Chapter 961

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 a portion, not to exceed 50 percent, of the amount received for payment of forfeiture expenses if the agency produces an itemized report of actual forfeiture expenses and submits the report to the department of administration to make it available on the department’s website. The remainder shall be deposited in the school fund as proceeds of the forfeiture. In this subsection, “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)(d) (d) Forward it to the bureau for disposition.

961.55(5)(e) (e) If the property forfeited is money, retain a portion, not to exceed 50 percent, of the amount received for payment of forfeiture expenses, as defined in par. (b), if the agency produces an itemized report of actual forfeiture expenses and submits the report to the department of administration to make it available on the department’s website and deposit the money in the school fund.

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 any of the following constitutes authority for the seizure and forfeiture of the plants described in sub. (7):

961.55(8)(a) (a) An appropriate federal registration, or proof that the person is the holder thereof.

961.55(8)(b) (b) Proof that the person is growing or storing the plants in accordance with the requirements, if any, imposed by the department of agriculture, trade and consumer protection under s. 94.55.

961.55(9) (9) If a crop intended to be hemp, as defined in s. 94.55 (1), is tested for delta-9-tetrahydrocannabinol levels and the average concentration of delta-9-tetrahydrocannabinol is found to exceed 0.7 percent above the permissible limit for hemp on a dry weight basis, as tested using post-decarboxylation or other similarly reliable methods, the entire crop at the growing location where the plant was found shall be seized and destroyed. Before a crop is seized and destroyed under this subsection, the agency whose officers or employees intend to seize and destroy the crop shall provide, to the person licensed under s. 94.55 to grow the crop or to the person’s agent or employee, written documentation verifying the test results for the crop that is subject to seizure and destruction.

961.55 History History: 1971 c. 219, 307; 1981 c. 267; 1985 a. 245, 328; 1987 a. 339; 1989 a. 121; 1993 a. 118, 482; 1995 a. 448 ss. 297 to 305; Stats. 1995 s. 961.55; 1997 a. 220; 1999 a. 48, 57, 110; 2001 a. 109; 2003 a. 49; 2005 a. 91; 2015 a. 264; 2017 a. 100, 211; 2019 a. 68.

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 This section and s. 973.075 both include the same “innocent owner” defense language, which bars forfeiture if the crime was committed without the property owner’s knowledge or consent. In the absence of contrary evidence, the legislature intended “owner” to have the same meaning in both provisions. Ownership under s. 973.075 (1) (b) 2. [now s. 973.075 (1) (b) 2m. b.] is not controlled by legal title, but will be found based on consideration of possession, title, control, and financial stake. State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998), 98-0582.

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 For purposes of the statutory “innocent owner” exception in this case, while one co-titleholder had the largest financial interest in the forfeited vehicle, the second co-titleholder, who used the vehicle in drug sales was the actual owner of the vehicle when that second titleholder had nearly complete possession and control of the vehicle and paid for insurance, gas, and maintenance while the first titleholder had a different vehicle of her own. However, while forfeiture of the vehicle and second co-titleholder’s financial interest in it was constitutional, forfeiture of the first titleholder’s full financial interest in the vehicle was unconstitutional under the excessive fines clause. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226.

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. Subject to s. 961.55 (1r), any property seized may be the subject of a federal forfeiture action.

961.555(2) (2) Commencement.

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, and the forfeiture proceedings shall be adjourned until after the defendant is convicted of any charge concerning a crime which was the basis for the seizure of the property. If property is seized, a charge shall be issued within 6 months after the seizure, except that an unlimited number of 6-month extensions may be granted if, for each extension, a judge determines probable cause is shown and the additional time is warranted. If no charge is issued within 6 months after the seizure, or a 6-month extension is not granted, the seized property shall be returned to the owner. 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)(am) (am) Upon motion by the prosecuting attorney, the court may waive the conviction requirement under par. (a) if the prosecuting attorney shows by clear and convincing evidence that any of the following applies:

961.555(2)(am)1. 1. The defendant has died.

961.555(2)(am)2. 2. The defendant was deported by the U.S. government.

961.555(2)(am)3. 3. The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.

961.555(2)(am)4. 4. The defendant fled the jurisdiction.

961.555(2)(am)5. 5. The property has been unclaimed for a period of at least 9 months.

961.555(2)(am)6. 6. The property is contraband that is subject to forfeiture under s. 961.55 (6), (6m), or (7).

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 750,000 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(2m) (2m) Criminal forfeitures.

961.555(2m)(a) (a) In addition to any penalties under this chapter, the court shall, with due provision for the rights of innocent persons in accordance with sub. (5), order forfeiture of any property specified in s. 961.55 (1) in accordance with pars. (b), (c), and (d).

961.555(2m)(b) (b) A criminal complaint must allege the extent of property subject to forfeiture under this subsection. At trial, the court or the jury shall return a special verdict determining the extent of property, if any, that is subject to forfeiture under this subsection. When a special verdict contains a finding of property subject to a forfeiture under this subsection, a judgment of criminal forfeiture shall be entered along with the judgment of conviction under s. 972.13.

