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Madison criminal defense lawyer Robert T. Ruth defends individuals accused of drug crimes in Wisconsin and federal courts. He has been a Wisconsin lawyer since 1993 and has devoted his law firm to criminal defense since then. Throughout southern Wisconsin law enforcement officers make thousands of drug arrests every year. If you or a loved one has been arrested for a drug related offense from possession to trafficking, call the Madison drug defense attorney Robert T. Ruth to defend your case.
WI Drug Lawyer - WI Drug Attorney
The severity of the punishment for a WI drug offense, at least the punishment imposed by the court, ranges from relatively minor sanctions associated with the mere possession of an illegal substance to severe sanctions for offenses such as possession with intent to deliver or delivery. There is also a significant difference in the punishment for drug convictions depending on the county of conviction. A drug offense that would receive a light sentence, or even a diversionary disposition, in Milwaukee or Madison might get treated like the “crime of the century” in a less populated county. A conviction for a drug offense in Wisconsin, even a very minor one, generally includes a driver’s license suspension. A drug conviction also carries a negative stigma that may have serious consequences with respect to present or future employment.
4th Amendment
The defense in a drug case often centers on the Fourth Amendment. Was the search that revealed the controlled substances an illegal search? Was the seizure of the drugs an illegal seizure? The Fourth Amendment of the United States Constitution states as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It may look simple in the Constitution, but it is far from simple in practice. There are thousands of pages of case law interpreting the Fourth Amendment and the exceptions to the warrant requirement. Indeed, in my opinion the exceptions to the warrant requirement are so numerous that they threaten to swallow up the warrant requirement altogether. There is the plain view exception, the automobile exception, the search incident to arrest exception, the hot pursuit exception – just to name a few. Each of these exceptions includes its own set of rules. The bottom line is that if you face a Wisconsin drug prosecution, you need a WI drug defense lawyer with significant and specific experience in the defense of drug charges.
Common Wisconsin Drug Crimes
961.41 Prohibited acts A--penalties
(1) Manufacture, distribution or delivery. Except as authorized by this chapter, it is unlawful for any person to manufacture, distribute or deliver a controlled substance or controlled substance analog. Any person who violates this subsection is subject to the following penalties:
(a) Schedule I and II narcotic drugs generally. Except as provided in par. (d), if a person violates this subsection with respect to a controlled substance included in schedule I or II which is a narcotic drug, or a controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug, the person is guilty of a Class E felony.
(b) Schedule I, II, and III nonnarcotic drugs generally. Except as provided in pars. (cm) and (e) to (hm), if a person violates this subsection with respect to any other controlled substance included in schedule I, II, or III, or a controlled substance analog of any other controlled substance included in schedule I or II, the person is guilty of a Class H felony.
(cm) Cocaine and cocaine base. If the person violates this subsection with respect to cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, and the amount manufactured, distributed, or delivered is:
1g. One gram or less, the person is guilty of a Class G felony.
1r. More than one gram but not more than 5 grams, the person is guilty of a Class F felony.
2. More than 5 grams but not more than 15 grams, the person is guilty of a Class E felony.
3. More than 15 grams but not more than 40 grams, the person is guilty of a Class D felony.
4. More than 40 grams, the person is guilty of a Class C felony.
(d) Heroin. If the person violates this subsection with respect to heroin or a controlled substance analog of heroin and the amount manufactured, distributed or delivered is:
1. Three grams or less, the person is guilty of a Class F felony.
2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.
3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.
4. More than 50 grams, the person is guilty of a Class C felony.
(e) Phencyclidine, amphetamine, methamphetamine, and methcathinone. If the person violates this subsection with respect to phencyclidine, amphetamine, methamphetamine, or methcathinone, or a controlled substance analog of phencyclidine, amphetamine, methamphetamine, or methcathinone, and the amount manufactured, distributed, or delivered is:
1. Three grams or less, the person is guilty of a Class F felony.
2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.
3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.
