WI
Wisconsin Assembly Bill AB1207

Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB1207 Compare Versions

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33 2023 - 2024 LEGISLATURE
44 2023 ASSEMBLY BILL 1207
55 April 11, 2024 - Introduced by Representatives STUBBS, J. ANDERSON, EMERSON,
66 OHNSTAD, SHANKLAND, SINICKI and SUBECK, cosponsored by Senators LARSON,
77 L. JOHNSON, SMITH and HESSELBEIN. Referred to Committee on Criminal
88 Justice and Public Safety.
99 ***AUTHORS SUBJECT TO CHANGE***
1010 AN ACT to renumber 961.41 (1q); to renumber and amend 961.41 (1) (h) 1.;
1111 to amend 59.54 (25) (a) (intro.), 66.0107 (1) (bm), 961.41 (1m) (h) 1., 961.41 (1r),
1212 961.41 (3g) (e) and 961.46; to repeal and recreate 961.41 (1q) (title); and to
1313 create 961.41 (1) (h) 1g., 961.41 (1q) (b) and (c) and 973.016 of the statutes;
1414 relating to: decriminalizing 28 grams or less of marijuana.
1515 Analysis by the Legislative Reference Bureau
1616 This bill decriminalizes 28 grams or less of marijuana. Current law prohibits
1717 a person from possessing or attempting to possess; possessing with the intent to
1818 manufacture, distribute, or deliver; and manufacturing, distributing, or delivering
1919 marijuana. The penalties vary based on the amount of marijuana or plants involved
2020 or the number of previous controlled-substance convictions the person has, as
2121 follows:
2222 1. A person who possesses marijuana is guilty of a misdemeanor and may be
2323 fined not more than $1,000 or imprisoned for not more than six months, or both, for
2424 a first conviction and is guilty of a Class I felony and may be fined not more than
2525 $10,000 or imprisoned for not more than three years and six months, or both, for a
2626 repeat conviction.
2727 2. A person who manufactures, distributes, or delivers marijuana, or possesses
2828 marijuana with the intent to manufacture, distribute, or deliver it, is guilty of a Class
2929 I felony if the amount involves not more than 200 grams or not more than four plants;
3030 a Class H felony if the amount involves more than 200 grams but not more than 1,000
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3737 ASSEMBLY BILL 1207
3838 grams or more than four plants but not more than 20 plants; a Class G felony if the
3939 amount involves more than 1,000 grams but not more than 2,500 grams or more than
4040 20 plants but not more than 50 plants; a Class F felony if the amount involves more
4141 than 2,500 grams but not more than 10,000 grams or more than 50 plants but not
4242 more than 200 plants; or a Class E felony if the amount involves more than 10,000
4343 grams or more than 200 plants.
4444 This bill eliminates 1) the penalty for possession of marijuana if the amount of
4545 marijuana involved is not more than 28 grams; and 2) the penalty for manufacturing,
4646 distributing, or delivering, or for possessing with the intent to manufacture,
4747 distribute, or deliver, if the amount of marijuana involved is not more than 28 grams
4848 or the number of plants involved is not more than two. The bill, however, retains the
4949 current law penalty for distributing or delivering any amount of marijuana to a
5050 minor who is no more than 17 years of age by a person who is at least three years older
5151 than the minor.
5252 Current law also allows local governments to enact ordinances prohibiting the
5353 possession of marijuana. The bill limits local governments to enacting ordinances
5454 prohibiting the possession of only more than 28 grams of marijuana.
5555 Current law requires that, when determining the weight of controlled
5656 substances, the weight includes the weight of the controlled substance together with
5757 any compound, mixture, or other substance mixed or combined with the controlled
5858 substance. Under the bill, when determining the amount of tetrahydrocannabinols,
5959 only the weight of the marijuana may be considered.
6060 The bill also prohibits establishing probable cause that a person is violating the
6161 prohibition against possessing more than 28 grams of marijuana by an odor of
6262 marijuana or by the possession of not more than 28 grams of marijuana. Finally, the
6363 bill creates a process for expunging or dismissing convictions involving less than 28
6464 grams of marijuana that occurred before this bill takes effect.
6565 For further information see the state and local fiscal estimate, which will be
6666 printed as an appendix to this bill.
