establishing that he or
she is exempt, and a dealer who is denied the exemption by DOR may appeal the
denial to the circuit court for Dane County. Information provided by a dealer in an
exemption determination proceeding must be kept confidential.
Finally, if a dealer did not apply to DOR for a determination of exemption or if
a dealer was determined not to be exempt by DOR or by the Dane County circuit
court, the dealer may still raise as a defense that he or she is exempt from the tax
if a proceeding is brought against the dealer for possessing THC without evidence
that the occupational tax has been paid. As with the medical necessity defense in
THC-related prosecutions, if there is evidence presented in the case that the dealer

is exempt from the occupational tax, DOR or the prosecutor, whichever is applicable,
must prove that the facts constituting the exemption do not exist.
Effect on federal law
This bill changes only state law regarding THC and marijuana. Federal law
generally prohibits persons from manufacturing, delivering or possessing THC or
marijuana, classifies THC and marijuana as schedule I substances and applies to
both intrastate and interstate violations.
For further information see the state 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:
AB560, s. 1 1Section 1. 59.54 (25) of the statutes is amended to read:
AB560,4,102 59.54 (25) Possession of marijuana. The board may enact and enforce an
3ordinance to prohibit the possession of 25 grams or less of marijuana, as defined in
4s. 961.01 (14), subject to the exceptions in s. 961.41 (3g) (intro.) and to the defense
5specified in s. 961.437
, and provide a forfeiture for a violation of the ordinance; except
6that any person who is charged with possession of more than 25 grams of marijuana,
7or who is charged with possession of any amount of marijuana following a conviction
8for possession of marijuana, in this state shall not be prosecuted under this
9subsection. Any ordinance enacted under this subsection does not apply in any
10municipality that has enacted an ordinance prohibiting the possession of marijuana.
AB560, s. 2 11Section 2. 66.051 (1) (bm) of the statutes is amended to read:
AB560,5,212 66.051 (1) (bm) Enact and enforce an ordinance to prohibit the possession of
1325 grams or less of marijuana, as defined in s. 961.01 (14), subject to the exceptions
14in s. 961.41 (3g) (intro.) and to the defense specified in s. 961.437, and provide a
15forfeiture for a violation of the ordinance; except that any person who is charged with
16possession of more than 25 grams of marijuana, or who is charged with possession

1of any amount of marijuana following a conviction for possession of marijuana, in this
2state shall not be prosecuted under this paragraph; and
AB560, s. 3 3Section 3. 139.87 (4g) of the statutes is created to read:
AB560,5,54 139.87 (4g) "Immediate family member" has the meaning given in s. 254.64 (4)
5(a).
AB560, s. 4 6Section 4. 139.87 (4r) of the statutes is created to read:
AB560,5,87 139.87 (4r) "Primary caregiver" means an individual who has assumed
8responsibility for the housing, health or safety of another.
AB560, s. 5 9Section 5. 139.87 (7) of the statutes is amended to read:
AB560,5,1110 139.87 (7) "Tetrahydrocannabinols" means a substance included in s. 961.14
11(4) (t)
961.18 (4) (c).
AB560, s. 6 12Section 6. 139.885 of the statutes is created to read:
AB560,5,15 13139.885 Medical need; exemption from tax. (1) A dealer is exempt from
14the occupational tax under s. 139.88 on material containing tetrahydrocannabinols
15or plants containing tetrahydrocannabinols if one of the following applies:
AB560,5,1716 (a) The dealer has a medical need to possess tetrahydrocannabinols under sub.
17(2).
AB560,5,2318 (b) The dealer is an immediate family member, legal guardian or, subject to sub.
19(2m), primary caregiver of a person who has a medical need to possess
20tetrahydrocannabinols under sub. (2) and the dealer is possessing, manufacturing,
21producing or importing tetrahydrocannabinols for, or shipping, transporting,
22delivering, distributing, selling or transferring tetrahydrocannabinols to, the person
23who has the medical need to possess tetrahydrocannabinols under sub. (2).
AB560,5,25 24(2) A person has a medical need to possess tetrahydrocannabinols if all of the
25following conditions are satisfied:
AB560,6,1
1(a) One or more of the following applies to the person:
AB560,6,22 1. He or she is undergoing chemotherapy for treatment of cancer.
