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In Wisconsin, possession of psilocybin (magic mushrooms) is illegal and is treated as a serious criminal offense. Psilocybin is classified as Schedule I controlled substances under Wisconsin state law, meaning they are considered to have a high potential for abuse and no accepted medical use. Possession of these hallucinogenic mushrooms can result in the charge of a Class U misdemeanor.
Possession of psilocybin is a prohibited drug within the state of Wisconsin. Psilocybin is a naturally occurring psychoactive compound that is found in certain mushrooms. This drug is often referred to as “magic mushrooms.” Under Wisconsin Law, specifically Wis. Stat. 916.14(4)(r), psilocybin is classified as a Schedule I controlled substance. Because of its classification and traits, the state of Wisconsin considers it to have a high potential for abuse and no accepted medical use.
Though psilocybin is classified under Schedule I, it is not uncommon for the courts to interpret psilocybin as a recreational drug when imposing a sentence, meaning they do not always consider it equal to other Schedule I drugs, such as heroin. There has been legislative curiosity with a 2023 bill, Senate Bill 727 (SB727), proposing a pilot program to study psilocybin for treatment-resistent PTSD in combat veterans. This bill failed to pass when it was introduced during the 2023-2024 legislative session. Though Wisconsin is beginning to explore a research-only approach, decriminalization has not been proposed.
Psilocybin is illegal to possess, use, distribute, or manufacture in the state of Wisconsin. According to Wis. Stat. 961.41(3g), no person may possess or attempt to possess a controlled substance or a controlled substance analog unless the person obtains the substance directly from a valid prescription from a valid practitioner.
According to Wis. Stat. 961.41(1m), it is unlawful for any person to possess, with intent to manufacture, distribute or deliver, a controlled substance. Intent under this subsection may be demonstrated by evidence of the quantity or value of the substance, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance prior to and after the alleged violation.
Cultivation could be used as evidence towards distribution if there is evidence of intent. For example, if law enforcement officers discover someone is cultivating mushrooms that contain psilocybin and, based on their training and experience, they believe that the amount being cultivated exceeds personal use, they could use this as evidence towards possession with intent to distribute.
Psilocybin is the psychoactive chemical found in certain mushrooms. Spores do not contain psilocybin, because the compounds only develop once the mushroom grows. While Wisconsin law does not explicitly criminalize possession of the spores themselves, cultivating or growing those spores into mushrooms is illegal because the resulting mushrooms will contain psilocybin. Even though the spores themselves have not been explicitly criminalized, possession of the spores could expose someone to criminal liability through evidence of intent to cultivate.
The state must prove each element of the offense beyond a reasonable doubt. The elements for possessing psilocybin are as follows:
For the state to prove the second element, that the substance was psilocybin, the state often relies on lab reports. Defenses to this element include lab error or contamination, chain of custody problems, delays or failures in testing, or the substance may have resembled psilocybin but was not chemically confirmed.
For the third element, the state must prove that you knew the substance was present and knew what it was. A defense under this element may apply if the substance was found in a shared space, someone else placed the substance there without your knowledge, or you reasonably believed it was something legal.
One of the strongest defenses for possession charges is suppressing evidence based on a Fourth Amendment violation. This defense may apply if police were to search your car, home, or person without a warrant and without a valid exception to the warrant requirement, if the stop of your vehicle was unlawful, the search exceeded the scope of consent given, or the officer unlawfully extended the traffic stop.
Pursuant to Wis. Stat. 961.41(3g)(d), possession of psilocybin as a first offense is a Class U misdemeanor. Penalties for possession of psilocybin as a first offense include up to one year in jail, a $5,000 fine, or both.
Pursuant to Wis. Stat. 961.41(3g)(d), possession of psilocybin as a 2nd or subsequent offense is a Class I felony. Penalties for possession of psilocybin as a 2nd or subsequent offense include up to three and a half years imprisonment, a $10,000 fine, or both.
For this section, the 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. There is no statutory timeframe, so the state is able to use a qualifying drug conviction regardless of how much time has passed since the conviction.
Additionally, pursuant to Wis. Stat. 961.41(2), it is unlawful for any person to create, manufacture, distribute, deliver or possess with intent to distribute or deliver, a counterfeit substance. Penalties for counterfeiting psilocybin are outlined in Wis. Stat. 961(41)(2)(a), and determine that any person who creates, manufactures, distributes, delivers, or possesses with the intent to distribute or deliver a counterfeit psilocybin is guilty of a Class E felony, carrying penalties up to 15 years imprisonment, a $50,000 fine, or both.
Distribution of psilocybin is unlawful in the state of Wisconsin, with penalties varying based on the amount of psilocybin the individual is in possession of, as outlined in Wis. Stat. 961.41(1)(g). If you are found in possession of one hundred grams or less, you could be convicted of a Class G felony, which carries penalties up to ten years imprisonment, a $10,000 fine, or both. If you are found in possession of more than 100 grams but less than 500 grams of psilocybin, you could be convicted of a Class F felony, which carries penalties up to 12.5 years imprisonment, a $25,000 fine, or both. Finally, if you are found in possession of more than 500 grams of psilocybin, you could be convicted of a Class E felony, which carries penalties up to fifteen (15) years imprisonment, a $50,000 fine, or both.
Different penalties may apply to growing magic mushrooms. If found to be growing, you could be charged with straight possession of the drug, which is a misdemeanor for a first offense and a felony for a second or subsequent offense. If the prosecutor believes you are growing with the intent to sell or distribute, the weight of the mushrooms will be used to determine the amount of psilocybin in your possession. Penalties vary based on the weight on the psilocybin.