4. More than 50 grams, the person is guilty of a Class C felony.
(f) Lysergic acid diethylamide. If the person violates this subsection with respect to lysergic acid diethylamide or a controlled substance analog of lysergic acid diethylamide and the amount manufactured, distributed, or delivered is:
1. One gram or less, the person is guilty of a Class G felony.
2. More than one gram but not more than 5 grams, the person is guilty of a Class F felony.
3. More than 5 grams, the person is guilty of a Class E felony.
(g) Psilocin and psilocybin. If the person violates this subsection with respect to psilocin or psilocybin, or a controlled substance analog of psilocin or psilocybin, and the amount manufactured, distributed or delivered is:
1. One hundred grams or less, the person is guilty of a Class G felony.
2. More than 100 grams but not more than 500 grams, the person is guilty of a Class F felony.
3. More than 500 grams, the person is guilty of a Class E felony.
(h) Tetrahydrocannabinols. If the person violates this subsection with respect to tetrahydrocannabinols, included under s. 961.14(4)(t), or a controlled substance analog of tetrahydrocannabinols, and the amount manufactured, distributed or delivered is:
1. Two hundred grams or less, or 4 or fewer plants containing tetrahydrocannabinols, the person is guilty of a Class I felony.
2. More than 200 grams but not more than 1,000 grams, or more than 4 plants containing tetrahydrocannabinols but not more than 20 plants containing tetrahydrocannabinols, the person is guilty of a Class H felony.
3. More than 1,000 grams but not more than 2,500 grams, or more than 20 plants containing tetrahydrocannabinols but not more than 50 plants containing tetrahydrocannabinols, the person is guilty of a Class G felony.
4. More than 2,500 grams but not more than 10,000 grams, or more than 50 plants containing tetrahydrocannabinols but not more than 200 plants containing tetrahydrocannabinols, the person is guilty of a Class F felony.
5. More than 10,000 grams, or more than 200 plants containing tetrahydrocannabinols, the person is guilty of a Class E felony.
(hm) Certain other schedule I controlled substances and ketamine. If the person violates this subsection with respect to gamma-hydroxybutyric acid, gamma-butyrolactone, 1,4-butanediol, 3,4-methylenedioxymethamphetamine, 4-bromo-2,5-dimethoxy-beta- phenylethylamine, 4-methylthioamphetamine, ketamine, or a controlled substance analog of gamma-hydroxybutyric acid, gamma-butyrolactone, 1,4-butanediol, 3,4-methylenedioxymethamphetamine, 4-bromo-2,5-dimethoxy-beta-phenylethylamine, or 4-methylthioamphetamine and the amount manufactured, distributed, or delivered is:
1. Three grams or less, the person is guilty of a Class F felony.
2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.
3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.
4. More than 50 grams, the person is guilty of a Class C felony.
(i) Schedule IV drugs generally. Except as provided in par. (im), if a person violates this subsection with respect to a substance included in schedule IV, the person is guilty of a Class H felony.
(im) Flunitrazepam. If a person violates this subsection with respect to flunitrazepam and the amount manufactured, distributed, or delivered is:
1. Three grams or less, the person is guilty of a Class F felony.
2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.
3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.
4. More than 50 grams, the person is guilty of a Class C felony.
(j) Schedule V drugs. If a person violates this subsection with respect to a substance included in schedule V, the person is guilty of a Class I felony.
(1m) Possession with intent to manufacture, distribute or deliver. Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture, distribute or deliver, a controlled substance or a controlled substance analog. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance or a controlled substance analog prior to and after the alleged violation. Any person who violates this subsection is subject to the following penalties:
(a) Schedule I and II narcotic drugs generally. Except as provided in par. (d), if a person violates this subsection with respect to a controlled substance included in schedule I or II which is a narcotic drug or a controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug, the person is guilty of a Class E felony.
(b) Schedule I, II, and III nonnarcotic drugs generally. Except as provided in pars. (cm) and (e) to (hm), if a person violates this subsection with respect to any other controlled substance included in schedule I, II, or III, or a controlled substance analog of any other controlled substance included in schedule I or II, the person is guilty of a Class H felony.
(cm) Cocaine and cocaine base. If a person violates this subsection with respect to cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, and the amount possessed, with intent to manufacture, distribute or deliver, is:
1g. One gram or less, the person is guilty of a Class G felony.
1r. More than one gram but not more than 5 grams, the person is guilty of a Class F felony.
