961.41(4)(bm) (bm) It is unlawful for any person to agree, consent or offer to lawfully manufacture, deliver, distribute or dispense any controlled substance to any person, or to offer, arrange or negotiate to have any controlled substance unlawfully manufactured, delivered, distributed or dispensed, and then manufacture, deliver, distribute or dispense or offer, arrange or negotiate to have manufactured, delivered, distributed or dispensed to any such person a substance which is not a controlled substance. Any person who violates this paragraph may be fined not more than $500 or imprisoned for not more than 6 months or both.

961.41(5) (5) Drug abuse program improvement surcharge.

961.41(5)(a) (a) When a court imposes a fine for a violation of this section, it shall also impose a drug abuse program improvement surcharge under ch. 814 in an amount of 75 percent of the fine and penalty surcharge imposed.

961.41(5)(b) (b) The clerk of the court shall collect and transmit the amount to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25 (3) (f) 2.

961.41(5)(c) (c)

961.41(5)(c)1. 1. The first $850,000 plus two-thirds of all moneys in excess of $1,275,000 collected in each fiscal year from drug surcharges under this subsection shall be credited to the appropriation account under s. 20.435 (5) (gb).

961.41(5)(c)2. 2. All moneys in excess of $850,000 and up to $1,275,000 plus one-third of moneys in excess of $1,275,000 collected in each fiscal year from drug surcharges under this subsection shall be credited to the appropriation account under s. 20.455 (2) (kv).

961.41 History History: 1971 c. 219, 307; 1973 c. 12; 1981 c. 90, 314; 1985 a. 328; 1987 a. 339, 403; 1989 a. 31, 56, 121; 1991 a. 39; 138; 1993 a. 98, 118, 437, 482; 1995 a. 201; 1995 a. 448 ss. 243 to 266, 487 to 490; Stats. 1995 s. 961.41; 1997 a. 220, 283; 1999 a. 21, 32, 48, 57; 2001 a. 16, 109; 2003 a. 33, 49, 139, 320, 325, 327; 2005 a. 14, 25, 52, 262; 2007 a. 20; 2009 a. 28, 180; 2011 a. 31; 2013 a. 20, 166, 196, 351; 2015 a. 195 s. 83; 2021 a. 179; s. 35.17 correction in (1m) (dm) 2.

961.41 Annotation An inference of intent could be drawn from possession of hashish with a street value of $2,000 to $4,000 and opium with a street value of $20,000 to $24,000. State v. Trimbell, 64 Wis. 2d 379, 219 N.W.2d 369 (1974).

961.41 Annotation No presumption of intent to deliver is raised by sub. (1m). The statute merely lists evidence from which intent may be inferred. State ex rel. Bena v. Crosetto, 73 Wis. 2d 261, 243 N.W.2d 442 (1976).

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). But see State v. Chentis, 2022 WI App 4, 400 Wis. 2d 441, 969 N.W.2d 482, 20-1699.

961.41 Annotation This section prohibits the act of manufacture, as defined in s. 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. County Court, 82 Wis. 2d 401, 263 N.W.2d 162 (1978).

961.41 Annotation A conviction under sub. (1m) was upheld when the defendant possessed one-third gram of cocaine divided into four 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 Possession is not a lesser included offense of manufacturing. State v. Peck, 143 Wis. 2d 624, 422 N.W.2d 160 (Ct. App. 1988).

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, 500 N.W.2d 328 (Ct. App. 1993).

961.41 Annotation A conspiracy under sub. (1x) must involve at least two 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 third 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 a 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 third 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 the person 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 the individual’s 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 Sub. (3g) (c) requires that the prior conviction be connected to controlled substances if a prior conviction is to trigger penalty enhancement. When the statute underlying a prior conviction presents alternative methods of violating the statute, it is appropriate to consult a limited class of documents to determine what statutory alternative formed the basis for the defendant’s prior conviction. A trial court judge, rather than a jury, is allowed to determine the applicability of a defendant’s prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. Guarnero, 2015 WI 72, 363 Wis. 2d 857, 867 N.W.2d 400, 13-1753.

961.41 Annotation Arrest did not terminate possession or control of a controlled substance. State v. Brantner, 2020 WI 21, 390 Wis. 2d 494, 939 N.W.2d 546, 18-0053.

961.41 Annotation Multiple charges for possession based on different dosages were multiplicitous under sub. (3g) (am) because that subsection proscribes possession without regard to the dosage of the pills. State v. Brantner, 2020 WI 21, 390 Wis. 2d 494, 939 N.W.2d 546, 18-0053.