LRB-1603/2
PJH&GMM:sac:jf
2013 - 2014 LEGISLATURE
March 27, 2014 - Introduced by Representatives Goyke, Johnson, Barnes, Hebl,
Sinicki, Sargent, Hulsey, Pope, Berceau and Pasch, cosponsored by Senator
L. Taylor. Referred to Committee on Criminal Justice.
AB891,1,4
1An Act to amend 59.54 (25), 66.0107 (1) (bm), 938.34 (14s) (a) (intro.), 938.34
2(14t), 938.343 (2), 961.48 (5) and 961.495; and
to repeal and recreate 961.41
3(3g) (e) of the statutes;
relating to: possession of tetrahydrocannabinols, and
4providing a penalty.
Analysis by the Legislative Reference Bureau
Under current law, a person may not possess marijuana or another substance
containing tetrahydrocannabinol (THC). In general, a person who violates this
prohibition is guilty of a misdemeanor and may be fined not more than $1,000,
imprisoned for not more than six months, or both. A person who commits a second
or subsequent violation is guilty of a Class I felony and may be fined up to $10,000,
imprisoned for up to three years and six months, or both. Current law also authorizes
counties and municipalities to enact ordinances prohibiting the possession of 25
grams or less of marijuana. A violation of such an ordinance is a civil offense
punishable by a forfeiture (a civil fine). The ordinance, however, cannot be used to
prosecute a person who has previously been convicted of possessing marijuana.
Under this bill, a person who commits a first offense of possession of THC
commits a civil offense, punishable by a forfeiture of not less than $150 nor more than
$300. Under the bill, a person who commits a second offense of possession of THC
is guilty of a Class C misdemeanor and may be fined up to $500, imprisoned for up
to 30 days, or both. A person who commits a third offense is guilty of a Class A
misdemeanor, and may be fined up to $10,000, imprisoned for up to nine months, or
both. Under the bill, a person who commits a fourth or subsequent possession of THC
offense, or who has been convicted of a prior crime related to any controlled substance
except possession of THC, is guilty of a Class I felony and may be fined up to $10,000,
imprisoned for up to three years and six months, or both.
The bill allows a county or municipality to enact ordinances that make the first
possession of any amount of marijuana a civil offense, punishable by a forfeiture. The
ordinance, however, cannot be used to prosecute a person who has committed a prior
offense of possessing THC.
Similarly, the bill provides that a person under 17 years of age (juvenile) who
is found to have committed a first violation of possession of THC is subject to the
dispositions specified in the Juvenile Justice Code for a juvenile who violates a civil
law rather than to the delinquency dispositions specified in the Juvenile Justice
Code for a juvenile who violates a criminal law. Under the bill, a juvenile who is found
to have committed a first violation of possession of THC may be ordered to pay a
forfeiture not to exceed $50 or to participate in a teen court program, in community
service work, or in an alcohol or other drug abuse treatment or education program.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB891,1
1Section
1. 59.54 (25) of the statutes is amended to read:
AB891,2,102
59.54
(25) Possession of marijuana. The board may enact and enforce an
3ordinance to prohibit the possession of
25 grams or less of marijuana, as defined in
4s. 961.01 (14), subject to the exceptions in s. 961.41 (3g) (intro.), and provide a
5forfeiture for a violation of the ordinance; except that any person who is charged
with
6possession of more than 25 grams of marijuana, or who is charged with possession
7of
any amount of marijuana following
a conviction for possession of marijuana, an
8offense punishable under s. 961.41 (3g) (e) in this state shall not be prosecuted under
9this subsection. Any ordinance enacted under this subsection applies in every
10municipality within the county.
AB891,2
11Section
2. 66.0107 (1) (bm) of the statutes is amended to read:
AB891,3,7
166.0107
(1) (bm) Enact and enforce an ordinance to prohibit the possession of
225 grams or less of marijuana, as defined in s. 961.01 (14), subject to the exceptions
3in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance;
4except that any person who is charged
with possession of more than 25 grams of
5marijuana, or who is charged with possession of
any amount of marijuana following
6 a conviction an offense punishable under s. 961.41 (3g) (e) for possession of
7marijuana, in this state shall not be prosecuted under this paragraph.
AB891,3
8Section
3. 938.34 (14s) (a) (intro.) of the statutes is amended to read:
AB891,3,129
938.34
(14s) (a) (intro.) In addition to any other dispositions imposed under
10this section, if the juvenile is found to have
violated committed a violation of s. 961.41
11(3g)
that would be a felony or misdemeanor if committed by an adult, the court shall
12order one of the following penalties:
AB891,4
13Section
4. 938.34 (14t) of the statutes is amended to read:
AB891,4,414
938.34
(14t) Possession of a controlled substance or controlled substance
15analog on or near certain premises. If the juvenile is adjudicated delinquent under
16a violation of s. 961.41 (3g) by possessing or attempting to possess a controlled
17substance included in schedule I or II under ch. 961, a controlled substance analog
18of a controlled substance included in schedule I or II under ch. 961 or ketamine or
19flunitrazepam while in or on the premises of a scattered-site public housing project,
20as defined in s. 961.01 (20i), while in or on or otherwise within 1,000 feet of a state,
21county, city, village, or town park, a jail or correctional facility, as defined in s. 961.01
22(12m), a multiunit public housing project, as defined in s. 961.01 (14m), a swimming
23pool open to members of the public, a youth center, as defined in s. 961.01 (22), or a
24community center, while in or on or otherwise within 1,000 feet of any private, tribal,
25or public school premises, or while in or on or otherwise within 1,000 feet of a school
1bus, as defined in s. 340.01 (56), the court shall require that the juvenile participate
2for 100 hours in a supervised work program or other community service work under
3sub. (5g).
