Chapter 961

961.555(3m)(c)2. 2. The purpose of the statute authorizing the forfeiture.

961.555(3m)(c)3. 3. The maximum fine for the offense.

961.555(3m)(c)4. 4. The harm that actually resulted from the defendant’s conduct.

961.555(3m)(d) (d) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court may not consider the value of the property to the state.

961.555(4) (4) Action against other property of the person. The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under s. 961.55 if the property subject to forfeiture meets any of the following conditions:

961.555(4)(a) (a) Cannot be located.

961.555(4)(b) (b) Has been transferred or conveyed to, sold to or deposited with a 3rd party.

961.555(4)(c) (c) Is beyond the jurisdiction of the court.

961.555(4)(d) (d) Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.

961.555(4)(e) (e) Has been commingled with other property that cannot be divided without difficulty.

961.555(5) (5) Innocent owners.

961.555(5)(a) (a) Notwithstanding sub. (2) (a), a person who claims to have an ownership interest in property subject to forfeiture as an innocent owner may petition the court for the return of his or her seized property at any time.

961.555(5)(b) (b) A person who has an ownership interest in property subject to forfeiture that exists at the occurrence of the illegal conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

961.555(5)(c) (c) If the requisite showing under par. (b) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge of the underlying crime giving rise to the forfeiture.

961.555(5)(d) (d) A person who has an ownership interest in property subject to forfeiture that he or she acquired after the occurrence of the conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

961.555(5)(e) (e) If the requisite showing under par. (d) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge that the property was subject to forfeiture or that the person was not a bona fide purchaser without notice of any defect in title and for valuable consideration.

961.555(5)(f) (f) If the state does not meet the burden under par. (c) or (e) as to any property, the court shall find that the property is the property of an innocent owner and not subject to forfeiture under this chapter and shall order the state to relinquish all claims of title to the property.

961.555(6) (6) Return of property. The court shall order the return of any property subject to forfeiture under ss. 961.55 to 961.56 within 30 days of acquittal or dismissal of charges for the offense which was the basis of the forfeiture action, or 6 months after a seizure which was the basis of the forfeiture action if no charges have been issued and no extension has been granted. If the property is co-owned by 2 or more defendants in a criminal action, and one or more defendant co-owners are acquitted or the charges against him or her are dismissed, the court shall have discretion to dispose of the co-owned property in accordance with the proportionality guidelines in sub. (3m) as he or she deems appropriate.

961.555(7) (7) Attorney fees. A person who prevails in an action to return property subject to forfeiture under ss. 961.55 to 961.56 may be awarded reasonable attorney fees by the state if the court finds that the forfeiting agency or prosecuting attorney has arbitrarily and capriciously pursued the forfeiture action.

961.555 History History: 1971 c. 219; Sup. Ct. Order, 67 Wis. 2d 585, 752 (1975); 1981 c. 113, 267; Sup. Ct. Order, 120 Wis. 2d xiii; 1985 a. 245; 1989 a. 121; 1993 a. 321; 1995 a. 448 s. 306; Stats. 1995 s. 961.555; 1997 a. 187; 2017 a. 207 s. 5; 2017 a. 211.

961.555 Note Judicial Council Committee Note, 1974: The district attorney would be required to file within the 15 [now 30] day period. The answer need not be verified. [Re Order effective Jan. 1, 1976]

961.555 Note Judicial Council Note, 1984: Sub. (2) (a) has been amended by allowing 60 days after the action is commenced for service of the summons, complaint and affidavit on the defendants. The prior statute, requiring service within 30 days after seizure of the property, was an exception to the general rule of s. 801.02 (2), stats. [Re Order effective Jan. 1, 1985]

961.555 Annotation The time provisions of sub. (2) are mandatory and jurisdictional. State v. Rosen, 72 Wis. 2d 200, 240 N.W.2d 168 (1976).

961.555 Annotation Persons served under sub. (2) (a) must be named as defendants. An action cannot be brought against an inanimate object as a sole “defendant.” State v. One 1973 Cadillac, 95 Wis. 2d 641, 291 N.W.2d 626 (Ct. App. 1980).

961.555 Annotation An affidavit under sub. (2) (a) must be executed by a person who was present at the seizure or who ordered the seizure and received reports from those present at the seizure. State v. Hooper, 122 Wis. 2d 748, 364 N.W.2d 175 (Ct. App. 1985).

