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).
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.
Effective date note
NOTE: Sub. (1) is amended eff. 12-31-99 by
1997 Wis. Act 283 to read:
Effective date text
(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 15 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;
1997 a. 283.
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(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(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.
