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| Drug crimes vary between non-criminal civil ordinance violations for possession of marijuana to serious felony offenses involving manufacturing, conspiracy and maintaining a drug house. Regardless of the level of offense drug convictions can carry negative consequences for an individual far beyond incarceration and fines. Drug crime convictions can impact a person's ability to obtain professional licenses, work in certain occupation or for certain employers, impact a person's ability to purchase or possess a firearm, and result in much greater penalties as a repeat offender if a person is ever convicted in state or federal court of another drug offense. We have successfully handled numerous manufacturing, distribution, simple possession, unlawful possession of prescription drugs, obtaining prescription drugs by fraud, maintaining a drug house, paraphernalia and drug related conspiracy charges while also encouraging clients with substance abuse issues, whether legal or illegal substances, to obtain treatment that can help them live more rewarding lives without addiction.
These are the elements and potential penalties for some of the most common drug offenses charged in Wisconsin. Potential penalties will vary based upon the circumstances of a particular case and the particular defendant, the sentences provided below only reflect the maximum penalties for those who are not charged with any sentencing enhancers such as a repeat offender or committing a drug offense in specific prescribed areas.
SIMPLE POSSESSION OF A CONTROLLED SUBSTANCE
The offense of unlawful possession of controlled substance ("simple possession") has three primary elements that the state must prove:
(1) That a person possess a substance. Possession requires actual physical control of a substance which includes substances located in areas under your control or which you intend to exercise control over. More than one person may be charged with possession of a drug due to this definition of "exercising control;"
(2) That the substance is a controlled substance, listed in Wisconsin Statutes, Chapter 961; and
(3) That the person knowingly possesses a controlled substance.
The inability of the state to sufficiently allege or prove any one of these three elements can result in the dismissal of criminal charges for simple possession. The potential penalty for simple possession in Wisconsin depends upon the drug in question and whether the person charged has been previously convicted of a drug related offense. The law does not require that a person is charged with the same type or drug or drug offense in order to be charged as a second or subsequent offense. Here are the potential penalties for the more commonly charged criminal drug possession offenses:
| | 1st Offense
| 2nd+ offense
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Schedule I and II Narcotics (e.g. heroin, morphine, oxycodone, hydrocodone,
codeine, but not including many prescription narcotics which combine a
schedule I or II narcotic with a non-narcotic drug).
| Class I felony
3.5 years imprisonment and
a fine of up to $10,000
| Same as first offense.
| Cocaine and Crack
| 1 year imprisonment and
a fine of up to $5,000 | Class I felony
3.5 years imprisonment and
a fine of up to $10,000 | LSD, PCP, Amphetamine, Methcathinone, Psilocin,
Psilocybin ("magic mushrooms"), 4-MMC ("mephedrone"), and MDPV
| 1 year imprisonment and
a fine of up to $5,000
| Class I felony
3.5 years imprisonment and
a fine of up to $10,000
| | Methamphetamine | Class I felony
3.5 years imprisonment and
a fine of up to $10,000
| Same as first offense.
| THC (marijuana, hash) and Synthetic Cannabinoids (Cannabicyclohexonal,
CP47,497, HU-210, JWH-018, JWH-073, JWH-200, JWH-250)
| 6 months imprisonment and
a fine of up to $1,000
| Class I felony
3.5 years imprisonment and
a fine of up to $10,000
| GHB, GBL, 1,4-Butanidiol, Ketamine, Flunitrazepam ("Rohypnol")
| Class H felony
6 years imprisonment and
a fine of up to $10,000
| Same as first offense.
| Other Drugs Generally (e.g., MDMA ("ecstacy"), 2C-B, 2C-I, Valium,
Xanax, Mescaline, controlled Anabolic Steriods, many prescription narcotic
drugs which contain a controlled narcotic drug combined with a non-narcotic drug
or analgesic, Tylenol 3.)
| 30 days imprisonment and
a fine of up to $500
| Same as first offense.
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POSSESSION OF DRUG PARAPHERNALIA
The crimes related to possession require careful scrutiny to determine whether or not the items identified as paraphernalia actually constitute drug paraphernalia under the law. A conviction for the offense of possession of drug paraphernalia by an adult carries a maximum sentence of 30 days imprisonment and a fine of $500 for paraphernalia not related to methamphetamine. Possession of drug paraphernalia related to methamphetamine is a felony offense carrying a penalty of up to 6 years imprisonment and a fine of $10,000, or 10 years imprisonment and a fine of up to $25,000 if the offense is committed in the presence of a child under the age of 15. Manufacturing or delivery drug paraphernalia is punishable by up to 90 days incarceration and a fine of $1,000, unless it is methamphetamine paraphernalia for which the penalty is up to 6 years imprisonment and a fine of $10,000. A conviction for possession of paraphernalia could also be considered as a prior conviction for a drug offense, subjecting a person to second or subsequent offense penalties for any subsequent drug possession conviction.
It is unlawful to use or possess with the primary intent to use "drug paraphernalia" to plant, propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analyze, pack, repack, store,
contain, conceal, inject, ingest, inhale or otherwise introduce into the
human body a controlled substance or controlled substance analog. The elements that the state must prove are: (1) A person possesses or otherwise exercises control over the thing; (2) the thing is drug paraphernalia; and (3) the person knowingly uses or possesses with the primary intent to use the drug paraphernalia.
Courts can look to many factors to determine whether something is drug paraphernalia including statements by the suspect, the proximity to where drug offenses have occurred or where drugs are found, the presence of drug residue, how the products are advertised, and expert testimony about an objects use. However, Wisconsin statutes specifically exclude the following from the definition of drug paraphernalia: hypodermic syringes, needles, pipes, rolling papers and accessories designed for use or primarily intended for use with tobacco products.
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