AB560,6,33 2. He or she is suffering from glaucoma.
AB560,6,74 3. He or she has tested positive for the presence of the human
5immunodeficiency virus, antigen or nonantigen products of the human
6immunodeficiency virus or an antibody to the human immunodeficiency virus, or he
7or she is suffering from acquired immunodeficiency syndrome.
AB560,6,98 4. He or she is suffering from an illness, other than an illness specified in subds.
91. to 3., that is acute, chronic, incurable or terminal.
AB560,6,1310 (b) Conventional treatment for the condition or illness specified in par. (a) is
11not effective for the person or the person is suffering severe side effects from
12conventional treatment that is proving effective for the condition or illness specified
13in par. (a).
AB560,6,1814 (c) A physician, acting under s. 448.30, informs the person in writing that the
15use of tetrahydrocannabinols may help control or treat the condition or illness
16specified in par. (a), relieve any symptoms of or any pain caused by the condition or
17illness or relieve any side effects of conventional treatment that the person is
18receiving for the condition or illness.
AB560,6,24 19(2m) A dealer is exempt under sub. (1) as a primary caregiver of a person who
20has a medical need for tetrahydrocannabinols under sub. (2) only if the person who
21has the medical need designates, in a letter to the physician specified in sub. (2) (c),
22that the dealer is his or her primary caregiver. A physician receiving a letter of
23designation under this subsection shall retain the letter in the patient's medical
24records.
AB560,7,8
1(3) The department shall establish a procedure by which a dealer may apply
2for a determination that the dealer is exempt from the occupational tax for
3tetrahydrocannabinols under sub. (1). In the procedure established under this
4subsection, the dealer has the burden of proving by a preponderance of the evidence
5that he or she is exempt under sub. (1). The procedure established under this
6subsection shall include an opportunity for the dealer who applies for the
7determination of exemption to submit evidence that he or she is exempt under sub.
8(1).
AB560,7,17 9(4) A dealer may appeal an adverse determination of exemption by the
10department under sub. (3) to the circuit court for Dane County. Notwithstanding ss.
11801.09 (1), 801.095, 802.04 (1) and 815.05 (intro.), in an appeal brought under this
12subsection the dealer may substitute his or her initials, or fictitious initials, and his
13or her age and county of residence for his or her name and address on the summons
14and complaint. The dealer or the dealer's attorney shall supply the court the name
15and other necessary identifying information of the dealer. The court shall maintain
16the name and other identifying information, and supply the information to the
17department, in a manner which maintains the confidentiality of the information.
AB560,8,2 18(5) Unless the information was also obtained independently of the procedure
19or appeal, information obtained by the department in an application procedure
20under sub. (3) and information obtained in an appeal of an adverse determination
21under sub. (4) may not be used by the department to assess or collect any tax, penalty
22or interest due under this subchapter and may not be used against the dealer in any
23criminal or civil proceeding. A court may issue an injunction to prevent or delay the
24levying, assessment or collection of taxes or penalties under this subchapter if the

1levy, assessment or collection is based on information used in violation of this
2subsection.
AB560, s. 7 3Section 7. 139.89 of the statutes is amended to read:
AB560,8,21 4139.89 (title) Proof of payment or exemption. The department shall create
5a uniform system of providing, affixing and displaying stamps, labels or other
6evidence that the tax under s. 139.88 has been paid or that the dealer is exempt from
7tax under s. 139.885 (1)
. Stamps or other evidence of payment shall be sold at face
8value. Evidence of exemption under s. 139.885 (1) shall be issued without charge to
9a dealer who is determined to be exempt using the procedure under s. 139.885 (3).

