Chapter 961

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).

961.41 Annotation Being a procuring agent of the buyer is not a valid defense to a charge under this section. By facilitating a drug deal, the defendant was party to the crime. State v. Hecht, 116 Wis. 2d 605, 342 N.W.2d 721 (1984).

961.41 Annotation When police confiscated a large quantity of drugs from an empty home and the next day searched the defendant upon his return to the home, confiscating a small quantity of the same drugs, the defendant’s conviction for the lesser-included offense of possession and the greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985).

961.41 Annotation The defendant was properly convicted of attempted delivery of cocaine even though a noncontrolled substance was delivered. State v. Cooper, 127 Wis. 2d 429, 380 N.W.2d 383 (Ct. App. 1985).

961.41 Annotation Possession is not a lesser included offense of manufacturing. State v. Peck, 143 Wis. 2d 624, 422 N.W.2d 160 (Ct. App. 1988).

961.41 Annotation Identification of a controlled substance can be established by circumstantial evidence such as lay experience based on familiarity through prior use, trading, or law enforcement. State v. Anderson, 176 Wis. 2d 196, 500 N.W.2d 328 (Ct. App. 1993).

961.41 Annotation A conspiracy under sub. (1x) must involve at least two people with each subject to the same penalty for the conspiracy. If the buyer of drugs is guilty of misdemeanor possession only, a felony conspiracy charge may not be brought against the buyer. State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995).

961.41 Annotation The state is not required to prove that a defendant knew the exact nature or precise chemical name of a possessed controlled substance. The state must only prove that the defendant knew or believed that the substance was a controlled substance. State v. Sartin, 200 Wis. 2d 47, 546 N.W.2d 449 (1996), 94-0037.

961.41 Annotation A delivery conspiracy under sub. (1x) requires an agreement between a buyer and a seller that the buyer will deliver at least some of the controlled substance to a third party. State v. Cavallari, 214 Wis. 2d 42, 571 N.W.2d 176 (Ct. App. 1997), 96-3391.

961.41 Annotation Standing alone, the presence of drugs in someone’s system is insufficient to support a conviction for possession, but it is circumstantial evidence of prior possession. Evidence that the defendant was selling drugs is irrelevant to a charge of simple possession. Evidence that the defendant had money but no job does not have a tendency to prove possession. State v. Griffin, 220 Wis. 2d 371, 584 N.W.2d 127 (Ct. App. 1998), 97-0914.

961.41 Annotation Delivery under sub. (1m) requires a transfer from one person to another. Intent to transfer drugs to the person from whom they were originally received satisfies this definition. Transfer to a third party is not required. State v. Pinkard, 2005 WI App 226, 287 Wis. 2d 592, 706 N.W.2d 157, 04-2755.

961.41 Annotation A person may be a member of a conspiracy, in particular, a conspiracy to manufacture a controlled substance, based on the person’s sale of goods that are not illegal to sell or possess. One does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless the person knows of the conspiracy, the inference of which knowledge cannot be drawn from mere knowledge that the buyer will use the goods illegally. The gist of the conspiracy is the seller’s intent, when given effect by an overt act to further, promote, and cooperate in the buyer’s intended illegal use. There must be clear, unequivocal evidence of the seller’s knowledge of the buyer’s intended illegal use. State v. Routon, 2007 WI App 178, 304 Wis. 2d 480, 736 N.W.2d 530, 06-2557.

961.41 Annotation Possession requires evidence that the individual had a substance in the individual’s control. When combined with other corroborating evidence of sufficient probative value, evidence of ingestion can be sufficient to prove possession. State v. Patterson, 2009 WI App 161, 321 Wis. 2d 752, 776 N.W.2d 602, 08-1968.

961.41 Annotation Sub. (3g) (c) requires that the prior conviction be connected to controlled substances if a prior conviction is to trigger penalty enhancement. When the statute underlying a prior conviction presents alternative methods of violating the statute, it is appropriate to consult a limited class of documents to determine what statutory alternative formed the basis for the defendant’s prior conviction. A trial court judge, rather than a jury, is allowed to determine the applicability of a defendant’s prior conviction for sentence enhancement purposes, when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. Guarnero, 2015 WI 72, 363 Wis. 2d 857, 867 N.W.2d 400, 13-1753.

