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Wisconsin Marijuana Law

Penalty Details

Marijuana is a Schedule I hallucinogenic substance under the Wisconsin Uniform Controlled Substances Act.

See

  • Wis. Stat. § 961.14 (2014)

Possession

A first offense for possession of marijuana is a misdemeanor punishable by a fine of up to $1,000 and/or imprisonment of up to 6 months. A second offense is a Class I felony and is punishable by a fine of up to $10,000 and/or imprisonment for up to 3.5 years.

See

  • Wis. Stat. §§ 961.41(3g)& 961.495

The penalty for marijuana possession will vary according to number of convictions, with 100 hours of community service, in addition to the standard penalty for possession within 1,000 ft. of a school, youth center, public park, pool, housing project, jail or drug treatment facility.  

See

  • Wis. Stat. §§ 961.41(3g)& 961.495

Sale or Cultivation

The sale or cultivation of 200 grams or less (4 plants or fewer) is a Class I felony, punishable by up to $10,000 in fines and/or imprisonment for up to 3.5 years.

The sale or cultivation of between 200 and 1,000 grams (5-12 plants) is a felony, punishable by up to $10,000 fine and/ or 6 years in prison.

The sale or cultivation of between 1,000 and 2,500 grams (21-50 plants) is punishable by up to $25,000 fines and/ or a maximum 10 years imprisonment.

The sale or cultivation of between 2,500 and 10,000 grams (51-200 plants) is punishable by up to $25,000 fine and/or 12 years and 6 months imprisonment.

The sale or cultivation of over 10,000 grams (more than 200 plants) is punishable with a maximum of 15 years imprisonment and/or a $25,000 fine.

See

  • Wis. Stat. § 961.41(1)

Hash & Concentrates

Any compound containing THC is a Schedule I drug. While the definition of marijuana does not include hashish or concentrates, the penalties and offenses associated with marijuana are the same for hashish or concentrates. Please see the marijuana penalties section for further details.

See

  • Wis. Stat. § 961.41(1)

Paraphernalia

It is illegal to use paraphernalia or possess paraphernalia with the intent to use it. Paraphernalia includes any item that will assist in the cultivation, distribution, ingestion, or inhalation of marijuana. This offense is a misdemeanor punishable by a fine of up to $500 or up to 30 days of imprisonment.

See

  • Wis. Stat. § 961.573(1)

The sale of paraphernalia it is a misdemeanor and is punishable by a fine of up to $1,000 and/or 90 days of imprisonment.

See

  • Wis. Stat. § 961.574(1)

Selling paraphernalia to a minor is a misdemeanor punishable by a fine of up to $10,000 an/or up to 9 months of imprisonment.

See

  • Wis. Stat. § 961.573

Forfeiture

All controlled substances and items used to distribute them, including vehicles, are subject to forfeiture under Wisconsin law.

See

  • Wis. Stat. § 961.55

Miscellaneous

If a person is convicted of any violation the Uniform Controlled Substances Act, the court may, in addition to any other penalties that may apply to the crime, suspend the person’s operating privilege for not less than 6 months nor more than 5 years. The person may be able to apply for an occupational license depending on the number of prior convictions.

See

  • Wis. Stat. §961.50
Conditional Release

The state allows conditional release or alternative or diversion sentencing for people facing their first prosecutions. Usually, conditional release lets a person opt for probation rather than trial. After successfully completing probation, the individual’s criminal record does not reflect the charge.

Drugged Driving

This state has a per se drugged driving law enacted. In their strictest form, these laws forbid drivers from operating a motor vehicle if they have a detectable level of an illicit drug or drug metabolite (i.e., compounds produced from chemical changes of a drug in the body, but not necessarily psychoactive themselves) present in their bodily fluids above a specific, state-imposed threshold. 

Hemp

This state has an active hemp industry or has authorized research. Hemp is a distinct variety of the plant species cannabis sativa L. that contains minimal (less than 1%) amounts of tetrahydrocannabinol (THC), the primary psychoactive ingredient in marijuana. Various parts of the plant can be utilized in the making of textiles, paper, paints, clothing, plastics, cosmetics, foodstuffs, insulation, animal feed, and other products. For more information see NORML’s Industrial Use section.

Medical CBD

This state has passed a medical CBD law allowing for the use of cannabis extracts that are high in CBD and low in THC for any “medical condition” for which a physician recommends it.

Wisconsin Drugged Driving

A person is guilty of DUI in Wisconsin if a motor vehicle operator is under the influence of an intoxicant to the degree that he or she is incapable of driving safely; OR a person drives or operates a motor vehicle with a detectable amount of a restricted controlled substance in their blood*. Wis. Stat. Ann. §§ 346.63 (1)(a)-(am) (West 2010). *driving with detectable restricted controlled substance in blood(per se law) Id. § 346.63 (1)(am).

Wisconsin DUI law prohibits any controlled substance other than THC and associated inert metabolites. However, Wisconsin does test for Delta-9- THC, an active ingredient in cannabis which passes through the body much faster than do other inert metabolites of cannabis.

