SB1035: Bill Text

SB1035,29,21 a. A qualifying patient, as defined in s. 146.44 (1) (e), who is taking the actions to provide medical cannabis for his or her own use.

SB1035,29,23 b. A primary caregiver, as defined in s. 146.44 (1) (d), who is taking the actions to provide medical cannabis for his or her qualifying patient.

SB1035,36 Section 36. 767.41 (5) (am) (intro.) of the statutes, as affected by 2021 Wisconsin Act 37, is amended to read:

SB1035,30,7 767.41 (5) (am) (intro.) Subject to pars. (bm) and, (c), and (d), in determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child. The court may not prefer one parent or potential custodian over the other on the basis of the sex or race of the parent or potential custodian. Subject to pars. (bm) and, (c), and (d), the court shall consider all of the following factors, which are not necessarily listed in order of importance, in making its determination:

SB1035,37 Section 37 . 767.41 (5) (d) of the statutes is created to read:

SB1035,30,15 767.41 (5) (d) The court may not consider as a factor in determining the legal custody of a child whether a parent or potential custodian holds, or has applied for, a registry identification card, as defined in s. 146.44 (1) (g), is or has been the subject of a written certification, as defined in s. 146.44 (1) (h), or is or has been a qualifying patient, as defined in s. 146.44 (1) (e), or a primary caregiver, as defined in s. 146.44 (1) (d), unless the parent or potential custodian's behavior creates an unreasonable danger to the child that can be clearly articulated and substantiated.

SB1035,38 Section 38 . 767.451 (5m) (a) of the statutes is amended to read:

SB1035,30,20 767.451 (5m) (a) Subject to pars. (b) and, (c), and (d), in all actions to modify legal custody or physical placement orders, the court shall consider the factors under s. 767.41 (5) (am), subject to s. 767.41 (5) (bm), and shall make its determination in a manner consistent with s. 767.41.

SB1035,39 Section 39 . 767.451 (5m) (d) of the statutes is created to read:

SB1035,31,4 767.451 (5m) (d) In an action to modify a legal custody order, the court may not consider as a factor in making a determination whether a parent or potential custodian holds, or has applied for, a registry identification card, as defined in s. 146.44 (1) (g), is or has been the subject of a written certification, as defined in s. 146.44 (1) (h), or is or has been a qualifying patient, as defined in s. 146.44 (1) (e), or a primary caregiver, as defined in s. 146.44 (1) (d), unless the parent or potential custodian's behavior creates an unreasonable danger to the child that can be clearly articulated and substantiated.

SB1035,40 Section 40 . 961.01 (5m) of the statutes is created to read:

SB1035,31,7 961.01 (5m) “Debilitating medical condition or treatment" has the meaning given in s. 146.44 (1) (b).

SB1035,41 Section 41 . 961.01 (12v) of the statutes is created to read:

SB1035,31,11 961.01 (12v) “Lockable, enclosed facility" means an enclosed indoor or outdoor area that is capable of being locked or that requires a security device and that permits access only by a member of a treatment team.

SB1035,42 Section 42 . 961.01 (14c) of the statutes is created to read:

SB1035,31,14 961.01 (14c) “Maximum authorized amount" means 12 live cannabis plants and 3 ounces of usable cannabis.

SB1035,43 Section 43 . 961.01 (14g) of the statutes is created to read:

SB1035,31,16 961.01 (14g) “Medical cannabis" has the meaning given in s. 94.57 (1) (f).

SB1035,44 Section 44 . 961.01 (17k) of the statutes is created to read:

SB1035,31,19 961.01 (17k) “Out-of-state registry identification card" has the meaning given in s. 146.44 (1) (cm).

SB1035,45 Section 45 . 961.01 (19m) of the statutes is created to read:

SB1035,31,21 961.01 (19m) “Primary caregiver" has the meaning given in s. 146.44 (1) (d).

SB1035,46 Section 46 . 961.01 (20hm) of the statutes is created to read:

SB1035,31,23 961.01 (20hm) “Qualifying patient" has the meaning given in s. 146.44 (1) (e).

SB1035,47 Section 47 . 961.01 (20ht) of the statutes is created to read:

SB1035,32,2 961.01 (20ht) “Registry identification card" has the meaning given in s. 146.44 (1) (g).

SB1035,48 Section 48 . 961.01 (20t) of the statutes is created to read:

SB1035,32,5 961.01 (20t) “Treatment team" means a qualifying patient and his or her primary caregivers.

SB1035,49 Section 49 . 961.01 (21f) of the statutes is created to read:

SB1035,32,8 961.01 (21f) “Usable cannabis” means cannabis leaves or flowers but does not include seeds, stalks, or roots or any ingredients combined with the leaves or flowers.

SB1035,50 Section 50 . 961.01 (21t) of the statutes is created to read:

SB1035,32,10 961.01 (21t) “Written certification" has the meaning given in s. 146.44 (1) (h).

SB1035,51 Section 51 . 961.436 of the statutes is created to read:

SB1035,32,15 961.436 Medical cannabis defense. (1) A member of a qualifying patient's treatment team has a defense to prosecution under s. 961.41 (1) (h) or (1m) (h) for manufacturing, or possessing with intent to manufacture, tetrahydrocannabinols if all of the following apply:

SB1035,32,17 (a) The manufacture or possession is by the treatment team to use medical cannabis.

SB1035,32,18 (b) The amount of cannabis does not exceed the maximum authorized amount.

SB1035,32,21 (c) Any live cannabis plants are in a lockable, enclosed facility unless a member of a qualifying patient's treatment team is accessing the plants or has the plants in his or her possession.

SB1035,32,23 (d) If the member is a primary caregiver, he or she is not a primary caregiver to more than 10 qualifying patients.

SB1035,33,2 (2) A member of a qualifying patient's treatment team has a defense to prosecution under s. 961.41 (1) (h) or (1m) (h) for distributing or delivering, or possessing with intent to distribute or deliver, tetrahydrocannabinols to another member of the treatment team if all of the following apply:

SB1035,33,4 (a) The distribution, delivery, or possession is by the treatment team to use medical cannabis.

SB1035,33,5 (b) The amount of cannabis does not exceed the maximum authorized amount.

SB1035,33,8 (c) Any live cannabis plants are in a lockable, enclosed facility unless a member of a qualifying patient's treatment team is accessing the plants or has the plants in his or her possession.

SB1035,33,10 (d) If the member is a primary caregiver, he or she is not a primary caregiver to more than 10 qualifying patients.

SB1035,33,13 (3) (a) Except as provided in par. (b), a member of a qualifying patient's treatment team has a defense to a prosecution under s. 961.41 (3g) (e) if all of the following apply:

SB1035,33,15 1. The possession or attempted possession is by the treatment team to use medical cannabis.

SB1035,33,16 2. The amount of cannabis does not exceed the maximum authorized amount.

SB1035,33,19 3. Any live cannabis plants are in a lockable, enclosed facility unless a member of a qualifying patient's treatment team is accessing the plants or has the plants in his or her possession.

SB1035,33,21 4. If the member is a primary caregiver, he or she is not a primary caregiver to more than 10 qualifying patients.

SB1035,33,23 (b) A person may not assert the defense described in par. (a) if, while he or she possesses or attempts to possess tetrahydrocannabinols, any of the following applies:

SB1035,34,3 1. The person drives or operates a motor vehicle while under the influence of tetrahydrocannabinols in violation of s. 346.63 (1) or a local ordinance in conformity with s. 346.63 (1).

SB1035,34,6 2. While under the influence of tetrahydrocannabinols, the person operates heavy machinery or engages in any other conduct that endangers the health or well-being of another person.

SB1035,34,7 3. The person smokes cannabis in, on, or at any of the following places:

SB1035,34,8 a. A school bus or a public transit vehicle.

SB1035,34,9 b. The person's place of employment.

SB1035,34,10 c. Public or private school premises.

SB1035,34,11 d. A juvenile correctional facility.

SB1035,34,12 e. A jail or adult correctional facility.

SB1035,34,13 f. A public park, beach, or recreation center.

SB1035,34,14 g. A youth center.

SB1035,34,18 (4) For the purposes of a defense raised under sub. (1), (2), or (3) (a), a valid registry identification card, a valid out-of-state registry identification card, or a written certification is presumptive evidence that the element under sub. (1) (a), (2) (a), or (3) (a) 1. has been satisfied.

SB1035,35,2 (5) Notwithstanding s. 227.12 (1), any person may petition the department of health services to promulgate a rule to designate a medical condition or treatment as a debilitating medical condition or treatment. The department of health services shall promulgate rules providing for public notice of and a public hearing regarding a petition, with the public hearing providing persons an opportunity to comment upon the petition. After the hearing, but no later than 180 days after the submission of the petition, the department of health services shall approve or deny the petition. The department of health service's decision to approve or deny a petition is subject to judicial review under s. 227.52.