2. More than 5 grams but not more than 15 grams, the person is guilty of a Class E felony.
3. More than 15 grams but not more than 40 grams, the person is guilty of a Class D felony.
4. More than 40 grams, the person is guilty of a Class C felony.
(d) Heroin. If a person violates this subsection with respect to heroin or a controlled substance analog of heroin and the amount possessed, with intent to manufacture, distribute or deliver, is:
1. Three grams or less, the person is guilty of a Class F felony.
2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.
3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.
4. More than 50 grams, the person is guilty of a Class C felony.
(e) Phencyclidine, amphetamine, methamphetamine, and methcathinone. If a person violates this subsection with respect to phencyclidine, amphetamine, methamphetamine, or methcathinone, or a controlled substance analog of phencyclidine, amphetamine, methamphetamine, or methcathinone, and the amount possessed, with intent to manufacture, distribute, or deliver, is:
1. Three grams or less, the person is guilty of a Class F felony.
2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.
3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.
4. More than 50 grams, the person is guilty of a Class C felony.
(f) Lysergic acid diethylamide. If a person violates this subsection with respect to lysergic acid diethylamide or a controlled substance analog of lysergic acid diethylamide and the amount possessed, with intent to manufacture, distribute or deliver, is:
1. One gram or less, the person is guilty of a Class G felony.
2. More than one gram but not more than 5 grams, the person is guilty of a Class F felony.
3. More than 5 grams, the person is guilty of a Class E felony.
(g) Psilocin and psilocybin. If a person violates this subsection with respect to psilocin or psilocybin, or a controlled substance analog of psilocin or psilocybin, and the amount possessed, with intent to manufacture, distribute or deliver, is:
1. One hundred grams or less, the person is guilty of a Class G felony.
2. More than 100 grams but not more than 500 grams, the person is guilty of a Class F felony.
3. More than 500 grams, the person is guilty of a Class E felony.
(h) Tetrahydrocannabinols. If a person violates this subsection with respect to tetrahydrocannabinols, included under s. 961.14(4)(t), or a controlled substance analog of tetrahydrocannabinols, and the amount possessed, with intent to manufacture, distribute, or deliver, is:
1. Two hundred grams or less, or 4 or fewer plants containing tetrahydrocannabinols, the person is guilty of a Class I felony.
2. More than 200 grams but not more than 1,000 grams, or more than 4 plants containing tetrahydrocannabinols but not more than 20 plants containing tetrahydrocannabinols, the person is guilty of a Class H felony.
3. More than 1,000 grams but not more than 2,500 grams, or more than 20 plants containing tetrahydrocannabinols but not more than 50 plants containing tetrahydrocannabinols, the person is guilty of a Class G felony.
4. More than 2,500 grams but not more than 10,000 grams, or more than 50 plants containing tetrahydrocannabinols but not more than 200 plants containing tetrahydrocannabinols, the person is guilty of a Class F felony.
5. More than 10,000 grams, or more than 200 plants containing tetrahydrocannabinols, the person is guilty of a Class E felony.
(hm) Certain other schedule I controlled substances and ketamine. If the person violates this subsection with respect to gamma-hydroxybutyric acid, gamma-butyrolactone, 1,4-butanediol, 3,4-methylenedioxymethamphetamine 4- bromo-2,5-dimethoxy-beta-phenylethylamine, 4-methylthioamphetamine, ketamine, or a controlled substance analog of gamma-hydroxybutyric acid, gamma-butyrolactone, 1,4-butanediol, 3,4-methylene-dioxymethamphetamine 4-bromo-2,5-dimethoxy-beta-phenylethylamine, or 4-methylthioamphetamine is subject to the following penalties if the amount possessed, with intent to manufacture, distribute, or deliver is:
1. Three grams or less, the person is guilty of a Class F felony.
2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.
3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.
4. More than 50 grams, the person is guilty of a Class C felony.
(i) Schedule IV drugs generally. Except as provided in par. (im), if a person violates this subsection with respect to a substance included in schedule IV, the person is guilty of a Class H felony.
(im) Flunitrazepam. If a person violates this subsection with respect to flunitrazepam and the amount possessed, with intent to manufacture, distribute, or deliver, is:
1. Three grams or less, the person is guilty of a Class F felony.
2. More than 3 grams but not more than 10 grams, the person is guilty of a Class E felony.
3. More than 10 grams but not more than 50 grams, the person is guilty of a Class D felony.
4. More than 50 grams, the person is guilty of a Class C felony.
(j) Schedule V drugs. If a person violates this subsection with respect to a substance included in schedule V, the person is guilty of a Class I felony.
