LRB-0741/1
MGD&GMM:kjf:jf
2005 - 2006 LEGISLATURE
March 18, 2005 - Introduced by Representatives Jeskewitz, Kessler, Grigsby, A.
Williams, Fields, Young, Toles, Benedict, Turner, Pocan, Colon
and
Berceau. Referred to Committee on Criminal Justice and Homeland Security.
AB255,1,7 1An Act to repeal 961.48 (3); to renumber and amend 961.41 (3g) (e); to amend
2938.17 (2) (c), 938.17 (2) (d), 938.17 (2) (e), 938.34 (14r) (a), 938.34 (14s) (a)
3(intro.), 938.344 (2e) (b), 938.344 (3), 961.41 (3g) (c), 961.41 (3g) (d), 961.475,
4961.48 (1) (intro.), 961.48 (2m) (a), 961.48 (2m) (b) 1., 961.48 (2m) (b) 2. and
5961.495; and to create 938.344 (2e) (am), 961.01 (4t), 961.01 (20m) and 961.41
6(3g) (e) 1. of the statutes; relating to: possession of marijuana and providing
7a penalty.
Analysis by the Legislative Reference Bureau
Current law prohibits the possession or attempted possession of marijuana
(tetrahydrocannabinol). In general, a person who violates this prohibition is guilty
of a misdemeanor and may be fined not more than $1,000 or imprisoned for not more
than six months or both. But if the person is convicted of possessing or attempting
to possess marijuana after having been convicted of any other controlled substance
crime, the person is guilty of a Class I felony. He or she may then be fined up to
$10,000 or sentenced to a term of imprisonment of up to three and one-half years
(which, if the sentence is for more than one year, includes a term of confinement and
a term of extended supervision) or both. More severe penalties apply if the person
is convicted of possessing or attempting to possess marijuana with intent to
manufacture, distribute, or deliver it.

Current law also authorizes counties and municipalities to enact ordinances
prohibiting the possession of 25 grams or less of marijuana. A violation of such an
ordinance is a civil offense punishable by a forfeiture (a civil fine). The ordinance,
however, cannot be used to prosecute a person who has previously been convicted of
possessing marijuana.
This bill converts certain possession-of-marijuana offenses under state law
from misdemeanors into civil offenses. Under the bill, if a person possesses or
attempts to possess 25 grams or less of marijuana, the person may be required to
forfeit not more than $1,000. Existing criminal penalties, however, still apply if: 1)
the person has previously been found to have committed a civil
possession-of-marijuana offense under state law; 2) the person has previously been
convicted of a separate controlled substance crime; or 3) the person has previously
been convicted of a felony.
Similarly, for juveniles, the bill converts possession or an attempt to possess 25
grams or less of marijuana from a delinquent act into a civil law violation, which is
punishable by suspension of the juvenile's operating privilege for not less than six
months nor more than five years and by a forfeiture of not more than $50 or the
juvenile's participation in community service work or both. Existing delinquency
dispositions, however, still apply if the juvenile has previously been found to have
possessed or attempted to possess 25 grams or less of marijuana, been convicted of
or adjudicated delinquent for a separate controlled substance crime, or been
convicted of or adjudicated delinquent for a felony.
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:
AB255, s. 1 1Section 1. 938.17 (2) (c) of the statutes is amended to read:
AB255,3,72 938.17 (2) (c) The citation procedures described in ch. 800 shall govern
3proceedings involving juveniles in municipal court, except that this chapter shall
4govern the taking and holding of a juvenile in custody and par. (cg) shall govern the
5issuing of a summons to the juvenile's parent, guardian, or legal custodian. When
6a juvenile is before the court assigned to exercise jurisdiction under this chapter and
7ch. 48 upon a citation alleging the juvenile to have violated a civil law or municipal

