A university campus is not a “school" within the meaning of s. 161.49 [now this section]. State v. Andrews, 171 Wis. 2d 217
, 491 N.W.2d 504
(Ct. App. 1992).
Anyone who passes within a zone listed in sub. (1) [now sub. (1m)] while in possession of a controlled substance with an intent to deliver it somewhere is subject to the penalty enhancer provided by this section whether or not the arrest is made within the zone and whether or not there is an intent to deliver the controlled substance within the zone. State v. Rasmussen, 195 Wis. 2d 109
, 536 N.W.2d 106
(Ct. App. 1995), 94-2400
The penalty enhancer for sales close to parks does not violate due process and is not unconstitutionally vague. The ordinary meaning of “parks" includes undeveloped parks. Proximity to a park is rationally related to protecting public health and safety from drug sale activities. State v. Lopez, 207 Wis. 2d 413
, 559 N.W.2d 264
(Ct. App. 1996), 95-3250
Day care centers are a subset of “youth centers" as defined in s. 961.01 (22) and come within the definition of places listed in sub. (2). State v. Van Riper, 222 Wis. 2d 197
, 586 N.W.2d 198
(Ct. App. 1998), 97-3367
This section contains two elemental facts, a distance requirement and a particularized protected place, both of which must be submitted to the jury and proven beyond a reasonable doubt. State v. Harvey, 2002 WI 93
, 254 Wis. 2d 442
, 647 N.W.2d 189
Possession or attempted possession of a controlled substance on or near certain places.
If any person violates s. 961.41 (3g)
by possessing or attempting to possess a controlled substance included in schedule I or II, a controlled substance analog of a controlled substance included in schedule I or II or ketamine or flunitrazepam while in or on the premises of a scattered-site public housing project, while in or on or otherwise within 1,000 feet of a state, county, city, village, or town park, a jail or correctional facility, a multiunit public housing project, a swimming pool open to members of the public, a youth center or a community center, while in or on or otherwise within 1,000 feet of any private or public school premises or of any premises of a tribal school, as defined in s. 115.001 (15m)
, or while in or on or otherwise within 1,000 feet of a school bus, as defined in s. 340.01 (56)
, the court shall, in addition to any other penalties that may apply to the crime, impose 100 hours of community service work for a public agency or a nonprofit charitable organization. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored. Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this section has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
Suspension or revocation of operating privilege. 961.50(1)(1)
If a person is convicted of any violation of this chapter, the court may, in addition to any other penalties that may apply to the crime, suspend the person's operating privilege, as defined in s. 340.01 (40)
, for not less than 6 months nor more than 5 years. If a court suspends a person's operating privilege under this subsection, the court may take possession of any suspended license. If the court takes possession of a license, it shall destroy the license. The court shall forward to the department of transportation the record of conviction and notice of the suspension. The person is eligible for an occupational license under s. 343.10
For the first such conviction, at any time.
For a 2nd conviction within a 5-year period, after the first 60 days of the suspension or revocation period.
For a 3rd or subsequent conviction within a 5-year period, after the first 90 days of the suspension or revocation period.
For purposes of counting the number of convictions under sub. (1)
, convictions under the law of a federally recognized American Indian tribe or band in this state, federal law or the law of another jurisdiction, as defined in s. 343.32 (1m) (a)
, for any offense therein which, if the person had committed the offense in this state and been convicted of the offense under the laws of this state, would have required suspension or revocation of such person's operating privilege under this section, shall be counted and given the effect specified under sub. (1)
. The 5-year period under this section shall be measured from the dates of the violations which resulted in the convictions.