961.555(2m)(c) (c) An injured person has a right or claim to forfeited property or the proceeds derived from forfeited property under this subsection that is superior to any right or claim the state has in the property or proceeds. This paragraph does not grant the injured person priority over state claims or rights by reason of a tax lien or other basis not covered by this section or by s. 961.55 or 961.56. All rights, titles, and interest in property specified in s. 961.55 (1) vest in the state upon the commission of the act giving rise to forfeiture under this subsection.

961.555(2m)(d) (d) An injured or innocent person may petition the court for relief from the judgment of criminal forfeiture entered under par. (b) within 30 days after it is entered. The person filing the petition has the burden of satisfying or convincing to a reasonable certainty by the greater weight of the evidence that the person has a bona fide perfected security interest in the property subject to forfeiture in s. 961.55 (1) or any other property subject to forfeiture in sub. (4). The court may order that a person with a bona fide perfected security interest be paid from the proceeds of the forfeiture or any other equitable relief necessary so as to do substantial justice to the person.

961.555(3) (3) Burden of proof. The state shall have the burden of proving by clear and convincing evidence that the property is subject to forfeiture under s. 961.55.

961.555(3g) (3g) Privileges. The defendant or convicted offender may invoke the right against self-incrimination or the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw an adverse inference from the invocation of the right or privilege.

961.555(3m) (3m) Proportionality.

961.555(3m)(a) (a) The court may not order the forfeiture of property if the court finds that the forfeiture is grossly disproportional to the crime for which the person whose property was seized was convicted or that the forfeiture is unconstitutionally excessive under the state or federal constitution.

961.555(3m)(b) (b) A person who is alleging that the forfeiture is grossly disproportional or is unconstitutionally excessive under this subsection shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the forfeiture is grossly disproportional or unconstitutionally excessive.

961.555(3m)(c) (c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:

961.555(3m)(c)1. 1. The seriousness of the offense.

961.555(3m)(c)2. 2. The purpose of the statute authorizing the forfeiture.

961.555(3m)(c)3. 3. The maximum fine for the offense.

961.555(3m)(c)4. 4. The harm that actually resulted from the defendant’s conduct.

961.555(3m)(d) (d) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court may not consider the value of the property to the state.

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)(a) (a) Cannot be located.

961.555(4)(b) (b) Has been transferred or conveyed to, sold to or deposited with a 3rd party.

961.555(4)(c) (c) Is beyond the jurisdiction of the court.

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(5) (5) Innocent owners.

961.555(5)(a) (a) Notwithstanding sub. (2) (a), a person who claims to have an ownership interest in property subject to forfeiture as an innocent owner may petition the court for the return of his or her seized property at any time.

961.555(5)(b) (b) A person who has an ownership interest in property subject to forfeiture that exists at the occurrence of the illegal conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

961.555(5)(c) (c) If the requisite showing under par. (b) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge of the underlying crime giving rise to the forfeiture.

961.555(5)(d) (d) A person who has an ownership interest in property subject to forfeiture that he or she acquired after the occurrence of the conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

961.555(5)(e) (e) If the requisite showing under par. (d) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge that the property was subject to forfeiture or that the person was not a bona fide purchaser without notice of any defect in title and for valuable consideration.

961.555(5)(f) (f) If the state does not meet the burden under par. (c) or (e) as to any property, the court shall find that the property is the property of an innocent owner and not subject to forfeiture under this chapter and shall order the state to relinquish all claims of title to the property.

961.555(6) (6) Return of property. The court shall order the return of any property subject to forfeiture under ss. 961.55 to 961.56 within 30 days of acquittal or dismissal of charges for the offense which was the basis of the forfeiture action, or 6 months after a seizure which was the basis of the forfeiture action if no charges have been issued and no extension has been granted. If the property is co-owned by 2 or more defendants in a criminal action, and one or more defendant co-owners are acquitted or the charges against him or her are dismissed, the court shall have discretion to dispose of the co-owned property in accordance with the proportionality guidelines in sub. (3m) as he or she deems appropriate.

961.555(7) (7) Attorney fees. A person who prevails in an action to return property subject to forfeiture under ss. 961.55 to 961.56 may be awarded reasonable attorney fees by the state if the court finds that the forfeiting agency or prosecuting attorney has arbitrarily and capriciously pursued the forfeiture action.

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; 2017 a. 207 s. 5; 2017 a. 211.

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 The time provisions of sub. (2) are mandatory and jurisdictional. State v. Rosen, 72 Wis. 2d 200, 240 N.W.2d 168 (1976).

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, 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.

961.555 Annotation Because forfeiture proceedings are automatically adjourned under sub. (2) (a), a circuit court cannot hold the hearing contemplated in sub. (2) (b) until after the defendant is convicted of a requisite charge. Upon such a conviction, the 60-day hearing deadline in sub. (2) (b) begins to run if the defendant has already filed an answer. If the court then fails to comply with sub. (2) (b) after the required adjournment, the court loses competency over the civil forfeiture proceedings. However, the adjournment in sub. (2) (a) does not preclude an innocent owner of property under sub. (5) (a) from petitioning the court for the return of the property, nor does it preclude the court from addressing that issue. State v. Lanning, 2023 WI App 52, 409 Wis. 2d 453, 997 N.W.2d 123, 21-1849.

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.

subch. VI of ch. 961 SUBCHAPTER VI

DRUG PARAPHERNALIA

961.571 961.571 Definitions. In this subchapter:

961.571(1) (1) 

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.