Effective date note
NOTE: Par. (c) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(c) A person who violates par. (a) or (b) may be fined not more than $250,000 or imprisoned for not more than 15 years or both.
961.41(1q)
(1q) Penalty relating to tetrahydrocannabinols in certain cases. Under
subs. (1) (h) and
(1m) (h) and
s. 961.49 (2), if different penalty provisions apply to a person depending on whether the weight of tetrahydrocannabinols or the number of plants containing tetrahydrocannabinols is considered, the greater penalty provision applies.
961.41(1r)
(1r) Determining weight of substance. In determining amounts under
subs. (1) and
(1m) and
s. 961.49 (2) (b), an amount includes the weight of cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or tetrahydrocannabinols or any controlled substance analog of any of these substances together with any compound, mixture, diluent, plant material or other substance mixed or combined with the controlled substance or controlled substance analog. In addition, in determining amounts under
subs. (1) (h) and
(1m) (h), the amount of tetrahydrocannabinols means anything included under
s. 961.14 (4) (t) and includes the weight of any marijuana.
961.41(2)
(2) Counterfeit substances. Except as authorized by this chapter, it is unlawful for any person to create, manufacture, distribute, deliver or possess with intent to distribute or deliver, a counterfeit substance. Any person who violates this subsection with respect to:
961.41(2)(a)
(a) A counterfeit substance included in schedule I or II which is a narcotic drug, may be fined not more than $25,000 or imprisoned for not more than 15 years or both.
Effective date note
NOTE: Par. (a) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(a) A counterfeit substance included in schedule I or II which is a narcotic drug, may be fined not more than $25,000 or imprisoned for not more than 22 years and 6 months or both.
961.41(2)(b)
(b) Any other counterfeit substance included in schedule I, II or III, may be fined not more than $15,000 or imprisoned for not more than 5 years or both.
Effective date note
NOTE: Par. (b) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(b) Any other counterfeit substance included in schedule I, II or III, may be fined not more than $15,000 or imprisoned for not more than 7 years and 6 months or both.
961.41(2)(c)
(c) A counterfeit substance included in schedule IV, may be fined not more than $10,000 or imprisoned for not more than 3 years or both.
Effective date note
NOTE: Par. (c) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(c) A counterfeit substance included in schedule IV, may be fined not more than $10,000 or imprisoned for not more than 4 years and 6 months or both.
961.41(2)(d)
(d) A counterfeit substance included in schedule V, may be fined not more than $5,000 or imprisoned for not more than one year or both.
Effective date note
NOTE: Par. (d) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(d) A counterfeit substance included in schedule V, may be fined not more than $5,000 or imprisoned for not more than 2 years or both.
961.41(3g)
(3g) Possession. No person may possess or attempt to possess a controlled substance or a controlled substance analog unless the person obtains the substance or the analog directly from, or pursuant to a valid prescription or order of, a practitioner who is acting in the course of his or her professional practice, or unless the person is otherwise authorized by this chapter to possess the substance or the analog. Any person who violates this subsection is subject to the following penalties:
961.41(3g)(a)1.1. Except as provided in
subd. 2., if the person possesses a controlled substance included in schedule I or II which is a narcotic drug, or possesses a controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug, the person may, upon a first conviction, be fined not more than $5,000 or imprisoned for not more than one year or both, and for a 2nd or subsequent offense, the person may be fined not more than $10,000 or imprisoned for not more than 2 years or both.
Effective date note
NOTE: Subd. 1. is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
1. Except as provided in subd. 2., if the person possesses a controlled substance included in schedule I or II which is a narcotic drug, or possesses a controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug, the person may, upon a first conviction, be fined not more than $5,000 or imprisoned for not more than 2 or both, and for a 2nd or subsequent offense, the person may be fined not more than $10,000 or imprisoned for not more than 3 years or both.
961.41(3g)(a)2.
2. If the person possesses or attempts to possess heroin or a controlled substance analog of heroin, the person may be fined not more than $5,000 or imprisoned for not more than one year or both.
Effective date note
NOTE: Subd. 2. is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
2. If the person possesses or attempts to possess heroin or a controlled substance analog of heroin, the person may be fined not more than $5,000 or imprisoned for not more than 2 years or both.
961.41(3g)(a)3.
3. For purposes of this paragraph, 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, controlled substance analogs, narcotic drugs, marijuana or depressant, stimulant or hallucinogenic drugs.
961.41(3g)(b)
(b) Except as provided in
pars. (c),
(d),
(e) and
(f), if the person possesses or attempts to possess a controlled substance or controlled substance analog, other than a controlled substance included in schedule I or II that is a narcotic drug or a controlled substance analog of a controlled substance included in schedule I or II that is a narcotic drug, the person is guilty of a misdemeanor, punishable under
s. 939.61.
