2023 - 2024 LEGISLATURE
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2023 ASSEMBLY BILL 861
December 22, 2023 - Introduced by Representatives SORTWELL, ORTIZ-VELEZ and
CONSIDINE, cosponsored by Senator TAYLOR. Referred to Committee on
Criminal Justice and Public Safety.
1 AN ACT to renumber 961.571 (1) (a) (intro.), 1., 2., 3., 4., 5., 6., 8., 9. and 10.,
2 961.571 (1) (a) 7., 961.571 (1) (a) 11. a., b., c., d., f., g., h., i., j. and m. and 961.571
3 (1) (a) 11. e., k. and L.; to renumber and amend 961.41 (3g) (e) and 961.571
4 (1) (a) 11. (intro.); to amend 59.54 (25) (a) (intro.), 66.0107 (1) (bm), 961.41 (3g)
5 (c), 961.41 (3g) (d), 961.41 (3g) (em), 961.47 (1), 961.48 (3), 961.573 (title),
6 961.574 (title) and 961.577; and to create 66.0108, 103.157, 778.25 (1) (a) 2m.,
7 961.571 (1) (ac), 961.571 (1) (b) 4., 961.571 (1) (c) (intro.) and 2. (intro.), 961.572
8 (1m), 961.573 (1m) and 961.574 (1m) of the statutes; relating to: penalties for
9 possession of marijuana, employer liability for not drug testing employees and
10 prospective employees, and providing a penalty.
Analysis by the Legislative Reference Bureau
Current law prohibits a person from possessing or attempting to possess
marijuana. A person who violates the prohibition is guilty of a misdemeanor crime
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,
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ASSEMBLY BILL 861
for a repeat conviction. Under current law, a repeat conviction includes any previous
conviction for a state or federal misdemeanor or felony relating to a controlled
substance.
This bill reduces to a $100 civil forfeiture the penalty for possessing or
attempting to possess 14 grams or less of marijuana. The bill also eliminates
counting, for the purposes of determining if a conviction is a repeat conviction, a
criminal offense of marijuana possession involving 28 grams or less. The bill also
reduces the imprisonment time for a repeat conviction for marijuana possession from
three years and six months to 90 days.
Current law also increases the penalties for possession of other controlled
substances due to a prior conviction for a state or federal misdemeanor or felony
relating to a controlled substance. The bill eliminates counting, as a prior conviction,
a conviction for marijuana possession involving 28 grams or less.
Current law allows a local government to enact an ordinance prohibiting the
possession of marijuana and to impose a forfeiture for a violation of the ordinance.
The bill preempts a local government from imposing a forfeiture amount for the
possession of 14 grams or less of marijuana that is less than the $100 forfeiture
amount imposed by the state or that is more than $250. Under the bill, the court may
impose, instead of the forfeiture amount, no less than 16 hours nor more than 40
hours of community service for violating an ordinance prohibiting the possession of
14 grams or less of marijuana. The bill does not change the current law that allows
local governments discretion in the forfeiture amount imposed for possession of more
than 14 grams of marijuana.
Current law prohibits a person from using or possessing drug paraphernalia
with the intent to produce, distribute, or use a controlled substance. A person who
violates the prohibition is guilty of a misdemeanor and subject to a fine of not more
than $500 or imprisonment for not more than 30 days, or both. The bill reduces the
penalty to a civil forfeiture of not more than $10 for using or possessing drug
paraphernalia that relates to marijuana consumption.
The bill also specifies that a citation issued for possession of marijuana or
marijuana paraphernalia must contain provisions for a deposit in lieu of a court
appearance. The court may consider the deposit as a plea of no contest and enter a
judgment without the person appearing in court.
The bill allows law enforcement officers discretion in how they complete
processing or “booking” of a person for a violation of state law or a local ordinance
prohibiting possession or attempted possession of marijuana or marijuana
paraphernalia, including whether to take the person to jail, complete a booking
photo, or fingerprint the person. Under the bill, however, a law enforcement officer
must still obtain certain personal information from the person sufficient for
identification, including at least the person's name and current address.
The bill, subject to certain exceptions, limits the liability of an employer that
does not require an employee or prospective employee to submit to a test for the
presence of any tetrahydrocannabinol (THC), which is the active ingredient in
marijuana, synthetic cannabinoid, or a controlled substance analog to THC or a
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ASSEMBLY BILL 861
synthetic cannabinoid in his or her system (drug testing) as a condition of
employment.
