Amendment SA12-AB56

AB56-SA12,131 Section 131. 343.305 (9) (a) 5. a. of the statutes is amended to read:

AB56-SA12,73,11 343.305 (9) (a) 5. a. Whether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol, tetrahydrocannabinols, a controlled substance or a controlled substance analog or any combination of alcohol, tetrahydrocannabinols, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders the person incapable of safely driving, or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of safely driving, having a restricted controlled substance in his or her blood, or having a prohibited alcohol or tetrahydrocannabinols concentration or, if the person was driving or operating a commercial motor vehicle, an alcohol concentration of 0.04 or more and whether the person was lawfully placed under arrest for violation of s. 346.63 (1), (2m) or (5) or a local ordinance in conformity therewith or s. 346.63 (2) or (6), 940.09 (1) or 940.25.

AB56-SA12,132 Section 132. 343.305 (9) (a) 5. c. of the statutes is amended to read:

AB56-SA12,73,18 343.305 (9) (a) 5. c. Whether the person refused to permit the test. The person shall not be considered to have refused the test if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol, tetrahydrocannabinols, controlled substances, controlled substance analogs or other drugs.

AB56-SA12,133 Section 133. 343.305 (9) (am) 5. a. of the statutes is amended to read:

AB56-SA12,73,23 343.305 (9) (am) 5. a. Whether the officer detected any presence of alcohol, tetrahydrocannabinols, controlled substance, controlled substance analog or other drug, or a combination thereof, on the person or had reason to believe that the person was violating or had violated s. 346.63 (7).

AB56-SA12,134 Section 134. 343.305 (9) (am) 5. c. of the statutes is amended to read:

AB56-SA12,74,6 343.305 (9) (am) 5. c. Whether the person refused to permit the test. The person shall not be considered to have refused the test if it is shown by a preponderance of evidence that the refusal was due to a physical inability to submit to the test due to a physical disability or disease unrelated to the use of alcohol, tetrahydrocannabinols, controlled substances, controlled substance analogs or other drugs.

AB56-SA12,135 Section 135. 343.305 (9) (d) of the statutes is amended to read:

AB56-SA12,74,15 343.305 (9) (d) At the close of the hearing, or within 5 days thereafter, the court shall determine the issues under par. (a) 5. or (am) 5. If all issues are determined adversely to the person, the court shall proceed under sub. (10). If one or more of the issues is determined favorably to the person, the court shall order that no action be taken on the operating privilege on account of the person's refusal to take the test in question. This section does not preclude the prosecution of the person for violation of s. 346.63 (1), (2m), (2p), (5) or (7) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6), 940.09 (1) or 940.25.

AB56-SA12,136 Section 136. 343.305 (10) (c) 1. (intro.) of the statutes is amended to read:

AB56-SA12,74,25 343.305 (10) (c) 1. (intro.) Except as provided in subd. 1. a. or b., the court shall order the person to submit to and comply with an assessment by an approved public treatment facility as defined in s. 51.45 (2) (c) for examination of the person's use of alcohol, tetrahydrocannabinols, controlled substances or controlled substance analogs and development of a driver safety plan for the person. The court shall notify the person and the department of transportation of the assessment order. The court shall also notify the person that noncompliance with assessment or the driver safety plan will result in license suspension until the person is in compliance. The assessment order shall:

AB56-SA12,137 Section 137. 343.305 (10) (d) of the statutes is amended to read:

