Posted on

Is CBD Oil Legal in Wisconsin?

               If you have driven through, or live in, any medium to large-size city in Wisconsin, chances are you have seen at least one “CBD Oil Sold Here!” banner hanging in a store window. The use of CBD oil has become increasingly trendy over the last year, and many users claim that it can help promote sounder sleep, reduce inflammation and pain, and help reduce stress and anxiety. But one thing many Wisconsin consumers wonder is whether it is in fact legal to possess and use CBD oil.

The most recent bill addressing the legality of CBD oil was passed by the Wisconsin State Legislature in 2017. The bill allowed for citizens to possess CBD oil if a doctor confirmed, in writing, that the product was being used to treat a medical condition. This law is embodied in Wis. Stat. § 961.32(2m)(b) and remains in effect to this day. What that means is that possession of CBD oil without a valid note from a doctor can technically be prosecuted as a misdemeanor criminal offense.

At this point, you may be wondering how none of your friends and family members have been charged with some sort of possession offense after leaving the CBD store on the corner with a bag full of CBD gummies, oils, or vapes without first obtaining a doctor’s note. You may also be wondering how that CBD store on the corner has been allowed to remain in business in the first place.

In 2018, the Wisconsin State Legislature passed a bill authorizing farmers throughout the state to grow industrial hemp. The hemp produced by farmers can be used to produce and sell CBD oil. Due to the conflict this created in the CBD law, the Wisconsin Attorney General’s office released a statement in May of 2018 advising law enforcement officials throughout the state to refrain from enforcing the requirement that consumers must possess a physician’s note in order to use CBD oil. In other words, while you are still technically required to have a physician’s note to use CBD oil, you will most likely not be charged with any criminal offense if you do not have one. If you’d like to play it safe, obtaining a doctor’s authorization is your best option!

While the use of CBD oil seems to be trending towards complete legalization, possession of marijuana remains illegal in the state of Wisconsin. If you or a loved one has been charged with a marijuana-related offense, call Petit & Dommershausen for legal assistance today at (920) 739-9900.

Posted on

Can they take your blood if you passed out? “Mitchell v. Wisconsin: Unconscious Drivers and the Implied Consent Law”

                It is common knowledge that those who drive after consuming a sufficient amount of alcohol may be charged with operating a motor vehicle while intoxicated (OWI). While investigating an OWI case, it is common for law enforcement officials to ask the driver of the vehicle to submit to a breath and blood test. This is used to determine the driver’s blood alcohol concentration (BAC) in order to prove whether the person was under the influence while driving.

Wisconsin is an “implied consent” state, which means that by operating a motor vehicle on a highway within the state, the driver has impliedly consented to a test of his or her blood or breath for the purpose of determining whether there is any detectable amount of alcohol in his or her blood. A driver may refuse to submit to those tests, but he or she may still be prosecuted for a drunk driving related offense and may face additional criminal consequences as well.

The implied consent law has been challenged in various courts, both state and federal, several times in the past. Most recently, one narrow aspect of the law was challenged before the United States Supreme Court in Mitchell v. Wisconsin. In this case, the Supreme Court was asked to decide whether law enforcement has the authority under the implied consent law to perform a blood test on a suspected drunk driver who is unconscious and cannot submit to a preliminary breath test without first obtaining a search warrant.

Justice Alito, writing the main opinion for the United States Supreme Court, concluded that the exigent circumstances doctrine almost always permitted law enforcement to perform a blood draw on an unconscious subject without a warrant. The exigent circumstances doctrine allows law enforcement to conduct a search (or here, a blood test) without a warrant when potential key evidence in the investigation could be destroyed before the warrant would be obtained.

So how will this ruling be applied going forward? Wisconsin courts will most likely continue to adopt the policy that in almost every case, a warrantless blood draw can permissibly be performed by law enforcement. However, it is possible that suspected drunk drivers may be able to challenge the results of those tests if they can prove that exigent circumstances did not exist and a warrant could have been obtained prior to the performance of the tests.

If you or someone you know has been charged with an OWI-related offense, call Petit & Dommershausen for legal assistance today at (920) 739-9900.

Posted on

Arrested in Oshkosh? | Information you need to know

MY SON GOT ARRESTED.  WHAT HAPPENS NEXT?

             An arrest can be a parent’s or grandparent’s worst nightmare.  Maybe your child or grandchild made a mistake.  Or, even worse, your child or grandchild has been wrongfully accused of some criminal wrongdoing.

In the event one of your loved ones faces arrest or is taken into custody by law enforcement, you should be aware of the following information.  Many times officers make an arrest based on alleged probable cause without an arrest warrant.  This is a completely legal process.  If an officer makes a warrantless arrest, your child or grandchild’s arrest must be reviewed by an impartial magistrate (judge or court commissioner) within 48 business hours of arrest.  However, this does not mean your child or grandchild will go in front of the judge for a bail hearing at that time.  If a magistrate determines that probable cause exists, your son or daughter or grandchild could still sit in jail for days or more before going to court.

Continue reading Arrested in Oshkosh? | Information you need to know