(1n) Piperidine possession. (a) No person may possess any quantity of piperidine or its salts with the intent to use the piperidine or its salts to manufacture a controlled substance or controlled substance analog in violation of this chapter.
(b) No person may possess any quantity of piperidine or its salts if he or she knows or has reason to know that the piperidine or its salts will be used to manufacture a controlled substance or controlled substance analog in violation of this chapter.
(c) A person who violates par. (a) or (b) is guilty of a Class F felony.
(1q) Penalty relating to tetrahydrocannabinols in certain cases. Under s. 961.49(2), 1999 stats., and subs. (1)(h) and (1m)(h), if different penalty provisions apply to a person depending on whether the weight of tetrahydrocannabinols or the number of plants containing tetrahydrocannabinols is considered, the greater penalty provision applies.
(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, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or tetrahydrocannabinols 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), the amount of tetrahydrocannabinols means anything included under s. 961.14(4)(t) and includes the weight of any marijuana.
(1x) Conspiracy. Any person who conspires, as specified in s. 939.31, to commit a crime under sub. (1)(cm) to (h) or (1m)(cm) to (h) is subject to the applicable penalties under sub. (1)(cm) to (h) or (1m)(cm) to (h).
(2) Counterfeit substances. Except as authorized by this chapter, it is unlawful for any person to create, manufacture, distribute, deliver or possess with intent to distribute or deliver, a counterfeit substance. Any person who violates this subsection is subject to the following penalties:
(a) Counterfeit schedule I and II narcotic drugs. If a person violates this subsection with respect to a counterfeit substance included in schedule I or II which is a narcotic drug, the person is guilty of a Class E felony.
(b) Counterfeit schedule I, II, III, and IV drugs. Except as provided in pars. (bm) and (cm), if a person violates this subsection with respect to any other counterfeit substance included in schedule I, II, III, or IV, the person is guilty of a Class H felony.
(bm) Counterfeit of phencyclidine and certain other drugs. If a person violates this subsection with respect to a counterfeit substance that is a counterfeit of phencyclidine, methamphetamine, lysergic acid diethylamide, gamma-hydroxybutyric acid, gamma-butyrolactone, 1, 4-butanediol, 3,4-methylenedioxymethamphetamine, 4-bromo-2, 5-dimethoxy-beta-phenylethylamine, 4-methylthioamphetamine, or ketamine, the person is subject to the applicable fine and imprisonment for manufacture, distribution, delivery, or possession with intent to manufacture, distribute, or deliver, of the genuine controlled substance under sub. (1) or (1m).
(cm) Counterfeit flunitrazepam. If a person violates this subsection with respect to a counterfeit substance that is flunitrazepam, the person is subject to the applicable fine and imprisonment for manufacture, distribution, delivery, or possession with intent to manufacture, distribute, or deliver, of the genuine controlled substance under sub. (1) or (1m).
(d) Counterfeit schedule V drugs. If a person violates this subsection with respect to a counterfeit substance included in schedule V, the person is guilty of a Class I felony.
(3g) Possession. No person may possess or attempt to possess a controlled substance or a controlled substance analog unless the person obtains the substance or the analog directly from, or pursuant to a valid prescription or order of, a practitioner who is acting in the course of his or her professional practice, or unless the person is otherwise authorized by this chapter to possess the substance or the analog. Any person who violates this subsection is subject to the following penalties:
(am) Schedule I and II narcotic drugs. If a person possesses a controlled substance included in schedule I or II which is a narcotic drug, or possesses a controlled substance analog of a controlled substance included in schedule I or II which is a narcotic drug, the person is guilty of a Class I felony.
(b) Other drugs generally. Except as provided in pars. (c) to (g), if the person possesses or attempts to possess a controlled substance or controlled substance analog, other than a controlled substance included in schedule I or II that is a narcotic drug or a controlled substance analog of a controlled substance included in schedule I or II that is a narcotic drug, the person is guilty of a misdemeanor, punishable under s. 939.61.
(c) Cocaine and cocaine base. If a person possess or attempts to possess cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, the person shall be fined not more than $5,000 and may be imprisoned for not more than one year in the county jail 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.