961.41(3g)(c)
(c) If a person possess or attempts to possess cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, the person shall be fined not more than $5,000 and may be imprisoned for not more than one year in the county jail.
961.41(3g)(d)
(d) If a person possesses or attempts to possess lysergic acid diethylamide, phencyclidine, amphetamine, methamphetamine, methcathinone, psilocin or psilocybin, or a controlled substance analog of lysergic acid diethylamide, phencyclidine, amphetamine, methamphetamine, methcathinone, psilocin or psilocybin, the person may be fined not more than $5,000 or imprisoned for not more than one year in the county jail or both.
961.41(3g)(e)
(e) If a person possesses or attempts to possess tetrahydrocannabinols included under
s. 961.14 (4) (t), or a controlled substance analog of tetrahydrocannabinols, the person may be fined not more than $1,000 or imprisoned for not more than 6 months or both.
961.41(3g)(f)
(f) If a person possesses or attempts to possess gamma-hydroxybutyric acid, gamma-hydroxybutyrolactone, ketamine or flunitrazepam, the person may be fined not more than $5,000 or imprisoned for not more than 2 years or both.
961.41(4)
(4) Imitation controlled substances. 961.41(4)(am)1.1. No person may knowingly distribute or deliver, attempt to distribute or deliver or cause to be distributed or delivered a noncontrolled substance and expressly or impliedly represent any of the following to the recipient:
961.41(4)(am)1.b.
b. That the substance is of a nature, appearance or effect that will allow the recipient to display, sell, distribute, deliver or use the noncontrolled substance as a controlled substance, if the representation is made under circumstances in which the person has reasonable cause to believe that the noncontrolled substance will be used or distributed for use as a controlled substance.
961.41(4)(am)2.
2. Proof of any of the following is prima facie evidence of a representation specified in
subd. 1. a. or
b.:
961.41(4)(am)2.a.
a. The physical appearance of the finished product containing the substance is substantially the same as that of a specific controlled substance.
961.41(4)(am)2.b.
b. The substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance.
961.41(4)(am)2.d.
d. The person distributing or delivering, attempting to distribute or deliver or causing distribution or delivery of the substance to be made states to the recipient that the substance may be resold at a price that substantially exceeds the value of the substance.
961.41(4)(am)3.
3. A person convicted of violating this paragraph may be fined not more than $5,000 or imprisoned for not more than one year or both.
Effective date note
NOTE: Subd. 3. is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
3. A person convicted of violating this paragraph may be fined not more than $5,000 or imprisoned for not more than 2 years or both.
961.41(4)(bm)
(bm) It is unlawful for any person to agree, consent or offer to lawfully manufacture, deliver, distribute or dispense any controlled substance to any person, or to offer, arrange or negotiate to have any controlled substance unlawfully manufactured, delivered, distributed or dispensed, and then manufacture, deliver, distribute or dispense or offer, arrange or negotiate to have manufactured, delivered, distributed or dispensed to any such person a substance which is not a controlled substance. Any person who violates this paragraph may be fined not more than $500 or imprisoned for not more than 6 months or both.
961.41(5)
(5) Drug abuse program improvement surcharge. 961.41(5)(a)(a) When a court imposes a fine for a violation of this section, it shall also impose a drug abuse program improvement surcharge in an amount of 50% of the fine and penalty assessment imposed.
961.41(5)(b)
(b) The clerk of the court shall collect and transmit the amount to the county treasurer as provided in
s. 59.40 (2) (m). The county treasurer shall then make payment to the state treasurer as provided in
s. 59.25 (3) (f) 2.
961.41(5)(c)
(c) All moneys collected from drug surcharges shall be deposited by the state treasurer in and utilized in accordance with
s. 20.435 (6) (gb).
961.41 History
History: 1971 c. 219,
307;
1973 c. 12;
1981 c. 90,
314;
1985 a. 328;
1987 a. 339,
403;
1989 a. 31,
56,
121;
1991 a. 39; 138;
1993 a. 98,
118,
437,
482;
1995 a. 201;
1995 a. 448 ss.
243 to
266,
487 to
490; Stats. 1995 s. 961.41;
1997 a. 220,
283.
961.41 Annotation
Inference of intent may be drawn from possession of hashish with a street value of $2,000 to $4,000 and opium with a street value of $20,000 to $24,000. State v. Trimbell, 64 W (2d) 379, 219 NW (2d) 369.
961.41 Annotation
No presumption of intent to deliver is raised by (1m). Statute merely lists evidence from which intent may be inferred. State ex rel. Bena v. Hon. John J. Crosetto, 73 W (2d) 261, 243 NW (2d) 442.
961.41 Annotation
Evidence of defendant's possession of pipe containing burnt residue of marijuana was insufficient to impute knowledge to defendant of possession of controlled substance. Kabat v. State, 76 W (2d) 224, 251 NW (2d) 38.