AB56-SA12,76,16 343.305 (10) (d) The assessment report shall order compliance with a driver safety plan. The report shall inform the person of the fee provisions under s. 46.03 (18) (f). The driver safety plan may include a component that makes the person aware of the effect of his or her offense on a victim and a victim's family. The driver safety plan may include treatment for the person's misuse, abuse or dependence on alcohol, tetrahydrocannabinols, controlled substances or controlled substance analogs, attendance at a school under s. 345.60, or both. If the plan requires inpatient treatment, the treatment shall not exceed 30 days. A driver safety plan under this paragraph shall include a termination date consistent with the plan which shall not extend beyond one year. The county department under s. 51.42 shall assure notification of the department of transportation and the person of the person's compliance or noncompliance with assessment and treatment. The school under s. 345.60 shall notify the department, the county department under s. 51.42 and the person of the person's compliance or noncompliance with the requirements of the school. Nonpayment of the assessment fee or, if the person has the ability to pay, nonpayment of the driver safety plan fee is noncompliance with the court order. If the department is notified of noncompliance, other than for nonpayment of the assessment fee or driver safety plan fee, it shall revoke the person's operating privilege until the county department under s. 51.42 or the school under s. 345.60 notifies the department that the person is in compliance with assessment or the driver safety plan. If the department is notified that a person has not paid the assessment fee, or that a person with the ability to pay has not paid the driver safety plan fee, the department shall suspend the person's operating privilege for a period of 2 years or until it receives notice that the person has paid the fee, whichever occurs first. The department shall notify the person of the suspension or revocation, the reason for the suspension or revocation and the person's right to a review. A person may request a review of a revocation based upon failure to comply with a driver safety plan within 10 days of notification. The review shall be handled by the subunit of the department of transportation designated by the secretary. The issues at the review are limited to whether the driver safety plan, if challenged, is appropriate and whether the person is in compliance with the assessment order or the driver safety plan. The review shall be conducted within 10 days after a request is received. If the driver safety plan is determined to be inappropriate, the department shall order a reassessment and if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If the person is determined to be in compliance with the assessment or driver safety plan, and if the person is otherwise eligible, the department shall reinstate the person's operating privilege. If there is no decision within the 10-day period, the department shall issue an order reinstating the person's operating privilege until the review is completed, unless the delay is at the request of the person seeking the review.

AB56-SA12,138 Section 138. 343.305 (10) (em) of the statutes is amended to read:

AB56-SA12,77,3 343.305 (10) (em) One penalty for improperly refusing to submit to a test for intoxication regarding a person arrested for a violation of s. 346.63 (2m), (2p), or (7) or a local ordinance in conformity therewith is revocation of the person's operating privilege for 6 months. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the incident that gave rise to the improper refusal, the revocation period is 12 months. After the first 15 days of the revocation period, the person is eligible for an occupational license under s. 343.10. Any such improper refusal or revocation for the refusal does not count as a prior refusal or a prior revocation under this section or ss. 343.30 (1q), 343.307 and 346.65 (2). The person shall not be required to submit to and comply with any assessment or driver safety plan under pars. (c) and (d).

AB56-SA12,139 Section 139. 343.307 (1) (d) of the statutes is amended to read:

AB56-SA12,77,12 343.307 (1) (d) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol or tetrahydrocannabinols concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.

AB56-SA12,140 Section 140. 343.307 (2) (e) of the statutes is amended to read:

AB56-SA12,77,21 343.307 (2) (e) Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol or tetrahydrocannabinols concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws.

AB56-SA12,141 Section 141. 343.31 (1) (am) of the statutes is amended to read:

AB56-SA12,78,6 343.31 (1) (am) Injury by the operation of a vehicle while under the influence of an intoxicant, tetrahydrocannabinols, a controlled substance or a controlled substance analog, or any combination of an intoxicant, tetrahydrocannabinols, a controlled substance and a controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving or while the person has a detectable amount of a restricted controlled substance in his or her blood or has a prohibited alcohol or tetrahydrocannabinols concentration and which is criminal under s. 346.63 (2).

AB56-SA12,142 Section 142. 343.31 (2) of the statutes is amended to read:

AB56-SA12,78,22 343.31 (2) The department shall revoke the operating privilege of any resident upon receiving notice of the conviction of such person in another jurisdiction for an offense therein which, if committed in this state, would have been cause for revocation under this section or for revocation under s. 343.30 (1q). Such offenses shall include violation of any law of another jurisdiction that prohibits a person from using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol or tetrahydrocannabinols concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws. Upon receiving similar notice with respect to a nonresident, the department shall revoke the privilege of the nonresident to operate a motor vehicle in this state. Such revocation shall not apply to the operation of a commercial motor vehicle by a nonresident who holds a valid commercial driver license issued by another state.

AB56-SA12,143 Section 143. 343.315 (2) (a) 2. of the statutes is amended to read:

AB56-SA12,79,5 343.315 (2) (a) 2. Section 346.63 (1) (b) or (5) (a) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (1) (b) or (5) (a) or the law of another jurisdiction prohibiting driving or operating a commercial motor vehicle while the person's alcohol concentration is 0.04 or more or with an excess or specified range of alcohol or tetrahydrocannabinols concentration, as those or substantially similar terms are used in that jurisdiction's laws.

