SB1035: Bill Text

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).

SB1035,37,13 (f) “Treatment team" has the meaning given in s. 961.01 (20t).

SB1035,37,14 (g) “Written certification" has the meaning given in s. 146.44 (1) (h).

SB1035,37,18 (2) Limitations on arrests and prosecution; medical cannabis. Unless s. 961.436 (3) (b) 1., 2., or 3. applies, a member of a qualifying patient's treatment team may not be arrested or prosecuted for a violation of s. 961.41 (1) (h), (1m) (h), or (3g) (e) if all of the following apply:

SB1035,37,20 (a) The member manufactures, distributes, delivers, or possesses tetrahydrocannabinols for the use of medical cannabis by the treatment team.

SB1035,37,23 (b) The member possesses a valid registry identification card, a valid out-of-state registry identification card, or a copy of the qualifying patient's written certification.

SB1035,37,24 (c) The quantity of cannabis does not exceed the maximum authorized amount.

SB1035,38,2 (d) Any live cannabis plants are in a lockable, enclosed facility unless the member is accessing the plants or has the plants in his or her possession.

SB1035,38,4 (e) If the member is a primary caregiver, he or she is not a primary caregiver to more than 10 qualifying patients.

SB1035,38,8 (3) Limitations on arrests and prosecution; drug paraphernalia for medical cannabis. (a) Unless s. 961.436 (3) (b) 1., 2., or 3. applies, a member of a treatment team may not be arrested or prosecuted for a violation of s. 961.573 (1) if all of the following apply:

SB1035,38,10 1. The member uses, or possesses with the primary intent to use, drug paraphernalia only to use medical cannabis.

SB1035,38,13 2. The member possesses a valid registry identification card, a valid out-of-state registry identification card, or a copy of the qualifying patient's written certification.

SB1035,38,15 3. The member does not possess more than the maximum authorized amount of cannabis.

SB1035,38,17 4. Any live cannabis plants are in a lockable, enclosed facility unless the member is accessing the plants or has the plants in his or her possession.

SB1035,38,19 5. If the member is a primary caregiver, he or she is not a primary caregiver to more than 10 qualifying patients.

SB1035,38,22 (b) Unless s. 961.436 (3) (b) 1., 2., or 3. applies, a member of a treatment team may not be arrested or prosecuted for a violation of s. 961.574 (1) or 961.575 (1) if all of the following apply:

SB1035,39,2 1. The member 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.

SB1035,39,5 2. The member possesses a valid registry identification card, a valid out-of-state registry identification card, or a copy of the qualifying patient's written certification.

SB1035,39,7 3. The member does not possess more than the maximum authorized amount of cannabis.

SB1035,39,9 4. Any live cannabis plants are in a lockable, enclosed facility unless the member is accessing the plants or has the plants in his or her possession.

SB1035,39,11 5. If the member is a primary caregiver, he or she is not a primary caregiver to more than 10 qualifying patients.

SB1035,39,15 (4) Limitations on arrests, prosecution, and other sanctions. (a) A practitioner may not be arrested and a practitioner, hospital, or clinic may not be subject to prosecution, denied any right or privilege, or penalized in any manner for making or providing a written certification in good faith.

SB1035,39,19 (b) An employee of a licensee under s. 94.57 or of a laboratory registered under s. 94.57 (8) may not be arrested and such employee may not be subject to prosecution, denied any right or privilege, or penalized in any manner for any good faith action under s. 94.57.

SB1035,39,23 (5) Penalty for false statements. Whoever intentionally provides false information to a law enforcement officer in an attempt to avoid arrest or prosecution under this section for a violation of s. 961.41 (1) (h), (1m) (h), or (3g) (e), 961.573 (1), 961.574 (1), or 961.575 (1) may be fined not more than $500.

SB1035,58 Section 58 . 968.12 (6) of the statutes is created to read:

SB1035,40,7 968.12 (6) Medical cannabis. A person's possession, use, or submission of or connection with an application for a registry identification card under s. 146.44 (2), the issuance of such a card under s. 146.44 (4), or a person's possession of such a card, a valid out-of-state registry identification card, as defined in s. 146.44 (1) (cm), or an original or a copy of a written certification, as defined in s. 146.44 (1) (h), may not, by itself, constitute probable cause under sub. (1) or otherwise subject any person or the property of any person to inspection by any governmental agency.

SB1035,59 Section 59 . 968.19 of the statutes is renumbered 968.19 (1) and amended to read:

SB1035,40,13 968.19 (1) Property Except as provided in sub. (2), property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer, who may leave it in the custody of the sheriff and take a receipt therefor, so long as necessary for the purpose of being produced as evidence on any trial.

SB1035,60 Section 60 . 968.19 (2) of the statutes is created to read:

SB1035,40,16 968.19 (2) A law enforcement agency that has seized a live cannabis plant is not responsible for the plant's care and maintenance.

SB1035,61 Section 61 . 968.20 (1j) of the statutes is created to read:

SB1035,40,18 968.20 (1j) (a) In this subsection:

SB1035,40,19 1. “Drug paraphernalia" has the meaning given in s. 961.571 (1) (a).

SB1035,40,20 2. “Tetrahydrocannabinols" means a substance included in s. 961.14 (4) (t).

SB1035,40,23 (b) Notwithstanding sub. (1g), the court may return drug paraphernalia or tetrahydrocannabinols that have been seized to the person from whom they were seized if any of the following applies:

SB1035,41,3 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).

SB1035,41,7 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).

SB1035,62 Section 62 . Nonstatutory provisions.

SB1035,41,15 (1) Notification of rule making. If the department of agriculture, trade and consumer protection or the department of health services promulgates rules under s. 94.57 (11) or s. 146.44 (2) (b) or (7) before the first day of the 13th month beginning after the effective date of this subsection, the department that promulgates the rules shall provide notice to the legislative reference bureau of the effective date of those rules, and the legislative reference bureau shall publish a notice of that date in the Wisconsin Administrative Register under s. 35.93 (2).

SB1035,63 Section 63 . Effective dates. This act takes effect on the day after publication, except as follows:

SB1035,41,20 (1) The treatment of s. 94.57 (2) to (10) takes effect on the first day of the 13th month beginning after publication or on the date specified in the notice under Section 62 (1) of this act, whichever is sooner.