SB377: Bill Text

The bill requires health insurance policies, known in the bill as disability insurance policies, and self-insured health plans of the state or of a county, city, town, village, or school district that provides coverage of prescription drugs and devices to provide coverage for the medical use of THC in accordance with requirements specified in the bill and any equipment or supplies necessary for the medical use of THC. The coverage of the medical use of THC may be subject under the policy or plan only to the exclusions, limitations, and cost-sharing provisions that apply generally to the coverage of prescription drugs or devices under the policy or plan.

general regulation of marijuana

Under current law, a person may not operate a vehicle with a detectable amount of a restricted controlled substance, which includes delta-9-tetrahydrocannabinol (THC), in his or her blood, regardless of impairment. Penalties for violating this provision increase with the number of violations. Under the bill, a person may not operate a vehicle with a THC concentration of 5.0 ng/mL or more, instead of a detectable amount, in his or her blood. The bill does not change the penalty structure.

Under the fair employment law, no employer or other person may engage in any act of employment discrimination against any individual on the basis of the individual's use or nonuse of lawful products off the employer's premises during nonworking hours, subject to certain exceptions, one of which is if the use impairs the individual's ability to undertake adequately the job-related responsibilities of that individual's employment. The bill specifically defines marijuana as a lawful product for purposes of the fair employment law, such that no person may engage in any act of employment discrimination against an individual because of the individual's use of marijuana off the employer's premises during nonworking hours, subject to those exceptions.

Under current law, an individual may be disqualified from receiving unemployment insurance benefits if he or she is terminated because of misconduct or substantial fault. The bill specifically provides that an employee's use of marijuana off the employer's premises during nonworking hours does not constitute misconduct or substantial fault unless termination for that use is permitted under one of the exceptions under the fair employment law. Also under current law, the Department of Workforce Development must establish a program to test claimants who apply for UI benefits for the presence of controlled substances, as defined under federal law. If a claimant tests positive for a controlled substance, the claimant may be denied UI benefits, subject to certain exceptions and limitations. The bill excludes THC for purposes of this testing requirement. As such, under the bill, an individual who tests positive for THC may not be denied UI benefits.

The bill exempts THC, including marijuana, from drug testing for certain public assistance programs. Currently, a participant in a community service job or transitional placement under the Wisconsin Works program (W2) or a recipient of the FoodShare program, also known as the food stamp program, who is convicted of possession, use, or distribution of a controlled substance must submit to a test for controlled substances as a condition of continued eligibility. DHS is currently required to request a waiver of federal Medicaid law to require drug screening and testing as a condition of eligibility for the childless adult demonstration project in the Medical Assistance program. Current law also requires DHS to promulgate rules to develop and implement a drug screening, testing, and treatment policy for able-bodied adults without dependents in the FoodShare employment and training program. The bill exempts THC from all of those drug-testing requirements and programs. In addition, because THC is not a controlled substance under state law under the bill, the requirement under current law that the Department of Children and Families promulgate rules to create a controlled substance abuse screening and testing requirement for applicants for the work experience program for noncustodial parents under W2 and the Transform Milwaukee Jobs and Transitional Jobs programs does not include THC.

Unless federal law requires otherwise, the bill prohibits a hospital, physician, organ procurement organization, or other person from determining the ultimate recipient of an anatomical gift on the sole basis of a positive test for the use of marijuana by a potential recipient.

The bill changes state law regarding marijuana. It does not affect federal law, which generally prohibits persons from manufacturing, delivering, or possessing marijuana and applies to both intrastate and interstate violations.

This proposal may contain a health insurance mandate requiring a social and financial impact report under s. 601.423, stats.

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.

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:

SB377,1 Section 1 . 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table - See PDF for table

SB377,2 Section 2 . 20.115 (7) (ge) of the statutes is created to read:

SB377,8,7 20.115 (7) (ge) Marijuana producers and processors; official logotype. All moneys received under s. 94.56 for regulation of activities relating to marijuana under s. 94.56, for conducting public awareness campaigns under s. 94.56, and for the creation of a logotype under s. 100.145.

SB377,3 Section 3 . 20.435 (1) (gq) of the statutes is created to read:

SB377,9,2 20.435 (1) (gq) Medical marijuana registry program; physician education and public awareness campaign; official logotype. All moneys received under s. 146.44 for costs relating to the administration of the medical marijuana registry program under s. 146.44, for educating physicians about the availability of medical marijuana and conducting public awareness campaigns under s. 146.44, and for the creation of a logotype under s. 146.46.

