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Defenses – “Statutory Double Jeopardy” – Drug Offenses – § 961.45

State v. Colleen E. Hansen, 2001 WI 53, 243 Wis. 2d 328, 626 N.W.2d 195, on certification
For Hansen: Pamela Pepper

Issue: “¶8 … ‘Does Wis. Stat. § 961.45 bar prosecution for the state crime of possession of cocaine with intent to deliver, where a defendant previously has been convicted, based on the same conduct, for the federal crime of conspiracy to possess cocaine with intent to distribute? Stated differently, is the term “same act” under § 961.45 defined by the elements of the state and federal crimes, or by the conduct for which a defendant is convicted?’”

Holding: “Act” refers to factual conduct underlying, as opposed to legal elements of, the offense and therefore “§ 961.45 bars a prosecution where the defendant has previously been acquitted or convicted for the same conduct under federal laws or the laws of another state[.]” ¶43.

The statute significantly limits the dual sovereignty doctrine, which otherwise allows Wisconsin prosecution for an offense even though the underlying conduct has been prosecuted to conclusion elsewhere. The bar applies only to ch. 961 drug offenses, but that’s plenty, given federal encroachment. The statute reads as follows: “Bar to prosecution. If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.” Note, though, that timing is everything: the bar applies only before completion of the Wisconsin prosecution (which means attachment of jeopardy, such as entry of guilty plea). See generally, State v. Petty, 201 Wis. 2d 337, 548 N.W.2d 817 (1996). Note, too, that the limitation is purely statutory. See, e.g., ¶10 (“Section 961.45 thus operates as a limitation on the State’s power to prosecute where no constitutional limit exists. Our inquiry today addresses the scope of the statutory protection against successive prosecutions.”).


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