AB550: Bill Text

LRB-2455/1

CMH:kjf:jf

2007 - 2008 LEGISLATURE

2007 Assembly BILL 550

October 23, 2007 - Introduced by Representatives Boyle, Pocan, Berceau, Black, Grigsby, Gronemus, Parisi, Pope-Roberts, Schneider, Sherman, Travis, Wood and Zepnick. Referred to Committee on Health and Healthcare Reform.

AB550,1,10 An Act to renumber and amend 59.54 (25), 961.55 (8), 968.19 and 968.20 (1); to amend 59.54 (25m), 66.0107 (1) (bm), 66.0107 (1) (bp), 173.12 (1m), 289.33 (3) (d), 349.02 (2) (b) 4., 961.555 (2) (a), 961.56 (1) and 968.20 (3) (a) and (b); and to create 20.435 (6) (gm), 59.54 (25) (b) 2., 59.54 (25) (b) 3., 146.45, 961.01 (5m), 961.01 (11v), 961.01 (14c), 961.01 (14g), 961.01 (19m), 961.01 (20hm), 961.01 (20ht), 961.01 (20t), 961.01 (21f), 961.01 (21t), 961.436, 961.55 (8) (b), 961.55 (8) (c), 961.55 (8) (d), 961.555 (2) (e), 961.555 (2m), 961.5755, 968.072, 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, making an appropriation, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill makes certain 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 200 grams or less or four or fewer marijuana plants, the person is guilty of a felony and may be fined up to $10,000, sentenced to a term of imprisonment of up to three years and six months (which, if the sentence is for more than one year, includes a term of extended supervision), or both. If the crime involves more than 200 grams but not more than 1,000 grams, or more than four plants but not more than 20 plants, the person is guilty of a felony and may be fined up to $10,000, sentenced to a term of imprisonment of up to six years (which, if the sentence is for more than one year, includes a term of extended supervision), or both. If the crime involves more than 1,000 grams but not more than 2,500 grams, or more than 20 plants but not more than 50 plants, the person is guilty of a felony and may be fined up to $25,000, sentenced to a term of imprisonment of up to ten years (which, if the sentence is for more than one year, includes a term of extended supervision), or both. If the crime involves more than 2,500 grams but not more than 10,000 grams, or more than 50 plants but not more than 200 plants, the person is guilty of a felony and may be fined up to $25,000, sentenced to a term of imprisonment of up to 12 years and 6 months (which, if the sentence is for more than one year, includes a term of extended supervision), or both. If the crime involves more than 10,000 grams or more than 200 plants, the person is guilty of a felony and may be fined up to $50,000, sentenced to a term of imprisonment of up to 15 years (which, if the sentence is for more than one year, includes a term of extended supervision), or both.

Current law also prohibits a person from possessing or attempting to possess marijuana. A person who violates this prohibition and who has no prior drug convictions is guilty of a misdemeanor and may be fined not more than $1,000, sentenced to the county jail for up to six months, or both. For a second or subsequent offense, a person is guilty of a Class I felony.

Current law also contains certain prohibitions regarding drug paraphernalia, which includes equipment, products, and materials used to produce, distribute, and use controlled substances, including marijuana. Under current law, a person who uses drug paraphernalia or who possesses it with the primary intent to produce, distribute, or use a controlled substance unlawfully (other than methamphetamine) is guilty of a misdemeanor and may be fined not more than $500, 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 (other than methamphetamine), may be fined not more than $1,000, 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 or treatment 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 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 the maximum authorized amount of marijuana (that is, ten marijuana plants and three ounces — approximately 85 grams — of marijuana leaves or flowers) is involved. If a person has obtained a valid registry identification card from DHFS (see Registry for medical users of marijuana below) or 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 the maximum authorized 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 valid registry identification card or a written certification. This prohibition, however, only applies if no more than the maximum authorized 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 and if: 1) while under the influence of marijuana, the person drives or operates a motor vehicle; 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; or 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 apply also to offenses involving drug paraphernalia if the qualifying patient uses the drug paraphernalia for the medical use of marijuana.