(d) Certain hallucinogenic and stimulant drugs. If a person possesses or attempts to possess lysergic acid diethylamide, phencyclidine, amphetamine, methcathinone, psilocin or psilocybin, or a controlled substance analog of lysergic acid diethylamide, phencyclidine, amphetamine, methcathinone, psilocin or psilocybin, the person may be fined not more than $5,000 or imprisoned for not more than one year in the county jail 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.
(e) Tetrahydrocannabinols. If a person possesses or attempts to possess 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.
(f) Gamma-hydroxybutyric acid, gamma-butyrolactone, 1, 4-butanediol, ketamine, or flunitrazepam. If a person possesses or attempts to possess gamma-hydroxybutyric acid, gamma-butyrolactone, 1, 4-butanediol, ketamine or flunitrazepam, the person is guilty of a Class H felony.
(g) Methamphetamine. If a person possesses or attempts to possess methamphetamine or a controlled substance analog of methamphetamine, the person is guilty of a Class I felony.
(3j) Purchases of pseudoephedrine products. Whoever purchases more than 7.5 grams of pseudoephedrine contained in a pseudoephedrine product within a 30-day period, other than by purchasing the product in person from a pharmacy or pharmacist, is guilty of a Class I felony. This subsection does not apply to a purchase by a physician, dentist, veterinarian, or pharmacist or a purchase that is authorized by a physician, dentist, or veterinarian.
(4) Imitation controlled substances. (am)1. No person may knowingly distribute or deliver, attempt to distribute or deliver or cause to be distributed or delivered a noncontrolled substance and expressly or impliedly represent any of the following to the recipient:
a. That the substance is a controlled substance.
b. That the substance is of a nature, appearance or effect that will allow the recipient to display, sell, distribute, deliver or use the noncontrolled substance as a controlled substance, if the representation is made under circumstances in which the person has reasonable cause to believe that the noncontrolled substance will be used or distributed for use as a controlled substance.
2. Proof of any of the following is prima facie evidence of a representation specified in subd. 1.a. or b.:
a. The physical appearance of the finished product containing the substance is substantially the same as that of a specific controlled substance.
b. The substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance.
c. The substance is not labeled in accordance with 21 USC 352 or 353.
d. The person distributing or delivering, attempting to distribute or deliver or causing distribution or delivery of the substance to be made states to the recipient that the substance may be resold at a price that substantially exceeds the value of the substance.
3. A person who violates this paragraph is guilty of a Class I felony.
(bm) It is unlawful for any person to agree, consent or offer to lawfully manufacture, deliver, distribute or dispense any controlled substance to any person, or to offer, arrange or negotiate to have any controlled substance unlawfully manufactured, delivered, distributed or dispensed, and then manufacture, deliver, distribute or dispense or offer, arrange or negotiate to have manufactured, delivered, distributed or dispensed to any such person a substance which is not a controlled substance. Any person who violates this paragraph may be fined not more than $500 or imprisoned for not more than 6 months or both.
(5) Drug abuse program improvement surcharge. (a) When a court imposes a fine for a violation of this section, it shall also impose a drug abuse program improvement surcharge under ch. 814 in an amount of 75 percent of the fine and penalty surcharge imposed.
(b) The clerk of the court shall collect and transmit the amount to the county treasurer as provided in s. 59.40(2)(m). The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25(3)(f)2.
(c)1. The first $850,000 plus two-thirds of all moneys in excess of $1,275,000 collected in each fiscal year from drug surcharges under this subsection shall be credited to the appropriation account under s. 20.435(5)(gb).
2. All moneys in excess of $850,000 and up to $1,275,000 plus one-third of moneys in excess of $1,275,000 collected in each fiscal year from drug surcharges under this subsection shall be credited to the appropriation account under s. 20.505(6)(ku).
961.42 Prohibited acts B--penalties
(1) It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for manufacturing, keeping or delivering them in violation of this chapter.
(2) Any person who violates this section is guilty of a Class I felony.
961.43 Prohibited acts C--penalties
(1) It is unlawful for any person:
(a) To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge;
(b) Without authorization, to make, distribute or possess any punch, die, plate, stone or other thing designed to print, imprint or reproduce the trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as:
1. To make a counterfeit substance; or
2. To duplicate substantially the physical appearance, form, package or label of a controlled substance.
(2) Any person who violates this section is guilty of a Class H felony.
