AB715: Bill Text

LRB-2442/1

MGD:kmg:kjf

2001 - 2002 LEGISLATURE

2001 Assembly BILL 715

January 14, 2002 - Introduced by Representatives Boyle, Pocan, Skindrud, Sherman, Schneider, Berceau, Gronemus, Carpenter, Miller and Plouff. Referred to Committee on Criminal Justice.

AB715,1,9 An Act to renumber 961.01 (1); to renumber and amend 59.54 (25), 961.55 (8), 968.19 and 968.20 (1); to amend 60.23 (21), 66.0107 (1) (bm), 173.12 (1m), 289.33 (3) (d), 349.02 (2) (b) 4., 961.555 (2) (a), 961.56 (1), 968.20 (3) (a) and 968.20 (3) (b); and to create 59.54 (25) (b) 2., 59.54 (25) (b) 3., 961.01 (1g), 961.01 (5m), 961.01 (11t), 961.01 (14g), 961.01 (19m), 961.01 (20hm), 961.01 (20t), 961.01 (21t), 961.37, 961.436, 961.55 (8) (b), 961.55 (8) (c), 961.555 (2) (e), 961.555 (2m), 961.5755, 968.073, 968.12 (5), 968.19 (2), 968.20 (1d) and 968.20 (1j) of the statutes; relating to: medical use of marijuana, requiring the exercise of rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill makes the following changes to current law with respect to marijuana (also known as tetrahydrocannabinols):

Current prohibitions and penalties

Current law prohibits the manufacture, distribution, and delivery of marijuana 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 500 grams or less or ten or fewer marijuana plants, the person must be fined not less than $500 nor more than $25,000 and may be imprisoned for not more than four years and six months. If the crime involves more than 500 grams but not more than 2,500 grams or more than ten plants but not more than 50 plants, the person must be fined not less than $1,000 nor more than $50,000 and must be imprisoned for not less than three months nor more than seven years and six months. If the crime involves more than 2,500 grams or more than 50 plants, the person must be fined not less than $1,000 nor more than $100,000 and must be imprisoned for not less than one year nor more than 15 years.

Current law also prohibits a person from possessing or attempting to possess marijuana. A person who violates this prohibition may be fined not more than $5,000 or imprisoned for not more than two years or both. In addition, a town, village, city, or county may enact an ordinance that prohibits the possession of 25 grams or less of marijuana. A person who violates the ordinance is subject to a forfeiture.

Current law also contains certain prohibitions regarding drug paraphernalia, which includes equipment, products, and materials used to produce, distribute, and use controlled substances, such as marijuana. Under current law, a person who uses drug paraphernalia or who possesses it with the primary intent to use it to produce, distribute, or use a controlled substance unlawfully may be fined not more than $500 or 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 unlawfully, may be fined not more than $1,000 or 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 property seizure (forfeiture) actions. A person may invoke this defense if he or she is a qualifying patient -- that is, someone having or undergoing a debilitating medical condition or treatment. The bill defines a debilitating medical condition to mean any of the following: 1) cancer, glaucoma, AIDS, a positive HIV test, 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 cachexia (wasting away), severe pain, severe nausea, seizures, or severe and persistent muscle spasms; 3) any other medical condition or any other treatment for a medical condition designated as a debilitating medical condition or treatment in rules promulgated by the department of health and family services (DHFS).

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 a reasonable amount of marijuana is involved. If a person has a statement 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 (a "written certification"), the person is presumed to have this defense if no more than a reasonable 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 written certification. This prohibition, however, only applies if no more than a reasonable 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 under the following circumstances: 1) the person drives or operates a motor vehicle while under the influence of marijuana; 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; 3) the person smokes marijuana on a bus, at the person's 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 also apply to a primary caregiver for any qualifying patient (regardless of the qualifying patient's age), 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 also apply to offenses involving drug paraphernalia if the qualifying patient uses the drug paraphernalia for the medical use of marijuana.

Registered marijuana distribution organizations

The bill authorizes certain nonprofit corporations to deliver or distribute tetrahydrocannabinols or drug paraphernalia or possess or manufacture them with the intent to deliver or distribute them to facilitate the medical use of marijuana. Such an organization may only deliver or distribute marijuana or drug paraphernalia to a qualifying patient or a qualifying patient's primary caregiver to facilitate the qualifying patient's medical use of marijuana, and only after verifying the validity of the qualifying patient's written certification. A nonprofit corporation is eligible to engage in these activities if it is organized for the purpose of manufacturing, delivering, distributing, or possessing marijuana, drug paraphernalia, and educational materials to facilitate the medical use of marijuana. It may not employ or utilize the services of any person who has been convicted of a drug offense or obtain marijuana from outside the state in violation of federal law. The organization must register annually with DHFS.

Effect on federal law

This bill changes only state law regarding marijuana. Federal law 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:

AB715, s. 1 Section 1. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended to read:

AB715,4,12 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).

AB715,4,15 (b) 1. Any ordinance enacted under this subsection par. (a) does not apply in any municipality that has enacted an ordinance prohibiting the possession of marijuana.

