2023 Wisconsin Statutes & Annotations
Chapter 961 - Uniform controlled substances act.
961.443 - Immunity from criminal prosecution; possession.
961.443 Immunity from criminal prosecution; possession.
(1) Definitions. In this section, “aider" means a person who does any of the following:
(a) Brings another person to an emergency room, hospital, fire station, or other health care facility and makes contact with an individual who staffs the emergency room, hospital, fire station, or other health care facility if the other person is, or if a reasonable person would believe him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.
(b) Summons and makes contact with a law enforcement officer, ambulance, emergency medical services practitioner, as defined in s. 256.01 (5), or other health care provider, in order to assist another person if the other person is, or if a reasonable person would believe him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.
(c) Calls the telephone number “911" or, in an area in which the telephone number “911" is not available, the number for an emergency medical service provider, and makes contact with an individual answering the number with the intent to obtain assistance for another person if the other person is, or if a reasonable person would believe him or her to be, suffering from an overdose of, or other adverse reaction to, any controlled substance or controlled substance analog.
(2) Immunity from criminal prosecution. An aider is immune from prosecution under s. 961.573 for the possession of drug paraphernalia, under s. 961.41 (3g) for the possession of a controlled substance or a controlled substance analog, and under s. 961.69 (2) for possession of a masking agent under the circumstances surrounding or leading to his or her commission of an act described in sub. (1).
History: 2013 a. 194; 2015 a. 264; 2017 a. 12, 33, 59, 364.
The decision of whether immunity under sub. (2) applies should be made by the court pursuant to a pretrial motion. The defendant bears the burden of proving by a preponderance of the evidence the defendant's entitlement to immunity. State v. Williams, 2016 WI App 82, 372 Wis. 2d 365, 888 N.W.2d 1, 15-2044.
If the legislature had meant to provide immunity for bail jumping offenses founded in part upon violations of the statutes cited in sub. (2), it could have easily written that into this section. It did not. State v. Williams, 2016 WI App 82, 372 Wis. 2d 365, 888 N.W.2d 1, 15-2044.
In this case, the mere fact that the defendant provided information about the contraband and consent to search the defendant's apartment during a subsequent police interview occasioned by the defendant's assistance did not cause the defendant's commission of those offenses to be part of the “circumstances surrounding” the defendant's status as an “aider” within the meaning of this section. State v. Lecker, 2020 WI App 65, 394 Wis. 2d 285, 950 N.W.2d 910, 19-1532.
A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin's Criminal Laws in Combating the Opioid Crisis. O'Brien. 2020 WLR 1065.