10No dealer may possess any schedule I controlled substance or, any schedule II
11controlled substance or any plants or other material containing
12tetrahydrocannabinols
unless the tax under s. 139.88 has been paid on it, as
13evidenced by a stamp or other official evidence issued by the department , or unless
14the dealer is exempt from tax under s. 139.885 (1)
. The tax under this subchapter
15is due and payable immediately upon acquisition or possessing of the schedule I
16controlled substance or, schedule II controlled substance or plants or other material
17containing tetrahydrocannabinols
in this state, unless the dealer is exempt from tax
18under s. 139.885 (1),
and the department at that time has a lien on all of the
19taxpayer's property. Late payments are subject to interest at the rate of 1% per
20month or part of a month. No person may transfer to another person a stamp or other
21evidence of payment or any evidence of exemption under s. 139.885 (1).
AB560, s. 8 22Section 8. 139.90 (title) of the statutes is amended to read:
AB560,8,23 23139.90 (title) No Limited immunity; presumption.
AB560, s. 9 24Section 9. 139.90 of the statutes is renumbered 139.90 (1).
AB560, s. 10 25Section 10. 139.90 (2) and (3) of the statutes are created to read:
AB560,9,3
1139.90 (2) A dealer to whom the department has issued evidence of exemption
2under s. 139.885 (1) is immune from collection action under s. 139.95 (1) and criminal
3prosecution under s. 139.95 (2).
AB560,9,7 4(3) Acquisition of evidence of exemption under s. 139.885 (1) does not create
5immunity for a dealer from criminal prosecution under ch. 961 but does provide the
6presumption under s. 961.437 (5) (a) that the medical necessity defense under s.
7961.437 applies to the dealer.
AB560, s. 11 8Section 11. 139.91 of the statutes is renumbered 139.91 (1) and amended to
9read:
AB560,9,1210 139.91 (1) The department may not reveal facts obtained in administering this
11subchapter, except that the department may publish statistics that do not reveal the
12identities of dealers.
AB560,9,16 13(2) Dealers may not be required to provide any identifying information in
14connection with the purchase of stamps, but dealers may be required to provide
15identifying information in connection with an application for exemption under s.
16139.885 (1)
. No information
AB560,9,19 17(3) (a) Except as provided in par. (b) and s. 139.885 (5), information obtained
18by the department may be used against a dealer in any criminal proceeding unless
19only if that information has been independently obtained, except in.
AB560,9,24 20(b) The department may use information obtained in administering this
21subchapter, other than information specified in s. 139.885 (5), in
connection with a
22proceeding involving possession of schedule I controlled substances or schedule II
23controlled substances on which the tax has not been paid or in connection with taxes
24due under s. 139.88 from the dealer.
AB560, s. 12
1Section 12. 139.92 of the statutes is renumbered 139.92 (1) and amended to
2read:
AB560,10,123 139.92 (1) For Except as provided in sub. (2), for the purposes of determining
4the amount of tax that should have been paid, determining whether or not the dealer
5should have paid taxes or collecting any taxes under s. 139.88, the department may
6examine, or cause to be examined, any books, papers, records or memoranda that
7may be relevant to making those determinations, whether the books, papers, records
8or memoranda are the property of or in the possession of the dealer or another person.
9The department may require the attendance of any person having knowledge or
10information that may be relevant, compel the production of books, papers, records
11or memoranda by persons required to attend, take testimony on matters material to
12the determination, issue subpoenas and administer oaths or affirmations.
AB560, s. 13 13Section 13. 139.92 (2) of the statutes is created to read:
AB560,10,1914 139.92 (2) For the purpose of determining whether or not a dealer is exempt
15under s. 139.885 (1), the department may examine, cause to be examined or compel
16the production of only those parts of the medical records of the dealer or of the person
17with the medical need that relate to whether the dealer or the person with the
18medical need satisfies the requirements under s. 139.885 (2) and, if applicable, s.
19139.885 (2m).
AB560, s. 14 20Section 14. 139.93 (1) of the statutes is amended to read:
AB560,10,2421 139.93 (1) The taxes, penalties and interest under this subchapter shall be
22assessed, collected and reviewed as are income taxes under ch. 71, except that
23applications for determination of exemption shall be reviewed as provided under s.
24139.885
.