This subsection does not apply to a violation that would be punishable
4under s. 961.41 (3g) (e) 1. if committed by an adult.
AB891,5
5Section
5. 938.343 (2) of the statutes is amended to read:
AB891,4,236
938.343
(2) Forfeiture. Impose a forfeiture not to exceed the maximum
7forfeiture that may be imposed on an adult for committing that violation or, if the
8violation is only applicable to a person under 18 years of age
or is a violation that
9would be punishable under s. 961.41 (3g) (e) 1. if committed by an adult, $50. The
10order shall include a finding that the juvenile alone is financially able to pay and
11shall allow up to 12 months for the payment. If a juvenile fails to pay the forfeiture,
12the court may suspend any license issued under ch. 29 or suspend the juvenile's
13operating privilege, as defined in s. 340.01 (40), for not more than 2 years. The court
14shall immediately take possession of the suspended license if issued under ch. 29 or,
15if the license is issued under ch. 343, the court may take possession of, and if
16possession is taken, shall destroy, the license. The court shall forward to the
17department which issued the license the notice of suspension stating that the
18suspension is for failure to pay a forfeiture imposed by the court, together with any
19license issued under ch. 29 of which the court takes possession. If the forfeiture is
20paid during the period of suspension, the court shall immediately notify the
21department, which shall, if the license is issued under ch. 29, return the license to
22the person. Any recovery under this subsection shall be reduced by the amount
23recovered as a forfeiture for the same act under s. 938.45 (1r) (b).
AB891,6
24Section
6. 961.41 (3g) (e) of the statutes is repealed and recreated to read:
AB891,5,3
1961.41
(3g) (e)
Tetrahydrocannabinols. Any person who possesses or attempts
2to possess tetrahydrocannabinols included under s. 961.14 (4) (t), or a controlled
3substance analog of tetrahydrocannabinols:
AB891,5,54
1. Shall forfeit not less than $150 nor more than $300, except as provided in
5subds. 2 to 4.
AB891,5,76
2. Is guilty of a Class C misdemeanor if the number of convictions under this
7section in the person's lifetime equals 2 and subd. 4.b. does not apply.
AB891,5,98
3. Is guilty of a Class A misdemeanor if the number of convictions under this
9section in the person's lifetime equals 3 and subd. 4.b. does not apply.
AB891,5,1010
4. Is guilty of a Class I felony if either of the following apply:
AB891,5,1211
a. The number of convictions under this section in the person's lifetime equals
124 or more.
AB891,5,1713
b. The person has been convicted of any felony or misdemeanor under this
14chapter, except a misdemeanor punishable under subd. 2. or 3., or under any statute
15of the United States or of any state relating to controlled substances, controlled
16substance analogs, narcotic drugs, or depressant, stimulant, or hallucinogenic
17drugs.
AB891,7
18Section
7. 961.48 (5) of the statutes is amended to read:
AB891,5,2119
961.48
(5) This section does not apply if the person is presently charged with
20an offense punishable under s. 961.41 (3g) (e) or with a felony under s. 961.41 (3g)
21(c), (d),
(e), or (g).
AB891,8
22Section
8. 961.495 of the statutes is amended to read:
AB891,6,17
23961.495 Possession or attempted possession of a controlled substance
24on or near certain places. If any person violates s. 961.41 (3g) by possessing or
25attempting to possess a controlled substance included in schedule I or II, a controlled
1substance analog of a controlled substance included in schedule I or II or ketamine
2or flunitrazepam while in or on the premises of a scattered-site public housing
3project, while in or on or otherwise within 1,000 feet of a state, county, city, village,
4or town park, a jail or correctional facility, a multiunit public housing project, a
5swimming pool open to members of the public, a youth center or a community center,
6while in or on or otherwise within 1,000 feet of any private or public school premises
7or of any premises of a tribal school, as defined in s. 115.001 (15m), or while in or on
8or otherwise within 1,000 feet of a school bus, as defined in s. 340.01 (56), the court
9shall, in addition to any other penalties that may apply to the crime, impose 100
10hours of community service work for a public agency or a nonprofit charitable
11organization. The court shall ensure that the defendant is provided a written
12statement of the terms of the community service order and that the community
13service order is monitored. Any organization or agency acting in good faith to which
14a defendant is assigned pursuant to an order under this section has immunity from
15any civil liability in excess of $25,000 for acts or omissions by or impacting on the
16defendant.
This section does not apply to an offense punishable under s. 961.41 (3g)
17(e) 1.
AB891,9
18Section
9.
Initial applicability.
AB891,6,2019
(1) This act first applies to offenses committed on the effective date of this
20subsection.