961.555 Annotation Sub. (2) (b) requires a hearing be held, not set, within 60 days of the service of the answer and allows a continuance only when it is applied for within the 60-day period. State v. Baye, 191 Wis. 2d 334, 528 N.W.2d 81 (Ct. App. 1995).

961.555 Annotation The 60-day limit in sub. (2) (b) is mandatory, and a forfeiture petition must be dismissed with prejudice unless the requisite hearing is held within the 60-day period. Once the 60-day period has expired, the circuit court loses competency, and the state may not start the clock running anew by filing another forfeiture petition based on the same facts. State v. One 2000 Lincoln Navigator, 2007 WI App 127, 301 Wis. 2d 714, 731 N.W.2d 375, 06-2016.

961.555 Annotation Authentication of a summons and complaint is accomplished by the clerk’s placing a filing stamp indicating the case number on each copy of the summons and complaint, and, for purposes of sub. (2) (a), a forfeiture affidavit is authenticated the same way. Failure to comply with the authentication of the forfeiture summons, complaint, and affidavit can constitute fundamental error. But when, as in this case, the state presents all three items, stapled together as one document, to the clerk for authentication, and the clerk errs in failing to separately authenticate the affidavit, the defect is technical, not fundamental, and will only deprive the court of jurisdiction if prejudice is shown. State v. Schmitt, 2012 WI App 121, 344 Wis. 2d 587, 824 N.W.2d 899, 11-1949.

961.555 Annotation Because forfeiture proceedings are automatically adjourned under sub. (2) (a), a circuit court cannot hold the hearing contemplated in sub. (2) (b) until after the defendant is convicted of a requisite charge. Upon such a conviction, the 60-day hearing deadline in sub. (2) (b) begins to run if the defendant has already filed an answer. If the court then fails to comply with sub. (2) (b) after the required adjournment, the court loses competency over the civil forfeiture proceedings. However, the adjournment in sub. (2) (a) does not preclude an innocent owner of property under sub. (5) (a) from petitioning the court for the return of the property, nor does it preclude the court from addressing that issue. State v. Lanning, 2023 WI App 52, 409 Wis. 2d 453, 997 N.W.2d 123, 21-1849.

961.56 961.56 Burden of proof; liabilities.

961.56(1) (1) 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 burden of proof of any exemption or exception is upon the person claiming it.

961.56(2) (2) In the absence of proof that a person is the duly authorized holder of an appropriate federal registration or order form, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.

961.56(3) (3) No liability is imposed by this chapter upon any authorized state, county or municipal officer or employee engaged in the lawful performance of the officer’s or employee’s duties.

961.56 History History: 1971 c. 219, 307; 1993 a. 482; 1995 a. 448 s. 307; Stats. 1995 s. 961.56.

961.565 961.565 Enforcement reports. On or before November 15 annually, the governor and the attorney general shall submit a joint report to the chief clerk of each house of the legislature for distribution to the legislature under s. 13.172 (2) describing the activities in this state during the previous year to enforce the laws regulating controlled substances. The report shall contain recommendations for improving the effectiveness of enforcement activities and other efforts to combat the abuse of controlled substances.

961.565 History History: 1989 a. 122; 1995 a. 448 s. 308; Stats. 1995 s. 961.565.

subch. VI of ch. 961 SUBCHAPTER VI

DRUG PARAPHERNALIA

961.571 961.571 Definitions. In this subchapter:

961.571(1) (1) 

961.571(1)(a) (a) “Drug paraphernalia” means all equipment, products and materials of any kind that are used, designed for use or primarily intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance or controlled substance analog in violation of this chapter. “Drug paraphernalia” includes, but is not limited to, any of the following:

961.571(1)(a)1. 1. Kits used, designed for use or primarily intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant that is a controlled substance or from which a controlled substance or controlled substance analog can be derived.

961.571(1)(a)2. 2. Kits used, designed for use or primarily intended for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances or controlled substance analogs.

961.571(1)(a)3. 3. Isomerization devices used, designed for use or primarily intended for use in increasing the potency of any species of plant that is a controlled substance.

961.571(1)(a)4. 4. Testing equipment used, designed for use or primarily intended for use in identifying, or in analyzing the strength, effectiveness or purity of, controlled substances or controlled substance analogs.