AB56-SA12,144 Section 144. 343.315 (2) (a) 5. of the statutes is amended to read:

AB56-SA12,79,14 343.315 (2) (a) 5. Section 343.305 (7) or (9) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 343.305 (7) or (9) or the law of another jurisdiction prohibiting refusal of a person driving or operating a motor vehicle to submit to chemical testing to determine the person's alcohol or tetrahydrocannabinols concentration or intoxication or the amount of a restricted controlled substance in the person's blood, or prohibiting positive results from such chemical testing, as those or substantially similar terms are used in that jurisdiction's laws.

AB56-SA12,145 Section 145. 343.315 (2) (a) 6. of the statutes is amended to read:

AB56-SA12,80,2 343.315 (2) (a) 6. Section 346.63 (2) or (6), 940.09 (1) or 940.25 or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63 (2) or (6), 940.09 (1) or 940.25, or the law of another jurisdiction prohibiting causing or inflicting injury, great bodily harm or death through use of a motor vehicle while intoxicated or under the influence of alcohol, tetrahydrocannabinols, a controlled substance, a controlled substance analog or a combination thereof, or with an alcohol concentration of 0.04 or more or with an excess or specified range of alcohol or tetrahydrocannabinols concentration, while under the influence of any drug to a degree that renders the person incapable of safely driving, or while having a detectable amount of a restricted controlled substance in the person's blood, as those or substantially similar terms are used in that jurisdiction's laws.

AB56-SA12,146 Section 146. 343.315 (2) (bm) 2. of the statutes is amended to read:

AB56-SA12,80,6 343.315 (2) (bm) 2. The offense relates to a vehicle operator's alcohol or tetrahydrocannabinols concentration or intoxication or the amount of a restricted controlled substance in the operator's blood.

AB56-SA12,147 Section 147. 343.32 (2) (bj) of the statutes is amended to read:

AB56-SA12,80,12 343.32 (2) (bj) The scale adopted by the secretary shall assess, for each conviction, 6 demerit points for a violation of s. 346.63 (6), 4 demerit points for a violation of s. 346.63 (2m) or (2p), and 3 demerit points for a violation of s. 346.63 (7) (a) 3. The scale adopted by the secretary shall not assess any demerit points for conviction of a violation of s. 346.63 (5) or (7) (a) 1. or 2.

AB56-SA12,148 Section 148. 343.38 (1) (d) 2. of the statutes is amended to read:

AB56-SA12,80,18 343.38 (1) (d) 2. Not more than 45 days before applying for reinstatement, the person submits to and complies with an assessment by an approved public treatment facility, as defined in s. 51.45 (2) (c), for examination of the person's use of alcohol, tetrahydrocannabinols, controlled substances, or controlled substance analogs and development of a driver safety plan for the person.

AB56-SA12,149 Section 149. 343.44 (1) (a) of the statutes is amended to read:

AB56-SA12,81,4 343.44 (1) (a) Operating while suspended. No person whose operating privilege has been duly suspended under the laws of this state may operate a motor vehicle upon any highway in this state during the period of suspension or in violation of any restriction on an occupational license issued to the person during the period of suspension. A person's knowledge that his or her operating privilege is suspended is not an element of the offense under this paragraph. In this paragraph, “ restriction on an occupational license" means restrictions imposed under s. 343.10 (5) (a) as to hours of the day, area, routes or purpose of travel, vehicles allowed to be operated, use of an ignition interlock device, sobriety or use of alcohol, tetrahydrocannabinols, controlled substances or controlled substance analogs.

AB56-SA12,150 Section 150. 343.44 (1) (b) of the statutes is amended to read:

AB56-SA12,81,15 343.44 (1) (b) Operating while revoked. No person whose operating privilege has been duly revoked under the laws of this state may operate a motor vehicle upon any highway in this state during the period of revocation or in violation of any restriction on an occupational license issued to the person during the period of revocation. A person's knowledge that his or her operating privilege is revoked is not an element of the offense under this paragraph. In this paragraph, “restriction on an occupational license" means restrictions imposed under s. 343.10 (5) (a) as to hours of the day, area, routes or purpose of travel, vehicles allowed to be operated, use of an ignition interlock device, sobriety or use of alcohol, tetrahydrocannabinols, controlled substances or controlled substance analogs.

AB56-SA12,151 Section 151. 344.576 (2) (b) of the statutes is amended to read:

AB56-SA12,81,20 344.576 (2) (b) The damage occurs while the renter or authorized driver operates the private passenger vehicle in this state while under the influence of an intoxicant or other drug, as described under s. 346.63 (1) (a), (am), or (b) or, (2m), or (2p).