SB377,4 Section 4 . 20.435 (1) (jm) of the statutes is created to read:

SB377,9,6 20.435 (1) (jm) Licensing and support services for compassion centers. All moneys received under s. 50.84 to regulate and license compassion centers under subch. VI of ch. 50.

SB377,5 Section 5 . 20.435 (6) (jm) of the statutes is amended to read:

SB377,9,24 20.435 (6) (jm) Licensing and support services. The amounts in the schedule for the purposes specified in ss. 48.685 (2) (am) and (b), (3) (a) and (b), and (5) (a), 48.686 (2) (am), (3) (am) and (bm), and (5) (a), 49.45 (47), 50.02 (2), 50.025, 50.065 (2) (am) and (b) 1., (3) (a) and (b), and (5), 50.13, 50.135, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.981, and 146.40 (4r) (b) and (er), and subch. VI VII of ch. 50 and to conduct health facilities plan and rule development activities, for accrediting nursing homes, convalescent homes, and homes for the aged, to conduct capital construction and remodeling plan reviews under ss. 50.02 (2) (b) and 50.36 (2), and for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection. All moneys received under ss. 48.685 (8), 48.686 (2) (ag), 49.45 (42) (c), 49.45 (47) (c), 50.02 (2), 50.025, 50.065 (8), 50.13, 50.36 (2), 50.49 (2) (b), 50.495, 50.52 (2) (a), 50.57, 50.93 (1) (c), and 50.981, all moneys received from fees for the costs of inspecting, licensing or certifying, and approving facilities, issuing permits, and providing technical assistance, that are not specified under any other paragraph in this subsection, and all moneys received under s. 50.135 (2) shall be credited to this appropriation account.

SB377,6 Section 6 . 20.566 (1) (bn) of the statutes is created to read:

SB377,10,5 20.566 (1) (bn) Administration and enforcement of marijuana tax and regulation. The amounts in the schedule for the purposes of administering the marijuana tax imposed under subch. IV of ch. 139 and for the costs incurred in enforcing the taxing and regulation of marijuana producers, marijuana processors, and marijuana retailers under subch. IV of ch. 139.

SB377,7 Section 7 . 23.33 (1) (jo) 1. of the statutes is amended to read:

SB377,10,8 23.33 (1) (jo) 1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

SB377,8 Section 8 . 23.33 (1) (jo) 5. of the statutes is repealed.

SB377,9 Section 9 . 23.33 (1) (k) of the statutes is created to read:

SB377,10,12 23.33 (1) (k) “Tetrahydrocannabinols concentration" means the number of nanograms of tetrahydrocannabinols per milliliter of blood.

SB377,10 Section 10 . 23.33 (4c) (a) 2g. of the statutes is created to read:

SB377,10,17 23.33 (4c) (a) 2g. `Operating with a tetrahydrocannabinols concentration at or above specified levels.' No person may engage in the operation of an all-terrain vehicle or utility terrain vehicle while the person has a tetrahydrocannabinols concentration of 5.0 or more.

SB377,11 Section 11 . 23.33 (4c) (a) 3g. of the statutes is created to read:

SB377,10,23 23.33 (4c) (a) 3g. `Operating with a tetrahydrocannabinols concentration at specified levels; below age 21.' If a person has not attained the age of 21, the person may not engage in the operation of an all-terrain vehicle or utility terrain vehicle while he or she has a tetrahydrocannabinols concentration of more than 0.0 but less than 5.0.

SB377,12 Section 12 . 23.33 (4c) (a) 4. of the statutes is amended to read:

SB377,11,9 23.33 (4c) (a) 4. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., 2g., or 2m., the offenses shall be joined. If the person is found guilty of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. Subdivisions 1., 2., 2g., and 2m. each require proof of a fact for conviction which the others do not require.

SB377,13 Section 13 . 23.33 (4c) (a) 5. of the statutes is renumbered 23.33 (4c) (a) 5. a. and amended to read:

SB377,11,18 23.33 (4c) (a) 5. a. In an action under subd. 2m. 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.

SB377,14 Section 14 . 23.33 (4c) (a) 5. b. of the statutes is created to read:

SB377,11,24 23.33 (4c) (a) 5. b. In an action under subd. 2g. or 3g. 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).

