Chapter 961

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 this chapter 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) (1) 

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) (b)

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.

961.455 History History: 1989 a. 121; 1991 a. 153; 1995 a. 27; 1995 a. 448 ss. 273 to 275; Stats. 1995 s. 961.455; 1997 a. 283; 2001 a. 109.

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.

961.46 History History: 1971 c. 219; 1985 a. 328; 1987 a. 339; 1989 a. 121; 1993 a. 98, 118, 490; 1995 a. 27; 1995 a. 448 ss. 276 to 279; Stats. 1995 s. 961.46; 1999 a. 48, 57; 2001 a. 109.

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, the defendant 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.

961.472(5)(b) (b) The person is participating in a substance abuse treatment program that meets the requirements of s. 165.95 (3), as determined by the department of justice under s. 165.95 (9) and (10).

961.472 History History: 1985 a. 328; 1987 a. 339; 1989 a. 121; 1993 a. 118; 1995 a. 27 s. 9126 (19); 1995 a. 448 s. 286; Stats. 1995 s. 961.472; 1999 a. 48; 2001 a. 109; 2003 a. 49; 2005 a. 25; 2007 a. 20 s. 9121 (6) (a); 2013 a. 20.

961.473 961.473 Victim impact panels. If a person pleads guilty to or is found guilty of a violation of this chapter, the court may order the person to attend a program, such as a victim impact panel, that demonstrates the adverse effects of substance abuse on an individual or an individual’s family in addition to any forfeiture or penalty imposed. The court may order the defendant to pay a reasonable fee, based on the person’s ability to pay, to offset the costs of assembling and holding the program ordered under this section.

961.473 History History: 2017 a. 261.

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.

961.475 History History: 1971 c. 219, 336; 1985 a. 328; 1987 a. 339; 1989 a. 121; 1993 a. 118; 1995 a. 448 s. 287; Stats. 1995 s. 961.475.

961.48 961.48 Second or subsequent offenses.

961.48(1) (1) If a person is charged under sub. (2m) with a felony offense under this chapter that is a 2nd or subsequent offense as provided under sub. (3) and the person is convicted of that 2nd or subsequent offense, the maximum term of imprisonment for the offense may be increased as follows:

961.48(1)(a) (a) By not more than 6 years, if the offense is a Class C or D felony.

961.48(1)(b) (b) By not more than 4 years, if the offense is a Class E, F, G, H, or I felony.

961.48(2m) (2m) 

961.48(2m)(a) (a) Whenever a person charged with a felony 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) 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) 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, a felony offense under this chapter 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 of any felony or misdemeanor offense 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(5) (5) This section does not apply if the person is presently charged with a felony under s. 961.41 (3g) (c), (d), (e), or (g).

961.48 History History: 1971 c. 219; 1985 a. 328; 1987 a. 339; 1989 a. 121; 1993 a. 98, 118, 482, 490; 1995 a. 402; 1995 a. 448 s. 288; Stats. 1995 s. 961.48; 1997 a. 35 ss. 340, 584; 1997 a. 220; 1999 a. 48; 2001 a. 109; 2003 a. 49.

961.48 Annotation The trial court erred in imposing a second sentence on a defendant convicted of a second violation of ss. 161.41 (1) (a) and 161.14 (3) (k) [now ss. 961.41 (1) (a) and 961.14 (3) (k)]. While the repeater statute, s. 161.48 [now this section], allows imposition of a penalty not exceeding twice that allowable for a first 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 (1975).

961.48 Annotation For offenses under ch. 161 [now this chapter], 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 did not admit a prior conviction and the state did not offer proof of one. State v. Coolidge, 173 Wis. 2d 783, 496 N.W.2d 701 (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 trial beyond a reasonable doubt. State v. Miles, 221 Wis. 2d 56, 584 N.W.2d 703 (Ct. App. 1998), 97-1364.

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), 98-2176.

961.48 Annotation A defendant convicted of a second or subsequent controlled substance offense is subject to the penalty enhancements provided for in both s. 939.62 and sub. (2) if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Maxey, 2003 WI App 94, 264 Wis. 2d 878, 663 N.W.2d 811, 02-1171. But see State v. Hailes, 2023 WI App 29, 408 Wis. 2d 465, 992 N.W.2d 835, 21-1339.

961.48 Annotation The use of the word “or” in s. 973.01 (2) (c) 2. c. contrasts with the use of the word “and” in s. 973.01 (2) (c) 2. a. The use of the word “or” indicates that only one of the penalty enhancers found in this section and s. 939.62 (1) can apply, but not both. State v. Hailes, 2023 WI App 29, 408 Wis. 2d 465, 992 N.W.2d 835, 21-1339.

961.49 961.49 Offenses involving intent to deliver or distribute a controlled substance on or near certain places.

961.49(1m) (1m) If any person violates s. 961.41 (1) (cm), (d), (dm), (e), (f), (g) or (h) by delivering or distributing, or violates s. 961.41 (1m) (cm), (d), (dm), (e), (f), (g) or (h) by possessing with intent to deliver or distribute, cocaine, cocaine base, fentanyl, a fentanyl analog, 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(1m)(a) (a) While the person is in or on the premises of a scattered-site public housing project.

961.49(1m)(b) (b) While the person is in or on or otherwise within 1,000 feet of any of the following:

961.49(1m)(b)1. 1. A state, county, city, village or town park.

961.49(1m)(b)2. 2. A jail or correctional facility.

961.49(1m)(b)3. 3. A multiunit public housing project.

961.49(1m)(b)4. 4. A swimming pool open to members of the public.

961.49(1m)(b)5. 5. A youth center or a community center.

961.49(1m)(b)6. 6. Any private or public school premises and any premises of a tribal school, as defined in s. 115.001 (15m).

961.49(1m)(b)7. 7. A school bus, as defined in s. 340.01 (56).

961.49(1m)(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(1m)(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(2m) (2m) If any person violates s. 961.65 and, during the violation, the person intends to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine under any of the circumstances listed under sub. (1m) (a), (b), (c), or (d), the maximum term of imprisonment for that crime is increased by 5 years.