961.41 Annotation Arrest did not terminate possession or control of a controlled substance. State v. Brantner, 2020 WI 21, 390 Wis. 2d 494, 939 N.W.2d 546, 18-0053.

961.41 Annotation Multiple charges for possession based on different dosages were multiplicitous under sub. (3g) (am) because that subsection proscribes possession without regard to the dosage of the pills. State v. Brantner, 2020 WI 21, 390 Wis. 2d 494, 939 N.W.2d 546, 18-0053.

961.41 Annotation There is no minimum quantity of a controlled substance necessary to sustain a conviction for possession. However, possession of a controlled substance requires both knowledge and control. Thus, the state must prove the defendant knew or believed that the defendant was in possession of a narcotic drug. Such knowledge or belief may be shown circumstantially by conduct, directly by admission, or indirectly by contradictory statements from which guilt may be inferred. State v. Chentis, 2022 WI App 4, 400 Wis. 2d 441, 969 N.W.2d 482, 20-1699.

961.41 Annotation Double jeopardy was not violated when the defendant was convicted of separate offenses under s. 161.41 [now this section] for simultaneous delivery of different controlled substances. Leonard v. Warden, Dodge Correctional Institution, 631 F. Supp. 1403 (1986).

961.42 961.42 Prohibited acts B — penalties.

961.42(1) (1) It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for manufacturing, keeping or delivering them in violation of this chapter.

961.42(2) (2) Any person who violates this section is guilty of a Class I felony.

961.42 History History: 1971 c. 219; 1995 a. 448 s. 267; Stats. 1995 s. 961.42; 1997 a. 283; 2001 a. 109.

961.42 Annotation “Keeping” a substance under sub. (1) means more than simple possession; it means keeping for the purpose of warehousing or storage for ultimate manufacture or delivery. State v. Brooks, 124 Wis. 2d 349, 369 N.W.2d 183 (Ct. App. 1985).

961.42 Annotation Warehousing or storage under Brooks, 124 Wis. 2d 349 (1985), does not encompass merely possessing an item while transporting it. Cocaine was not warehoused or stored when the cocaine was carried in the defendant’s truck while moving from one location to another. State v. Slagle, 2007 WI App 117, 300 Wis. 2d 662, 731 N.W.2d 284, 06-0775.

961.43 961.43 Prohibited acts C — penalties.

961.43(1) (1) It is unlawful for any person:

961.43(1)(a) (a) To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge;

961.43(1)(b) (b) Without authorization, to make, distribute or possess any punch, die, plate, stone or other thing designed to print, imprint or reproduce the trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as:

961.43(1)(b)1. 1. To make a counterfeit substance; or

961.43(1)(b)2. 2. To duplicate substantially the physical appearance, form, package or label of a controlled substance.

961.43(2) (2) Any person who violates this section is guilty of a Class H felony.

961.43 History History: 1971 c. 219; 1981 c. 90; 1995 a. 448 s. 268; Stats. 1995 s. 961.43; 1997 a. 283; 2001 a. 109.

961.435 961.435 Specific penalty. Any person who violates s. 961.38 (5) may be fined not more than $500 or imprisoned not more than 30 days or both.

961.435 History History: 1975 c. 190; 1995 a. 448 s. 269; Stats. 1995 s. 961.435.

961.44 961.44 Penalties under other laws. Any penalty imposed for violation of this chapter is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law.

961.44 History History: 1971 c. 219; 1995 a. 448 s. 271; Stats. 1995 s. 961.44.

961.442 961.442 Penalties; hemp. If a person attempts to conceal the commission of a crime under this chapter while representing that he or she is engaging in the planting, growing, cultivating, harvesting, producing, processing, transporting, importing, exporting, selling, transferring, sampling, testing, or taking possession of hemp, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:

961.442(1) (1) The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months.

