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A second conviction for marijuana possession in Wisconsin is a felony, punishable by up to 3 years- would this be a predicate?

Eau Claire, WI |

I have a misdemeanor offense in FL from 7 years ago for possession of drug paraphenalia, and I don't want to get busted with a dime bag of pot and have another felony. A criminal defense attorney up here told me I'm okay, the statute does not specifically mention paraphenalia, I believe the rule of lenity would come into play if nothing else- see 961.41(3g)(e), "For purposes of this paragraph, an 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 drug."

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Attorney answers 4

Best Answer
Posted

I think both interpretations are reasonable. I see how a prior out of state conviction for drug paraphernalia falls under a broad statutory interpretation and outside a narrow statutory interpretation. Perhaps, you are right and the rule of lenity would apply. But, why risk it?

Good luck!

J Steven House

J Steven House

Posted

However, a paraphernalia conviction in WI would operate as a prior drug offense because the offense is listed in the same chapter of the statutes, Ch. 961. The WI Supreme court has repeatedly noted that they will not apply the rule of lenity where the legislative intent is clear. With those two considerations in mind I would second attorney Missimer's advice and/or recommend moving to one of the more progressive counties where the district attorneys have opted not to charge simple possession of marijuana criminally as a matter of policy.

Posted

My reading of the statute strongly suggest the Florida conviction would be a valid predicate conviction. Stay off the dope if you can :)

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Posted

Your prior conviction would make any current possession a possible felony charge (it is up to the DA whether they charge it as one).

In accordance with the Avvo community guidelines, this communication does not constitute "legal advice", nor does it form an attorney-client relationship. You should seek counsel in your geographic area regarding any specific questions.

Posted

I think both interpretations are reasonable. I see how a prior out of state conviction for drug paraphernalia falls under a broad statutory interpretation and outside a narrow statutory interpretation. Perhaps, you are right and the rule of lenity would apply. But, why risk it?

Good luck!