1ordinance, the procedures specified in s. 938.237 shall apply. If a citation is issued
2to a juvenile, the issuing agency shall notify the juvenile's parent, guardian, and
3legal custodian within 7 days. The agency issuing a citation to a juvenile who is 12
4to 15 years of age for a violation of s. 125.07 (4) (a) or (b), 125.085 (3) (b), 125.09 (2),
5961.41 (3g) (e) 1., 961.573 (2), 961.574 (2), or 961.575 (2) or an ordinance conforming
6to one of those statutes shall send a copy to an intake worker under s. 938.24 for
7informational purposes only.
AB255, s. 2 8Section 2. 938.17 (2) (d) of the statutes is amended to read:
AB255,3,239 938.17 (2) (d) If a municipal court finds that the juvenile violated a municipal
10ordinance other than an ordinance enacted under s. 118.163 or an ordinance that
11conforms to s. 125.07 (4) (a) or (b), 125.085 (3) (b), 125.09 (2), 961.41 (3g) (e) 1.,
12961.573 (2), 961.574 (2), or 961.575 (2), the court shall enter any of the dispositional
13orders permitted under s. 938.343 that are authorized under par. (cm). If a juvenile
14fails to pay the forfeiture imposed by the municipal court, the court may not impose
15a jail sentence but may suspend any license issued under ch. 29 for not less than 30
16days nor more than 5 years, or suspend the juvenile's operating privilege, as defined
17in s. 340.01 (40), for not more than 2 years. If a court suspends a license or privilege
18under this section, the court shall immediately take possession of the applicable
19license and forward it to the department that issued the license, together with the
20notice of suspension clearly stating that the suspension is for failure to pay a
21forfeiture imposed by the court. If the forfeiture is paid during the period of
22suspension, the court shall immediately notify the department, which shall
23thereupon return the license to the person.
AB255, s. 3 24Section 3. 938.17 (2) (e) of the statutes is amended to read:
AB255,4,4
1938.17 (2) (e) If a municipal court finds that a juvenile violated a municipal
2ordinance that conforms to s. 125.07 (4) (a) or (b), 125.085 (3) (b), 125.09 (2), 961.41
3(3g) (e) 1.,
961.573 (2), 961.574 (2), or 961.575 (2), the court shall enter a dispositional
4order under s. 938.344 that is authorized under par. (cm).
AB255, s. 4 5Section 4. 938.34 (14r) (a) of the statutes is amended to read:
AB255,4,126 938.34 (14r) (a) In addition to any other dispositions imposed under this
7section, if the juvenile is found to have violated adjudicated delinquent on the basis
8of a violation of
ch. 961, the court shall suspend the juvenile's operating privilege, as
9defined in s. 340.01 (40), for not less than 6 months nor more than 5 years. The court
10shall immediately take possession of any suspended license and forward it to the
11department of transportation together with the notice of suspension clearly stating
12that the suspension or revocation is for a violation of ch. 961.
AB255, s. 5 13Section 5. 938.34 (14s) (a) (intro.) of the statutes is amended to read:
AB255,4,1714 938.34 (14s) (a) (intro.) In addition to any other dispositions imposed under
15this section, if the juvenile is found to have violated adjudicated delinquent on the
16basis of a violation of
s. 961.41 (3g), the court shall order one of the following
17penalties:
AB255, s. 6 18Section 6. 938.344 (2e) (am) of the statutes is created to read:
AB255,5,619 938.344 (2e) (am) If a court finds a juvenile committed a violation under s.
20961.41 (3g) (e) 1. or a local ordinance that strictly conforms to that statute, the court
21shall suspend the juvenile's operating privilege, as defined in s. 340.01 (40), for not
22less than 6 months nor more than 5 years and, in addition, shall order a forfeiture
23of not more than $50 or the juvenile's participation in a supervised work program or
24other community service work under s. 938.34 (5g) or both. This paragraph does not
25apply if the juvenile violates s. 961.41 (3g) (e) 1. or a local ordinance that strictly