If the person's license or operating privilege is currently suspended or revoked or the person does not currently possess a valid operator's license issued under ch. 343
, the suspension or revocation under this section is effective on the date on which the person is first eligible for issuance, renewal, or reinstatement of an operator's license under ch. 343
ENFORCEMENT AND ADMINISTRATIVE PROVISIONS
Powers of enforcement personnel. 961.51(1)(1)
Any officer or employee of the pharmacy examining board designated by the examining board may:
Execute and serve search warrants, arrest warrants, administrative inspection warrants, subpoenas and summonses issued under the authority of this state;
Make arrests without warrant for any offense under this chapter committed in the officer's or employee's presence, or if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing a violation of this chapter which may constitute a felony; and
Make seizures of property pursuant to this chapter.
This section does not affect the responsibility of law enforcement officers and agencies to enforce this chapter, nor the authority granted the department of justice under s. 165.70
History: 1971 c. 219
; 1985 a. 29
; 1993 a. 482
; 1995 a. 448
; Stats. 1995 s. 961.51.
Administrative inspections and warrants. 961.52(1)(1)
Issuance and execution of administrative inspection warrants shall be as follows:
A judge of a court of record, upon proper oath or affirmation showing probable cause, may issue warrants for the purpose of conducting administrative inspections authorized by this chapter or rules hereunder, and seizures of property appropriate to the inspections. For purposes of the issuance of administrative inspection warrants, probable cause exists upon showing a valid public interest in the effective enforcement of this chapter or rules hereunder, sufficient to justify administrative inspection of the area, premises, building or conveyance in the circumstances specified in the application for the warrant.
A warrant shall issue only upon an affidavit of a designated officer or employee of the pharmacy examining board or the department of justice having knowledge of the facts alleged, sworn to before the judge and establishing the grounds for issuing the warrant. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the judge shall issue a warrant identifying the area, premises, building or conveyance to be inspected, the purpose of the inspection, and, if appropriate, the type of property to be inspected, if any. The warrant shall:
State the grounds for its issuance and the name of each person whose affidavit has been taken in support thereof;
Be directed to a person authorized by law to execute it;
Command the person to whom it is directed to inspect the area, premises, building or conveyance identified for the purpose specified and, if appropriate, direct the seizure of the property specified;
Identify the item or types of property to be seized, if any;
Direct that it be served during normal business hours and designate the judge to whom it shall be returned.
A warrant issued pursuant to this section must be executed and returned within 10 days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
The judge who has issued a warrant shall attach thereto a copy of the return and all papers returnable in connection therewith and file them with the clerk of court for the county in which the inspection was made.
The pharmacy examining board and the department of justice may make administrative inspections of controlled premises in accordance with the following provisions:
For purposes of this section only, “controlled premises" means:
Places where persons authorized under s. 961.32 (1m)
to possess controlled substances in this state are required by federal law to keep records; and
Places including factories, warehouses, establishments and conveyances in which persons authorized under s. 961.32 (1m)
to possess controlled substances in this state are permitted by federal law to hold, manufacture, compound, process, sell, deliver or otherwise dispose of any controlled substance.
When authorized by an administrative inspection warrant issued pursuant to sub. (1)
, an officer or employee designated by the pharmacy examining board or the department of justice, upon presenting the warrant and appropriate credentials to the owner, operator or agent in charge, may enter controlled premises for the purpose of conducting an administrative inspection.
When authorized by an administrative inspection warrant, an officer or employee designated by the pharmacy examining board or the department of justice may:
Inspect and copy records relating to controlled substances;
Inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers and labeling found therein, and, except as provided in par. (e)
, all other things therein, including records, files, papers, processes, controls and facilities bearing on violation of this chapter; and
Inventory any stock of any controlled substance therein and obtain samples thereof.
This section does not prevent entries and administrative inspections, including seizures of property, without a warrant:
If the owner, operator or agent in charge of the controlled premises consents;
In situations presenting imminent danger to health or safety;
In situations involving inspection of conveyances if there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant;
In any other exceptional or emergency circumstance where time or opportunity to apply for a warrant is lacking; or
In all other situations in which a warrant is not constitutionally required.