AB560, s. 15 25Section 15. 139.93 (2) of the statutes is amended to read:
AB560,11,25
1139.93 (2) If Except as provided in s. 139.885, if the department finds that the
2collection of the tax under this subchapter is jeopardized by delay, the department
3may issue, in person or by registered mail to the last-known address of the taxpayer,
4a notice of its intent to proceed under this subsection, may make a demand for
5immediate payment of the taxes, penalties and interest due and may proceed by the
6methods under s. 71.91 (5) and (6). If the taxes, penalties and interest are not
7immediately paid, the department may seize any of the taxpayer's assets.
8Immediate seizure of assets does not nullify the taxpayer's right to a hearing on the
9department's determination that the collection of the assessment will be jeopardized
10by delay, nor does it nullify the taxpayer's right to post a bond. Within 5 days after
11giving notice of its intent to proceed under this subsection, the department shall, by
12mail or in person, provide the taxpayer in writing with its reasons for proceeding
13under this subsection. The warrant of the department shall not issue and the
14department may not take other action to collect if the taxpayer within 10 days after
15the notice of intent to proceed under this subsection is given furnishes a bond in the
16amount, not exceeding double the amount of the tax, and with such sureties as the
17department of revenue approves, conditioned upon the payment of so much of the
18taxes as shall finally be determined to be due, together with interest thereon. Within
1920 days after notice of intent to proceed under this subsection is given by the
20department of revenue, the person against whom the department intends to proceed
21under this subsection may appeal to the department the department's determination
22that the collection of the assessment will be jeopardized by delay. Any statement that
23the department files may be admitted into evidence and is prima facie evidence of
24the facts it contains. Taxpayers may appeal adverse determinations by the
25department to the circuit court for Dane county.
AB560, s. 16
1Section 16. 139.93 (3) of the statutes is amended to read:
AB560,12,42 139.93 (3) The taxes and penalties assessed by the department are presumed
3to be valid and correct. The Except as provided in s. 139.955 (2) and (3), the burden
4is on the taxpayer to show their invalidity or incorrectness.
AB560, s. 17 5Section 17. 139.93 (5) of the statutes is amended to read:
AB560,12,86 139.93 (5) No Except as provided in s. 139.885 (5), no court may issue an
7injunction to prevent or delay the levying, assessment or collection of taxes or
8penalties under this subchapter.
AB560, s. 18 9Section 18. 139.95 of the statutes is amended to read:
AB560,12,16 10139.95 Penalties. (1) Any dealer who possesses a schedule I controlled
11substance or, a schedule II controlled substance or plants or other material
12containing tetrahydrocannabinols
that does do not bear evidence that the tax under
13s. 139.88 has been paid or that the dealer is exempt under s. 139.885 (1) shall pay,
14in addition to the tax under s. 139.88, a penalty equal to the tax due. The department
15shall collect penalties under this subchapter in the same manner as it collects the tax
16under this subchapter.
AB560,12,21 17(2) A dealer who possesses a schedule I controlled substance or, a schedule II
18controlled substance or plants or other material containing tetrahydrocannabinols
19that does do not bear evidence that the tax under s. 139.88 has been paid or that the
20dealer is exempt under s. 139.885 (1)
may be fined not more than $10,000 or
21imprisoned for not more than 5 years or both.
AB560,13,5 22(3) Any person who falsely or fraudulently makes, alters or counterfeits any
23stamp or procures or causes the same to be done or who knowingly utters, publishes,
24passes or tenders as true any false, altered or counterfeit stamp or who affixes a
25counterfeit stamp to a schedule I controlled substance or , a schedule II controlled

1substance or plants or other material containing tetrahydrocannabinols or who
2possesses a schedule I controlled substance or, a schedule II controlled substance or
3plants or other material containing tetrahydrocannabinols
to which a false, altered
4or counterfeit stamp is affixed may be fined not more than $10,000 or imprisoned for
5not less than one year nor more than 10 years or both.
AB560, s. 19 6Section 19. 139.955 of the statutes is created to read:
AB560,13,12 7139.955 Medical necessity defense in cases involving
8tetrahydrocannabinols.
(1) A dealer has a defense to any proceeding brought
9against the dealer under s. 139.95 (1) or (2) relating to the possession, manufacture,
10production, shipping, transporting, delivery, importation, sale or transfer of
11tetrahydrocannabinols that he or she is exempt from the tax under s. 139.885. A
12dealer may raise the defense under this subsection even if any of the following apply:
AB560,13,1413 (a) The dealer did not apply for a determination of exemption under s. 139.885
14(3).
