Amendment SSA1-AB440

AB440-SSA1,45,23 961.41 (3g) (em) Synthetic cannabinoids. If a person possesses or attempts to possess a controlled substance specified in s. 961.14 (4) (tb), or a controlled substance analog of a controlled substance specified in s. 961.14 (4) (tb), the person may be fined not more than $1,000 or imprisoned for not more than 6 months or both upon a first conviction and is guilty of a Class I felony for a 2nd or subsequent offense. For purposes of this paragraph, an offense is considered a 2nd or subsequent offense if, prior to the offender's conviction of the offense, the offender has at any time been convicted of any felony or misdemeanor under this chapter or under any statute of the United States or of any state relating to controlled substances, controlled substance analogs, narcotic drugs, marijuana, or depressant, stimulant, or hallucinogenic drugs.

AB440-SSA1,55 Section 55 . 961.47 (1) of the statutes is amended to read:

AB440-SSA1,46,16 961.47 (1) Whenever any person who has not previously been convicted of any offense under this chapter, or of any offense under any statute of the United States or of any state or of any county ordinance relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s. 961.41 (3g) (b), the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him or her. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for 2nd or subsequent convictions under s. 961.48. There may be only one discharge and dismissal under this section with respect to any person.

AB440-SSA1,56 Section 56 . 961.48 (3) of the statutes is amended to read:

AB440-SSA1,46,23 961.48 (3) For purposes of this section, a felony offense under this chapter is considered a 2nd or subsequent offense if, prior to the offender's conviction of the offense, the offender has at any time been convicted of any felony or misdemeanor offense under this chapter or under any statute of the United States or of any state relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or depressant, stimulant, or hallucinogenic drugs.

AB440-SSA1,57 Section 57 . 961.48 (5) of the statutes is amended to read:

AB440-SSA1,47,2 961.48 (5) This section does not apply if the person is presently charged with a felony under s. 961.41 (3g) (c), (d), (e), or (g).

AB440-SSA1,58 Section 58 . 961.49 (1m) (intro.) of the statutes is amended to read:

AB440-SSA1,47,11 961.49 (1m) (intro.) If any person violates s. 961.41 (1) (cm), (d), (e), (f), or (g) or (h) by delivering or distributing, or violates s. 961.41 (1m) (cm), (d), (e), (f), or (g) or (h) by possessing with intent to deliver or distribute, cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, or methcathinone or any form of tetrahydrocannabinols or a controlled substance analog of any of these substances and the delivery, distribution or possession takes place under any of the following circumstances, the maximum term of imprisonment prescribed by law for that crime may be increased by 5 years:

AB440-SSA1,59 Section 59 . 961.571 (1) (a) 7. of the statutes is repealed.

AB440-SSA1,60 Section 60 . 961.571 (1) (a) 11. (intro.) of the statutes is amended to read:

AB440-SSA1,47,16 961.571 (1) (a) 11. (intro.) Objects used, designed for use or primarily intended for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish or hashish oil into the human body, such as:

AB440-SSA1,61 Section 61 . 961.571 (1) (a) 11. e. of the statutes is repealed.

AB440-SSA1,62 Section 62 . 961.571 (1) (a) 11. k. and L. of the statutes are repealed.

AB440-SSA1,63 Section 63 . Subchapter VIII of chapter 961 [precedes 961.70] of the statutes is created to read:

AB440-SSA1,47,21 Chapter 961

AB440-SSA1,47,22 Subchapter VIII

AB440-SSA1,47,23 regulation of Marijuana

AB440-SSA1,47,24 961.70 Definitions. In this subchapter:

AB440-SSA1,48,2 (2) “Legal age" means 21 years of age, except in the case of a qualifying patient, as defined in s. 73.17 (1) (d).

AB440-SSA1,48,3 (5) “Permissible amount" means one of the following:

AB440-SSA1,48,5 (a) For a person who is a resident of Wisconsin, an amount that does not exceed 2 ounces of usable marijuana.