The bill does not apply to the drug testing of an employee or prospective
employee who is subject to drug testing under 1) any regulation promulgated by the
federal Department of Transportation that requires drug testing of an employee or
prospective employee or any rule promulgated by the Department of Transportation
of this state adopting such a regulation for purposes of enforcing the requirements
of that regulation with respect to intrastate commerce; 2) any contract entered into
between the federal government and an employer or any grant of financial assistance
from the federal government to an employer that requires drug testing of employees
and prospective employees as a condition of receiving the contract or grant; 3) any
federal statute, regulation, order, or other requirement or condition that requires
drug testing of employees and prospective employees for purposes of safety or
security; 4) any substance abuse prevention program under a collective bargaining
agreement or under the current law that requires such programs for public works
and public utility projects; 5) rules promulgated by the Law Enforcement Standards
Board requiring drug testing of prospective law enforcement officers, tribal law
enforcement officers, jail officers, and secure detention officers; or 6) any employer
requirement that an employee be a licensed private security person and carry a
firearm in the course of employment.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report.
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:
1 SECTION 1. 59.54 (25) (a) (intro.) of the statutes is amended to read:
2 59.54 (25) (a) (intro.) The board may enact and enforce an ordinance to prohibit
3 the possession of marijuana, as defined in s. 961.01 (14), subject to the exceptions in
4 s. 961.41 (3g) (intro.), and. The board may provide a forfeiture for a violation of the
5 ordinance; except that if. If the board provides a forfeiture, the amount for the
6 possession of not more than 14 grams of marijuana may not be less than the
7 maximum amount of the forfeiture in s. 961.41 (3g) (e) 1. nor more than $250. If the
8 defendant appears in court, the court may impose for each violation not less than 16
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ASSEMBLY BILL 861 SECTION 1
1 nor more than 40 hours of community service in lieu of the forfeiture. If a complaint
2 is issued regarding an allegation of possession of more than 25 28 grams of
3 marijuana, or possession of any amount of marijuana following a conviction in this
4 state for possession of marijuana, the subject of the complaint may not be prosecuted
5 under this subsection for the same action that is the subject of the complaint unless
6 all of the following occur:
7 SECTION 2. 66.0107 (1) (bm) of the statutes is amended to read:
8 66.0107 (1) (bm) Enact and enforce an ordinance to prohibit the possession of
9 marijuana, as defined in s. 961.01 (14), subject to the exceptions in s. 961.41 (3g)
10 (intro.), and provide a forfeiture for a violation of the ordinance; except that if. If the
11 board or council provides a forfeiture, the amount for the possession of not more than
12 14 grams of marijuana may not be less than the maximum amount of the forfeiture
13 in s. 961.41 (3g) (e) 1. nor more than $250. If the defendant appears in court, the court
14 may impose for each violation not less than 16 nor more than 40 hours of community
15 service in lieu of the forfeiture. If a complaint is issued regarding an allegation of
16 possession of more than 25 28 grams of marijuana, or possession of any amount of
17 marijuana following a conviction in this state for possession of marijuana, the subject
18 of the complaint may not be prosecuted under this paragraph for the same action that
19 is the subject of the complaint unless the charges are dismissed or the district
20 attorney declines to prosecute the case.
21 SECTION 3. 66.0108 of the statutes is created to read:
22 66.0108 Discretion in processing certain marijuana violations. (1) In
23 this section, “law enforcement officer” has the meaning given in s. 165.85 (2) (c).
24 (2) In processing a person for possession or attempted possession of not more
25 than 14 grams of marijuana, as defined in s. 961.01 (14), in violation of s. 961.41 (3g)
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ASSEMBLY BILL 861 SECTION 3
1 (e) 1., for violation of an ordinance prohibiting the possession of marijuana under s.
2 59.54 (25) or 66.0107 (1) (bm), or for a violation under s. 961.573 (1m) or 961.574 (1m),
3 a law enforcement officer may exercise discretion regarding what, if any, standard
4 procedures to complete, including determining whether or not to take the person to
5 jail, complete fingerprinting, or have a formal police photograph taken.
6 Notwithstanding the use of discretion otherwise permitted under this section, a law
7 enforcement officer shall obtain sufficient personal information for identification,
8 including at least the person's name and current address.
9 SECTION 4. 103.157 of the statutes is created to read:
10 103.157 Employer nonliability for not testing for marijuana or
11 synthetic cannabinoids; exceptions. (1) DEFINITIONS. In this section:
12 (a) “Controlled substance analog" has the meaning given in s. 961.01 (4m).
13 (b) “Employer" means any person engaging in any activity, enterprise, or
14 business employing at least one individual. “Employer" includes the state, its
15 political subdivisions, and any office, department, independent agency, authority,
16 institution, association, society, or other body in state or local government created or
17 authorized to be created by the constitution or any law, including the legislature and
18 the courts.
19 (c) “Synthetic cannabinoid" means a substance included under s. 961.14 (4) (tb).
20 (d) “Tetrahydrocannabinol" means a substance included under s. 961.14 (4) (t).
21 (2) EMPLOYER LIABILITY. Except as provided in sub. (3), no employer may be held
22 liable for not requiring an employee or prospective employee to submit to testing for
23 the presence of any tetrahydrocannabinol, synthetic cannabinoid, or controlled
24 substance analog of a tetrahydrocannabinol or synthetic cannabinoid in his or her
25 system as a condition of employment.
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ASSEMBLY BILL 861 SECTION 4
1 (3) EXCEPTIONS. Subsection (2) does not apply to an employer who fails to test
2 for the presence of any tetrahydrocannabinol, synthetic cannabinoid, or controlled
3 substance analog of a tetrahydrocannabinol or synthetic cannabinoid in the system
4 of an employee or prospective employee if the employee or prospective employee is
5 required to subject to drug testing under any of the following:
6 (a) Any regulation promulgated by the federal department of transportation
7 that requires testing of an employee or prospective employee in accordance with 49
8 CFR 40 or any rule promulgated by the department of transportation of this state
9 adopting such a regulation for purposes of enforcing the requirements of that
10 regulation with respect to intrastate commerce.
11 (b) Any contract entered into between the federal government and an employer
12 or any grant of financial assistance from the federal government to an employer that
13 requires drug testing of employees and prospective employees as a condition of
14 receiving the contract or grant.
15 (c) Any federal statute, regulation, order, or other requirement or condition
16 that requires drug testing of employees and prospective employees for purposes of
17 safety or security.
18 (d) A substance abuse prevention program under s. 103.503 or under a
19 collective bargaining agreement between an employer and a labor organization
20 representing employees and prospective employees of the employer.
21 (e) Rules promulgated by the law enforcement standards board requiring drug
22 testing of prospective law enforcement officers, tribal law enforcement officers, jail
23 officers, and secure detention officers.
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1 (f) Any employer requirement that an employee be a licensed private security
2 person under s. 440.26 and that the employee carry a firearm in the course of his or
3 her employment.
4 SECTION 5. 778.25 (1) (a) 2m. of the statutes is created to read:
5 778.25 (1) (a) 2m. Under s. 961.41 (3g) (e) 1., 961.573 (1m), or 961.574 (1m) or
6 a local ordinance under s. 59.54 (25) (a) or 66.0107 (1) (bm).
7 SECTION 6. 961.41 (3g) (c) of the statutes is amended to read:
8 961.41 (3g) (c) Cocaine and cocaine base. If a person possesses or attempts to
9 possess cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine
10 base, the person shall be fined not more than $5,000 and may be imprisoned for not
11 more than one year in the county jail upon a first conviction and is guilty of a Class
12 I felony for a 2nd or subsequent offense. For purposes of this paragraph, an offense
13 is considered a 2nd or subsequent offense if, prior to the offender's conviction of the
14 offense, the offender has at any time been convicted of any felony or misdemeanor
15 under this chapter, except for a misdemeanor under par. (e) 2., or under any statute
16 of the United States or of any state relating to controlled substances, controlled
17 substance analogs, narcotic drugs, marijuana, or depressant, stimulant, or
18 hallucinogenic drugs, except that, if the statute relates to marijuana possession, only
19 felonies or misdemeanors involving more than 28 grams may be counted.
20 SECTION 7. 961.41 (3g) (d) of the statutes is amended to read:
21 961.41 (3g) (d) Certain hallucinogenic and stimulant drugs. If a person
22 possesses or attempts to possess lysergic acid diethylamide, phencyclidine,
23 amphetamine, 3,4-methylenedioxymethamphetamine, methcathinone, cathinone,
24 N-benzylpiperazine, a substance specified in s. 961.14 (4) (a) to (h), (m) to (q), (sm),
25 (u) to (xb), or (7) (L), psilocin, or psilocybin, or a controlled substance analog of
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1 lysergic acid diethylamide, phencyclidine, amphetamine,
2 3,4-methylenedioxymethamphetamine, methcathinone, cathinone,
3 N-benzylpiperazine, a substance specified in s. 961.14 (4) (a) to (h), (m) to (q), (sm),
4 (u) to (xb), or (7) (L), psilocin, or psilocybin, the person may be fined not more than
5 $5,000 or imprisoned for not more than one year in the county jail or both upon a first
6 conviction and is guilty of a Class I felony for a 2nd or subsequent offense. For
7 purposes of this paragraph, an offense is considered a 2nd or subsequent offense if,
8 prior to the offender's conviction of the offense, the offender has at any time been
9 convicted of any felony or misdemeanor under this chapter, except for a misdemeanor
10 under par. (e) 2., or under any statute of the United States or of any state relating<