SB377,15 Section 15 . 23.33 (4c) (b) 2n. of the statutes is created to read:

SB377,12,4 23.33 (4c) (b) 2n. `Causing injury while operating with tetrahydrocannabinols concentration at or above specified levels.' No person who has a tetrahydrocannabinols concentration of 5.0 or more may cause injury to another person by the operation of an all-terrain vehicle or utility terrain vehicle.

SB377,16 Section 16 . 23.33 (4c) (b) 3. of the statutes is amended to read:

SB377,12,15 23.33 (4c) (b) 3. `Related charges.' A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., or 2m., or 2n. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., or 2m., or 2n. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of any combination of subd. 1., 2., or 2m., or 2n. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (13) (b) 2. and 3. Subdivisions 1., 2., and 2m., and 2n. each require proof of a fact for conviction which the others do not require.

SB377,17 Section 17 . 23.33 (4c) (b) 4. a. of the statutes is amended to read:

SB377,12,23 23.33 (4c) (b) 4. a. In an action under this paragraph, 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, did not have an alcohol concentration of 0.08 or more, or did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have a tetrahydrocannabinols concentration of 5.0 or more.

SB377,18 Section 18 . 23.33 (4c) (b) 4. b. of the statutes is amended to read:

SB377,13,7 23.33 (4c) (b) 4. b. In an action under subd. 2m. 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.

SB377,19 Section 19 . 23.33 (4c) (b) 4. c. of the statutes is created to read:

SB377,13,13 23.33 (4c) (b) 4. c. In an action under subd. 2n. 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).

SB377,20 Section 20 . 23.33 (4p) (d) of the statutes is amended to read:

SB377,13,25 23.33 (4p) (d) Admissibility; effect of test results; other evidence. The results of a chemical test required or administered under par. (a), (b) or (c) are admissible in any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have violated the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law on the issue of whether the person was under the influence of an intoxicant or the issue of whether the person had alcohol concentrations or tetrahydrocannabinols concentrations at or above specified levels or a detectable amount of a restricted controlled substance in his or her blood. Results of these chemical tests shall be given the effect required under s. 885.235. This subsection does not limit the right of a law enforcement officer to obtain evidence by any other lawful means.

SB377,21 Section 21. 23.33 (13) (b) 1. of the statutes is amended to read:

SB377,14,4 23.33 (13) (b) 1. Except as provided under subds. 2. and 3., a person who violates sub. (4c) (a) 1., 2., 2g., or 2m. or (4p) (e) shall forfeit not less than $150 nor more than $300.

SB377,22 Section 22 . 23.33 (13) (b) 2. of the statutes is amended to read:

SB377,14,11 23.33 (13) (b) 2. Except as provided under subd. 3., a person who violates sub. (4c) (a) 1., 2., 2g., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted previously under the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law or the refusal law shall be fined not less than $300 nor more than $1,100 and shall be imprisoned not less than 5 days nor more than 6 months.

SB377,23 Section 23 . 23.33 (13) (b) 3. of the statutes is amended to read:

SB377,14,18 23.33 (13) (b) 3. A person who violates sub. (4c) (a) 1., 2., 2g., or 2m. or (4p) (e) and who, within 5 years prior to the arrest for the current violation, was convicted 2 or more times previously under the intoxicated operation of an all-terrain vehicle or utility terrain vehicle law or refusal law shall be fined not less than $600 nor more than $2,000 and shall be imprisoned not less than 30 days nor more than one year in the county jail.

SB377,24 Section 24 . 23.33 (13) (b) 4. of the statutes is amended to read:

SB377,14,21 23.33 (13) (b) 4. A person who violates sub. (4c) (a) 3. or 3g. or (4p) (e) and who has not attained the age of 21 shall forfeit not more than $50.

SB377,25 Section 25 . 23.33 (13) (e) of the statutes is amended to read:

SB377,15,7 23.33 (13) (e) Alcohol, controlled substances or controlled substance analogs, tetrahydrocannabinols; assessment. In addition to any other penalty or order, a person who violates sub. (4c) (a) or (b) or (4p) (e) or who violates s. 940.09 or 940.25 if the violation involves the operation of an all-terrain vehicle or utility terrain vehicle, shall be ordered by the court to submit to and comply with an assessment by an approved public treatment facility for an examination of the person's use of alcohol, controlled substances or controlled substance analogs, or tetrahydrocannabinols. The assessment order shall comply with s. 343.30 (1q) (c) 1. a. to c. Intentional failure to comply with an assessment ordered under this paragraph constitutes contempt of court, punishable under ch. 785.