AB560,13,1715 (b) The dealer applied for a determination of exemption under s. 139.885 (3)
16and the department or, if the dealer appealed under s. 139.885 (4), a court
17determined that the dealer was not exempt under s. 139.885.
AB560,13,21 18(2) When the existence of a defense under sub. (1) has been placed in issue by
19the evidence in a proceeding to collect a penalty under s. 139.95 (1), the department
20must prove by clear and convincing evidence that the facts constituting the defense
21do not exist in order to collect the penalty specified under s. 139.95 (1).
AB560,13,25 22(3) When the existence of a defense under sub. (1) has been placed in issue by
23the evidence in a prosecution under s. 139.95 (2), the state must prove beyond a
24reasonable doubt that the facts constituting the defense do not exist in order to
25sustain a finding of guilt under s. 139.95 (2).
AB560, s. 20
1Section 20. 938.34 (14t) of the statutes is amended to read:
AB560,14,162 938.34 (14t) Possession of a controlled substance or controlled substance
3analog on or near certain premises.
If the juvenile is adjudicated delinquent under
4a violation of s. 961.41 (3g) by possessing or attempting to possess a controlled
5substance included in schedule I or II under ch. 961 or , a controlled substance analog
6of a controlled substance included in schedule I or II under ch. 961 or a controlled
7substance included in s. 961.18 (4) (c)
while in or on the premises of a scattered-site
8public housing project, as defined in s. 961.01 (20i), while in or on or otherwise within
91,000 feet of a state, county, city, village or town park, a jail or correctional facility,
10as defined in s. 961.01 (12m), a multiunit public housing project, as defined in s.
11961.01 (14m), a swimming pool open to members of the public, a youth center, as
12defined in s. 961.01 (22), or a community center, while in or on or otherwise within
131,000 feet of any private or public school premises or while in or on or otherwise
14within 1,000 feet of a school bus, as defined in s. 340.01 (56), the court shall require
15that the juvenile participate for 100 hours in a supervised work program or other
16community service work under sub. (5g).
AB560, s. 21 17Section 21. 961.14 (4) (t) of the statutes is renumbered 961.18 (4) (c) and
18amended to read:
AB560,14,2119 961.18 (4) (c) Tetrahydrocannabinols, commonly known as "THC", in any form
20including tetrahydrocannabinols contained in marijuana, obtained from marijuana
21or chemically synthesized;.
AB560, s. 22 22Section 22. 961.18 (4) (intro.) of the statutes is amended to read:
AB560,15,323 961.18 (4) Other substances. (intro.) Any material, compound, mixture or
24preparation which contains any quantity of any of the following substances,
25including any of their salts, isomers and salts of isomers that are theoretically

1possible within the specific chemical designation, in any form including a substance,
2salt, isomer or salt of an isomer contained in a plant, obtained from a plant or
3chemically synthesized
:
AB560, s. 23 4Section 23. 961.41 (1) (b) of the statutes is amended to read:
AB560,15,85 961.41 (1) (b) Except as provided in pars. (cm) and (e) to (h) (g), any other
6controlled substance included in schedule I, II or III, or a controlled substance analog
7of any other controlled substance included in schedule I or II, may be fined not more
8than $15,000 or imprisoned for not more than 5 years or both.
AB560, s. 24 9Section 24. 961.41 (1) (h) of the statutes is repealed.
AB560, s. 25 10Section 25. 961.41 (1m) (b) of the statutes is amended to read:
AB560,15,1411 961.41 (1m) (b) Except as provided in pars. (cm) and (e) to (h) (g), any other
12controlled substance included in schedule I, II or III, or a controlled substance analog
13of any other controlled substance included in schedule I or II, may be fined not more
14than $15,000 or imprisoned for not more than 5 years or both.
AB560, s. 26 15Section 26. 961.41 (1m) (h) of the statutes is repealed.
AB560, s. 27 16Section 27. 961.41 (1q) (title) of the statutes is repealed.
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