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.
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).
961.48 Annotation
Conviction under this section for a second or subsequent offense does not require proof of the prior offense at trail beyond a reasonable doubt. State v. Miles, 221 W (2d) 56, 584 NW (2d) 704 (Ct. App. 1998).
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 and the delivery, distribution or possession takes place under any of the following circumstances, the maximum term of imprisonment prescribed by law for that crime may be increased by 5 years:
961.49(1)(a)
(a) While the person is in or on the premises of a scattered-site public housing project.
961.49(1)(b)
(b) While the person is in or on or otherwise within 1,000 feet of any of the following:
961.49(1)(c)
(c) While the person is in or on the premises of an approved treatment facility, as defined in
s. 51.01 (2), that provides alcohol and other drug abuse treatment.
961.49(1)(d)
(d) While the person is within 1,000 feet of the premises of an approved treatment facility, as defined in
s. 51.01 (2), that provides alcohol and other drug abuse treatment, if the person knows or should have known that he or she is within 1,000 feet of the premises of the facility or if the facility is readily recognizable as a facility that provides alcohol and other drug abuse treatment.
961.49(2)(a)(a) Except as provided in
par. (b), the court shall sentence a person as provided in
par. (am) if the 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 under any of the following circumstances:
961.49(2)(a)1.
1. While the person is in or on the premises of a scattered-site public housing project.
961.49(2)(a)2.
2. While the person is in or on or otherwise within 1,000 feet of any of the following:
961.49(2)(a)3.
3. While the person is in or on the premises of an approved treatment facility, as defined in
s. 51.01 (2), that provides alcohol and other drug abuse treatment.
961.49(2)(a)4.
4. While the person is within 1,000 feet of the premises of an approved treatment facility, as defined in
s. 51.01 (2), that provides alcohol and other drug abuse treatment, if the person knows or should have known that he or she is within 1,000 feet of the premises of the facility or if the facility is readily recognizable as a facility that provides alcohol and other drug abuse treatment.
961.49(2)(am)
(am) The court shall sentence a person to whom
par. (a) applies 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. Except as provided in
s. 973.01 (6), 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 Note
NOTE: Par. (am) is shown as affected by two acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c).
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. Except as provided in
s. 973.01 (6), 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;
1997 a. 283,
327; s. 13.93 (2) (c).
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).
961.49 Annotation
The penalty enhancer for sales close to parks does not violate due process and is not unconstitutionally vague. The ordinary meaning of "parks" includes undeveloped parks. Proximity to a park is rationally related to protecting public health and safety from drug sale activities. State v. Lopez, 207 W (2d) 415, 559 NW (2d) 264 (Ct. App. 1996).
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:
Effective date note
NOTE: Sub. (1) (intro.) is amended eff. 5-1-2000 or the date stated in the notice published by the secretary of transportation in the Wisconsin Administrative Register under s. 85.515, whichever is earlier, by
1997 Wis. Act 84 to read:
Effective date text
(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 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 license and forward it to the department of transportation together with the record of conviction and notice of the suspension. 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;
1997 a. 84.
ENFORCEMENT AND ADMINISTRATIVE PROVISIONS
961.51
961.51
Powers of enforcement personnel. 961.51(1)
(1) Any officer or employe of the pharmacy examining board designated by the examining board may:
961.51(1)(a)
(a) Execute and serve search warrants, arrest warrants, administrative inspection warrants, subpoenas and summonses issued under the authority of this state;
961.51(1)(b)
(b) Make arrests without warrant for any offense under this chapter committed in the officer's or employe's presence, or if the officer or employe has reasonable grounds to believe that the person to be arrested has committed or is committing a violation of this chapter which may constitute a felony; and
961.51(1)(c)
(c) Make seizures of property pursuant to this chapter.
961.51(2)
(2) This section does not affect the responsibility of law enforcement officers and agencies to enforce this chapter, nor the authority granted the department of justice under
s. 165.70.
961.51 History
History: 1971 c. 219;
1985 a. 29;
1993 a. 482;
1995 a. 448 s.
293; Stats. 1995 s. 961.51.
961.52
961.52
Administrative inspections and warrants. 961.52(1)(1) Issuance and execution of administrative inspection warrants shall be as follows:
961.52(1)(a)
(a) A judge of a court of record, upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections authorized by this chapter or rules hereunder, and seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this chapter or rules hereunder, sufficient to justify administrative inspection of the area, premises, building or conveyance in the circumstances specified in the application for the warrant.
961.52(1)(b)
(b) A warrant shall issue only upon an affidavit of a designated officer or employe of the pharmacy examining board or the department of justice having knowledge of the facts alleged, sworn to before the judge and establishing the grounds for issuing the warrant. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the judge shall issue a warrant identifying the area, premises, building or conveyance to be inspected, the purpose of the inspection, and, if appropriate, the type of property to be inspected, if any. The warrant shall:
961.52(1)(b)1.
1. State the grounds for its issuance and the name of each person whose affidavit has been taken in support thereof;
961.52(1)(b)2.
2. Be directed to a person authorized by law to execute it;
961.52(1)(b)3.
3. Command the person to whom it is directed to inspect the area, premises, building or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified;
