961.435
961.435
Specific penalty. Any person who violates
s. 961.38 (5) may be fined not more than $500 or imprisoned not more than 30 days or both.
961.435 History
History: 1975 c. 190;
1995 a. 448 s.
269; Stats. 1995 s. 961.435.
961.438
961.438
Minimum sentence. Any minimum sentence under this chapter is a presumptive minimum sentence. Except as provided in
s. 973.09 (1) (d), the court may impose a sentence that is less than the presumptive minimum sentence or may place the person on probation only if it finds that the best interests of the community will be served and the public will not be harmed and if it places its reasons on the record.
961.438 History
History: 1989 a. 121;
1995 a. 448 s.
270; Stats. 1995 s. 961.438.
961.438 Annotation
"Except as provided in s. 973.09 (1) (d)" separates minimum sentences of one year or less from other sentences; that part of the statute regarding making certain findings relates only to situations not arising under s. 973.09 (1) (d). State v. DeLeon, 171 W (2d) 200, 490 NW (2d) 767 (Ct. App. 1992).
961.44
961.44
Penalties under other laws. Any penalty imposed for violation of this chapter is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law.
961.44 History
History: 1971 c. 219;
1995 a. 448 s.
271; Stats. 1995 s. 961.44.
961.45
961.45
Bar to prosecution. If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.
961.45 History
History: 1971 c. 219;
1995 a. 448 s.
272; Stats. 1995 s. 961.45.
961.45 Annotation
A "prosecution" in this section is to be equated with conviction or acquittal. The date on which sentence is imposed is not relevant to the determination of whether a "prosecution" has occurred. State v. Petty, 201 W (2d) 337, 548 NW (2d) 817 (1996).
961.455
961.455
Using a child for illegal drug distribution or manufacturing purposes. 961.455(1)
(1) Any person who has attained the age of 17 years who knowingly solicits, hires, directs, employs or uses a person who is 17 years of age or under for the purpose of violating
s. 961.41 (1) may be fined not more than $50,000 or imprisoned for not more than 10 years or both.
961.455(2)
(2) The knowledge requirement under
sub. (1) does not require proof of knowledge of the age of the child. It is not a defense to a prosecution under this section that the actor mistakenly believed that the person solicited, hired, directed, employed or used under
sub. (1) had attained the age of 18 years, even if the mistaken belief was reasonable.
961.455(3)
(3) Solicitation under
sub. (1) occurs in the manner described under
s. 939.30, but the penalties under
sub. (1) apply instead of the penalties under
s. 939.30 or
948.35.
961.455(4)
(4) If the conduct described under
sub. (1) results in a violation under
s. 961.41 (1), the actor is subject to prosecution and conviction under
s. 961.41 (1) or this section or both.
961.455 History
History: 1989 a. 121;
1991 a. 153;
1995 a. 27;
1995 a. 448 ss.
273 to
275; Stats. 1995 s. 961.455.
961.46
961.46
Distribution to persons under age 18. 961.46(1)(1) Except as provided in
sub. (3), any person 17 years of age or over who violates
s. 961.41 (1) by distributing or delivering a controlled substance included in schedule I or II which is a narcotic drug or a controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug to a person 17 years of age or under who is at least 3 years his or her junior is punishable by the fine authorized by
s. 961.41 (1) (a) or a term of imprisonment of up to twice that authorized by
s. 961.41 (1) (a), or both.
961.46(2)
(2) Except as provided in
sub. (3), any person 17 years of age or over who violates
s. 961.41 (1) by distributing or delivering any other controlled substance included in schedule I, II, III, IV or V or a controlled substance analog of any other controlled substance included in schedule I or II to a person 17 years of age or under who is at least 3 years his or her junior is punishable by the fine authorized by
s. 961.41 (1) (b),
(i) or
(j) or a term of imprisonment of up to twice that authorized by
s. 961.41 (1) (b),
(i) or
(j) or both.
961.46(3)
(3) If any person 17 years of age or over violates
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h) by distributing or delivering cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or any form of tetrahydrocannabinols or a controlled substance analog of any of these substances to a person 17 years of age or under who is at least 3 years his or her junior, any applicable minimum and maximum fines and minimum and maximum periods of imprisonment under
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h) are doubled.
