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.
961.571(1)(b)1.
1. Hypodermic syringes, needles and other objects used or intended for use in parenterally injecting substances into the human body.
961.571(1)(b)2.
2. Any items, including pipes, papers and accessories, that are designed for use or primarily intended for use with tobacco products.
961.571(2)
(2) "Primarily" means chiefly or mainly.
961.571 History
History: 1989 a. 121;
1991 a. 140;
1995 a. 448 s.
310; Stats. 1995 s. 961.571.
961.571 Annotation
A tobacco pipe is excluded from the definition of drug paraphernalia under sub. (1) (b) 2. The presence of residue of a controlled substance in the pipe does not change that result. State v. Martinez,
210 Wis. 2d 396,
563 N.W.2d 922 (Ct. App. 1997),
96-1899.
961.572(1)(1) In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other legally relevant factors, the following:
961.572(1)(a)
(a) Statements by an owner or by anyone in control of the object concerning its use.
961.572(1)(b)
(b) The proximity of the object, in time and space, to a direct violation of this chapter.
961.572(1)(c)
(c) The proximity of the object to controlled substances or controlled substance analogs.
961.572(1)(d)
(d) The existence of any residue of controlled substances or controlled substance analogs on the object.
961.572(1)(e)
(e) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he or she knows intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is designed for use or primarily intended for use as drug paraphernalia.
961.572(1)(f)
(f) Instructions, oral or written, provided with the object concerning its use.
961.572(1)(g)
(g) Descriptive materials accompanying the object that explain or depict its use.
961.572(1)(i)
(i) The manner in which the object is displayed for sale.
961.572(1)(j)
(j) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.
961.572(1)(k)
(k) The existence and scope of legitimate uses for the object in the community.
961.572(2)
(2) In determining under this subchapter whether an item is designed for a particular use, a court or other authority shall consider the objective physical characteristics and design features of the item.
961.572(3)
(3) In determining under this subchapter whether an item is primarily intended for a particular use, a court or other authority shall consider the subjective intent of the defendant.
961.572 History
History: 1989 a. 121;
1991 a. 140;
1995 a. 448 s.
311; Stats. 1995 s. 961.572.
961.573
961.573
Possession of drug paraphernalia. 961.573(1)
(1) No person may use, or possess with the primary intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this chapter. Any person who violates this subsection may be fined not more than $500 or imprisoned for not more than 30 days or both.
961.573(2)
(2) Any person who violates
sub. (1) who is under 17 years of age is subject to a disposition under
s. 938.344 (2e).
961.573(3)(a)(a) No person may use, or possess with the primary intent to use, drug paraphernalia to manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, or store methamphetamine or a controlled substance analog of methamphetamine in violation of this chapter.
961.573(3)(b)1.1. Except as provided in
subd. 2., any person who violates
par. (a) is guilty of a Class H felony.
961.573(3)(b)2.
2. Any person who is 18 years of age or older and who violates
par. (a) while in the presence of a child who is 14 years of age or younger is guilty of a Class G felony.
961.574
961.574
Manufacture or delivery of drug paraphernalia.