AB440-SSA1,48,7 (b) For a person who is not a resident of Wisconsin, an amount that does not exceed one-quarter ounce of usable marijuana.

AB440-SSA1,48,8 (6) “Permittee" has the meaning given under s. 139.97 (10).

AB440-SSA1,48,9 (8) “Retail outlet" has the meaning given in s. 139.97 (11).

AB440-SSA1,48,14 (9) “Tetrahydrocannabinols concentration" means the percent of delta-9-tetrahydrocannabinol content per dry weight of any part of the plant Cannabis, or per volume or weight of marijuana product, or the combined percent of delta-9-tetrahydrocannabinol and tetrahydrocannabinolic acid in any part of the plant Cannabis regardless of moisture content.

AB440-SSA1,48,15 (11) “Underage person" means a person who has not attained the legal age.

AB440-SSA1,48,16 (12) “Usable marijuana" has the meaning given in s. 139.97 (13).

AB440-SSA1,48,18 961.71 Underage persons prohibitions; penalties. (1) (a) 1. No permittee may sell, distribute, or deliver marijuana to any underage person.

AB440-SSA1,48,20 2. No permittee may directly or indirectly permit an underage person to violate sub. (2m).

AB440-SSA1,48,23 (b) A permittee that violates par. (a) 1. or 2. may be subject to a forfeiture of not more than $500 and to a suspension of the permittee's permit for an amount of time not to exceed 30 days.

AB440-SSA1,49,4 (c) In determining whether a permittee has violated par. (a) 2., all relevant circumstances surrounding the presence of the underage person may be considered. In determining whether a permittee has violated par. (a) 1., all relevant circumstances surrounding the selling, distributing, or delivering of marijuana may be considered. In addition, proof of all of the following facts by the permittee is a defense to any prosecution for a violation under par. (a):

AB440-SSA1,49,6 1. That the underage person falsely represented that he or she had attained the legal age.

AB440-SSA1,49,8 2. That the appearance of the underage person was such that an ordinary and prudent person would believe that the underage person had attained the legal age.

AB440-SSA1,49,11 3. That the action was made in good faith and in reliance on the representation and appearance of the underage person in the belief that the underage person had attained the legal age.

AB440-SSA1,49,13 4. That the underage person supported the representation under subd. 1. with documentation that he or she had attained the legal age.

AB440-SSA1,49,15 (2) Any underage person who does any of the following is subject to a forfeiture of not less than $250 nor more than $500:

AB440-SSA1,49,16 (a) Procures or attempts to procure marijuana from a permittee.

AB440-SSA1,49,18 (b) Falsely represents his or her age for the purpose of receiving marijuana from a permittee.

AB440-SSA1,49,19 (c) Knowingly possesses or consumes marijuana.

AB440-SSA1,49,20 (d) Violates sub. (2m).

AB440-SSA1,49,23 (2m) An underage person not accompanied by his or her parent, guardian, or spouse who has attained the legal age may not enter, knowingly attempt to enter, or be on the premises of a retail outlet.

AB440-SSA1,49,25 (3) An individual who has attained the legal age and who knowingly does any of the following may be subject to a forfeiture that does not exceed $1,000:

AB440-SSA1,50,2 (a) Permits or fails to take action to prevent a violation of sub. (2) (c) on premises owned by the individual or under the individual's control.

AB440-SSA1,50,3 (b) Encourages or contributes to a violation of sub. (2) (a).

AB440-SSA1,50,7 961.72 Restrictions; penalties. (1) No person except a permittee may sell, or possess with the intent to sell, marijuana. No person may distribute or deliver, or possess with the intent to distribute or deliver, marijuana except a permittee. Any person who violates a prohibition under this subsection is guilty of the following:

AB440-SSA1,50,8 (a) Except as provided in par. (b), a Class I felony.