961.465
961.465
Distribution to prisoners. 961.465(1)
(1) Except as provided in
sub. (2), any person who violates
s. 961.41 (1) or
(1m) by delivering, distributing or possessing with intent to deliver or distribute a controlled substance or controlled substance analog to a prisoner within the precincts of any prison, jail or house of correction is subject to the applicable fine under
s. 961.41 (1) or
(1m) or a term of imprisonment of up to twice that authorized by
s. 961.41 (1) or
(1m) or both.
961.465(2)
(2) If a person violates
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h) or
(1m) (cm),
(d),
(e),
(f),
(g) or
(h) by delivering, distributing or possessing with intent to deliver or distribute cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or any form of tetrahydrocannabinols, or a controlled substance analog of any of these substances, to a prisoner within the precincts of any prison, jail or house of correction, any applicable minimum and maximum fines and minimum and maximum periods of imprisonment under
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h) or
(1m) (cm),
(d),
(e),
(f),
(g) or
(h) are doubled.
961.465(2m)
(2m) A person may be subject to increased penalties under both this section and
s. 961.49 regarding the same unlawful act.
961.465(3)
(3) In this section, "precinct" means a place where any activity is conducted by a prison, jail or house of correction.
961.47
961.47
Conditional discharge for possession or attempted possession as first offense. 961.47(1)
(1) Whenever any person who has not previously been convicted of any offense under this chapter, or of any offense under any statute of the United States or of any state or of any county ordinance relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or stimulant, depressant or hallucinogenic drugs, pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under
s. 961.41 (3g) (b), the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him or her. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for 2nd or subsequent convictions under
s. 961.48. There may be only one discharge and dismissal under this section with respect to any person.
961.47(2)
(2) Within 20 days after probation is granted under this section, the clerk of court shall notify the department of justice of the name of the individual granted probation and any other information required by the department. This report shall be upon forms provided by the department.
961.47 History
History: 1971 c. 219;
1985 a. 29;
1989 a. 121;
1991 a. 39;
1995 a. 448 s.
285; Stats. 1995 s. 961.47.
961.47 Annotation
If a defendant desires either a final judgment or order in the nature of a final judgment for appeal purposes, he has only to withhold his consent. State v. Ryback, 64 W (2d) 574, 219 NW (2d) 263.
961.47 Annotation
The reference to s. 161.41 (3) in sub. (1) means that proceedings may only be deferred for convictions for crimes encompassed by s. 161.41 (3). State v. Boyer, 198 W (2d) 837, 543 NW (2d) 562 (Ct. App. 1995).
961.472
961.472
Assessment; certain possession or attempted possession offenses. 961.472(1)
(1) In this section, "facility" means an approved public treatment facility, as defined under
s. 51.45 (2) (c).
961.472(2)
(2) Except as provided in
sub. (5), if a person pleads guilty or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under
s. 961.41 (3g) (a) 2.,
(c) or
(d), the court shall order the person to comply with an assessment of the person's use of controlled substances. The court's order shall designate a facility that is operated by or pursuant to a contract with the county department established under
s. 51.42 and that is certified by the department of health and family services to provide assessment services to perform the assessment and, if appropriate, to develop a proposed treatment plan. The court shall notify the person that noncompliance with the order limits the court's ability to determine whether the treatment option under
s. 961.475 is appropriate. The court shall also notify the person of the fee provisions under
s. 46.03 (18) (fm).
961.472(3)
(3) The facility shall submit an assessment report within 14 days to the court. At the request of the facility, the court may extend the time period by not more than 20 additional workdays. The assessment report may include a proposed treatment plan.
961.472(4)
(4) The court shall consider the assessment report in determining whether the treatment option under
s. 961.475 is appropriate.
961.472(5)
(5) If the court finds that a person under
sub. (2) is already covered by or has recently completed an assessment under this section or a substantially similar assessment, the court is not required to make the order under
sub. (2).
