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) [now 961.41 (1) (a) and 961.14 (3) (k)]. While the repeater statute, 161.48 [now 961.48], 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 Wis. 2d 605,
230 N.W.2d 634.
961.48 Annotation
For offenses under ch. 161 [now 961], the court may apply this section or s. 939.62, but not both. State v. Ray,
166 Wis. 2d 855,
481 N.W.2d 288 (Ct. App. 1992).
961.48 Annotation
In sentencing a defendant when the 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 Wis. 2d 559,
484 N.W.2d 340 (Ct. App. 1992).
961.48 Annotation
Sentencing under this section was improper when the defendant neither admitted a prior conviction nor did the state offer proof of one. State v. Coolidge,
173 Wis. 2d 783,
496 N.W.2d 701 (Ct. App. 1993).
961.48 Annotation
Sub. (4) sets forth a limitation on the 2nd or subsequent offense; the previous offense may be any conviction under ch. 161 [now 961]. State v. Robertson,
174 Wis. 2d 36,
496 N.W.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 Wis. 2d 700,
511 N.W.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 Wis. 2d 56,
584 N.W.2d 704 (Ct. App. 1998).
961.48 Annotation
A conviction for possessing drug paraphernalia under s. 961.573 qualifies as a prior offense under sub. (3). State v. Moline,
229 Wis. 2d 38,
598 N.W.2d 929 (Ct. App. 1999).
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),
(em),
(f),
(g) or
(h) by delivering or distributing, or violates
s. 961.41 (1m) (cm),
(d),
(e),
(em),
(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, a controlled substance analog of a controlled substance included in schedule I or II or ketamine or flunitrazepam 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(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;
1999 a. 32,
48,
57.
961.49 Annotation
A university campus is not a "school" within the meaning of s. 161.49 [now 961.49]. State v. Andrews,
171 Wis. 2d 217,
491 N.W.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 Wis. 2d 109,
536 N.W.2d 106 (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 Wis. 2d 415,
559 N.W.2d 264 (Ct. App. 1996).
961.49 Annotation
Day care centers are a subset of "youth centers" as defined in s. 961.01(22) and come within the definition of places listed in s. 961.49 (2). State v. Van Riper,
222 Wis. 2d 197,
586 N.W.2d 198 (Ct. App. 1998).
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, of a controlled substance analog of any controlled substance included in schedule I or II or of ketamine or flunitrazepam.
961.492(2)
(2) The person knowingly uses a public transit vehicle during the violation.
961.492 History
History: 1995 a. 448 s.
249;
1999 a. 57.
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, a controlled substance analog of a controlled substance included in schedule I or II or ketamine or flunitrazepam 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;
1999 a. 57.
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 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 employee 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 employee's presence, or if the officer or employee 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 employee 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;
961.52(1)(b)4.
4. Identify the item or types of property to be seized, if any;
961.52(1)(b)5.
5. Direct that it be served during normal business hours and designate the judge to whom it shall be returned.
961.52(1)(c)
(c) A warrant issued pursuant to this section must be executed and returned within 10 days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
961.52(1)(d)
(d) The judge who has issued a warrant shall attach thereto a copy of the return and all papers returnable in connection therewith and file them with the clerk of court for the county in which the inspection was made.
961.52(2)
(2) The pharmacy examining board and the department of justice may make administrative inspections of controlled premises in accordance with the following provisions:
961.52(2)(a)
(a) For purposes of this section only, "controlled premises" means:
961.52(2)(a)1.
1. Places where persons authorized under
s. 961.32 to possess controlled substances in this state are required by federal law to keep records; and
961.52(2)(a)2.
2. Places including factories, warehouses, establishments and conveyances in which persons authorized under
s. 961.32 to possess controlled substances in this state are permitted by federal law to hold, manufacture, compound, process, sell, deliver or otherwise dispose of any controlled substance.
961.52(2)(b)
(b) When authorized by an administrative inspection warrant issued pursuant to
sub. (1), an officer or employee designated by the pharmacy examining board or the department of justice, upon presenting the warrant and appropriate credentials to the owner, operator or agent in charge, may enter controlled premises for the purpose of conducting an administrative inspection.
961.52(2)(c)
(c) When authorized by an administrative inspection warrant, an officer or employee designated by the pharmacy examining board or the department of justice may:
961.52(2)(c)1.
1. Inspect and copy records relating to controlled substances;
961.52(2)(c)2.
2. Inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and, except as provided in
par. (e), all other things therein, including records, files, papers, processes, controls and facilities bearing on violation of this chapter; and
961.52(2)(c)3.
3. Inventory any stock of any controlled substance therein and obtain samples thereof.
961.52(2)(d)
(d) This section does not prevent entries and administrative inspections, including seizures of property, without a warrant:
