Chapter 961

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.

961.572 History History: 1989 a. 121; 1991 a. 140; 1995 a. 448 s. 311; Stats. 1995 s. 961.572.

961.573 961.573 Possession of drug paraphernalia.

961.573(1) (1) No person may use, or possess with the primary intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this chapter. Any person who violates this subsection may be fined not more than $500 or imprisoned for not more than 30 days or both.

961.573(2) (2) Any person who violates sub. (1) who is under 17 years of age is subject to a disposition under s. 938.344 (2e).

961.573(3) (3) 

961.573(3)(a) (a) No person may use, or possess with the primary intent to use, drug paraphernalia to manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, or store methamphetamine or a controlled substance analog of methamphetamine in violation of this chapter.

961.573(3)(b) (b)

961.573(3)(b)1. 1. Except as provided in subd. 2., any person who violates par. (a) is guilty of a Class H felony.

961.573(3)(b)2. 2. Any person who is 18 years of age or older and who violates par. (a) while in the presence of a child who is 14 years of age or younger is guilty of a Class G felony.

961.573 History History: 1989 a. 121; 1991 a. 39, 140; 1995 a. 27, 77; 1995 a. 448 ss. 312 to 314, 492; Stats. 1995 s. 961.573; 1999 a. 129; 2001 a. 109; 2005 a. 263.

961.574 961.574 Manufacture or delivery of drug paraphernalia.

961.574(1) (1) No person may deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing that it will be primarily used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this chapter. Any person who violates this subsection may be fined not more than $1,000 or imprisoned for not more than 90 days or both.

961.574(2) (2) Any person who violates sub. (1) who is under 17 years of age is subject to a disposition under s. 938.344 (2e).

961.574(3) (3) No person may deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing that it will be primarily used to manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack or store methamphetamine or a controlled substance analog of methamphetamine in violation of this chapter. Any person who violates this subsection is guilty of a Class H felony.

961.574 History History: 1989 a. 121; 1991 a. 39, 140; 1995 a. 27, 77; 1995 a. 448 ss. 315 to 317, 493; Stats. 1995 s. 961.574; 1999 a. 129; 2001 a. 109.

961.575 961.575 Delivery of drug paraphernalia to a minor.

961.575(1) (1) Any person 17 years of age or over who violates s. 961.574 (1) by delivering drug paraphernalia to a person 17 years of age or under who is at least 3 years younger than the violator may be fined not more than $10,000 or imprisoned for not more than 9 months or both.

961.575(2) (2) Any person who violates this section who is under 17 years of age is subject to a disposition under s. 938.344 (2e).

961.575(3) (3) Any person 17 years of age or over who violates s. 961.574 (3) by delivering drug paraphernalia to a person 17 years of age or under is guilty of a Class G felony.

961.575 History History: 1989 a. 121; 1991 a. 39; 1995 a. 27, 77; 1995 a. 448 ss. 318, 494; Stats. 1995 s. 961.575; 1999 a. 129; 2001 a. 109.

961.576 961.576 Advertisement of drug paraphernalia. No person may place in any newspaper, magazine, handbill or other publication any advertisement, knowing that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed for use or primarily intended for use as drug paraphernalia in violation of this chapter. Any person who violates this section may be fined not more than $500 or imprisoned for not more than 30 days or both.

961.576 History History: 1989 a. 121; 1991 a. 140; 1995 a. 448 s. 319; Stats. 1995 s. 961.576.

961.577 961.577 Municipal ordinances. Nothing in this subchapter precludes a city, village, or town from prohibiting conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2) or a county from prohibiting conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2).