SB377,26 Section 26 . 23.335 (1) (zgm) 1. of the statutes is amended to read:

SB377,15,10 23.335 (1) (zgm) 1. A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.

SB377,27 Section 27 . 23.335 (1) (zgm) 5. of the statutes is repealed.

SB377,28 Section 28 . 23.335 (1) (zLg) of the statutes is created to read:

SB377,15,14 23.335 (1) (zLg) “Tetrahydrocannabinols concentration” has the meaning given in s. 340.01 (66m).

SB377,29 Section 29 . 23.335 (12) (a) 2g. of the statutes is created to read:

SB377,15,18 23.335 (12) (a) 2g. No person may engage in the operation of an off-highway motorcycle while the person has a tetrahydrocannabinols concentration of 5.0 or more.

SB377,30 Section 30 . 23.335 (12) (a) 3m. of the statutes is created to read:

SB377,15,22 23.335 (12) (a) 3m. If a person has not attained the age of 21, the person may not engage in the operation of an off-highway motorcycle while he or she has a tetrahydrocannabinols concentration of more than 0.0 but less than 5.0.

SB377,31 Section 31 . 23.335 (12) (a) 4. of the statutes is amended to read:

SB377,16,7 23.335 (12) (a) 4. A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., 2g., or 2m., the offenses shall be joined. If the person is found guilty of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (23) (c) 2. and 3. Subdivisions 1., 2., 2g., and 2m. each require proof of a fact for conviction which the others do not require.

SB377,32 Section 32 . 23.335 (12) (a) 5. of the statutes is renumbered 23.335 (12) (a) 5. a. and amended to read:

SB377,16,16 23.335 (12) (a) 5. a. In an action under subd. 2m. 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.

SB377,33 Section 33 . 23.335 (12) (a) 5. b. of the statutes is created to read:

SB377,16,22 23.335 (12) (a) 5. b. In an action under subd. 2g. or 3m. 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).

SB377,34 Section 34 . 23.335 (12) (b) 2g. of the statutes is created to read:

SB377,17,3 23.335 (12) (b) 2g. No person who has a tetrahydrocannabinols concentration of 5.0 or more may cause injury to another person by the operation of an off-highway motorcycle.

SB377,35 Section 35 . 23.335 (12) (b) 3. of the statutes is amended to read:

SB377,17,13 23.335 (12) (b) 3. A person may be charged with and a prosecutor may proceed upon a complaint based upon a violation of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence. If the person is charged with violating any combination of subd. 1., 2., 2g., or 2m. in the complaint, the crimes shall be joined under s. 971.12. If the person is found guilty of any combination of subd. 1., 2., 2g., or 2m. for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under sub. (23) (c) 2. and 3. Subdivisions 1., 2., 2g., and 2m. each require proof of a fact for conviction which the others do not require.

SB377,36 Section 36 . 23.335 (12) (b) 4. of the statutes is amended to read:

SB377,17,21 23.335 (12) (b) 4. In an action under this paragraph, 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 even if he or she had not been under the influence of an intoxicant to a degree which rendered him or her incapable of safe operation, did not have an alcohol concentration of 0.08 or more, or did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have a tetrahydrocannabinols concentration of 5.0 or more.

SB377,37 Section 37 . 23.335 (12) (b) 5. of the statutes is renumbered 23.335 (12) (b) 5. a. and amended to read:

SB377,18,5 23.335 (12) (b) 5. a. In an action under subd. 2m. 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.

SB377,38 Section 38 . 23.335 (12) (b) 5. b. of the statutes is created to read:

SB377,18,11 23.335 (12) (b) 5. b. In an action under subd. 2g. 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).

SB377,39 Section 39 . 23.335 (12) (i) of the statutes is amended to read:

SB377,18,22 23.335 (12) (i) Chemical tests; effect of test results. The results of a chemical test required or administered under par. (f) or (g) are admissible in any civil or criminal action or proceeding arising out of the acts committed by a person alleged to have violated the intoxicated operation of an off-highway motorcycle law on the issue of whether the person was under the influence of an intoxicant or the issue of whether the person had alcohol concentrations or tetrahydrocannabinols concentrations at or above specified levels or a detectable amount of a restricted controlled substance in his or her blood. Results of these chemical tests shall be given the effect required under s. 885.235. Paragraphs (f) to (h) do not limit the right of a law enforcement officer to obtain evidence by any other lawful means.