961.55(2)(a)
(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
961.55(2)(b)
(b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;
961.55(2)(c)
(c) The officer or employee or a law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
961.55(2)(d)
(d) The officer or employee or a law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter, that the property was derived from or realized through a crime under this chapter or that the property is a vehicle which was used as described in
sub. (1) (d).
961.55(3)
(3) In the event of seizure under
sub. (2), proceedings under
sub. (4) shall be instituted promptly. All dispositions and forfeitures under this section and
ss. 961.555 and
961.56 shall be made with due provision for the rights of innocent persons under
sub. (1) (d) 1.,
2. and
4. Any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property returned if:
961.55(3)(a)
(a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or
961.55(3)(b)
(b) All proceedings in which it might be required have been completed.
961.55(4)
(4) Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the sheriff of the county in which the seizure was made subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this chapter, the person seizing the property may:
961.55(4)(b)
(b) Remove the property to a place designated by it; or
961.55(4)(c)
(c) Require the sheriff of the county in which the seizure was made to take custody of the property and remove it to an appropriate location for disposition in accordance with law.
961.55(5)
(5) When property is forfeited under this chapter, the agency whose officer or employee seized the property shall do one of the following:
961.55(5)(b)
(b) Sell that which is not required to be destroyed by law and which is not harmful to the public. The agency may use 50 percent of the amount received for payment of forfeiture expenses. The remainder shall be deposited in the school fund as proceeds of the forfeiture. In this paragraph, "forfeiture expenses" include all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred.
961.55(5)(c)
(c) Require the sheriff of the county in which the property was seized to take custody of the property and remove it for disposition in accordance with law.
961.55(5)(e)
(e) If the property forfeited is money, retain the sum of all of the following for payment of forfeiture expenses, as defined in
par. (b), and deposit the remainder in the school fund:
961.55(5)(e)1.
1. If the amount of money does not exceed $2,000, 70 percent of that amount.
961.55(5)(e)2.
2. Fifty percent of any amount seized in excess of $2,000.
961.55(6)
(6) Controlled substances included in schedule I and controlled substance analogs of controlled substances included in schedule I that are possessed, transferred, sold, offered for sale or attempted to be possessed in violation of this chapter are contraband and shall be seized and summarily forfeited to the state. Controlled substances included in schedule I and controlled substance analogs of controlled substances included in schedule I that are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state.
961.55(6m)
(6m) Flunitrazepam or ketamine that is possessed, transferred, sold, offered for sale or attempted to be possessed in violation of this chapter is contraband and shall be seized and summarily forfeited to the state. Flunitrazepam or ketamine that is seized or comes into the possession of the state, the owner of which is unknown, is contraband and shall be summarily forfeited to the state.
961.55(7)
(7) Species of plants from which controlled substances in schedules I and II may be derived which have been planted or cultivated in violation of this chapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the state.
961.55(8)
(8) The failure, upon demand by any officer or employee designated in
s. 961.51 (1) or
(2), of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate federal registration, or proof that the person is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.
961.55 Annotation
A vehicle obtained out of state and used to transport a controlled substance is subject to forfeiture under sub. (1) (d). State v. S & S Meats, Inc.
92 Wis. 2d 64,
284 N.W.2d 712 (Ct. App. 1979).
961.55 Annotation
A vehicle subject to sub. (1) (d) 4. is not subject to forfeiture unless the secured party consents. State v. Fouse,
120 Wis. 2d 471,
355 N.W.2d 366 (Ct. App. 1984).
961.55 Annotation
Under sub. (1) (f), the state may seize property from an owner not charged with a crime. State v. Hooper,
122 Wis. 2d 748,
364 N.W.2d 175 (Ct. App. 1985).
961.55 Annotation
The "seized but not forfeited" language of sub. (3) means that the portion of that subsection related to return of property is only triggered by an unsuccessful forfeiture action brought by the state; in the event that the district attorney elects not to bring a forfeiture action, a person seeking the return of seized property may do so under s. 968.20. Jones v. State,
226 Wis. 2d 565,
594 N.W.2d 738 (1999),
97-3306.
961.55 Annotation
A law enforcement agency may not retain unclaimed contraband money for its own use. In the absence of an asset forfeiture proceeding initiated by the state or a judicial determination that the money constitutes contraband, a local law enforcement agency should dispose of the money as unclaimed property under s. 59.66 (2).
OAG 10-09.
961.555
961.555
Forfeiture proceedings. 961.555(1)
(1)
Type of action; where brought. In an action brought to cause the forfeiture of any property seized under
s. 961.55, the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Any property seized may be the subject of a federal forfeiture action.
961.555(2)(a)(a) The district attorney of the county within which the property was seized shall commence the forfeiture action within 30 days after the seizure of the property, except that the defendant may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with
ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.
961.555(2)(b)
(b) Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.
961.555(2)(c)
(c) In counties having a population of 500,000 or more, the district attorney or corporation counsel may proceed under
par. (a).
961.555(2)(d)
(d) If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment as provided in
s. 806.02.
961.555(3)
(3) Burden of proof. The state shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the property is subject to forfeiture under
s. 961.55.
961.555(4)
(4) Action against other property of the person. The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under
s. 961.55 if the property subject to forfeiture meets any of the following conditions:
961.555(4)(b)
(b) Has been transferred or conveyed to, sold to or deposited with a 3rd party.
961.555(4)(d)
(d) Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.
961.555(4)(e)
(e) Has been commingled with other property that cannot be divided without difficulty.
961.555 History
History: 1971 c. 219; Sup. Ct. Order, 67 Wis. 2d 585, 752 (1975);
1981 c. 113,
267; Sup. Ct. Order, 120 Wis. 2d xiii;
1985 a. 245;
1989 a. 121;
1993 a. 321;
1995 a. 448 s.