961.453 Purchases of pseudoephedrine products on behalf of another person
(1)(a) No person may, with the intent to acquire more than 7.5 grams of pseudoephedrine contained in a pseudoephedrine product within a 30-day period, knowingly solicit, hire, direct, employ, or use another to purchase a pseudoephedrine product on his or her behalf.
(b)1. Except as provided in subd. 2., a person who violates par. (a) is guilty of a Class I felony.
2. If the person who is solicited, hired, directed, employed, or used to purchase the pseudoephedrine product is an individual who is less than 18 years of age, the actor is guilty of a Class H felony.
(2) No person may purchase a pseudoephedrine product on behalf of another with the intent to facilitate another person's manufacture of methamphetamine. A person who violates this subsection is guilty of a Class I felony.
961.455 Using a child for illegal drug distribution or manufacturing purposes
(1) Any person who has attained the age of 17 years who knowingly solicits, hires, directs, employs or uses a person who is under the age of 17 years for the purpose of violating s. 961.41(1) is guilty of a Class F felony.
(2) The knowledge requirement under sub. (1) does not require proof of knowledge of the age of the child. It is not a defense to a prosecution under this section that the actor mistakenly believed that the person solicited, hired, directed, employed or used under sub. (1) had attained the age of 18 years, even if the mistaken belief was reasonable.
(3) Solicitation under sub. (1) occurs in the manner described under s. 939.30, but the penalties under sub. (1) apply instead of the penalties under s. 939.30.
(4) If the conduct described under sub. (1) results in a violation under s. 961.41(1), the actor is subject to prosecution and conviction under s. 961.41(1) or this section or both.
961.46 Distribution to persons under age 18
If a person 17 years of age or over violates s. 961.41(1) 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.
961.48 Second or subsequent offenses
(1) If a person is charged under sub. (2m) with a felony offense under this chapter that is a 2nd or subsequent offense as provided under sub. (3) and the person is convicted of that 2nd or subsequent offense, the maximum term of imprisonment for the offense may be increased as follows:
(a) By not more than 6 years, if the offense is a Class C or D felony.
(b) By not more than 4 years, if the offense is a Class E, F, G, H, or I felony.
(2m)(a) Whenever a person charged with a felony offense under this chapter may be subject to a conviction for a 2nd or subsequent offense, he or she is not subject to an enhanced penalty under sub. (1) unless any applicable prior convictions are alleged in the complaint, indictment or information or in an amended complaint, indictment or information that is filed under par. (b)1. A person is not subject to an enhanced penalty under sub. (1) for an offense if an allegation of applicable prior convictions is withdrawn by an amended complaint filed under par. (b)2.
(b) Notwithstanding s. 971.29(1), at any time before entry of a guilty or no contest plea or the commencement of a trial, a district attorney may file without leave of the court an amended complaint, information or indictment that does any of the following:
1. Charges an offense as a 2nd or subsequent offense under this chapter by alleging any applicable prior convictions.
2. Withdraws the charging of an offense as a 2nd or subsequent offense under this chapter by withdrawing an allegation of applicable prior convictions.
(3) For purposes of this section, a felony offense under this chapter 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 offense under this chapter or under any statute of the United States or of any state relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or depressant, stimulant or hallucinogenic drugs.
(5) This section does not apply if the person is presently charged with a felony under s. 961.41(3g)(c), (d), (e), or (g).
961.573 Possession of drug paraphernalia
(1) No person may 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 in violation of this chapter. Any person who violates this subsection may be fined not more than $500 or imprisoned for not more than 30 days or both.
(2) Any person who violates sub. (1) who is under 17 years of age is subject to a disposition under s. 938.344(2e).
(3)(a) No person may use, or possess with the primary intent to use, drug paraphernalia to manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, or store methamphetamine or a controlled substance analog of methamphetamine in violation of this chapter.
(b)1. Except as provided in subd. 2., any person who violates par. (a) is guilty of a Class H felony.
2. Any person who is 18 years of age or older and who violates par. (a) while in the presence of a child who is 14 years of age or younger is guilty of a Class G felony.