961.475
961.475
Treatment option. Whenever any person pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under
s. 961.41 (3g), the court may, upon request of the person and with the consent of a treatment facility with special inpatient or outpatient programs for the treatment of drug dependent persons, allow the person to enter the treatment programs voluntarily for purposes of treatment and rehabilitation. Treatment shall be for the period the treatment facility feels is necessary and required, but shall not exceed the maximum sentence allowable unless the person consents to the continued treatment. At the end of the necessary and required treatment, with the consent of the court, the person may be released from sentence. If treatment efforts are ineffective or the person ceases to cooperate with treatment rehabilitation efforts, the person may be remanded to the court for completion of sentencing.
961.48
961.48
Second or subsequent offenses. 961.48(1)
(1) Except as provided in
subs. (2) and
(4), any person who is charged under
sub. (2m) with a 2nd or subsequent offense under this chapter and convicted of that 2nd or subsequent offense may be fined an amount up to twice that otherwise authorized or imprisoned for a term up to twice the term otherwise authorized or both.
961.48(2)
(2) If any person is charged under
sub. (2m) with a 2nd or subsequent offense under this chapter that is specified in
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h),
(1m) (cm),
(d),
(e),
(f),
(g) or
(h) or
(3g) (a) 2.,
(c),
(d) or
(e), and he or she is convicted of that 2nd or subsequent offense, any applicable minimum and maximum fines and minimum and maximum periods of imprisonment under
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h),
(1m) (cm),
(d),
(e),
(f),
(g) or
(h) or
(3g) (a) 2.,
(c),
(d) or
(e) are doubled. A person convicted of a 2nd or subsequent offense under
s. 961.41 (3g) (c),
(d) or
(e) is guilty of a felony and the person may be imprisoned in state prison.
961.48 Note
NOTE: Sub. (2) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
961.48(2m)(a)(a) Whenever a person charged with an offense under this chapter may be subject to a conviction for a 2nd or subsequent offense, he or she is not subject to an enhanced penalty under
sub. (1) or
(2) unless any applicable prior convictions are alleged in the complaint, indictment or information or in an amended complaint, indictment or information that is filed under
par. (b) 1. A person is not subject to an enhanced penalty under
sub. (1) or
(2) for an offense if an allegation of applicable prior convictions is withdrawn by an amended complaint filed under
par. (b) 2.
961.48(2m)(b)
(b) Notwithstanding
s. 971.29 (1), at any time before entry of a guilty or no contest plea or the commencement of a trial, a district attorney may file without leave of the court an amended complaint, information or indictment that does any of the following:
961.48(2m)(b)1.
1. Charges an offense as a 2nd or subsequent offense under this chapter by alleging any applicable prior convictions.
961.48(2m)(b)2.
2. Withdraws the charging of an offense as a 2nd or subsequent offense under this chapter by withdrawing an allegation of applicable prior convictions.
961.48 Note
NOTE: Sub. (2m) is shown as renumbered from s. 161.48 (2m), as created by
1995 Wis. Act 402, by the revisor under s. 13.93 (1) (b).
961.48(3)
(3) For purposes of this section, an offense is considered a 2nd or subsequent offense if, prior to the offender's conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or depressant, stimulant or hallucinogenic drugs.
961.48 History
History: 1971 c. 219;
1985 a. 328;
1987 a. 339;
1989 a. 121;
1993 a. 98,
118,
482,
490;
1995 a. 402;
1995 a. 448 s.
288; Stats. 1995 s. 961.48; s. 13.93 (1) (b), (2) (c).
961.48 Annotation
The trial court erred in imposing a 2nd sentence on a defendant convicted of a 2nd violation of 161.41 (1) (a) and 161.14 (3) (k), while the repeater statute, 161.48, allows imposition of a penalty not exceeding twice that allowable for a 1st offense, it does not of itself create a crime and cannot support a separate and independent sentence. Olson v. State, 69 W (2d) 605, 230 NW (2d) 634.
961.48 Annotation
For offenses under ch. 161, court may apply this section or 939.62, but not both. State v. Ray, 166 W (2d) 855, 481 NW (2d) 288 (Ct. App. 1992).
961.48 Annotation
In sentencing defendant where maximum sentence is doubled under this section, the court considers the same factors it considers in all sentencing, including prior convictions. State v. Canadeo, 168 W (2d) 559, 484 NW (2d) 340 (Ct. App. 1992).
961.48 Annotation
Sentencing under this section was improper where the defendant neither admitted a prior conviction nor did the state offer proof of one. State v. Coolidge, 173 W (2d) 783, 496 NW (2d) 701 (Ct. App. 1993).
961.48 Annotation
Sub. (4) sets forth a limitation on the second or subsequent offense; the previous offense may be any conviction under ch. 161. State v. Robertson, 174 W (2d) 36, 496 NW (2d) 221 (Ct. App. 1993).
961.48 Annotation
This section is self-executing; a prosecutor may not prevent the imposition of the sentences under this section by not charging the defendant as a repeater. State v. Young, 180 W (2d) 700, 511 NW (2d) 309 (Ct. App. 1993).
961.49
961.49
Distribution of or possession with intent to deliver a controlled substance on or near certain places. 961.49(1)(1) If any person violates
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h) by delivering or distributing, or violates
s. 961.41 (1m) (cm),
(d),
(e),
(f),
(g) or
(h) by possessing with intent to deliver or distribute, cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or any form of tetrahydrocannabinols or a controlled substance analog of any of these substances while in or on the premises of a scattered-site public housing project, while in or on or otherwise within 1,000 feet of a state, county, city, village or town park, a jail or correctional facility, a multiunit public housing project, a swimming pool open to members of the public, a youth center or a community center, while in or on or otherwise within 1,000 feet of any private or public school premises or while in or on or otherwise within 1,000 feet of a school bus, as defined in
s. 340.01 (56), the maximum term of imprisonment prescribed by law for that crime may be increased by 5 years.
961.49(2)(a)(a) Except as provided in
par. (b), if any person violates
s. 961.41 (1) by delivering or distributing, or violates
s. 961.41 (1m) by possessing with intent to deliver or distribute, a controlled substance included in schedule I or II or a controlled substance analog of a controlled substance included in schedule I or II while in or on the premises of a scattered-site public housing project, while in or on or otherwise within 1,000 feet of a state, county, city, village or town park, a jail or correctional facility, a multiunit public housing project, a swimming pool open to members of the public, a youth center or a community center, while in or on or otherwise within 1,000 feet of any private or public school premises or while in or on or otherwise within 1,000 feet of a school bus, as defined in
s. 340.01 (56), the court shall sentence the person to at least 3 years in prison, but otherwise the penalties for the crime apply. Except as provided in
s. 961.438, the court shall not place the person on probation. The person is not eligible for parole until he or she has served at least 3 years, with no modification by the calculation under
s. 302.11 (1).
961.49(2)(b)
(b) If the conduct described in
par. (a) involves only the delivery or distribution, or the possession with intent to deliver or distribute, of not more than 25 grams of tetrahydrocannabinols, included in
s. 961.14 (4) (t), or not more than 5 plants containing tetrahydrocannabinols, the court shall sentence the person to at least one year in prison, but otherwise the penalties for the crime apply. Except as provided in
s. 961.438, the court shall not place the person on probation. The person is not eligible for parole until he or she has served at least one year, with no modification by the calculation under
s. 302.11 (1).
961.49(3)
(3) A person who violates
sub. (1) may be subject to increased penalties under both
subs. (1) and
(2) regarding the same unlawful act.
961.49 History
History: 1985 a. 328;
1987 a. 332,
339,
403;
1989 a. 31,
107,
121;
1991 a. 39;
1993 a. 87,
98,
118,
281,
490,
491;
1995 a. 448 s.
289,
491; Stats. 1995 s. 961.49.
961.49 Annotation
Scienter is not an element of 161.49. State v. Hermann, 164 W (2d) 269, 474 NW (2d) 906 (Ct. App. 1991).
961.49 Annotation
A university campus is not a "school" within the meaning of s. 161.49. State v. Andrews, 171 W (2d) 217, 491 NW (2d) 504 (Ct. App. 1992).
961.49 Annotation
Anyone who passes within a zone listed in sub. (1) while in possession of a controlled substance with an intent to deliver it somewhere is subject to the penalty enhancer provided by this section whether or not the arrest is made within the zone and whether or not there is an intent to deliver the controlled substance within the zone. State v. Rasmussen, 195 W (2d) 109, 536 NW (2d) 106 (Ct. App. 1995).