1conforms to that statute after having been found to have committed a violation
2punishable under this paragraph, after having been convicted of or adjudicated
3delinquent for a 2nd or subsequent controlled substance crime, as defined in s. 961.01
4(20m), or after having been convicted of or adjudicated delinquent for any felony. A
5violation punished under this paragraph counts as a violation for purposes of s.
6938.34 (14s) (a).
AB255,5,97 3. For a violation committed within 12 months of 2 or more previous violations,
8a forfeiture of not more than $500 or the juvenile's participation in a supervised work
9program or other community service work under s. 938.34 (5g) or both.
AB255, s. 7 10Section 7. 938.344 (2e) (b) of the statutes is amended to read:
AB255,5,1611 938.344 (2e) (b) Whenever a court suspends a juvenile's operating privilege
12under this subsection, the court shall immediately take possession of any suspended
13license and forward it to the department of transportation, together with the notice
14of suspension clearly stating that the suspension is for a violation under s. 961.41
15(3g) (e) 1.,
961.573 (2), 961.574 (2), or 961.575 (2), or a local ordinance that strictly
16conforms to one of those statutes.
AB255, s. 8 17Section 8. 938.344 (3) of the statutes is amended to read:
AB255,5,2518 938.344 (3) If the juvenile alleged to have committed the violation is within 3
19months of his or her 17th birthday, the court assigned to exercise jurisdiction under
20this chapter and ch. 48 may, at the request of the district attorney or on its own
21motion, dismiss the citation without prejudice and refer the matter to the district
22attorney for prosecution under s. 125.07 (4). The juvenile is entitled to a hearing only
23on the issue of his or her age. This subsection does not apply to violations under s.
24961.41 (3g) (e) 1., 961.573 (2), 961.574 (2), or 961.575 (2) or a local ordinance that
25strictly conforms to one of those statutes.
AB255, s. 9
1Section 9. 961.01 (4t) of the statutes is created to read:
AB255,6,52 961.01 (4t) "Controlled substance crime" means a felony or misdemeanor
3committed under this chapter or under any statute of the United States or of any
4state relating to controlled substances, controlled substance analogs, narcotic drugs,
5marijuana, or depressant, stimulant, or hallucinogenic drugs.
AB255, s. 10 6Section 10. 961.01 (20m) of the statutes is created to read:
AB255,6,97 961.01 (20m) "Second or subsequent controlled substance crime" means a
8controlled substance crime if, prior to the offender's conviction for the crime, the
9offender has at any time been convicted of another controlled substance crime.
AB255, s. 11 10Section 11. 961.41 (3g) (c) of the statutes is amended to read:
AB255,6,2111 961.41 (3g) (c) Cocaine and cocaine base. If a person possess possesses or
12attempts to possess cocaine or cocaine base, or a controlled substance analog of
13cocaine or cocaine base, the person shall be fined not more than $5,000 and may be
14imprisoned for not more than one year in the county jail upon a first conviction and
15is guilty of a Class I felony for if the offense is a 2nd or subsequent offense. For
16purposes of this paragraph, an offense is considered a 2nd or subsequent offense if,
17prior to the offender's conviction of the offense, the offender has at any time been
18convicted of any felony or misdemeanor under this chapter or under any statute of
19the United States or of any state relating to controlled substances, controlled
20substance analogs, narcotic drugs, marijuana, or depressant, stimulant, or
21hallucinogenic drugs
controlled substance crime.
AB255, s. 12 22Section 12. 961.41 (3g) (d) of the statutes is amended to read:
AB255,7,1023 961.41 (3g) (d) Certain hallucinogenic and stimulant drugs. If a person
24possesses or attempts to possess lysergic acid diethylamide, phencyclidine,
25amphetamine, methcathinone, psilocin or psilocybin, or a controlled substance

1analog of lysergic acid diethylamide, phencyclidine, amphetamine, methcathinone,
2psilocin or psilocybin, the person may be fined not more than $5,000 or imprisoned
3for not more than one year in the county jail or both upon a first conviction and is
4guilty of a Class I felony for if the offense is a 2nd or subsequent offense. For purposes
5of this paragraph, an offense is considered a 2nd or subsequent offense if, prior to the
6offender's conviction of the offense, the offender has at any time been convicted of any
7felony or misdemeanor under this chapter or under any statute of the United States
8or of any state relating to controlled substances, controlled substance analogs,
9narcotic drugs, marijuana, or depressant, stimulant, or hallucinogenic drugs

10controlled substance crime.
AB255, s. 13 11Section 13. 961.41 (3g) (e) of the statutes is renumbered 961.41 (3g) (e) (intro.)
12and amended to read:
AB255,7,1513 961.41 (3g) (e) (intro.) If a person possesses or attempts to possess
14tetrahydrocannabinols included under s. 961.14 (4) (t), or a controlled substance
15analog of tetrahydrocannabinols, the person may be penalized as follows:
AB255,7,18 162. If subd. 1. does not apply and the offense is not a 2nd or subsequent controlled
17substance crime, the person
may be fined not more than $1,000 or imprisoned for not
18more than 6 months or both upon a first conviction and .
AB255,8,2 193. If subd. 1. does not apply and the offense is a 2nd or subsequent controlled
20substance crime, the person
is guilty of a Class I felony for a 2nd or subsequent
21offense. For purposes of this paragraph, an offense is considered a 2nd or subsequent
22offense if, prior to the offender's conviction of the offense, the offender has at any time
23been convicted of any felony or misdemeanor under this chapter or under any statute
24of the United States or of any state relating to controlled substances, controlled

