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Possession of narcotics and other controlled substances is illegal in Wisconsin under Chapter 961 of the state statutes. Possession of Schedule I or II narcotics such as heroin, fentanyl, morphine, and cocaine is generally a felony offense. To be convicted, the court must prove the drug was possessed, the drug is a controlled substance, and the drug was known to be a controlled substance by the defendant.
The possession of a Schedule I or Schedule II narcotic drug can lead to criminal drug charges. Possession of a narcotic is a Class I felony charge in the state of Wisconsin.
In order to get a possession of narcotics drug charge dismissed, a defendant would need to suppress the evidence the state is trying to use against you, move to dismiss the case due to the lack of proof for the necessary elements, negotiate with a prosecutor for a resolution that does not require a narcotics conviction, or argue the case in front of the jury.
Successfully challenging the legality of the search and seizure is fact dependent. The first question we may 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/violation?
We then look into whether or not there was an extension of the stop, and if so, did law enforcement have explainable and reasonable suspicion that another crime was occurring, has occurred, or was about to occur. For example, if a defendant was being investigated for a particular traffic violation, this traffic violation does not open the door for law enforcement to begin investigating everything. Instead their focus should remain on the traffic violation for which the stop was made unless 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. If this happens, then without the evidence to proceed against the defendant, the state would then have no choice but to then motion for the case to be dismissed.
One of the best ways to get a felony possession of narcotics dismissed or reduced is to be eligible for a diversion program or deferred prosecution agreement (DPA). If a defendant is offered the opportunity to enter into a diversion program or DPA, this typically requires the defendant to complete treatment, programming, community service, and other terms while the State holds off on filing charges. Or if charges have already been filed, the court holds off on sentencing until the defendant has completed the terms of his agreement.
Every county has different programs available and different requirements and criteria for eligibility. First time offenders have the easiest time of being found eligible for these sorts of resolutions. In many counties, the District Attorney’s Offices have policies stating that previous criminal history may be an automatic disqualifier for eligibility. Additionally, it is important to remember that eligibility for a program does not guarantee that the state will extend an offer for entry into the diversion program or DPA. All negotiations and agreements with the state are done on a case by case basis.
A diversion agreement is typically done prior to charges being filed, and a DPA is typically entered once charges have already been filed. Most DPA’s require a plea of guilty to one or more of the charges. However, instead of proceeding straight to sentencing, the court will then hold the case open for a predetermined period of time to allow the defendant to complete the required programming. Then upon successful completion of the terms of the agreement, there is the possibility of having the charges amended or dismissed. The exact terms of the agreement would be made known to the defendant ahead of time.
The possession of a controlled substance is defined by Wisconsin statute 961.41(3g). To be charged for the possession of a controlled substance, the state needs to prove three elements:
Then Wis. Stat. 961.41(3g)(am) delves into Narcotic Drugs specifically. It states that, “If a person possesses or attempts to possess a controlled substance included in schedule I or II which is a narcotic drug […] the person is guilty of a Class I felony.”
It is important to note that the statute does not require a minimum weight or amount of the narcotic drug for a defendant to be charged. Instead, any detectable amount of the Schedule I or Schedule II narcotic drug would be enough for the state of Wisconsin to file charges against the defendant.
The federal definition of the possession of narcotics is defined by Title 21 of the United States Code subsection 844. It states that it is unlawful for any person to knowingly or intentionally possess a controlled substance unless it is from a valid prescription from a valid practitioner.
The possession of a Schedule I or II narcotic drug is a Class I felony in Wisconsin. The penalties for Class I felonies are defined in the Wis. Stat. 939.50(3)(i). A defendant charged with a Class I felony can be fined up to $10,000.00 and sentenced to a term of imprisonment of up to three and a half years.
However, if the defendant is charged with possession of a schedule I or II narcotic with the intent to distribute or manufacture, this then becomes a Class E felony. A Class E felony carries a maximum potential penalty of a $50,000.00 fine and up to 15 years of imprisonment.
Additionally, according to Wis. Stat. 961.49(1m) if the defendant is charged with the intent to deliver or manufacture a schedule I or II narcotic near a certain specified location, the maximum term of imprisonment could be increased by an additional five years. These locations include but are not limited to:
The possession of a Schedule I or Schedule II narcotic drug is a Class I Felony in the State of Wisconsin. The charge is different whether the drug possession was a narcotic or not. A narcotic is defined under Wis. Stat. 961.01(15) to be opium poppy, opium, synthetic opium, or any substance derived from them.
Penalties typically get worse for repeat offenders. Depending on the controlled substance at issue, there may be specific statutory penalties for repeat offenders. For example there are specific penalties for repeat cocaine or repeat thc charges. However, for most simple possession of narcotic cases, the Wisconsin Statute 961.48(1) outlines the enhanced penalty for repeat offenders. Depending on the felony charge, the maximum term of imprisonment can be increased by a period of 4 to 6 years. However, for most simple possession cases of Schedule I or II narcotic drugs, which are Class I felonies, the term of maximum imprisonment could increase by a period of not more than 4 years.