6767 The people of the state of Wisconsin, represented in senate and assembly, do
6868 enact as follows:
6969 SECTION 1. 59.54 (25) (a) (intro.) of the statutes is amended to read:
7070 59.54 (25) (a) (intro.) The board may enact and enforce an ordinance to prohibit
7171 the possession of more than 28 grams of marijuana, as defined in s. 961.01 (14),
7272 subject to the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a
7373 violation of the ordinance; except that if a complaint is issued regarding an allegation
7474 of alleging possession of more than 25 28 grams of marijuana, or possession of any
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8383 SECTION 1
8484 ASSEMBLY BILL 1207
8585 amount of marijuana following a conviction in this state for possession of more than
8686 28 grams of marijuana, the subject of the complaint may not be prosecuted under this
8787 subsection for the same action that is the subject of the complaint unless all of the
8888 following occur:
8989 SECTION 2. 66.0107 (1) (bm) of the statutes is amended to read:
9090 66.0107 (1) (bm) Enact and enforce an ordinance to prohibit the possession of
9191 more than 28 grams of marijuana, as defined in s. 961.01 (14), subject to the
9292 exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the
9393 ordinance; except that if a complaint is issued regarding an allegation of alleging
9494 possession of more than 25 28 grams of marijuana, or possession of any amount of
9595 marijuana following a conviction in this state for possession of more than 28 grams
9696 of marijuana, the subject of the complaint may not be prosecuted under this
9797 paragraph for the same action that is the subject of the complaint unless the charges
9898 are dismissed or the district attorney declines to prosecute the case.
9999 SECTION 3. 961.41 (1) (h) 1. of the statutes is renumbered 961.41 (1) (h) 1r. and
100100 amended to read:
101101 961.41 (1) (h) 1r. Two hundred More than 28 grams but not more than 200
102102 grams or less, or more than 2 but not more than 4 or fewer plants containing
103103 tetrahydrocannabinols, the person is guilty of a Class I felony.
104104 SECTION 4. 961.41 (1) (h) 1g. of the statutes is created to read:
105105 961.41 (1) (h) 1g. Twenty-eight grams or less, or 2 or fewer plants containing
106106 tetrahydrocannabinols, the person is guilty of a Class I felony if the person is at least
107107 17 years of age and distributes or delivers to a person who is no more than 17 years
108108 of age and who is at least 3 years younger than the person distributing or delivering.
109109 SECTION 5. 961.41 (1m) (h) 1. of the statutes is amended to read:
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136136 SECTION 5 ASSEMBLY BILL 1207
137137 961.41 (1m) (h) 1. Two hundred More than 28 grams but not more than 200
138138 grams or less, or more than 2 but not more than 4 or fewer plants containing
139139 tetrahydrocannabinols, the person is guilty of a Class I felony.
140140 SECTION 6. 961.41 (1q) (title) of the statutes is repealed and recreated to read:
141141 961.41 (1q) (title) TETRAHYDROCANNABINOLS PENALTY AND PROBABLE CAUSE.
142142 SECTION 7. 961.41 (1q) of the statutes is renumbered 961.41 (1q) (a).
143143 SECTION 8. 961.41 (1q) (b) and (c) of the statutes are created to read:
144144 961.41 (1q) (b) The following are not sufficient to establish probable cause that
145145 a violation of sub. (1) (h) has occurred:
146146 1. Odor of marijuana.
147147 2. The possession of not more than 28 grams of marijuana.
148148 (c) No individual on parole, probation, extended supervision, supervised
149149 release, or any other release may have the release revoked for possessing not more
150150 than 28 grams of marijuana.
151151 SECTION 9. 961.41 (1r) of the statutes is amended to read:
152152 961.41 (1r) DETERMINING WEIGHT OF SUBSTANCE. In determining amounts under
153153 s. 961.49 (2) (b), 1999 stats., and subs. (1) and (1m), an amount includes the weight
154154 of cocaine, cocaine base, fentanyl, a fentanyl analog, heroin, phencyclidine, lysergic
155155 acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine,
156156 tetrahydrocannabinols, synthetic cannabinoids, or substituted cathinones, or any
157157 controlled substance analog of any of these substances together with any compound,
158158 mixture, diluent, plant material or other substance mixed or combined with the
159159 controlled substance or controlled substance analog. In addition, in determining
160160 amounts under subs. (1) (h) and, (1m) (h), and (3g) (e), the amount of
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187187 SECTION 9
188188 ASSEMBLY BILL 1207
189189 tetrahydrocannabinols means anything included under s. 961.14 (4) (t) and includes
190190 the weight of any only marijuana.
