Chapter 961

961.41(1m)(dm) (dm) Fentanyl. If a person violates this subsection with respect to fentanyl, a controlled substance analog of fentanyl, or a fentanyl analog specified in s. 961.14 (2) (nd) and the amount possessed, with intent to manufacture, distribute or deliver, is:

961.41(1m)(dm)1. 1. Ten grams or less, the person is guilty of a Class E felony.

961.41(1m)(dm)2. 2. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.

961.41(1m)(dm)3. 3. More than 50 grams, the person is guilty of a Class C felony.

961.41(1m)(e) (e) Phencyclidine, amphetamine, methamphetamine, methcathinone, cathinone, N-benzylpiperazine, and a substance specified in s. 961.14 (7) (L). If a person violates this subsection with respect to phencyclidine, amphetamine, methamphetamine, methcathinone, cathinone, N-benzylpiperazine, a substance specified in s. 961.14 (7) (L), or a controlled substance analog of phencyclidine, amphetamine, methamphetamine, methcathinone, cathinone, N-benzylpiperazine, or a substance specified in s. 961.14 (7) (L), and the amount possessed, with intent to manufacture, distribute, or deliver, is:

961.41(1m)(e)1. 1. Three grams or less, the person is guilty of a Class F felony.

961.41(1m)(e)2. 2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.

961.41(1m)(e)3. 3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.

961.41(1m)(e)4. 4. More than 50 grams, the person is guilty of a Class C felony.

961.41(1m)(em) (em) Synthetic cannabinoids. If a person violates this subsection with respect to 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), and the amount possessed, with intent to manufacture, distribute, or deliver, is:

961.41(1m)(em)1. 1. Two hundred grams or less, the person is guilty of a Class I felony.

961.41(1m)(em)2. 2. More than 200 grams but not more than 1,000 grams, the person is guilty of a Class H felony.

961.41(1m)(em)3. 3. More than 1,000 grams but not more than 2,500 grams, the person is guilty of a Class G felony.

961.41(1m)(em)4. 4. More than 2,500 grams but not more than 10,000 grams, the person is guilty of a Class F felony.

961.41(1m)(em)5. 5. More than 10,000 grams, the person is guilty of a Class E felony.

961.41(1m)(f) (f) Lysergic acid diethylamide. If a person violates this subsection with respect to lysergic acid diethylamide or a controlled substance analog of lysergic acid diethylamide and the amount possessed, with intent to manufacture, distribute or deliver, is:

961.41(1m)(f)1. 1. One gram or less, the person is guilty of a Class G felony.

961.41(1m)(f)2. 2. More than one gram but not more than 5 grams, the person is guilty of a Class F felony.

961.41(1m)(f)3. 3. More than 5 grams, the person is guilty of a Class E felony.

961.41(1m)(g) (g) Psilocin and psilocybin. If a person violates this subsection with respect to psilocin or psilocybin, or a controlled substance analog of psilocin or psilocybin, and the amount possessed, with intent to manufacture, distribute or deliver, is:

961.41(1m)(g)1. 1. One hundred grams or less, the person is guilty of a Class G felony.

961.41(1m)(g)2. 2. More than 100 grams but not more than 500 grams, the person is guilty of a Class F felony.

961.41(1m)(g)3. 3. More than 500 grams, the person is guilty of a Class E felony.

961.41(1m)(h) (h) Tetrahydrocannabinols. If a person violates this subsection with respect to tetrahydrocannabinols, included under s. 961.14 (4) (t), or a controlled substance analog of tetrahydrocannabinols, and the amount possessed, with intent to manufacture, distribute, or deliver, is:

961.41(1m)(h)1. 1. Two hundred grams or less, or 4 or fewer plants containing tetrahydrocannabinols, the person is guilty of a Class I felony.

961.41(1m)(h)2. 2. More than 200 grams but not more than 1,000 grams, or more than 4 plants containing tetrahydrocannabinols but not more than 20 plants containing tetrahydrocannabinols, the person is guilty of a Class H felony.

961.41(1m)(h)3. 3. More than 1,000 grams but not more than 2,500 grams, or more than 20 plants containing tetrahydrocannabinols but not more than 50 plants containing tetrahydrocannabinols, the person is guilty of a Class G felony.

961.41(1m)(h)4. 4. More than 2,500 grams but not more than 10,000 grams, or more than 50 plants containing tetrahydrocannabinols but not more than 200 plants containing tetrahydrocannabinols, the person is guilty of a Class F felony.

961.41(1m)(h)5. 5. More than 10,000 grams, or more than 200 plants containing tetrahydrocannabinols, the person is guilty of a Class E felony.

