Section 961.49. Offenses involving intent to deliver or distribute a controlled substance on or near certain places.

 

(1m)  If any person violates s. 961.41 (1) (cm) , (d) , (e) , (f) , (g) or (h) by delivering or distributing, or violates s. 961.41 (1m) (cm) , (d) , (e) , (f) , (g) or (h) by possessing with intent to deliver or distribute, cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or any form of tetrahydrocannabinols or a controlled substance analog of any of these substances and the delivery, distribution or possession takes place under any of the following circumstances, the maximum term of imprisonment prescribed by law for that crime may be increased by 5 years:

(a) While the person is in or on the premises of a scattered-site public housing project.

(b) While the person is in or on or otherwise within 1,000 feet of any of the following:

1. A state, county, city, village or town park.

2. A jail or correctional facility.

3. A multiunit public housing project.

4. A swimming pool open to members of the public.

5. A youth center or a community center.

6. Any private or public school premises and any premises of a tribal school, as defined in s. 115.001 (15m) .

7. A school bus, as defined in s. 340.01 (56) .

(c) While the person is in or on the premises of an approved treatment facility, as defined in s. 51.01 (2) , that provides alcohol and other drug abuse treatment.

(d) While the person is within 1,000 feet of the premises of an approved treatment facility, as defined in s. 51.01 (2) , that provides alcohol and other drug abuse treatment, if the person knows or should have known that he or she is within 1,000 feet of the premises of the facility or if the facility is readily recognizable as a facility that provides alcohol and other drug abuse treatment.

(2m)  If any person violates s. 961.65 and, during the violation, the person intends to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine under any of the circumstances listed under sub. (1m) (a) , (b) , (c) , or (d) , the maximum term of imprisonment for that crime is increased by 5 years.

1985 a. 328 ; 1987 a. 332 , 339 , 403 ; 1989 a. 31 , 107 , 121 ; 1991 a. 39 ; 1993 a. 87 , 98 , 118 , 281 , 490 , 491 ; 1995 a. 448 s. 289 , 491 ; Stats. 1995 s. 961.49; 1997 a. 283 , 327 ; 1999 a. 32 , 48 , 57 ; 2001 a. 109 ; 2005 a. 14 ; 2009 a. 302 . Scienter is not an element of this section. State v. Hermann, 164 Wis. 2d 269 , 474 N.W.2d 906 (Ct. App. 1991). A university campus is not a "school" within the meaning of s. 161.49 [now s. 961.49]. State v. Andrews, 171 Wis. 2d 217 , 491 N.W.2d 504 (Ct. App. 1992). Anyone who passes within a zone listed in sub. (1) [now sub. (1m)] while in possession of a controlled substance with an intent to deliver it somewhere is subject to the penalty enhancer provided by this section whether or not the arrest is made within the zone and whether or not there is an intent to deliver the controlled substance within the zone. State v. Rasmussen, 195 Wis. 2d 109 , 536 N.W.2d 106 (Ct. App. 1995), 94-2400 . School "premises" begin at the school property line. State v. Hall, 196 Wis. 2d 850 , 540 N.W.2d 219 (Ct. App. 1995), 94-2848 . The penalty enhancer for sales close to parks does not violate due process and is not unconstitutionally vague. The ordinary meaning of "parks" includes undeveloped parks. Proximity to a park is rationally related to protecting public health and safety from drug sale activities. State v. Lopez, 207 Wis. 2d 413 , 559 N.W.2d 264 (Ct. App. 1996), 95-3250 . Day care centers are a subset of "youth centers" as defined in s. 961.01 (22) and come within the definition of places listed in sub. (2). State v. Van Riper, 222 Wis. 2d 197 , 586 N.W.2d 198 (Ct. App. 1998), 97-3367 . This section contains two elemental facts, a distance requirement and a particularized protected place, both of which must be submitted to the jury and proven beyond a reasonable doubt. State v. Harvey, 2002 WI 93 , 254 Wis. 2d 442 , 647 N.W.2d 189 , 00-0541 .