1substance analogs, narcotic drugs, marijuana, or depressant, stimulant, or
2hallucinogenic drugs
.
AB255, s. 14 3Section 14. 961.41 (3g) (e) 1. of the statutes is created to read:
AB255,8,104 961.41 (3g) (e) 1. If the person possesses or attempts to possess 25 grams or less
5of tetrahydrocannabinols included under s. 961.14 (4) (t), or 25 grams or less of a
6controlled substance analog of tetrahydrocannabinols, the person may be required
7to forfeit not more than $1,000. This subdivision does not apply if the person violates
8this subdivision after having been found to have committed a violation punishable
9under this subdivision, after having been convicted of a 2nd or subsequent controlled
10substance crime, or after having been convicted of any felony.
AB255, s. 15 11Section 15. 961.475 of the statutes is amended to read:
AB255,8,24 12961.475 Treatment option. Whenever any person pleads guilty to or is found
13guilty of possession or attempted possession of a controlled substance or controlled
14substance analog under s. 961.41 (3g), the court may, upon request of the person and
15with the consent of a treatment facility with special inpatient or outpatient programs
16for the treatment of drug dependent persons, allow the person to enter the treatment
17programs voluntarily for purposes of treatment and rehabilitation. Treatment shall
18be for the period the treatment facility feels is necessary and required, but shall not
19exceed the maximum sentence allowable unless the person consents to the continued
20treatment. At the end of the necessary and required treatment, with the consent of
21the court, the person may be released from sentence. If treatment efforts are
22ineffective or the person ceases to cooperate with treatment rehabilitation efforts,
23the person may be remanded to the court for completion of sentencing. This section
24does not apply to an offense punishable under s. 961.41 (3g) (e) 1.
AB255, s. 16 25Section 16. 961.48 (1) (intro.) of the statutes is amended to read:
AB255,9,5
1961.48 (1) (intro.) If a person is charged under sub. (2m) with a felony offense
2under this chapter that is a 2nd or subsequent offense as provided under sub. (3)
3controlled substance crime and the person is convicted of that 2nd or subsequent
4offense, the maximum term of imprisonment for the offense may be increased as
5follows:
AB255, s. 17 6Section 17. 961.48 (2m) (a) of the statutes is amended to read:
AB255,9,147 961.48 (2m) (a) Whenever a person charged with a felony offense under this
8chapter may be subject to a conviction for a 2nd or subsequent offense controlled
9substance crime
, he or she is not subject to an enhanced penalty under sub. (1) unless
10any applicable prior convictions are alleged in the complaint, indictment or
11information or in an amended complaint, indictment or information that is filed
12under par. (b) 1. A person is not subject to an enhanced penalty under sub. (1) for
13an offense if an allegation of applicable prior convictions is withdrawn by an
14amended complaint filed under par. (b) 2.
AB255, s. 18 15Section 18. 961.48 (2m) (b) 1. of the statutes is amended to read:
AB255,9,1716 961.48 (2m) (b) 1. Charges an offense as a 2nd or subsequent offense controlled
17substance crime
under this chapter by alleging any applicable prior convictions.
AB255, s. 19 18Section 19. 961.48 (2m) (b) 2. of the statutes is amended to read:
AB255,9,2119 961.48 (2m) (b) 2. Withdraws the charging of an offense as a 2nd or subsequent
20offense controlled substance crime under this chapter by withdrawing an allegation
21of applicable prior convictions.
AB255, s. 20 22Section 20. 961.48 (3) of the statutes is repealed.
AB255, s. 21 23Section 21. 961.495 of the statutes is amended to read:
AB255,9,25 24961.495 Possession or attempted possession of a controlled substance
25on or near certain places.
If any person violates s. 961.41 (3g) by possessing or

1attempting to possess a controlled substance included in schedule I or II, a controlled
2substance analog of a controlled substance included in schedule I or II or ketamine
3or flunitrazepam while in or on the premises of a scattered-site public housing
4project, while in or on or otherwise within 1,000 feet of a state, county, city, village
5or town park, a jail or correctional facility, a multiunit public housing project, a
6swimming pool open to members of the public, a youth center or a community center,
7while in or on or otherwise within 1,000 feet of any private or public school premises
8or while in or on or otherwise within 1,000 feet of a school bus, as defined in s. 340.01
9(56), the court shall, in addition to any other penalties that may apply to the crime,
10impose 100 hours of community service work for a public agency or a nonprofit
11charitable organization. The court shall ensure that the defendant is provided a
12written statement of the terms of the community service order and that the
13community service order is monitored. Any organization or agency acting in good
14faith to which a defendant is assigned pursuant to an order under this section has
15immunity from any civil liability in excess of $25,000 for acts or omissions by or
16impacting on the defendant. This section does not apply to an offense punishable
17under s. 961.41 (3g) (e) 1.
AB255, s. 22 18Section 22. Initial applicability.
AB255,10,2119 (1) The renumbering and amendment of section 961.41 (3g) (e) of the statutes
20and the creation of section 961.41 (3g) (e) 1. of the statutes first apply to offenses
21committed on the effective date of this subsection.
AB255,10,2222 (End)
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