Registry for medical users of marijuana

The bill requires DHFS to establish a registry for medical users of marijuana. Under the bill, a person claiming to be a qualifying patient may apply for a registry identification card by submitting to DHFS a signed application, accompanied by a written certification and a registration fee of not more than $150. DHFS must then verify the information. If it is complete and correct, DHFS must issue the person a registry identification card. A qualifying patient and one of his or her primary caregivers may also jointly apply for a registry identification card for the primary caregiver. DHFS may not disclose that it has issued to a person a registry identification card, or information from an application for one, except to a law enforcement agency for the purpose of verifying that a person possesses a valid registry identification card. A registry identification card is valid for one year, unless revoked sooner by DHFS based on a change of circumstances, and may be renewed.

Effect on federal law

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.

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:

AB550, s. 1 Section 1. 20.435 (6) (gm) of the statutes is created to read:

AB550,4,4 20.435 (6) (gm) Medical marijuana registry. All moneys received from applicants, as defined in s. 146.45 (1) (a), as fees under s. 146.45 (2) (a) 4., for the purposes of the Medical Marijuana Registry Program under s. 146.45.

AB550, s. 2 Section 2. 59.54 (25) of the statutes is renumbered 59.54 (25) (a) and amended to read:

AB550,5,10 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).

AB550,5,12 (b) 1. Any ordinance enacted under this subsection par. (a) applies in every municipality within the county.

AB550, s. 3 Section 3. 59.54 (25) (b) 2. of the statutes is created to read:

AB550,5,16 59.54 (25) (b) 2. A person may not be prosecuted under an ordinance enacted under par. (a) if, under s. 968.072 (2), the person would not be subject to prosecution under s. 961.41 (3g) (e).

AB550, s. 4 Section 4. 59.54 (25) (b) 3. of the statutes is created to read:

AB550,5,21 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).

AB550, s. 5 Section 5. 59.54 (25m) of the statutes is amended to read:

AB550,6,7 59.54 (25m) Drug paraphernalia. The board may enact an ordinance to prohibit conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2) and provide a forfeiture for violation of the ordinance. 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. 968.072 (3), the person would not be subject to prosecution under s. 961.573 (1), 961.574 (1), or 961.575 (1). The board may enforce an ordinance enacted under this subsection in any municipality within the county.

AB550, s. 6 Section 6. 66.0107 (1) (bm) of the statutes is amended to read:

AB550,6,20 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. 968.072 (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.

AB550, s. 7 Section 7. 66.0107 (1) (bp) of the statutes is amended to read:

AB550,7,4 66.0107 (1) (bp) Enact and enforce an ordinance to prohibit conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2) and provide a forfeiture for violation of the ordinance. Any ordinance enacted under this paragraph 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 paragraph if, under s. 968.072 (3), the person would not be subject to prosecution under s. 961.573 (1), 961.574 (1), or 961.575 (1).

AB550, s. 8 Section 8. 146.45 of the statutes is created to read:

AB550,7,7 146.45 Medical Marijuana Registry Program. (1) Definitions. In this section:

AB550,7,9 (a) "Applicant" means a person who is applying for a registry identification card under sub. (2) (a).

AB550,7,11 (b) "Debilitating medical condition or treatment" has the meaning given in s. 961.01 (5m).

AB550,7,13 (c) "Medical use of tetrahydrocannabinols" has the meaning given in s. 961.01 (14g).

AB550,7,14 (d) "Primary caregiver" has the meaning given in s. 961.01 (19m).

AB550,7,15 (e) "Qualifying patient" has the meaning given in s. 961.01 (20hm).

AB550,7,17 (f) "Registrant" means a person to whom a registry identification card is issued under sub. (4).