961.41(1m)(hm) (hm) Certain other schedule I controlled substances and ketamine. If the person violates this subsection with respect to gamma-hydroxybutyric acid, gamma-butyrolactone, 1,4-butanediol, 3,4-methylenedioxymethamphetamine, 4-bromo-2,5-dimethoxy-beta-phenylethylamine, 4-methylthioamphetamine, ketamine, a substance specified in s. 961.14 (4) (a) to (h), (m) to (q), (sm), or (u) to (xb), or a controlled substance analog of gamma-hydroxybutyric acid, gamma-butyrolactone, 1,4-butanediol, 3,4-methylenedioxymethamphetamine, 4-bromo-2,5-dimethoxy-beta-phenylethylamine, or 4-methylthioamphetamine, ketamine, or a substance specified in s. 961.14 (4) (a) to (h), (m) to (q), (sm), or (u) to (xb) is subject to the following penalties if the amount possessed, with intent to manufacture, distribute, or deliver is:

961.41(1m)(hm)1. 1. Three grams or less, the person is guilty of a Class F felony.

961.41(1m)(hm)2. 2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.

961.41(1m)(hm)3. 3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.

961.41(1m)(hm)4. 4. More than 50 grams, the person is guilty of a Class C felony.

961.41(1m)(i) (i) Schedule IV drugs generally. Except as provided in par. (im), if a person violates this subsection with respect to a substance included in schedule IV, the person is guilty of a Class H felony.

961.41(1m)(im) (im) Flunitrazepam. If a person violates this subsection with respect to flunitrazepam and the amount possessed, with intent to manufacture, distribute, or deliver, is:

961.41(1m)(im)1. 1. Three grams or less, the person is guilty of a Class F felony.

961.41(1m)(im)2. 2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.

961.41(1m)(im)3. 3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.

961.41(1m)(im)4. 4. More than 50 grams, the person is guilty of a Class C felony.

961.41(1m)(j) (j) Schedule V drugs. If a person violates this subsection with respect to a substance included in schedule V, the person is guilty of a Class I felony.

961.41(1n) (1n) Piperidine possession.

961.41(1n)(a) (a) No person may possess any quantity of piperidine or its salts with the intent to use the piperidine or its salts to manufacture a controlled substance or controlled substance analog in violation of this chapter.

961.41(1n)(b) (b) No person may possess any quantity of piperidine or its salts if he or she knows or has reason to know that the piperidine or its salts will be used to manufacture a controlled substance or controlled substance analog in violation of this chapter.

961.41(1n)(c) (c) A person who violates par. (a) or (b) is guilty of a Class F felony.

961.41(1q) (1q) Penalty relating to tetrahydrocannabinols in certain cases. Under s. 961.49 (2), 1999 stats., and subs. (1) (h) and (1m) (h), if different penalty provisions apply to a person depending on whether the weight of tetrahydrocannabinols or the number of plants containing tetrahydrocannabinols is considered, the greater penalty provision applies.

961.41(1r) (1r) Determining weight of substance. In determining amounts under s. 961.49 (2) (b), 1999 stats., and subs. (1) and (1m), an amount includes the weight of cocaine, cocaine base, fentanyl, a fentanyl analog, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, tetrahydrocannabinols, synthetic cannabinoids, or substituted cathinones, or any controlled substance analog of any of these substances together with any compound, mixture, diluent, plant material or other substance mixed or combined with the controlled substance or controlled substance analog. In addition, in determining amounts under subs. (1) (h) and (1m) (h), the amount of tetrahydrocannabinols means anything included under s. 961.14 (4) (t) and includes the weight of any marijuana.

961.41(1x) (1x) Conspiracy. Any person who conspires, as specified in s. 939.31, to commit a crime under sub. (1) (cm) to (h) or (1m) (cm) to (h) is subject to the applicable penalties under sub. (1) (cm) to (h) or (1m) (cm) to (h).

961.41(2) (2) Counterfeit substances. Except as authorized by this chapter, it is unlawful for any person to create, manufacture, distribute, deliver or possess with intent to distribute or deliver, a counterfeit substance. Any person who violates this subsection is subject to the following penalties:

961.41(2)(a) (a) Counterfeit schedule I and II narcotic drugs. If a person violates this subsection with respect to a counterfeit substance included in schedule I or II which is a narcotic drug, the person is guilty of a Class E felony.

961.41(2)(b) (b) Counterfeit schedule I, II, III, and IV drugs. Except as provided in pars. (bm) and (cm), if a person violates this subsection with respect to any other counterfeit substance included in schedule I, II, III, or IV, the person is guilty of a Class H felony.

961.41(2)(bm) (bm) Counterfeit of phencyclidine and certain other drugs. If a person violates this subsection with respect to a counterfeit substance that is a counterfeit of phencyclidine, methamphetamine, lysergic acid diethylamide, gamma-hydroxybutyric acid, gamma-butyrolactone, 1,4-butanediol, 3,4-methylenedioxymethamphetamine, 4-bromo-2,5-dimethoxy-beta-phenylethylamine, 4-methylthioamphetamine, or ketamine, the person is subject to the applicable fine and imprisonment for manufacture, distribution, delivery, or possession with intent to manufacture, distribute, or deliver, of the genuine controlled substance under sub. (1) or (1m).

961.41(2)(cm) (cm) Counterfeit flunitrazepam. If a person violates this subsection with respect to a counterfeit substance that is flunitrazepam, the person is subject to the applicable fine and imprisonment for manufacture, distribution, delivery, or possession with intent to manufacture, distribute, or deliver, of the genuine controlled substance under sub. (1) or (1m).

961.41(2)(d) (d) Counterfeit schedule V drugs. If a person violates this subsection with respect to a counterfeit substance included in schedule V, the person is guilty of a Class I felony.

961.41(3g) (3g) Possession. No person may possess or attempt to possess a controlled substance or a controlled substance analog unless the person obtains the substance or the analog directly from, or pursuant to a valid prescription or order of, a practitioner who is acting in the course of his or her professional practice, or unless the person is otherwise authorized by this chapter to possess the substance or the analog. Any person who violates this subsection is subject to the following penalties:

961.41(3g)(am) (am) Schedule I and II narcotic drugs. If a person possesses or attempts to possess a controlled substance included in schedule I or II which is a narcotic drug, or a controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug, the person is guilty of a Class I felony.

961.41(3g)(b) (b) Other drugs generally. Except as provided in pars. (c) to (g), if the person possesses or attempts to possess a controlled substance or controlled substance analog, other than a controlled substance included in schedule I or II that is a narcotic drug or a controlled substance analog of a controlled substance included in schedule I or II that is a narcotic drug, the person is guilty of a misdemeanor, punishable under s. 939.61.

961.41(3g)(c) (c) Cocaine and cocaine base. If a person possesses or attempts to possess cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, the person shall be fined not more than $5,000 and may be imprisoned for not more than one year in the county jail 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.

961.41(3g)(d) (d) Certain hallucinogenic and stimulant drugs. If a person possesses or attempts to possess lysergic acid diethylamide, phencyclidine, amphetamine, 3,4-methylenedioxymethamphetamine, methcathinone, cathinone, N-benzylpiperazine, a substance specified in s. 961.14 (4) (a) to (h), (m) to (q), (sm), (u) to (xb), or (7) (L), psilocin, or psilocybin, or a controlled substance analog of lysergic acid diethylamide, phencyclidine, amphetamine, 3,4-methylenedioxymethamphetamine, methcathinone, cathinone, N-benzylpiperazine, a substance specified in s. 961.14 (4) (a) to (h), (m) to (q), (sm), (u) to (xb), or (7) (L), psilocin, or psilocybin, the person may be fined not more than $5,000 or imprisoned for not more than one year in the county jail 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.

961.41(3g)(e) (e) Tetrahydrocannabinols. If a person possesses or attempts to possess tetrahydrocannabinols included under s. 961.14 (4) (t), or a controlled substance analog of tetrahydrocannabinols, 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.

961.41(3g)(em) (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.

961.41(3g)(f) (f) Gamma-hydroxybutyric acid, gamma-butyrolactone, 1,4-butanediol, ketamine, or flunitrazepam. If a person possesses or attempts to possess gamma-hydroxybutyric acid, gamma-butyrolactone, 1,4-butanediol, ketamine or flunitrazepam, the person is guilty of a Class H felony.

961.41(3g)(g) (g) Methamphetamine. If a person possesses or attempts to possess methamphetamine or a controlled substance analog of methamphetamine, the person is guilty of a Class I felony.

961.41(3j) (3j) Purchases of pseudoephedrine products. Whoever purchases more than 7.5 grams of pseudoephedrine contained in a pseudoephedrine product within a 30-day period, other than by purchasing the product in person from a pharmacy or pharmacist, is guilty of a Class I felony. This subsection does not apply to a purchase by a physician, dentist, veterinarian, or pharmacist or a purchase that is authorized by a physician, dentist, or veterinarian.

961.41(4) (4) Imitation controlled substances.

961.41(4)(am) (am)

961.41(4)(am)1. 1. No person may knowingly distribute or deliver, attempt to distribute or deliver or cause to be distributed or delivered a noncontrolled substance and expressly or impliedly represent any of the following to the recipient:

961.41(4)(am)1.a. a. That the substance is a controlled substance.

961.41(4)(am)1.b. b. That the substance is of a nature, appearance or effect that will allow the recipient to display, sell, distribute, deliver or use the noncontrolled substance as a controlled substance, if the representation is made under circumstances in which the person has reasonable cause to believe that the noncontrolled substance will be used or distributed for use as a controlled substance.