Affirmative Defense

A valid affirmative defense exists if at the time of the incident or occurrence, violator had a valid prescription for substance. Id. § 346.63(1)(d).

NOTE: Physicians recommendation to use cannabis is NOTa prescription.

Implied Consent

  • Any person who operates a motor vehicle in Wisconsin is deemed to have given non-expressed consent to one or more tests of their breath, blood, or urine for the purposes of determining the presence or quantity of alcohol or drugs in the operator’s body. Id. § 343.605(2).
  • Prior to arrest, an officer may request a breath sample for preliminary screening. The result can be used deciding whether a person should be arrested for DUI. The results are not admissible in any legal proceeding – except to show probable cause for the arrest, or to prove that the officer properly requested a chemical test. The general penalty provisions for refusal of chemical test do not apply to a refusal to take a preliminary breath screening test. Id. § 343.303.
  • Failure to submit to chemical testing will result in a one (1) year license suspension beginning at the time of the refusal. Id. § 343.305(9), (10)(b)(2). Anyone who wishes to appeal the suspension may, but must move to do so within 10 days. Id. § 343.305(9).
  • Persons who refuse testing will be ordered to comply with an assessment and driver safety plan. Individuals may also be ordered to participate in a drug substance abuse assessment or treatment. Id. §§ 343.305(10)(c)-(e).
  • Fact of a defendant’s refusal to submit to test for intoxication may be introduced at criminal prosecution for substantive drunk driving offense as means of showing consciousness of guilt. State v Zielke, 403 NW2d 427 (1987).

Penalties

  • First offense Misdemeanor –fine of not less than $150, nor more than $300. Id. § 346.65(2)(am)(1).
  • Second offense (within 10 years) Misdemeanor – fine of not less than $350, nor more than $1,100; imprisonment of not less than 5 days, nor more than 6 months; mandatory revocation of license for 12-18 months. Id. § 346.65(2)(2); Id. § 346.65(2)(am)(2).
  • Third offense (within lifetime) Misdemeanor – fine of not less than $600, nor more than $2,000; imprisonment for not less than 30 days (mandatory minimum), nor more than 1 year; mandatory revocation of license for 2-3 years. Id. § 346.65(2)(am)(3).
  • Fourth offense (within lifetime) Misdemeanor – fine of not less than$600, nor more than $2,000; imprisonment for not less than 60 days (mandatory minimum), nor more than 1 year; mandatory license revocation for 2-3 years. Id. § 346.65(2)(am)(4).
  • Fourth offense (w/i 5 years of previous offense) Class H Felony – fine of not less than $600; imprisonment of not less than 6 months. Id. § 346.65(2)(am)(4m).
  • Fifth & Sixth offense (within lifetime) Class H Felony – fine of not less than $600; imprisonment of not less than 6 months; fine of no more than $10,000, imprisonment of no more than 6 years, or both. Id. § 346.65(2)(am)(5); Id. § 939.50(h).
  • Seventh, Eighth, & Ninth offense Class G Felony – imprisonment for not less than 3 years; fine of no more than $25,000, imprisonment for no more than 10 years. Id. § 346.65(2)(am)(6); Id. § 939.50(g).
  • Tenth and subsequent offense Class F Felony – imprisonment for not less than 4 years; fine of no more than $25,000, imprisonment for no more than12 years and 6 months, or both. Id. § 346.65(2)(am)(7); Id. § 939.50(f).

Other Penalties & Penalty Enhancers

  • If a passenger was under 16 years of age, offender is guilty of a Felony and all minimum and maximum fines and imprisonment (all penalties) are doubled. Id. § 346.65(2)(f)(2).
  • If there is a passenger under 16 years of age in the vehicle offender may face increased penalties. Id. § 346.65(2b)(f).
  • If DUI happens in a construction area offender can face increased penalties. Id. § 346.65(5m).
  • Multiple convictions can lead to vehicle seizure and forfeiture. Id. § 346.65.

Sobriety Checkpoints

In Wisconsin, sobriety checkpoints are prohibited statutes.

  • A police officer, sheriff, deputy sheriff, traffic officer or motor vehicle inspector may not stop or inspect a vehicle solely to determine compliance with a statute unless the police officer, sheriff, deputy sheriff, traffic officer or motor vehicle inspector has reasonable cause to believe that a violation of a statute has been committed. Id. § 349.02(2)(a).

Case Law

City of Milwaukee v. Johnston 124 N.W.2d 690 (1963) — Evaluation of opinion testimony of police officer that motorist was under the influence of intoxicants was for trier of fact.

County of Jefferson v. Renz, 588 N.W.2d 267 (1998) – In order to make motorist submit to a preliminary breath test (PBT) requires the same level of probable cause as an arrest for DUI.

Per Se Drugged Driving Laws

Wisconsin has a zero tolerance per se drugged driving law enacted for cannabis and other controlled substances. Cannabis metabolites are excluded under the law. (Wisconsin State Code, Section 346.63)

Wisconsin’s law took effect in January 2004.

Wisconsin Hemp Law

Year Passed: 2017

Summary: Senate Bill 119 establishes a state-sponsored pilot program to “study the growth, cultivation, and marketing of industrial hemp.”