306; Stats. 1995 s. 961.555;
1997 a. 187.
961.555 Note
Judicial Council Committee Note, 1974: The district attorney would be required to file within the 15 [now 30] day period. The answer need not be verified. [Re Order effective Jan. 1, 1976]
961.555 Note
Judicial Council Note, 1984: Sub. (2) (a) has been amended by allowing 60 days after the action is commenced for service of the summons, complaint and affidavit on the defendants. The prior statute, requiring service within 30 days after seizure of the property, was an exception to the general rule of s. 801.02 (2), stats. [Re Order effective Jan. 1, 1985]
961.555 Annotation
Persons served under sub. (2) (a) must be named as defendants. An action cannot be brought against an inanimate object as a sole "defendant." State v. One 1973 Cadillac,
95 Wis. 2d 641,
291 N.W.2d 626 (Ct. App. 1980).
961.555 Annotation
An affidavit under sub. (2) (a) must be executed by a person who was present at the seizure or who ordered the seizure and received reports from those present at the seizure. State v. Hooper,
122 Wis. 2d 748,
364 N.W.2d 175 (Ct. App. 1985).
961.555 Annotation
Sub. (2) (b) requires a hearing be held, not set, within 60 days of the service of the answer and allows a continuance only when it is applied for within the 60 day period. State v. Baye,
191 Wis. 2d 334,
528 N.W.2d 81 (Ct. App. 1995).
961.555 Annotation
The 60-day limit in sub. (2) (b) is mandatory and a forfeiture petition must be dismissed with prejudice unless the requisite hearing is held within the 60-day period. Once the 60-day period has expired, the circuit court loses competency, and the state may not start the clock running anew by filing another forfeiture petition based on the same facts. State v. One 2000 Lincoln Navigator, its Tools and Appurtenances,
2007 WI App 127,
301 Wis. 2d 714,
731 N.W.2d 375,
06-2016.
961.555 Annotation
Authentication of a summons and complaint is accomplished by the clerk's placing a filing stamp indicating the case number on each copy of the summons and complaint and for purposes of sub. (2) (a), a forfeiture affidavit is authenticated the same way. Failure to comply with the authentication of the forfeiture summons, complaint, and affidavit can constitute fundamental error. But when, as in this case, the state presents all three items, stapled together as one document, to the clerk for authentication, and the clerk errs in failing to separately authenticate the affidavit, the defect is technical, not fundamental, and will only deprive the court of jurisdiction if prejudice is shown. State v. Schmitt,
2012 WI App 121,
344 Wis. 2d 587,
824 N.W.2d 899,
11-1949.
961.56
961.56
Burden of proof; liabilities. 961.56(1)
(1) It is not necessary for the state to negate any exemption or exception in this chapter in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this chapter. The burden of proof of any exemption or exception is upon the person claiming it.
961.56(2)
(2) In the absence of proof that a person is the duly authorized holder of an appropriate federal registration or order form, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.
961.56(3)
(3) No liability is imposed by this chapter upon any authorized state, county or municipal officer or employee engaged in the lawful performance of the officer's or employee's duties.
961.56 History
History: 1971 c. 219,
307;
1993 a. 482;
1995 a. 448 s.
307; Stats. 1995 s. 961.56.
961.565
961.565
Enforcement reports. On or before November 15 annually, the governor and the attorney general shall submit a joint report to the chief clerk of each house of the legislature for distribution to the legislature under
s. 13.172 (2) describing the activities in this state during the previous year to enforce the laws regulating controlled substances. The report shall contain recommendations for improving the effectiveness of enforcement activities and other efforts to combat the abuse of controlled substances.
961.565 History
History: 1989 a. 122;
1995 a. 448 s.
308; Stats. 1995 s. 961.565.
DRUG PARAPHERNALIA
961.571
961.571
Definitions. In this subchapter:
961.571(1)(a)(a) "Drug paraphernalia" means all equipment, products and materials of any kind that are used, designed for use or primarily intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance or controlled substance analog in violation of this chapter. "Drug paraphernalia" includes, but is not limited to, any of the following:
961.571(1)(a)1.
1. Kits used, designed for use or primarily intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant that is a controlled substance or from which a controlled substance or controlled substance analog can be derived.
961.571(1)(a)2.
2. Kits used, designed for use or primarily intended for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances or controlled substance analogs.
961.571(1)(a)3.
3. Isomerization devices used, designed for use or primarily intended for use in increasing the potency of any species of plant that is a controlled substance.
961.571(1)(a)4.
4. Testing equipment used, designed for use or primarily intended for use in identifying, or in analyzing the strength, effectiveness or purity of, controlled substances or controlled substance analogs.
961.571(1)(a)5.
5. Scales and balances used, designed for use or primarily intended for use in weighing or measuring controlled substances or controlled substance analogs.
961.571(1)(a)6.
6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, designed for use or primarily intended for use in cutting controlled substances or controlled substance analogs.
961.571(1)(a)7.
7. Separation gins and sifters used, designed for use or primarily intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana.
961.571(1)(a)8.
8. Blenders, bowls, containers, spoons and mixing devices used, designed for use or primarily intended for use in compounding controlled substances or controlled substance analogs.
961.571(1)(a)9.
9. Capsules, balloons, envelopes and other containers used, designed for use or primarily intended for use in packaging small quantities of controlled substances or controlled substance analogs.
961.571(1)(a)10.
10. Containers and other objects used, designed for use or primarily intended for use in storing or concealing controlled substances or controlled substance analogs.
961.571(1)(a)11.
11. Objects used, designed for use or primarily intended for use in ingesting, inhaling or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:
961.571(1)(a)11.a.
a. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls.
961.571(1)(a)11.e.
e. Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand.