961.442(2) (2) The maximum term of imprisonment for a felony may be increased by not more than 3 years.

961.442 History History: 2017 a. 100; 2019 a. 68.

961.443 961.443 Immunity from criminal prosecution; possession.

961.443(1) (1) Definitions. In this section, “aider” means a person who does any of the following:

961.443(1)(a) (a) Brings another person to an emergency room, hospital, fire station, or other health care facility and makes contact with an individual who staffs the emergency room, hospital, fire station, or other health care facility if the other person is, or if a reasonable person would believe him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.

961.443(1)(b) (b) Summons and makes contact with a law enforcement officer, ambulance, emergency medical services practitioner, as defined in s. 256.01 (5), or other health care provider, in order to assist another person if the other person is, or if a reasonable person would believe him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.

961.443(1)(c) (c) Calls the telephone number “911” or, in an area in which the telephone number “911” is not available, the number for an emergency medical service provider, and makes contact with an individual answering the number with the intent to obtain assistance for another person if the other person is, or if a reasonable person would believe him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.

961.443(2) (2) Immunity from criminal prosecution. An aider is immune from prosecution under s. 961.573 for the possession of drug paraphernalia, under s. 961.41 (3g) for the possession of a controlled substance or a controlled substance analog, and under s. 961.69 (2) for possession of a masking agent under the circumstances surrounding or leading to his or her commission of an act described in sub. (1).

961.443 History History: 2013 a. 194; 2015 a. 264; 2017 a. 12, 33, 59, 364.

961.443 Annotation The decision of whether immunity under sub. (2) applies should be made by the court pursuant to a pretrial motion. The defendant bears the burden of proving by a preponderance of the evidence the defendant’s entitlement to immunity. State v. Williams, 2016 WI App 82, 372 Wis. 2d 365, 888 N.W.2d 1, 15-2044.

961.443 Annotation If the legislature had meant to provide immunity for bail jumping offenses founded in part upon violations of the statutes cited in sub. (2), it could have easily written that into this section. It did not. State v. Williams, 2016 WI App 82, 372 Wis. 2d 365, 888 N.W.2d 1, 15-2044.

961.443 Annotation In this case, the mere fact that the defendant provided information about the contraband and consent to search the defendant’s apartment during a subsequent police interview occasioned by the defendant’s assistance did not cause the defendant’s commission of those offenses to be part of the “circumstances surrounding” the defendant’s status as an “aider” within the meaning of this section. State v. Lecker, 2020 WI App 65, 394 Wis. 2d 285, 950 N.W.2d 910, 19-1532.

961.443 Annotation A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis. O’Brien. 2020 WLR 1065.

961.45 961.45 Bar to prosecution. If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.

961.45 History History: 1971 c. 219; 1995 a. 448 s. 272; Stats. 1995 s. 961.45.

961.45 Annotation Under this section, a “prosecution” is to be equated with a conviction or acquittal. The date on which a sentence is imposed is not relevant to the determination of whether a “prosecution” has occurred. State v. Petty, 201 Wis. 2d 337, 548 N.W.2d 817 (1996), 93-2200.

961.45 Annotation This section bars a Wisconsin prosecution under this chapter for the same conduct on which a prior federal conviction is based. The restriction is not limited to the same crime as defined by its statutory elements. State v. Hansen, 2001 WI 53, 243 Wis. 2d 328, 627 N.W.2d 195, 99-1128.

961.45 Annotation If a conspiracy involves multi-layered conduct, and all such conduct is part of the overarching common scheme, this section does not bar prosecution when some other part of the multi-layered conduct has resulted in a prosecution in some other jurisdiction. State v. Bautista, 2009 WI App 100, 320 Wis. 2d 582, 770 N.W.2d 744, 08-1692.

961.452 961.452 Defenses in certain schedule V prosecutions.