AB715, s. 2 Section 2. 59.54 (25) (b) 2. of the statutes is created to read:

AB715,5,3 59.54 (25) (b) 2. A person may not be prosecuted under an ordinance enacted under par. (a) if, under s. 968.073 (2), the person would not be subject to prosecution under s. 961.41 (3g) (e).

AB715, s. 3 Section 3. 59.54 (25) (b) 3. of the statutes is created to read:

AB715,5,8 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).

AB715, s. 4 Section 4. 60.23 (21) of the statutes is amended to read:

AB715,5,16 60.23 (21) Drug paraphernalia. Adopt an ordinance to prohibit conduct that is the same as that prohibited by s. 961.573 (2), 961.574 (2) or 961.575 (2). Any ordinance enacted under this subsection shall provide a person prosecuted under it with the defenses that the person has under s. 961.5755 to prosecutions under s. 961.573 (1), 961.574 (1), or 961.575 (1). A person may not be prosecuted under an ordinance enacted under this subsection if, under s. 968.073 (3), the person would not be subject to prosecution under s. 961.573 (2) or 961.574 (2).

AB715, s. 5 Section 5. 66.0107 (1) (bm) of the statutes is amended to read:

AB715,6,4 66.0107 (1) (bm) 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 this paragraph and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance; except that any. Any ordinance enacted under this paragraph shall provide a person 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). A person may not be prosecuted under an ordinance enacted under this paragraph if, under s. 968.073 (2), the person would not be subject to prosecution under s. 961.41 (3g) (e). 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 shall not may be prosecuted under this paragraph.

AB715, s. 6 Section 6. 173.12 (1m) of the statutes is amended to read:

AB715,6,12 173.12 (1m) If an animal has been seized because it is alleged that the animal has been used in or constitutes evidence of any crime specified in s. 951.08, the animal may not be returned to the owner by an officer under s. 968.20 (2). In any hearing under s. 968.20 (1) (1f), the court shall determine if the animal is needed as evidence or there is reason to believe that the animal has participated in or been trained for fighting. If the court makes such a finding, the animal shall be retained in custody.

AB715, s. 7 Section 7. 289.33 (3) (d) of the statutes is amended to read:

AB715,7,5 289.33 (3) (d) "Local approval" includes any requirement for a permit, license, authorization, approval, variance or exception or any restriction, condition of approval or other restriction, regulation, requirement or prohibition imposed by a charter ordinance, general ordinance, zoning ordinance, resolution or regulation by a town, city, village, county or special purpose district, including without limitation because of enumeration any ordinance, resolution or regulation adopted under s. 59.03 (2), 59.11 (5), 59.42 (1), 59.48, 59.51 (1) and (2), 59.52 (2), (5), (6), (7), (8), (9), (11), (12), (13), (15), (16), (17), (18), (19), (20), (21), (22), (23), (24), (25), (26) and (27), 59.53 (1), (2), (3), (4), (5), (7), (8), (9), (11), (12), (13), (14), (15), (19), (20) and (23), 59.535 (2), (3) and (4), 59.54 (1), (2), (3), (4), (4m), (5), (6), (7), (8), (10), (11), (12), (16), (17), (18), (19), (20), (21), (22), (23), (24), (25) (a), and (26), 59.55 (3), (4), (5) and (6), 59.56 (1), (2), (4), (5), (6), (7), (9), (10), (11), (12), (12m), (13) and (16), 59.57 (1), 59.58 (1) and (5), 59.62, 59.69, 59.692, 59.693, 59.696, 59.697, 59.698, 59.70 (1), (2), (3), (5), (7), (8), (9), (10), (11), (21), (22) and (23), 59.79 (1), (2), (3), (4), (5), (6), (7), (8), (10) and (11), 59.792 (2) and (3), 59.80, 59.82, 60.10, 60.22, 60.23, 60.54, 60.77, 61.34, 61.35, 61.351, 61.354, 62.11, 62.23, 62.231, 62.234, 66.0101, 66.0415, 87.30, 91.73, 196.58, 200.11 (8), 236.45, 281.43 or 349.16 or subch. VIII of ch. 60.

AB715, s. 8 Section 8. 349.02 (2) (b) 4. of the statutes is amended to read:

AB715,7,8 349.02 (2) (b) 4. Local ordinances enacted under s. 59.54 (25) (a), 60.23 (21) or 66.0107 (1) (bm).

AB715, s. 9 Section 9. 961.01 (1) of the statutes is renumbered 961.01 (1m).

AB715, s. 10 Section 10. 961.01 (1g) of the statutes is created to read:

AB715,7,13 961.01 (1g) "Adequate supply" means an amount of tetrahydrocannabinols that is not more than is reasonably necessary to ensure the uninterrupted availability of tetrahydrocannabinols for their medical use by a treatment team.

AB715, s. 11 Section 11. 961.01 (5m) of the statutes is created to read:

AB715,7,16 961.01 (5m) "Debilitating medical condition or treatment" means any of the following:

AB715,7,19 (a) Cancer, glaucoma, acquired immunodeficiency syndrome, a positive test for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV, or the treatment of these conditions.

AB715,7,22 (b) A chronic or debilitating disease or medical condition or the treatment of such a disease or condition that causes cachexia, severe pain, severe nausea, seizures, or severe and persistent muscle spasms.