191191 SECTION 10. 961.41 (3g) (e) of the statutes is amended to read:
192192 961.41 (3g) (e) Tetrahydrocannabinols. If a person possesses or attempts to
193193 possess more than 28 grams of tetrahydrocannabinols included under s. 961.14 (4)
194194 (t), or a controlled substance analog of tetrahydrocannabinols, the person may be
195195 fined not more than $1,000 or imprisoned for not more than 6 months or both upon
196196 a first conviction and is guilty of a Class I felony for a 2nd or subsequent offense. For
197197 purposes of this paragraph, an offense is considered a 2nd or subsequent offense if,
198198 prior to the offender's conviction of the offense, the offender has at any time been
199199 convicted of any felony or misdemeanor under this chapter or under any statute of
200200 the United States or of any state relating to controlled substances, controlled
201201 substance analogs, narcotic drugs, marijuana, or depressant, stimulant, or
202202 hallucinogenic drugs.
203203 SECTION 11. 961.46 of the statutes is amended to read:
204204 961.46 Distribution to persons under age 18. If a person 17 years of age
205205 or over violates s. 961.41 (1), except s. 961.41 (1) (h) 1g., by distributing or delivering
206206 a controlled substance or a controlled substance analog to a person 17 years of age
207207 or under who is at least 3 years his or her junior, the applicable maximum term of
208208 imprisonment prescribed under s. 961.41 (1) for the offense may be increased by not
209209 more than 5 years.
210210 SECTION 12. 973.016 of the statutes is created to read:
211211 973.016 Special disposition for marijuana-related crimes. (1)
212212 DISMISSAL OF CONVICTION FOR PERSONS SERVING A SENTENCE OR PROBATION. (a) A person
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238238 SECTION 12 ASSEMBLY BILL 1207
239239 serving a sentence or on probation may request dismissal as provided under par. (b)
240240 if one of the following applies:
241241 1. The sentence or probation period was imposed for a conviction under s.
242242 961.41 (1) (h), 2021 stats., or s. 961.41 (1m) (h), 2021 stats., and the person proves
243243 to the court by a preponderance of the evidence that the amount of marijuana
244244 involved was 28 grams or less, or 2 or fewer plants.
245245 2. The sentence or probation period was imposed for a conviction under s.
246246 961.41 (3g) (e), 2021 stats., and the person proves to the court by a preponderance
247247 of the evidence that the amount of marijuana involved was 28 grams or less.
248248 (b) A person to whom par. (a) applies shall file a petition with the sentencing
249249 court to request dismissal of the conviction. If the court receiving a petition under
250250 this paragraph determines that par. (a) applies, the court may grant the petition
251251 without a hearing or may schedule a hearing to consider the petition. If a hearing
252252 is scheduled, unless the person cannot prove the amount of marijuana involved was
253253 28 grams or less or the court determines that the dismissal of the conviction presents
254254 an unreasonable risk of danger to public safety, the court shall grant the petition.
255255 (2) EXPUNGING AN OFFENSE FOR PERSONS WHO COMPLETED A SENTENCE OR
256256 PROBATION. (a) A person who has completed his or her sentence or period of probation
257257 may request under par. (b) expungement of the conviction if one of the following
258258 applies:
259259 1. The sentence or probation period was imposed for a conviction under s.
260260 961.41 (1) (h), 2021 stats., or s. 961.41 (1m) (h), 2021 stats., and the person proves
261261 to the court by a preponderance of the evidence that the amount of marijuana
262262 involved was 28 grams or less, or 2 or fewer plants.
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289289 SECTION 12
290290 ASSEMBLY BILL 1207
291291 2. The sentence or probation period was imposed for a conviction under s.
292292 961.41 (3g) (e), 2021 stats., and the person proves to the court by a preponderance
293293 of the evidence that the amount of marijuana involved was 28 grams or less.
294294 (b) A person to whom par. (a) applies shall file a petition with the sentencing
295295 court to request expungement of the conviction. If the court receiving a petition
296296 under this paragraph determines that par. (a) applies, the court may grant the
297297 petition without a hearing or may schedule a hearing to consider the petition. If a
298298 hearing is scheduled, unless the person cannot prove the amount of marijuana
299299 involved was 28 grams or less or the court determines that expungement of the
300300 conviction presents an unreasonable risk of danger to public safety, the court shall
301301 grant the petition.
302302 (3) CRIMES DISMISSED OR EXPUNGED UNDER THIS SECTION. A conviction that has
303303 been expunged or dismissed under this section is not considered a conviction for any
304304 purpose under state or federal law, including for purposes of s. 941.29 or 18 USC 921.
305305 (END)
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