AB440-SSA1,50,12 (b) If the individual to whom the marijuana is, or is intended to be, sold, distributed, or delivered has not attained the legal age and the actual or intended seller, distributor, or deliverer is at least 3 years older than the individual to whom the marijuana is, or is intended to be, sold, distributed, or delivered, a Class H felony.

AB440-SSA1,50,16 (2) (a) A person that is not a permittee who possesses an amount of marijuana that exceeds the permissible amount but does not exceed 28 grams of marijuana is subject to a civil forfeiture not to exceed $1,000 or imprisonment not to exceed 90 days or both.

AB440-SSA1,50,18 (b) A person who is not a permittee who possesses an amount of marijuana that exceeds 28 grams of marijuana:

AB440-SSA1,50,19 1. Except as provided in subd. 2., a Class B misdemeanor.

AB440-SSA1,50,21 2. A Class I felony if the person has taken action to hide how much marijuana the person possesses and any of the following applies:

AB440-SSA1,50,24 a. The person has in place a system that could alert the person if law enforcement approaches an area that contains marijuana if the system exceeds a security system that would be used by a reasonable person in the person's region.

AB440-SSA1,51,3 b. The person has in place a method of intimidating individuals who approach an area that contains marijuana if the method exceeds a method that would be used by a reasonable person in the person's region.

AB440-SSA1,51,5 c. The person has rigged a system so that any individual approaching the area may be injured or killed by the system.

AB440-SSA1,51,7 (c) A person who is not a permittee who possesses more than 6 marijuana plants that have reached the flowering stage at one time is one of the following:

AB440-SSA1,51,9 1. Except as provided in subds. 2. and 3., subject to a civil forfeiture not to exceed $1,000 or imprisonment not to exceed 90 days or both.

AB440-SSA1,51,11 2. Except as provided in subd. 3., guilty of a Class B misdemeanor if the number of marijuana plants that have reached the flowering stage is more than 12.

AB440-SSA1,51,15 3. Guilty of a Class I felony if the number of marijuana plants that have reached the flowering stage is more than 12, if the individual has taken action to hide the number of marijuana plants that have reached the flowering stage, and if any of the following applies:

AB440-SSA1,51,19 a. The person has in place a system that could alert the person if law enforcement approaches an area that contains marijuana plants if the system exceeds a security system that would be used by a reasonable person in the person's region.

AB440-SSA1,51,22 b. The person has in place a method of intimidating individuals who approach an area that contains marijuana plants if the method exceeds a method that would be used by a reasonable person in the person's region.

AB440-SSA1,51,24 c. The person has rigged a system so that any individual approaching the area that contains marijuana plants may be injured or killed by the system.

AB440-SSA1,52,3 (d) No person except a permittee may possess marijuana plants that have reached the flowering stage. Any person who violates this prohibition must apply for a permit under s. 139.972; in addition, the person is one of the following:

AB440-SSA1,52,5 1. Except as provided in subds. 2., 3., and 4., subject to a civil forfeiture that is not more than twice the permitting fee under s. 139.972.

AB440-SSA1,52,8 2. Except as provided in subds. 3. and 4., subject to a civil forfeiture not to exceed $1,000 or imprisonment not to exceed 90 days or both if the number of marijuana plants that have reached the flowering stage is more than 6.

AB440-SSA1,52,10 3. Except as provided in subd. 4., guilty of a Class B misdemeanor if the number of marijuana plants that have reached the flowering stage is more than 12.

AB440-SSA1,52,14 4. Guilty of a Class I felony if the number of marijuana plants that have reached the flowering stage is more than 12, if the person has taken action to hide how many marijuana plants that have reached the flowering stage are being cultivated, and if any of the following applies:

AB440-SSA1,52,18 a. The person has in place a system that could alert the person if law enforcement approaches an area that contains marijuana plants if the system exceeds a security system that would be used by a reasonable person in the person's region.

AB440-SSA1,52,21 b. The person has in place a method of intimidating individuals who approach an area that contains marijuana plants if the method exceeds a method that would be used by a reasonable person in the person's region.

