961.41 Annotation
Evidence of a defendant's possession of a pipe containing burnt residue of marijuana was insufficient to impute knowledge to the defendant of possession of a controlled substance. Kabat v. State,
76 Wis. 2d 224,
251 N.W.2d 38 (1977).
961.41 Annotation
This section prohibits the act of manufacture, as defined in 161.01 (13) [now s. 961.01 (13)]. Possession of a controlled substance created by an accused is not required for conviction. This section is not unconstitutionally vague. State ex rel. Bell v. Columbia County Ct.
82 Wis. 2d 401,
263 N.W.2d 162 (1978).
961.41 Annotation
A conviction under sub. (1m) was upheld when the defendant possessed 1/3 gram of cocaine divided into 4 packages and evidence of defendant's prior sales of other drugs was admitted under s. 904.04 (2) as probative of intent to deliver the cocaine. Peasley v. State,
83 Wis. 2d 224,
265 N.W.2d 506 (1978).
961.41 Annotation
Testimony that weapons were found at the accused's home was admissible as part of the chain of facts relevant to the accused's intent to deliver heroin. State v. Wedgeworth,
100 Wis. 2d 514,
302 N.W.2d 810 (1981).
961.41 Annotation
Being a procuring agent of the buyer is not a valid defense to a charge under this section. By facilitating a drug deal, the defendant was party to the crime. State v. Hecht,
116 Wis. 2d 605,
342 N.W.2d 721 (1984).
961.41 Annotation
When police confiscated a large quantity of drugs from an empty home and the next day searched the defendant upon his return to the home, confiscating a small quantity of the same drugs, the defendant's conviction for the lesser-included offense of possession and the greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens,
123 Wis. 2d 303,
367 N.W.2d 788 (1985).
961.41 Annotation
The defendant was properly convicted of attempted delivery of cocaine even though a noncontrolled substance was delivered. State v. Cooper,
127 Wis. 2d 429,
380 N.W.2d 383 (Ct. App. 1985).
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 Wis. 2d 196, N.W.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. If 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 Wis. 2d 496,
525 N.W.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 that the defendant knew or believed that the substance was a controlled substance. State v. Sartin,
200 Wis. 2d 47,
546 N.W.2d 449 (1996),
94-0037.
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 3rd party. State v. Cavallari,
214 Wis. 2d 42,
571 N.W.2d 176 (Ct. App. 1997),
96-3391.
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 Wis. 2d 371,
584 N.W.2d 127 (Ct. App. 1998),
97-0914.
961.41 Annotation
Delivery under sub. (1m) requires transfer from one person to another. Intent to transfer drugs to the person from whom they were originally received satisfies this definition. Transfer to a 3rd party is not required. State v. Pinkard,
2005 WI App 226,
287 Wis. 2d 592,
706 N.W.2d 157,
04-2755.
961.41 Annotation
A person may be a member of a conspiracy, in particular, a conspiracy to manufacture a controlled substance, based on the person's sale of goods that are not illegal to sell or possess. One does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he or she knows of the conspiracy, the inference of which knowledge cannot be drawn from mere knowledge that the buyer will use the goods illegally. The gist of the conspiracy is the seller's intent, when given effect by an overt act to further, promote, and cooperate in the buyer's intended illegal use. There must be clear, unequivocal evidence of the seller's knowledge of the buyer's intended illegal use. State v. Routon,
2007 WI App 178,
304 Wis. 2d 480,
736 N.W.2d 530,
06-2557.
961.41 Annotation
Possession requires evidence that the individual had a substance in his or her control. When combined with other corroborating evidence of sufficient probative value, evidence of ingestion can be sufficient to prove possession. State v. Patterson,
2009 WI App 161,
321 Wis. 2d 752,
776 N.W.2d 602,
08-1968.
961.41 Annotation
Double jeopardy was not violated when the defendant was convicted of separate offenses under s. 161.41 [now s. 961.41] for simultaneous delivery of different controlled substances. 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 is guilty of a Class I felony.
961.42 History
History: 1971 c. 219;
1995 a. 448 s.
267; Stats. 1995 s. 961.42;
1997 a. 283;
2001 a. 109.
961.42 Annotation
"Keeping" a substance under sub. (1) means more than simple possession; it means keeping for the purpose of warehousing or storage for ultimate manufacture or delivery. State v. Brooks,
124 Wis. 2d 349,
369 N.W.2d 183 (Ct. App. 1985).
961.42 Annotation
Warehousing or storage under Brooks does not encompass merely possessing an item while transporting it. Cocaine was not warehoused or stored when the cocaine was carried in the defendant's truck while moving from one location to another. State v. Slagle,
2007 WI App 117,
300 Wis. 2d 662,
731 N.W.2d 284,
06-0775.
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 is guilty of a Class H felony.
961.43 History
History: 1971 c. 219;
1981 c. 90;
1995 a. 448 s.
268; Stats. 1995 s. 961.43;
1997 a. 283;
2001 a. 109.
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.
961.44
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
Under this section, a "prosecution" is to be equated with a conviction or acquittal. The date on which a sentence is imposed is not relevant to the determination of whether a "prosecution" has occurred. State v. Petty,
201 Wis. 2d 337,
548 N.W.2d 817 (1996),
93-2200.
961.45 Annotation
This section bars a Wisconsin prosecution under ch. 961 for the same conduct on which a prior federal conviction is based. The restriction is not limited to the same crime as defined by its statutory elements. State v. Hansen,
2001 WI 53,
243 Wis. 2d 328,
627 N.W.2d 195,
99-1128.
961.45 Annotation
If a conspiracy involves multi-layered conduct, and all such conduct is part of the overarching common scheme, this section does not bar prosecution when some other part of the multi-layered conduct has resulted in a prosecution in some other jurisdiction. State v. Bautista,
2009 WI App 100,
320 Wis. 2d 582,
770 N.W.2d 744,
08-1692.
961.452
961.452
Defenses in certain schedule V prosecutions. 961.452(1)(1) A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under
s. 961.41 (1) (j) that is based on the person's violation of a condition specified in
s. 961.23 with respect to the person's distribution or delivery of a pseudoephedrine product:
961.452(1)(a)
(a) The person did not knowingly or recklessly violate the condition under
s. 961.23.
961.452(1)(b)
(b) The person reported his or her own violation of the condition under
s. 961.23 to a law enforcement officer in the county or municipality in which the violation occurred within 30 days after the violation.
961.452(2)
(2) A seller who proves all of the following by a preponderance of the evidence has a defense to prosecution under
s. 961.41 (1) (j) that is based on the person's violation of a condition specified in
s. 961.23 with respect to the person's distribution or delivery of a pseudoephedrine product:
961.452(2)(a)
(a) The person did not knowingly or recklessly violate the condition under
s. 961.23.
961.452(2)(b)
(b) The acts or omissions constituting the violation of the condition under
s. 961.23 were the acts or omissions of one or more of the person's employees.
961.452(2)(c)
(c) The person provided training to each of those employees regarding the restrictions imposed under
s. 961.23 on the delivery of pseudoephedrine products.
961.452(3)
(3) A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under
s. 961.41 (1) (j) for a violation of
s. 961.23 (6):
961.452(3)(a)
(a) The purchaser presented an identification card that contained a name or address other than the person's own.
961.452(3)(b)
(b) The appearance of the purchaser was such that an ordinary and prudent person would believe that the purchaser was the person depicted in the photograph contained in that identification card.
961.452(3)(c)
(c) The sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser, and with the belief that the name and address of the purchaser were as listed on the identification card.
961.452(4)
(4) A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under
s. 961.41 (1) (j) for a violation of
s. 961.23 (8):
961.452(4)(a)
(a) The purchaser presented an identification card that indicated that he or she was 18 years of age or older.
961.452(4)(b)
(b) The appearance of the purchaser was such that an ordinary and prudent person would believe that the purchaser was 18 years of age or older.
961.452(4)(c)
(c) The sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser, and with the belief that the purchaser was 18 years of age or older.
961.452 History
History: 2005 a. 14.
961.453
961.453
Purchases of pseudoephedrine products on behalf of another person. 961.453(1)(a)
(a) No person may, with the intent to acquire more than 7.5 grams of pseudoephedrine contained in a pseudoephedrine product within a 30-day period, knowingly solicit, hire, direct, employ, or use another to purchase a pseudoephedrine product on his or her behalf.
961.453(1)(b)1.1. Except as provided in
subd. 2., a person who violates
par. (a) is guilty of a Class I felony.
961.453(1)(b)2.
2. If the person who is solicited, hired, directed, employed, or used to purchase the pseudoephedrine product is an individual who is less than 18 years of age, the actor is guilty of a Class H felony.
961.453(2)
(2) No person may purchase a pseudoephedrine product on behalf of another with the intent to facilitate another person's manufacture of methamphetamine. A person who violates this subsection is guilty of a Class I felony.
961.453 History
History: 2005 a. 14,
262.
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 under the age of 17 years for the purpose of violating
s. 961.41 (1) is guilty of a Class F felony.
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.
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.
961.46
961.46
Distribution to persons under age 18. If a person 17 years of age or over violates
s. 961.41 (1) by distributing or delivering a controlled substance or a controlled substance analog to a person 17 years of age or under who is at least 3 years his or her junior, the applicable maximum term of imprisonment prescribed under
s. 961.41 (1) for the offense may be increased by not more than 5 years.
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
A disposition of probation without entering a judgment of guilt, was not appealable because there was no judgment. If a defendant desires either a final judgment or order in the nature of a final judgment for appeal purposes, he or she has only to withhold consent. State v. Ryback,
64 Wis. 2d 574,
219 N.W.2d 263 (1974).
961.47 Annotation
The reference to s. 161.41 (3) [now s. 961.41 (3g) (b)] in sub. (1) means that proceedings may only be deferred for convictions for crimes encompassed by s. 161.41 (3) [now s. 961.41 (3g) (b)]. State v. Boyer,
198 Wis. 2d 837,
543 N.W.2d 562 (Ct. App. 1995),
95-0624.
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) (am),
(c),
(d), or
(g), 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 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) The court is not required to enter an order under
sub. (2) if any of the following applies:
961.472(5)(a)
(a) The court finds that the person is already covered by or has recently completed an assessment under this section or a substantially similar assessment.
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.