961.41(4)(am)2. 2. Proof of any of the following is prima facie evidence of a representation specified in subd. 1. a. or b.:

961.41(4)(am)2.a. a. The physical appearance of the finished product containing the substance is substantially the same as that of a specific controlled substance.

961.41(4)(am)2.b. b. The substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance.

961.41(4)(am)2.c. c. The substance is not labeled in accordance with 21 USC 352 or 353.

961.41(4)(am)2.d. d. The person distributing or delivering, attempting to distribute or deliver or causing distribution or delivery of the substance to be made states to the recipient that the substance may be resold at a price that substantially exceeds the value of the substance.

961.41(4)(am)3. 3. A person who violates this paragraph is guilty of a Class I felony.

961.41(4)(bm) (bm) It is unlawful for any person to agree, consent or offer to lawfully manufacture, deliver, distribute or dispense any controlled substance to any person, or to offer, arrange or negotiate to have any controlled substance unlawfully manufactured, delivered, distributed or dispensed, and then manufacture, deliver, distribute or dispense or offer, arrange or negotiate to have manufactured, delivered, distributed or dispensed to any such person a substance which is not a controlled substance. Any person who violates this paragraph may be fined not more than $500 or imprisoned for not more than 6 months or both.

961.41(5) (5) Drug abuse program improvement surcharge.

961.41(5)(a) (a) When a court imposes a fine for a violation of this section, it shall also impose a drug abuse program improvement surcharge under ch. 814 in an amount of 75 percent of the fine and penalty surcharge imposed.

961.41(5)(b) (b) The clerk of the court shall collect and transmit the amount to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25 (3) (f) 2.

961.41(5)(c) (c)

961.41(5)(c)1. 1. The first $850,000 plus two-thirds of all moneys in excess of $1,275,000 collected in each fiscal year from drug surcharges under this subsection shall be credited to the appropriation account under s. 20.435 (5) (gb).

961.41(5)(c)2. 2. All moneys in excess of $850,000 and up to $1,275,000 plus one-third of moneys in excess of $1,275,000 collected in each fiscal year from drug surcharges under this subsection shall be credited to the appropriation account under s. 20.455 (2) (kv).

961.41 History History: 1971 c. 219, 307; 1973 c. 12; 1981 c. 90, 314; 1985 a. 328; 1987 a. 339, 403; 1989 a. 31, 56, 121; 1991 a. 39; 138; 1993 a. 98, 118, 437, 482; 1995 a. 201; 1995 a. 448 ss. 243 to 266, 487 to 490; Stats. 1995 s. 961.41; 1997 a. 220, 283; 1999 a. 21, 32, 48, 57; 2001 a. 16, 109; 2003 a. 33, 49, 139, 320, 325, 327; 2005 a. 14, 25, 52, 262; 2007 a. 20; 2009 a. 28, 180; 2011 a. 31; 2013 a. 20, 166, 196, 351; 2015 a. 195 s. 83; 2021 a. 179; s. 35.17 correction in (1m) (dm) 2.

961.41 Annotation An inference of intent could be drawn from possession of hashish with a street value of $2,000 to $4,000 and opium with a street value of $20,000 to $24,000. State v. Trimbell, 64 Wis. 2d 379, 219 N.W.2d 369 (1974).

961.41 Annotation No presumption of intent to deliver is raised by sub. (1m). The statute merely lists evidence from which intent may be inferred. State ex rel. Bena v. Crosetto, 73 Wis. 2d 261, 243 N.W.2d 442 (1976).

961.41 Annotation Evidence of a defendant’s possession of a pipe containing burnt residue of marijuana was insufficient to impute knowledge to the defendant of possession of a controlled substance. Kabat v. State, 76 Wis. 2d 224, 251 N.W.2d 38 (1977). But see State v. Chentis, 2022 WI App 4, 400 Wis. 2d 441, 969 N.W.2d 482, 20-1699.

961.41 Annotation This section prohibits the act of manufacture, as defined in s. 161.01 (13) [now s. 961.01 (13)]. Possession of a controlled substance created by an accused is not required for conviction. This section is not unconstitutionally vague. State ex rel. Bell v. County Court, 82 Wis. 2d 401, 263 N.W.2d 162 (1978).

961.41 Annotation A conviction under sub. (1m) was upheld when the defendant possessed one-third gram of cocaine divided into four packages and evidence of defendant’s prior sales of other drugs was admitted under s. 904.04 (2) as probative of intent to deliver the cocaine. Peasley v. State, 83 Wis. 2d 224, 265 N.W.2d 506 (1978).

961.41 Annotation Testimony that weapons were found at the accused’s home was admissible as part of the chain of facts relevant to the accused’s intent to deliver heroin. State v. Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810 (1981).