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§ 961.48(3), Repeat Drug Offender – Prior Conviction for Drug Paraphernalia

State v. Dawn C. Moline, 229 Wis. 2d 38, 598 N.W.2d 929 (Ct. App. 1999)
For Moline: Patrick M. Donnelly, SPD, Madison Appellate

Issue: Whether prior conviction for possessing drug paraphernalia, § 961.573, qualifies the offender as a repeat drug offender,  § 961.48(3).


By this decision, we hold that a prior conviction for possessing drug paraphernalia pursuant to § 961.573, STATS., qualifies as a prior offense under the repeat drug offender statute, § 961.48(3), STATS.”

At the risk of being too candid, each judge on this panel saw the issue as being much simpler.  We each came to the decision conference having each conducted our own independent construction of the statute.  And each judge arrived at conference with the same result.  As we independently read the statute, and as we ended up reading it together, the statute is meant to include all prior convictions, either under ch. 961, STATS., the federal statutes or any other state statute that is “related to” controlled substances and the like.  A drug paraphernalia offense is an offense “related to” controlled substances.  The term itself—drug paraphernalia—signifies that the paraphernalia must have some relation to controlled substances or controlled substance analogs before that paraphernalia will qualify as “drug” paraphernalia.  That is simply common sense.

This commonsense reading is bolstered by the drug paraphernalia statute itself.  Drug paraphernalia is defined by § 961.571(1)(a), STATS., in pertinent part, as “all equipment, products and materials … that are used, designed for use or primarily intended for use [in numerous activities with respect to] a controlled substance or controlled substance analog in violation of this chapter.” (Emphasis added.)  Thus, we see from this language that the legislature very specifically linked, by definition, the term “drug paraphernalia” with the activities related to controlled substances.  We conclude that paraphernalia is not illegal unless it is “related to” drugs.  If it is found to be related to drugs, it is very clearly an offense which may serve as the basis for an enhanced penalty under § 961.48(3), STATS.[1]


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