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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 1207
April 11, 2024 - Introduced by Representatives STUBBS, J. ANDERSON, EMERSON,
OHNSTAD, SHANKLAND, SINICKI and SUBECK, cosponsored by Senators LARSON,
L. JOHNSON, SMITH and HESSELBEIN. Referred to Committee on Criminal
Justice and Public Safety.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to renumber 961.41 (1q); to renumber and amend 961.41 (1) (h) 1.;
to amend 59.54 (25) (a) (intro.), 66.0107 (1) (bm), 961.41 (1m) (h) 1., 961.41 (1r),
961.41 (3g) (e) and 961.46; to repeal and recreate 961.41 (1q) (title); and to
create 961.41 (1) (h) 1g., 961.41 (1q) (b) and (c) and 973.016 of the statutes;
relating to: decriminalizing 28 grams or less of marijuana.
Analysis by the Legislative Reference Bureau
This bill decriminalizes 28 grams or less of marijuana. Current law prohibits
a person from possessing or attempting to possess; possessing with the intent to
manufacture, distribute, or deliver; and manufacturing, distributing, or delivering
marijuana. The penalties vary based on the amount of marijuana or plants involved
or the number of previous controlled-substance convictions the person has, as
follows:
1. A person who possesses marijuana is guilty of a misdemeanor and may be
fined not more than $1,000 or imprisoned for not more than six months, or both, for
a first conviction and is guilty of a Class I felony and may be fined not more than
$10,000 or imprisoned for not more than three years and six months, or both, for a
repeat conviction.
2. A person who manufactures, distributes, or delivers marijuana, or possesses
marijuana with the intent to manufacture, distribute, or deliver it, is guilty of a Class
I felony if the amount involves not more than 200 grams or not more than four plants;
a Class H felony if the amount involves more than 200 grams but not more than 1,000
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grams or more than four plants but not more than 20 plants; a Class G felony if the
amount involves more than 1,000 grams but not more than 2,500 grams or more than
20 plants but not more than 50 plants; a Class F felony if the amount involves more
than 2,500 grams but not more than 10,000 grams or more than 50 plants but not
more than 200 plants; or a Class E felony if the amount involves more than 10,000
grams or more than 200 plants.
This bill eliminates 1) the penalty for possession of marijuana if the amount of
marijuana involved is not more than 28 grams; and 2) the penalty for manufacturing,
distributing, or delivering, or for possessing with the intent to manufacture,
distribute, or deliver, if the amount of marijuana involved is not more than 28 grams
or the number of plants involved is not more than two. The bill, however, retains the
current law penalty for distributing or delivering any amount of marijuana to a
minor who is no more than 17 years of age by a person who is at least three years older
than the minor.
Current law also allows local governments to enact ordinances prohibiting the
possession of marijuana. The bill limits local governments to enacting ordinances
prohibiting the possession of only more than 28 grams of marijuana.
Current law requires that, when determining the weight of controlled
substances, the weight includes the weight of the controlled substance together with
any compound, mixture, or other substance mixed or combined with the controlled
substance. Under the bill, when determining the amount of tetrahydrocannabinols,
only the weight of the marijuana may be considered.
The bill also prohibits establishing probable cause that a person is violating the
prohibition against possessing more than 28 grams of marijuana by an odor of
marijuana or by the possession of not more than 28 grams of marijuana. Finally, the
bill creates a process for expunging or dismissing convictions involving less than 28
grams of marijuana that occurred before this bill takes effect.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 59.54 (25) (a) (intro.) of the statutes is amended to read:
59.54 (25) (a) (intro.) The board may enact and enforce an ordinance to prohibit
the possession of more than 28 grams of marijuana, as defined in s. 961.01 (14),
subject to the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a
violation of the ordinance; except that if a complaint is issued regarding an allegation
of alleging possession of more than 25 28 grams of marijuana, or possession of any
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amount of marijuana following a conviction in this state for possession of more than
28 grams of marijuana, the subject of the complaint may not be prosecuted under this
subsection for the same action that is the subject of the complaint unless all of the
following occur:
SECTION 2. 66.0107 (1) (bm) of the statutes is amended to read:
66.0107 (1) (bm) Enact and enforce an ordinance to prohibit the possession of
more than 28 grams of marijuana, as defined in s. 961.01 (14), subject to the
exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the
ordinance; except that if a complaint is issued regarding an allegation of alleging
possession of more than 25 28 grams of marijuana, or possession of any amount of
marijuana following a conviction in this state for possession of more than 28 grams
of marijuana, the subject of the complaint may not be prosecuted under this
paragraph for the same action that is the subject of the complaint unless the charges
are dismissed or the district attorney declines to prosecute the case.
SECTION 3. 961.41 (1) (h) 1. of the statutes is renumbered 961.41 (1) (h) 1r. and
amended to read:
961.41 (1) (h) 1r. Two hundred More than 28 grams but not more than 200
grams or less, or more than 2 but not more than 4 or fewer plants containing
tetrahydrocannabinols, the person is guilty of a Class I felony.
SECTION 4. 961.41 (1) (h) 1g. of the statutes is created to read:
961.41 (1) (h) 1g. Twenty-eight grams or less, or 2 or fewer plants containing
tetrahydrocannabinols, the person is guilty of a Class I felony if the person is at least
17 years of age and distributes or delivers to a person who is no more than 17 years
of age and who is at least 3 years younger than the person distributing or delivering.
SECTION 5. 961.41 (1m) (h) 1. of the statutes is amended to read:
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SECTION 5 ASSEMBLY BILL 1207
961.41 (1m) (h) 1. Two hundred More than 28 grams but not more than 200
grams or less, or more than 2 but not more than 4 or fewer plants containing
tetrahydrocannabinols, the person is guilty of a Class I felony.