SB1035,52 Section 52 . 961.55 (8) (c), (d) and (e) of the statutes are created to read:

SB1035,35,5 961.55 (8) (c) A valid registry identification card or a valid out-of-state registry identification card.

SB1035,35,6 (d) The person's written certification, if the person is a qualifying patient.

SB1035,35,8 (e) A written certification for a qualifying patient for whom the person is a primary caregiver.

SB1035,53 Section 53 . 961.555 (2) (am) 6. of the statutes is amended to read:

SB1035,35,12 961.555 (2) (am) 6. The property is contraband that is subject to forfeiture under s. 961.55 (6), (6m), or, unless the defendant invokes a defense under s. 961.436 or 961.5755, under s. 961.55 (6) or (7).

SB1035,54 Section 54 . 961.555 (2r) of the statutes is created to read:

SB1035,35,16 961.555 (2r) Medical use defense. (a) In an action to forfeit property seized under s. 961.55, the person who was in possession of the property when it was seized has a defense to the forfeiture of the property if any of the following applies:

SB1035,35,19 1. The person was prosecuted under s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) in connection with the seized property but had a valid defense under s. 961.436 (1), (2), or (3) (a) or 961.5755 (1) (a) or (2).

SB1035,35,23 2. The person was not prosecuted under s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) in connection with the seized property, but, if the person had been, he or she would have had a valid defense under s. 961.436 (1), (2), or (3) (a) or 961.5755 (1) (a) or (2).

SB1035,36,3 (b) The owner of property seized under s. 961.55 who is raising a defense under par. (a) shall do so in the answer to the complaint that he or she serves under sub. (2) (b). If a property owner raises such a defense in his or her answer, the state must, as part of the burden of proof specified in sub. (3), prove that the facts constituting the defense do not exist.

SB1035,55 Section 55 . 961.56 (1) of the statutes is amended to read:

SB1035,36,10 961.56 (1) It Except as provided in s. 961.555 (2r) (b) and except for any presumption arising under s. 961.436 (4) or 961.5755 (3), 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, and the burden of proof of any exemption or exception is upon the person claiming it.

SB1035,56 Section 56 . 961.5755 of the statutes is created to read:

SB1035,36,15 961.5755 Medical cannabis defense in drug paraphernalia cases. (1) (a) Except as provided in par. (b), a member of a treatment team has a defense to prosecution under s. 961.573 (1) if he or she uses, or possesses with the primary intent to use, drug paraphernalia to use medical cannabis.

SB1035,36,17 (b) This subsection does not apply if s. 961.436 (3) (b) 1., 2., or 3. applies while the person uses, or possesses with the primary intent to use, drug paraphernalia.

SB1035,36,22 (2) A member of a treatment team has a defense to prosecution under s. 961.574 (1) or 961.575 (1) if he or she delivers, possesses with intent to deliver, or manufactures with intent to deliver to another member of his or her treatment team drug paraphernalia, knowing that it will be primarily used by the treatment team to use medical cannabis.

SB1035,36,25 (3) For the purposes of a defense raised under sub. (1) (a) or (2), a valid registry identification card, a valid out-of-state registry identification card, or a written certification is presumptive evidence that the defense is valid.

SB1035,57 Section 57. 968.072 of the statutes is created to read:

SB1035,37,3 968.072 Medical cannabis; arrest and prosecution. (1) Definitions. In this section:

SB1035,37,4 (a) “Lockable, enclosed facility" has the meaning given in s. 961.01 (12v).

SB1035,37,5 (am) “Maximum authorized amount" has the meaning given in s. 961.01 (14c).

SB1035,37,6 (b) “Medical cannabis" has the meaning given in s. 94.57 (1) (f).

SB1035,37,8 (bm) “Out-of-state registry identification card" has the meaning given in s. 146.44 (1) (cm).

SB1035,37,9 (bt) “Practitioner” has the meaning given in s. 146.44 (1) (cp).

SB1035,37,10 (c) “Primary caregiver" has the meaning given in s. 146.44 (1) (d).

SB1035,37,11 (d) “Qualifying patient" has the meaning given in s. 146.44 (1) (e).

SB1035,37,12 (e) “Registry identification card" has the meaning given in s. 146.44 (1) (g).