961.452(1) (1) A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under s. 961.41 (1) (j) that is based on the person’s violation of a condition specified in s. 961.23 with respect to the person’s distribution or delivery of a pseudoephedrine product:

961.452(1)(a) (a) The person did not knowingly or recklessly violate the condition under s. 961.23.

961.452(1)(b) (b) The person reported his or her own violation of the condition under s. 961.23 to a law enforcement officer in the county or municipality in which the violation occurred within 30 days after the violation.

961.452(2) (2) A seller who proves all of the following by a preponderance of the evidence has a defense to prosecution under s. 961.41 (1) (j) that is based on the person’s violation of a condition specified in s. 961.23 with respect to the person’s distribution or delivery of a pseudoephedrine product:

961.452(2)(a) (a) The person did not knowingly or recklessly violate the condition under s. 961.23.

961.452(2)(b) (b) The acts or omissions constituting the violation of the condition under s. 961.23 were the acts or omissions of one or more of the person’s employees.

961.452(2)(c) (c) The person provided training to each of those employees regarding the restrictions imposed under s. 961.23 on the delivery of pseudoephedrine products.

961.452(3) (3) A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under s. 961.41 (1) (j) for a violation of s. 961.23 (6):

961.452(3)(a) (a) The purchaser presented an identification card that contained a name or address other than the person’s own.

961.452(3)(b) (b) The appearance of the purchaser was such that an ordinary and prudent person would believe that the purchaser was the person depicted in the photograph contained in that identification card.

961.452(3)(c) (c) The sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser, and with the belief that the name and address of the purchaser were as listed on the identification card.

961.452(4) (4) A person who proves all of the following by a preponderance of the evidence has a defense to prosecution under s. 961.41 (1) (j) for a violation of s. 961.23 (8):

961.452(4)(a) (a) The purchaser presented an identification card that indicated that he or she was 18 years of age or older.

961.452(4)(b) (b) The appearance of the purchaser was such that an ordinary and prudent person would believe that the purchaser was 18 years of age or older.

961.452(4)(c) (c) The sale was made in good faith, in reasonable reliance on the identification card and appearance of the purchaser, and with the belief that the purchaser was 18 years of age or older.

961.452 History History: 2005 a. 14.

961.453 961.453 Purchases of pseudoephedrine products on behalf of another person.

961.453(1) (1) 

961.453(1)(a) (a) No person may, with the intent to acquire more than 7.5 grams of pseudoephedrine contained in a pseudoephedrine product within a 30-day period, knowingly solicit, hire, direct, employ, or use another to purchase a pseudoephedrine product on his or her behalf.

961.453(1)(b) (b)

961.453(1)(b)1. 1. Except as provided in subd. 2., a person who violates par. (a) is guilty of a Class I felony.

961.453(1)(b)2. 2. If the person who is solicited, hired, directed, employed, or used to purchase the pseudoephedrine product is an individual who is less than 18 years of age, the actor is guilty of a Class H felony.

961.453(2) (2) No person may purchase a pseudoephedrine product on behalf of another with the intent to facilitate another person’s manufacture of methamphetamine. A person who violates this subsection is guilty of a Class I felony.

961.453 History History: 2005 a. 14, 262.

961.455 961.455 Using a child for illegal drug distribution or manufacturing purposes.

961.455(1) (1) Any person who has attained the age of 17 years who knowingly solicits, hires, directs, employs or uses a person who is under the age of 17 years for the purpose of violating s. 961.41 (1) is guilty of a Class F felony.

961.455(2) (2) The knowledge requirement under sub. (1) does not require proof of knowledge of the age of the child. It is not a defense to a prosecution under this section that the actor mistakenly believed that the person solicited, hired, directed, employed or used under sub. (1) had attained the age of 18 years, even if the mistaken belief was reasonable.

961.455(3) (3) Solicitation under sub. (1) occurs in the manner described under s. 939.30, but the penalties under sub. (1) apply instead of the penalties under s. 939.30.

961.455(4) (4) If the conduct described under sub. (1) results in a violation under s. 961.41 (1), the actor is subject to prosecution and conviction under s. 961.41 (1) or this section or both.