961.41 Annotation
This section prohibits the act of manufacture, as defined in 161.01 (13). Possession of controlled substance created by accused is not required for conviction. This section is not unconstitutionally vague. State ex rel. Bell v. Columbia County Ct. 82 W (2d) 401, 263 NW (2d) 162.
961.41 Annotation
Conviction under 161.41 (1m) upheld where defendant possessed 1/3 gram of cocaine divided into 4 packages, and evidence of defendant's prior sales of other drugs was admitted under 904.04 (2) as probative of intent to deliver the cocaine. Peasley v. State, 83 W (2d) 224, 265 NW (2d) 506 (1978).
961.41 Annotation
See note to 904.02, citing State v. Wedgeworth, 100 W (2d) 514, 302 NW (2d) 810 (1981).
961.41 Annotation
Procuring agent theory is not valid defense to charge under this section. By facilitating drug deal, defendant was party to crime. State v. Hecht, 116 W (2d) 605, 342 NW (2d) 721 (1984).
961.41 Annotation
See note to Art. I, sec. 8, citing State v. Stevens, 123 W (2d) 303, 367 NW (2d) 788 (1985).
961.41 Annotation
Defendant was properly convicted of attempted delivery of cocaine even though noncontrolled substance was delivered. State v. Cooper, 127 W (2d) 429, 380 NW (2d) 383 (Ct. App. 1985).
961.41 Annotation
Possession is not a lesser included offense of manufacturing. State v. Peck, 143 W (2d) 624, 422 NW (2d) 160 (Ct. App. 1988).
961.41 Annotation
Identification of a controlled substance can be established by circumstantial evidence such as lay experience based on familiarity through prior use, trading or law enforcement. State v. Anderson, 176 W (2d) 196, NW (2d) (Ct. App. 1993).
961.41 Annotation
A conspiracy under sub. (1x) must involve at least 2 people with each subject to the same penalty for the conspiracy. Where the buyer of drugs is guilty of misdemeanor possession only, a felony conspiracy charge may not be brought against the buyer. State v. Smith, 189 W (2d) 496, 525 NW (2d) 264 (1995).
961.41 Annotation
The state is not required to prove that a defendant knew the exact nature or precise chemical name of a possessed controlled substance. The state must only prove the defendant knew or believed that the substance was a controlled substance. State v. Sartin, 200 W (2d) 47, 546 NW (2d) 449 (1996).
961.41 Annotation
A delivery conspiracy under sub. (1x) requires an agreement between a buyer and a seller that the buyer will deliver at least some of the controlled substance to a third party. State v. Cavallari, 214 W (2d) 42, 571 NW (2d) 176 (Ct. App. 1997).
961.41 Annotation
Standing alone, the presence of drugs in someone's system is insufficient to support a conviction for possession, but it is circumstantial evidence of prior possession. Evidence that the defendant was selling drugs is irrelevant to a charge of simple possession. Evidence that the defendant had money but no job does not have a tendency to prove possession. State v. Griffin, 220 W (2d) 371, 584 NW (2d) 127 (Ct. App. 1998)
961.41 Annotation
See note to Art. I, sec. 8, citing Leonard v. Warden, Dodge Correctional Inst. 631 F Supp. 1403 (1986).
961.42
961.42
Prohibited acts B—penalties. 961.42(1)
(1) It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for manufacturing, keeping or delivering them in violation of this chapter.
961.42(2)
(2) Any person who violates this section may be fined not more than $25,000 or imprisoned not more than one year or both.
Effective date note
NOTE: Sub. (2) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(2) Any person who violates this section may be fined not more than $25,000 or imprisoned not more than 2 years or both.
961.42 History
History: 1971 c. 219;
1995 a. 448 s.
267; Stats. 1995 s. 961.42;
1997 a. 283.
961.42 Annotation
"Keeping" substance under (1) means more than simple possession; it means keeping for purpose of warehousing or storage for ultimate manufacture or delivery. State v. Brooks, 124 W (2d) 349, 369 NW (2d) 183 (Ct. App. 1985).
961.43
961.43
Prohibited acts C—penalties. 961.43(1)(a)
(a) To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge;
961.43(1)(b)
(b) Without authorization, to make, distribute or possess any punch, die, plate, stone or other thing designed to print, imprint or reproduce the trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as:
961.43(1)(b)2.
2. To duplicate substantially the physical appearance, form, package or label of a controlled substance.
961.43(2)
(2) Any person who violates this section may be fined not more than $30,000 or imprisoned not more than 4 years or both.
Effective date note
NOTE: Sub. (2) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(2) Any person who violates this section may be fined not more than $30,000 or imprisoned not more than 6 years or both.
961.43 History
History: 1971 c. 219;
1981 c. 90;
1995 a. 448 s.
268; Stats. 1995 s. 961.43;
1997 a. 283.
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).