AB440-SSA1,52,23 c. The person has rigged a system so that any individual approaching the area that contains marijuana plants may be injured or killed by the system.

AB440-SSA1,52,25 (e) Whoever uses or displays marijuana in a public space is subject to a civil forfeiture of not more than $100.

AB440-SSA1,53,2 (3) Any person who sells or attempts to sell marijuana via mail, telephone, or Internet is guilty of a Class A misdemeanor.

AB440-SSA1,64 Section 64 . 967.055 (1m) (b) 5. of the statutes is repealed.

AB440-SSA1,65 Section 65 . 971.365 (1) (a) of the statutes is amended to read:

AB440-SSA1,53,8 971.365 (1) (a) In any case under s. 961.41 (1) (em), 1999 stats., or s. 961.41 (1) (cm), (d), (e), (f), or (g) or (h) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

AB440-SSA1,66 Section 66 . 971.365 (1) (b) of the statutes is amended to read:

AB440-SSA1,53,13 971.365 (1) (b) In any case under s. 961.41 (1m) (em), 1999 stats., or s. 961.41 (1m) (cm), (d), (e), (f), or (g) or (h) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

AB440-SSA1,67 Section 67 . 971.365 (1) (c) of the statutes is amended to read:

AB440-SSA1,53,18 971.365 (1) (c) In any case under s. 961.41 (3g) (a) 2., 1999 stats., or s. 961.41 (3g) (dm), 1999 stats., or s. 961.41 (3g) (am), (c), (d), (e), or (g) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

AB440-SSA1,68 Section 68 . 971.365 (2) of the statutes is amended to read:

AB440-SSA1,53,25 971.365 (2) An acquittal or conviction under sub. (1) does not bar a subsequent prosecution for any acts in violation of s. 961.41 (1) (em), 1999 stats., s. 961.41 (1m) (em), 1999 stats., s. 961.41 (3g) (a) 2., 1999 stats., or s. 961.41 (3g) (dm), 1999 stats., or s. 961.41 (1) (cm), (d), (e), (f), or (g), or (h), (1m) (cm), (d), (e), (f), or (g), or (h) or (3g) (am), (c), (d), (e), or (g) on which no evidence was received at the trial on the original charge.

AB440-SSA1,69 Section 69. 973.016 of the statutes is created to read:

AB440-SSA1,54,5 973.016 Special disposition for marijuana-related crimes. (1) Resentencing persons serving a sentence or probation. (a) A person serving a sentence or on probation may request resentencing or dismissal as provided under par. (b) if all of the following apply:

AB440-SSA1,54,7 1. The sentence or probation period was imposed for a violation of s. 961.41 (1) (h), 2017 stats., s. 961.41 (1m) (h), 2017 stats., or s. 961.41 (3g) (e), 2017 stats.

AB440-SSA1,54,8 2. One of the following applies:

AB440-SSA1,54,10 a. The person would not have been guilty of a crime had the violation occurred on or after the effective date of this subd. 2. a. .... [LRB inserts date].

AB440-SSA1,54,12 b. The person would have been guilty of a lesser crime had the violation occurred on or after the effective date of this subd. 2. b. .... [LRB inserts date].

AB440-SSA1,54,14 (b) 1. A person to whom par. (a) applies shall file a petition with the sentencing court to request resentencing, adjustment of probation, or dismissal.

AB440-SSA1,54,22 2. If the court receiving a petition under subd. 1. determines that par. (a) applies, the court shall schedule a hearing to consider the petition. At the hearing, if the court determines that par. (a) 2. b. applies, the court shall resentence the person or adjust the probation and change the record to reflect the lesser crime, and, if the court determines that par. (a) 2. a. applies, the court shall dismiss the conviction and expunge the record. Before resentencing, adjusting probation, or dismissing a conviction under this subdivision, the court shall determine that the action does not present an unreasonable risk of danger to public safety.