961.49 Annotation
Anyone who passes within a zone listed in sub. (1) while in possession of a controlled substance with an intent to deliver it somewhere is subject to the penalty enhancer provided by this section whether or not the arrest is made within the zone and whether or not there is an intent to deliver the controlled substance within the zone. State v. Rasmussen, 195 W (2d) 109, 536 NW (2d) 106 (Ct. App. 1995).
961.49 Annotation
School "premises" begin at the school property line. State v. Hall, 196 W (2d) 850, 540 NW (2d) 219 (Ct. App. 1995).
961.492
961.492
Distribution or possession with intent to deliver certain controlled substances on public transit vehicles. If a person violates
s. 961.41 (1) or
(1m) under all of the following circumstances, the maximum period of imprisonment under
s. 961.41 (1) or
(1m) may be increased by not more than 5 years:
961.492(1)
(1) The violation of
s. 961.41 (1) or
(1m) involves the distribution or delivery or the possession, with intent to distribute or deliver, of any controlled substance included in schedule I or II or a controlled substance analog of any controlled substance included in schedule I or II.
961.492(2)
(2) The person knowingly uses a public transit vehicle during the violation.
961.492 History
History: 1995 a. 448 s.
249.
961.495
961.495
Possession or attempted possession of a controlled substance on or near certain places. If any person violates
s. 961.41 (3g) by possessing or attempting to possess a controlled substance included in schedule I or II or a controlled substance analog of a controlled substance included in schedule I or II while in or on the premises of a scattered-site public housing project, while in or on or otherwise within 1,000 feet of a state, county, city, village or town park, a jail or correctional facility, a multiunit public housing project, a swimming pool open to members of the public, a youth center or a community center, while in or on or otherwise within 1,000 feet of any private or public school premises or while in or on or otherwise within 1,000 feet of a school bus, as defined in
s. 340.01 (56), the court shall, in addition to any other penalties that may apply to the crime, impose 100 hours of community service work for a public agency or a nonprofit charitable organization. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this section has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
961.495 History
History: 1989 a. 31,
121;
1991 a. 39;
1993 a. 87,
118,
281,
490;
1995 a. 448 s.
290; Stats. 1995 s. 961.495.
961.50
961.50
Suspension or revocation of operating privilege. 961.50(1)(1) If a person is convicted of any violation of this chapter, the court shall, in addition to any other penalties that may apply to the crime, suspend or revoke the person's operating privilege, as defined in
s. 340.01 (40), for not less than 6 months nor more than 5 years. The court shall immediately take possession of any suspended or revoked license and forward it to the department of transportation together with the record of conviction and notice of the suspension or revocation. The person is eligible for an occupational license under
s. 343.10 as follows:
961.50(1)(a)
(a) For the first such conviction, at any time.
961.50(1)(b)
(b) For a 2nd conviction within a 5-year period, after the first 60 days of the suspension or revocation period.
961.50(1)(c)
(c) For a 3rd or subsequent conviction within a 5-year period, after the first 90 days of the suspension or revocation period.
961.50(2)
(2) For purposes of counting the number of convictions under
sub. (1), convictions under the law of a federally recognized American Indian tribe or band in this state, federal law or the law of another jurisdiction, as defined in
s. 343.32 (1m) (a), for any offense therein which, if the person had committed the offense in this state and been convicted of the offense under the laws of this state, would have required suspension or revocation of such person's operating privilege under this section, shall be counted and given the effect specified under
sub. (1). The 5-year period under this section shall be measured from the dates of the violations which resulted in the convictions.
961.50(3)
(3) If the person's license or operating privilege is currently suspended or revoked or the person does not currently possess a valid operator's license issued under
ch. 343, the suspension or revocation under this section is effective on the date on which the person is first eligible and applies for issuance, renewal or reinstatement of an operator's license under
ch. 343.
961.50 History
History: 1991 a. 39;
1993 a. 16,
480;
1995 a. 448 s.
291; Stats. 1995 s. 961.50.
ENFORCEMENT AND ADMINISTRATIVE PROVISIONS