AB56-SA12,152 Section 152. 346.63 (1) (b) of the statutes is amended to read:

AB56-SA12,81,23 346.63 (1) (b) The person has a prohibited alcohol or tetrahydrocannabinols concentration.

AB56-SA12,153 Section 153. 346.63 (1) (d) of the statutes is renumbered 346.63 (1) (d) 1. and amended to read:

AB56-SA12,82,7 346.63 (1) (d) 1. In an action under par. (am) that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

AB56-SA12,154 Section 154. 346.63 (1) (d) 2. of the statutes is created to read:

AB56-SA12,82,13 346.63 (1) (d) 2. In an action under par. (b) that is based on the defendant allegedly having a prohibited tetrahydrocannabinols concentration, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for tetrahydrocannabinol or he or she was a qualifying patient, as defined in s. 50.80 (6).

AB56-SA12,155 Section 155. 346.63 (2) (a) 2. of the statutes is amended to read:

AB56-SA12,82,16 346.63 (2) (a) 2. The person has a prohibited alcohol or tetrahydrocannabinols concentration.

AB56-SA12,156 Section 156. 346.63 (2) (b) 1. of the statutes is amended to read:

AB56-SA12,83,2 346.63 (2) (b) 1. In an action under this subsection, the defendant has a defense if he or she proves by a preponderance of the evidence that the injury would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, tetrahydrocannabinols, a controlled substance, a controlled substance analog or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving, did not have a prohibited alcohol or tetrahydrocannabinols concentration described under par. (a) 2., or did not have a detectable amount of a restricted controlled substance in his or her blood.

AB56-SA12,157 Section 157. 346.63 (2) (b) 2. of the statutes is amended to read:

AB56-SA12,83,10 346.63 (2) (b) 2. In an action under par. (a) 3. that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

AB56-SA12,158 Section 158. 346.63 (2) (b) 3. of the statutes is created to read:

AB56-SA12,83,16 346.63 (2) (b) 3. In an action under par. (a) 2. that is based on the defendant allegedly having a prohibited tetrahydrocannabinols concentration, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for tetrahydrocannabinol or he or she was a qualifying patient, as defined in s. 50.80 (6).

AB56-SA12,159 Section 159. 346.63 (2p) of the statutes is created to read:

AB56-SA12,83,25 346.63 (2p) If a person has not attained the legal age, as defined in s. 961.70 (2), the person may not drive or operate a motor vehicle while he or she has a tetrahydrocannabinols concentration of more than 0.0 but not more than 5.0. One penalty for violation of this subsection is suspension of a person's operating privilege under s. 343.30 (1p). The person is eligible for an occupational license under s. 343.10 at any time. If a person arrested for a violation of this subsection refuses to take a test under s. 343.305, the refusal is a separate violation and the person is subject to revocation of the person's operating privilege under s. 343.305 (10) (em).

AB56-SA12,160 Section 160. 346.637 of the statutes is amended to read:

AB56-SA12,84,3 346.637 Driver awareness program. The department shall conduct a campaign to educate drivers in this state concerning:

AB56-SA12,84,7 (1) The laws relating to operating a motor vehicle and drinking alcohol, using tetrahydrocannabinols, controlled substances , or controlled substance analogs, or using any combination of alcohol, tetrahydrocannabinols, controlled substances, and controlled substance analogs.

AB56-SA12,84,10 (2) The effects of alcohol, tetrahydrocannabinols, controlled substances, or controlled substance analogs, or the use of them in any combination, on a person's ability to operate a motor vehicle.

AB56-SA12,161 Section 161. 346.65 (2m) (a) of the statutes is amended to read:

AB56-SA12,84,20 346.65 (2m) (a) In imposing a sentence under sub. (2) for a violation of s. 346.63 (1) (am) or (b) or (5) or a local ordinance in conformity therewith, the court shall review the record and consider the aggravating and mitigating factors in the matter. If the amount of alcohol in the person's blood or urine or the amount of a restricted controlled substance or tetrahydrocannabinols in the person's blood is known, the court shall consider that amount as a factor in sentencing. The chief judge of each judicial administrative district shall adopt guidelines, under the chief judge's authority to adopt local rules under SCR 70.34, for the consideration of aggravating and mitigating factors.

AB56-SA12,162 Section 162. 346.65 (2q) of the statutes is amended to read:

AB56-SA12,84,25 346.65 (2q) Any person violating s. 346.63 (2m) or (2p) shall forfeit $200. If there was a minor passenger under 16 years of age in the motor vehicle at the time of the violation that gave rise to the conviction under s. 346.63 (2m) or (2p), the person shall be fined $400.

