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Misdemeanor drug charges in Wisconsin typically involve the first-time possession of certain controlled substances, such as marijuana (THC), cocaine, and LSD, or the psilocybin. While these are less severe than felony charges, they still carry significant penalties, including jail time and fines. They can also have long-term consequences as they will show up on background checks
Wisconsin Statute 961.41(3g) outlines the various misdemeanor drug charges for simple possession of various drugs. The statute also addresses how a 2nd or subsequent offense may increase a misdemeanor charge to the felony level.
In order to get a possession of narcotics charge dismissed in Wisconsin, a defendant would need to successfully challenge the legality of the search and seizure, successfully challenge the elements of possessing a controlled substance, or be made eligible to complete a diversion program or deferred prosecution agreement.
The most common defense to drug charges surrounds the police search that resulted in finding the drugs. The fourth amendment to the United States Constitution provides protection from illegal searches and seizures. Successfully challenging the legality of the search and seizure is fact dependent.
Common defenses include the following:
Keep in mind that each case is fact dependent and sometimes multiple defenses may be appropriate given the situation.
One of the first questions a good attorney will ask is what was the basis for the police interaction. It is important to determine whether or not law enforcement had a legitimate reason for making contact with the defendant. Was the officer responding to a call for assistance? Was there a warrant signed by the judge to search a person or particular residence? Or was law enforcement contact the result of a simple traffic stop or violation?
We then look into whether or not there was an extension of the stop. Extending a simple traffic stop to search a vehicle results in the temporary holding of a person because they are not free to end the police encounter while the search is being conducted. For law enforcement to be justified in holding the person, they needed to have reasonable, explainable suspicion that another crime was occurring, had occurred, or was about to occur. Questions to consider would be:
For example, if a defendant was being investigated for a particular traffic violation, this traffic violation does not allow law enforcement to begin investigating everything else. Instead their focus should remain on the traffic violation for which the stop was made. It should only expand if there is evidence to suggest that another crime is occurring or has occurred. If law enforcement cannot articulate the facts that extended the investigation from one violation to the next, then the defendant may seek to suppress the evidence as a result of an illegal extension.
If the court finds that a defendant’s constitutional rights have been violated by an illegal extension, the remedy may be for all evidence to be suppressed as it was illegally gathered. If this happens, and that leaves the state with no evidence against the defendant, the state may then have no choice but to then motion the court for the case to be dismissed.
Whether drug possession qualifies as a felony or misdemeanor in Wisconsin depends on the type of drug and whether this was a first or a subsequent offense.
For some examples:
The purchase of more than 7.5 grams of pseudoephedrine contained in a pseudophedrine product within a 30-day period, other than by purchasing the product in person from a pharmacy or pharmacist is also a felony offense. An exception to this is when an authorized purchase is made by a physician, dentist, veterinarian, or pharmacist.
Aside from the drugs listed above, the possession or attempted possession of other controlled substances are misdemeanors. This includes cocaine, various hallucinogenic and stimulant drugs, tetrahydrocannabinols (THC), and synthetic cannabinoids.
However, be warned that when a defendant is charged for a 2nd or subsequent offense, the charge becomes a felony offense. Drug possession can be charged as a 2nd or subsequent offense even if the prior conviction was for a different drug. Also something to keep in mind is that the manufacture and/or distribution of many drugs also increases the misdemeanor charge to a felony level.
Misdemeanor drug possession is when someone has misdemeanor level drugs that belong to them. More specifically, possession can be defined by the three elements that the state must prove in order to charge someone. The state must prove:
The penalties for misdemeanor drug charges depend on the type of drugs found.
A first time offense of the possession of cocaine and or a cocaine base can be punishable by a fine up to $5,000 dollars and imprisonment up to one year in the county jail.
A first time offense of the possession of certain hallucinogenic and stimulant drugs such as lysergic acid diethylamide (LSD), phencyclidine, amphetamine, 3,4-methylenedioxymethamphetamine, methcathinone, cathinone, N-benzylpiperazine, psilocin, and psilocybin (shrooms) is punishable by a fine up to $5,000 dollars and imprisonment up to one year in the county jail.
Finally, a first time offense of the possession of THC as well as synthetic cannabinoids can be punishable by a fine up to $1,000 dollars and imprisonment up to 6 months in the county jail.
Misdemeanor drug charges will appear on most criminal background checks. These are criminal offenses and they are part of your official criminal record. Not only convictions but even pending misdemeanor charges will oftentimes show up on a background check. In Wisconsin, records of both pending charges and convictions are also publicly accessible via the Wisconsin Circuit Court Access Program (CCAP).