SECTION 6. 961.41 (1q) (title) of the statutes is repealed and recreated to read:
961.41 (1q) (title) TETRAHYDROCANNABINOLS PENALTY AND PROBABLE CAUSE.
SECTION 7. 961.41 (1q) of the statutes is renumbered 961.41 (1q) (a).
SECTION 8. 961.41 (1q) (b) and (c) of the statutes are created to read:
961.41 (1q) (b) The following are not sufficient to establish probable cause that
a violation of sub. (1) (h) has occurred:
1. Odor of marijuana.
2. The possession of not more than 28 grams of marijuana.
(c) No individual on parole, probation, extended supervision, supervised
release, or any other release may have the release revoked for possessing not more
than 28 grams of marijuana.
SECTION 9. 961.41 (1r) of the statutes is amended to read:
961.41 (1r) DETERMINING WEIGHT OF SUBSTANCE. In determining amounts under
s. 961.49 (2) (b), 1999 stats., and subs. (1) and (1m), an amount includes the weight
of cocaine, cocaine base, fentanyl, a fentanyl analog, heroin, phencyclidine, lysergic
acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine,
tetrahydrocannabinols, synthetic cannabinoids, or substituted cathinones, or any
controlled substance analog of any of these substances together with any compound,
mixture, diluent, plant material or other substance mixed or combined with the
controlled substance or controlled substance analog. In addition, in determining
amounts under subs. (1) (h) and, (1m) (h), and (3g) (e), the amount of
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tetrahydrocannabinols means anything included under s. 961.14 (4) (t) and includes
the weight of any only marijuana.
SECTION 10. 961.41 (3g) (e) of the statutes is amended to read:
961.41 (3g) (e) Tetrahydrocannabinols. If a person possesses or attempts to
possess more than 28 grams of tetrahydrocannabinols included under s. 961.14 (4)
(t), or a controlled substance analog of tetrahydrocannabinols, the person may be
fined not more than $1,000 or imprisoned for not more than 6 months or both upon
a first conviction and is guilty of a Class I felony for a 2nd or subsequent offense. For
purposes of this paragraph, an offense is considered a 2nd or subsequent offense if,
prior to the offender's conviction of the offense, the offender has at any time been
convicted of any felony or misdemeanor under this chapter or under any statute of
the United States or of any state relating to controlled substances, controlled
substance analogs, narcotic drugs, marijuana, or depressant, stimulant, or
hallucinogenic drugs.
SECTION 11. 961.46 of the statutes is amended to read:
961.46 Distribution to persons under age 18. If a person 17 years of age
or over violates s. 961.41 (1), except s. 961.41 (1) (h) 1g., by distributing or delivering
a controlled substance or a controlled substance analog to a person 17 years of age
or under who is at least 3 years his or her junior, the applicable maximum term of
imprisonment prescribed under s. 961.41 (1) for the offense may be increased by not
more than 5 years.
SECTION 12. 973.016 of the statutes is created to read:
973.016 Special disposition for marijuana-related crimes. (1)
DISMISSAL OF CONVICTION FOR PERSONS SERVING A SENTENCE OR PROBATION. (a) A person
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serving a sentence or on probation may request dismissal as provided under par. (b)
if one of the following applies:
1. The sentence or probation period was imposed for a conviction under s.
961.41 (1) (h), 2021 stats., or s. 961.41 (1m) (h), 2021 stats., and the person proves
to the court by a preponderance of the evidence that the amount of marijuana
involved was 28 grams or less, or 2 or fewer plants.
2. The sentence or probation period was imposed for a conviction under s.
961.41 (3g) (e), 2021 stats., and the person proves to the court by a preponderance
of the evidence that the amount of marijuana involved was 28 grams or less.
(b) A person to whom par. (a) applies shall file a petition with the sentencing
court to request dismissal of the conviction. If the court receiving a petition under
this paragraph determines that par. (a) applies, the court may grant the petition
without a hearing or may schedule a hearing to consider the petition. If a hearing
is scheduled, unless the person cannot prove the amount of marijuana involved was
28 grams or less or the court determines that the dismissal of the conviction presents
an unreasonable risk of danger to public safety, the court shall grant the petition.
(2) EXPUNGING AN OFFENSE FOR PERSONS WHO COMPLETED A SENTENCE OR
PROBATION. (a) A person who has completed his or her sentence or period of probation
may request under par. (b) expungement of the conviction if one of the following
applies:
1. The sentence or probation period was imposed for a conviction under s.
961.41 (1) (h), 2021 stats., or s. 961.41 (1m) (h), 2021 stats., and the person proves
to the court by a preponderance of the evidence that the amount of marijuana
involved was 28 grams or less, or 2 or fewer plants.
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2. The sentence or probation period was imposed for a conviction under s.
961.41 (3g) (e), 2021 stats., and the person proves to the court by a preponderance
of the evidence that the amount of marijuana involved was 28 grams or less.
(b) A person to whom par. (a) applies shall file a petition with the sentencing
court to request expungement of the conviction. If the court receiving a petition
under this paragraph determines that par. (a) applies, the court may grant the
petition without a hearing or may schedule a hearing to consider the petition. If a
hearing is scheduled, unless the person cannot prove the amount of marijuana
involved was 28 grams or less or the court determines that expungement of the
conviction presents an unreasonable risk of danger to public safety, the court shall
grant the petition.
(3) CRIMES DISMISSED OR EXPUNGED UNDER THIS SECTION. A conviction that has
been expunged or dismissed under this section is not considered a conviction for any
purpose under state or federal law, including for purposes of s. 941.29 or 18 USC 921.
(END)
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