An inspection authorized by this section shall not extend to financial data, sales data, other than shipment data, or pricing data unless the owner, operator or agent in charge of the controlled premises consents in writing.
Violations constituting public nuisance.
Violations of this chapter constitute public nuisances under ch. 823
, irrespective of any criminal prosecutions which may be or are commenced based on the same acts.
History: 1971 c. 219
; Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1995 a. 448
; Stats. 1995 s. 961.53.
Cooperative arrangements and confidentiality.
The department of justice shall cooperate with federal, state and local agencies in discharging its responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances. To this end, it may:
Arrange for the exchange of information among governmental officials concerning the use and abuse of controlled substances;
Coordinate and cooperate in training programs concerning controlled substance law enforcement at local and state levels;
Cooperate with the bureau by establishing a centralized unit to accept, catalog, file and collect statistics, including records of drug dependent persons and other controlled substance law offenders within the state, and make the information available for federal, state and local law enforcement purposes. It shall not furnish the name or identity of a patient or research subject whose identity could not be obtained under s. 961.335 (7)
Conduct programs of eradication aimed at destroying wild or illicit growth of plant species from which controlled substances may be extracted.
History: 1971 c. 219
; 1975 c. 110
; 1995 a. 448
; Stats. 1995 s. 961.54.
Subject to subs. (1g)
, the following are subject to forfeiture:
All controlled substances or controlled substance analogs which have been manufactured, delivered, distributed, dispensed or acquired in violation of this chapter.
All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, distributing, importing or exporting any controlled substance or controlled substance analog in violation of this chapter.
All property which is used, or intended for use, as a container for property described in pars. (a)
All vehicles which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in pars. (a)
or for the purpose of transporting any property or weapon used or to be used or received in the commission of any felony under this chapter, except that a vehicle is not subject to forfeiture for a violation of s. 961.41 (3g) (b)
All books, records, and research products and materials, including formulas, microfilm, tapes and data, which are used, or intended for use, in violation of this chapter.
All property, real or personal, including money, directly or indirectly derived from or realized through the commission of any crime under this chapter.
Any drug paraphernalia, as defined in s. 961.571
, used in violation of this chapter.
A judgment of forfeiture may not be entered under this chapter unless a person is convicted of the criminal offense that was the basis for the seizure of the item or that is related to the action for forfeiture.
A person who has been subject to a seizure of property has a right to a pretrial hearing under s. 968.20
The property of an innocent owner may not be forfeited. A person who claims to be an innocent owner may follow the procedures under s. 961.555 (5)
If a law enforcement officer or agency or state or local employee or agency refers seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint task force, or by other means, for the purposes of forfeiture litigation, the agency shall produce an itemized report of actual forfeiture expenses, as defined in sub. (5) (b)
, and submit the report to the department of administration to make it available on the department's website. If there is a federal or state criminal conviction for the crime that was the basis for the seizure, the agency may accept all proceeds. If there is no federal or state criminal conviction, the agency may not accept any proceeds, except that the agency may accept all proceeds if one of the following circumstances applies and is explained in the report submitted under this subsection:
The defendant was deported by the U.S. government.
The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.
The property has been unclaimed for a period of at least 9 months.
Property subject to forfeiture under this chapter may be seized by any officer or employee designated in s. 961.51 (1)
or a law enforcement officer upon process issued by any court of record having jurisdiction over the property. Seizure without process may be made if:
The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;
The officer or employee or a law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
The officer or employee or a law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter, that the property was derived from or realized through a crime under this chapter or that the property is a vehicle which was used as described in sub. (1) (d)
In the event of seizure under sub. (2)
, proceedings under sub. (4)
shall be instituted promptly. All dispositions and forfeitures under this section and ss. 961.555
shall be made with due provision for the rights of innocent persons under subs. (1g)
, and (1m)
. Any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property returned if:
The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or
All proceedings in which it might be required have been completed.
Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the sheriff of the county in which the seizure was made subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this chapter, the person seizing the property may: