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SCOW to address venue of possession, also multiplicity issue related to drug weight

State v. Brantner, 2018AP53, petition for review of a summary order granted 5/14/19; affirmed in part and reversed in part 2/25/20case activity (including briefs)


1. Do the United States and Wisconsin Constitutional protections against double jeopardy bar the State from punishing a criminal defendant twice for violations of Wis. Stat. § 961.41(3g)(am) for possessing pills containing different doses of the same substance at the same time?

2. When an individual is arrested in one county with controlled substances on his person and transported in police custody to a different county where the substances are removed from the individual’s person during the booking process, does a trial for possession of the controlled substances in the destination county violate the individual’s rights under Article I, Section VII of the Wisconsin Constitution and Wis. Stat. § 971.19?

There are two interesting issues here, both arising out of a simple set of facts. Fond du Lac authorities suspected Brantner in a homicide. Some sheriff’s deputies from that county showed up in the Kenosha County courthouse to arrest him; the arrest was accomplished without incident. But, when the deputies and Brantner arrived at the Fond du Lac County jail, a search of his person turned up several different types of contraband drug. Of note here, he was carrying oxycodone pills of two different strengths: 5 milligrams and 20 milligrams.

So, did Brantner, who was in Fond du Lac not of his own volition, but because he was detained and transported there, satisfy one of the elements of possession of narcotics in that county, such that he could be charged there? He argues that venue was proper only in Kenosha County; the court of appeals held that he could have avoided any Fond du Lac charges by alerting the arresting officers to the presence of drugs at the time he was arrested.

The other issue is trickier and has potentially serious implications; surprisingly it doesn’t seem to have come up very often. Brantner was convicted of two counts of possessing oxycodone; one for the 5-milligram pills and one for the 20-milligram pills. It’s all the same stuff though, and he argues it violated double jeopardy to charge him twice for possessing pills that happened to be of different strengths. The question of multiple punishments is generally a question of legislative intent. Did our lawgivers really intend that it be a more serious crime to have 25 milligrams of oxycodone (in the form of a 20-milligram pill and a 5-milligram pill) than to have, say, 100 (five 20-milligram pills)? And if so, why stop there? Why couldn’t 50 pills be 50 crimes? Or 6.02 x 10^23 crimes? Each molecule of the drug is illegal to possess, after all.

We’ll soon learn SCOW’s solution to this problem of concentrations.


{ 1 comment… add one }
  • Steve House November 21, 2019, 1:32 pm

    The implications of this case could also lead to a person possessing different strains of marijuana, e.g. a bud each of C. indica dominant strain for evening use and a C. sativa dominant strain for the mid-morning pick me up. The more common scenario I can see it potentially having some implication for are the cases where a person is charged with both possession of fentanyl and heroin when the drugs are combined in a single preparation.

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