AB56-SA12,163 Section 163. 346.93 (1) of the statutes is amended to read:

AB56-SA12,85,9 346.93 (1) No underage person, as defined under s. 125.02 (20m), may knowingly possess, transport, or have under his or her control any alcohol beverage or tetrahydrocannabinols in any motor vehicle unless the. This subsection does not prohibit a person who is employed by a brewer, brewpub, alcohol beverage licensee, wholesaler, retailer, distributor, manufacturer, or rectifier and is from possessing, transporting, or having such beverage alcohol beverages in a motor vehicle under his or her control during his or her working hours and in the course of employment, as provided under s. 125.07 (4) (bm).

AB56-SA12,164 Section 164. 346.935 (1) of the statutes is amended to read:

AB56-SA12,85,13 346.935 (1) No person may drink alcohol beverages ; burn, inhale, or ingest products containing tetrahydrocannabinol; or inhale nitrous oxide while he or she is in any motor vehicle when the vehicle is upon a highway.

AB56-SA12,165 Section 165. 346.935 (2) of the statutes is amended to read:

AB56-SA12,85,19 346.935 (2) No person may possess on his or her person, in a privately owned motor vehicle upon a public highway, any bottle or receptacle containing alcohol beverages, tetrahydrocannabinols, or nitrous oxide if the bottle or receptacle has been opened, the seal has been broken or the contents of the bottle or receptacle have been partially removed or released.

AB56-SA12,166 Section 166. 346.935 (3) of the statutes is amended to read:

AB56-SA12,86,5 346.935 (3) The owner of a privately owned motor vehicle, or the driver of the vehicle if the owner is not present in the vehicle, shall not keep, or allow to be kept in the motor vehicle when it is upon a highway any bottle or receptacle containing alcohol beverages, tetrahydrocannabinols, or nitrous oxide if the bottle or receptacle has been opened, the seal has been broken or the contents of the bottle or receptacle have been partially removed or released. This subsection does not apply if the bottle or receptacle is kept in the trunk of the vehicle or, if the vehicle has no trunk, in some other area of the vehicle not normally occupied by the driver or passengers. A utility compartment or glove compartment is considered to be within the area normally occupied by the driver and passengers.

AB56-SA12,167 Section 167. 349.02 (2) (b) 4. of the statutes is amended to read:

AB56-SA12,86,8 349.02 (2) (b) 4. Local ordinances enacted under s. 59.54 (25) (a) or (25m) or 66.0107 (1) (bm).

AB56-SA12,168 Section 168. 349.03 (2m) of the statutes is amended to read:

AB56-SA12,86,11 349.03 (2m) Notwithstanding sub. (2), a municipal court may suspend a license for a violation of a local ordinance in conformity with s. 346.63 (1) or, (2m), or (2p).

AB56-SA12,169 Section 169. 349.06 (1m) of the statutes is amended to read:

AB56-SA12,86,14 349.06 (1m) Notwithstanding sub. (1), a municipal court may suspend a license for a violation of a local ordinance in conformity with s. 346.63 (1) or, (2m), or (2p).

AB56-SA12,170 Section 170. 350.01 (10v) (a) of the statutes is amended to read:

AB56-SA12,86,17 350.01 (10v) (a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

AB56-SA12,171 Section 171. 350.01 (10v) (e) of the statutes is repealed.

AB56-SA12,172 Section 172. 350.01 (21g) of the statutes is created to read:

AB56-SA12,86,21 350.01 (21g) “Tetrahydrocannabinols concentration" has the meaning given in s. 23.33 (1) (k).

AB56-SA12,173 Section 173. 350.101 (1) (bg) of the statutes is created to read:

AB56-SA12,86,25 350.101 (1) (bg) Operating with tetrahydrocannabinols concentration at or above specified levels. No person may engage in the operation of a snowmobile while the person has a tetrahydrocannabinols concentration of 5.0 or more.

AB56-SA12,174 Section 174. 350.101 (1) (cg) of the statutes is created to read:

AB56-SA12,87,5 350.101 (1) (cg) Operating with tetrahydrocannabinols concentration at or above specified levels; below age 21. If a person has not attained the age of 21, the person may not engage in the operation of a snowmobile while he or she has a tetrahydrocannabinols concentration of more than 0.0 but not more than 5.0.