961.571(1)(a)5. 5. Scales and balances used, designed for use or primarily intended for use in weighing or measuring controlled substances or controlled substance analogs.

961.571(1)(a)6. 6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, designed for use or primarily intended for use in cutting controlled substances or controlled substance analogs.

961.571(1)(a)7. 7. Separation gins and sifters used, designed for use or primarily intended for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana.

961.571(1)(a)8. 8. Blenders, bowls, containers, spoons and mixing devices used, designed for use or primarily intended for use in compounding controlled substances or controlled substance analogs.

961.571(1)(a)9. 9. Capsules, balloons, envelopes and other containers used, designed for use or primarily intended for use in packaging small quantities of controlled substances or controlled substance analogs.

961.571(1)(a)10. 10. Containers and other objects used, designed for use or primarily intended for use in storing or concealing controlled substances or controlled substance analogs.

961.571(1)(a)11. 11. 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:

961.571(1)(a)11.a. a. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls.

961.571(1)(a)11.b. b. Water pipes.

961.571(1)(a)11.c. c. Carburetion tubes and devices.

961.571(1)(a)11.d. d. Smoking and carburetion masks.

961.571(1)(a)11.e. e. Roach clips: meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand.

961.571(1)(a)11.f. f. Miniature cocaine spoons and cocaine vials.

961.571(1)(a)11.g. g. Chamber pipes.

961.571(1)(a)11.h. h. Carburetor pipes.

961.571(1)(a)11.i. i. Electric pipes.

961.571(1)(a)11.j. j. Air-driven pipes.

961.571(1)(a)11.k. k. Chilams.

961.571(1)(a)11.L. L. Bongs.

961.571(1)(a)11.m. m. Ice pipes or chillers.

961.571(1)(b) (b) “Drug paraphernalia” excludes:

961.571(1)(b)1. 1. Hypodermic syringes, needles and other objects used or intended for use in parenterally injecting substances into the human body.

961.571(1)(b)2. 2. Any items, including pipes, papers and accessories, that are designed for use or primarily intended for use with tobacco products.

961.571(1)(b)3. 3. Any materials used or intended for use in testing for the presence of fentanyl or a fentanyl analog in a substance.

961.571(1)(b)4. 4. Any materials used or intended for use in testing for the presence of xylazine or a xylazine analog in a substance.

961.571(2) (2) “Primarily” means chiefly or mainly.

961.571 History History: 1989 a. 121; 1991 a. 140; 1995 a. 448 s. 310; Stats. 1995 s. 961.571; 2021 a. 180; 2023 a. 217.

961.571 Annotation A tobacco pipe is excluded from the definition of drug paraphernalia under sub. (1) (b) 2. The presence of residue of a controlled substance in the pipe does not change that result. State v. Martinez, 210 Wis. 2d 396, 563 N.W.2d 922 (Ct. App. 1997), 96-1899.

961.572 961.572 Determination.

961.572(1) (1) In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other legally relevant factors, the following:

961.572(1)(a) (a) Statements by an owner or by anyone in control of the object concerning its use.

961.572(1)(b) (b) The proximity of the object, in time and space, to a direct violation of this chapter.

961.572(1)(c) (c) The proximity of the object to controlled substances or controlled substance analogs.

961.572(1)(d) (d) The existence of any residue of controlled substances or controlled substance analogs on the object.

961.572(1)(e) (e) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he or she knows intend to use the object to facilitate a violation of this chapter; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is designed for use or primarily intended for use as drug paraphernalia.

961.572(1)(f) (f) Instructions, oral or written, provided with the object concerning its use.

961.572(1)(g) (g) Descriptive materials accompanying the object that explain or depict its use.

961.572(1)(h) (h) Local advertising concerning its use.

961.572(1)(i) (i) The manner in which the object is displayed for sale.

961.572(1)(j) (j) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.

961.572(1)(k) (k) The existence and scope of legitimate uses for the object in the community.

961.572(1)(L) (L) Expert testimony concerning its use.

961.572(2) (2) In determining under this subchapter whether an item is designed for a particular use, a court or other authority shall consider the objective physical characteristics and design features of the item.

961.572(3) (3) In determining under this subchapter whether an item is primarily intended for a particular use, a court or other authority shall consider the subjective intent of the defendant.