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Drug Tax Stamp, §§ 139.87-139.96 — Constitutionality

State v. Glover B. Jones, 2002 WI App 196, PFR filed 8/22/02
For Jones: Mark D. Richards

Issue/Holding: The drug tax stamp law, §§ 139.87-139.96,  amended to address State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), doesn’t violate the privilege against compelled self-incrimination, ¶33-36.

Issue/HoldingThe drug tax stamp law, §§ 139.87-139.96, doesn’t violate double jeopardy. Possession with intent to deliver is not a lesser included offense of the drug tax stamp law, and a defendant may therefore be convicted of both. ¶39-41.

UPDATE: The 7th Circuit has since held that the old tax stamp law is sufficiently punitive, at least in regard to cocaine, to trigger double jeopardy analysis; and, under facts of the case double jeopardy was violated — the defendant’s assets ordered frozen and seized to pay tax assessment on cocaine; ensuing possession with intent prosecution and conviction amounted to multiple punishment forbidden by double jeopardy clause. Stephen Dye v. Frank, 355 F.3d 1102 (7th Cir 2004). This particular issue — whether tax assessment may be regarded as punitive was not resolved by either Hall or Jones. Nor does it appear that the post-Hall legislative amendment addressed this particular problem.

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