Wisconsin State Law Library

Wisconsin Statutory Elements and Consequences

Chapter 961 Uniform Controlled Substances Act

The Wisconsin Statutory Elements and Consequences is a compilation of criminal statutory components, organized by Wisconsin statute chapter and enhanced with definitions of frequently referenced terms, and links to Wisconsin Criminal Jury Instructions. The information provided on this website should not be construed as legal advice and is meant for informational purposes only. Please note that this information may not be up to date. For more information about this resource, contact Bryce Pierson by email or phone at (608) 266-7807.

Table of contents

• § 961.41(1) Delivery of a controlled substance/analog
• § 961.41(1) Manufacture of a controlled substance/analog
• § 961.41(1m) Possession of a controlled substance/analog with intent to deliver
• § 961.41(1m) Possession of a controlled substance/analog with intent to manufacture
• § 961.41(3g) Possession of a controlled substance /analog
• § 961.41(4)(am) Delivery of an imitation controlled substance: felony
• § 961.41(4)(bm) Delivery of an imitation controlled substance: misdemeanor
• § 961.42 Keeping or maintaining a place resorted to by persons using controlled substances in violation of chapter 961 for the purpose of using controlled substances
• § 961.43(1)(a) Acquiring possession of a controlled substance by misrepresentation
• § 961.455 Using a child to deliver a controlled substance
• § 961.573(1) Possession of drug paraphernalia
• § 961.573(3)(a) Possession of drug paraphernalia: methamphetamine
• § 961.65 Possessing materials for manufacturing methamphetamine
• § 961.67(2)(a) Possession of methamphetamine waste
• § 961.69 Possession of a masking agent

 

§ 961.41(1) Delivery of a controlled substance/analog

Summary

To be guilty of this offense, the prosecution must prove that the defendant unlawfully delivered a controlled substance or controlled substance analog without authorization as defined by the relevant laws.

Elements of the Offense

1. Unlawful Act: The defendant must have engaged in delivering a controlled substance or controlled substance analog.
2. Controlled Substance: The substance involved must be classified as a controlled substance or a controlled substance analog under the relevant laws.
3. Knowledge: The defendant must know or believe that the substance was a controlled substance or controlled substance analog.*

Jury Instruction

Wis JI-Criminal 6020
Wis JI-Criminal 6020A

* A knowledge requirement for controlled substances cases was established by the Wisconsin Supreme Court in State v. Christel, 61 Wis.2d 143, 211 N.W.2d 801 (1973): Knowledge of the precise chemical name is not required. Lunde v. State, 85 Wis.2d 80, 270 N.W.2d 180 (1978). What is required is that the defendant either know the identity of the substance or, not knowing the precise identity, know that the substance is a substance which is controlled by law.

 

§ 961.41(1) Manufacture of a controlled substance/analog

Summary

To be guilty of this offense, the prosecution must prove that the defendant engaged in the act of manufacturing a controlled substance or controlled substance analog without proper authorization.

Elements of the Offense

1. Unlawful Act: The defendant must have engaged in manufacturing a controlled substance or controlled substance analog.
2. Controlled Substance: The substance involved must be classified as a controlled substance or a controlled substance analog under the relevant laws.
3. Knowledge: The defendant must know or believe that the substance was a controlled substance or controlled substance analog.*

Jury Instruction

Wis JI-Criminal 6021
Wis JI-Criminal 6005

* A knowledge requirement for controlled substances cases was established by the Wisconsin Supreme Court in State v. Christel, 61 Wis.2d 143, 211 N.W.2d 801 (1973): Knowledge of the precise chemical name is not required. Lunde v. State, 85 Wis.2d 80, 270 N.W.2d 180 (1978). What is required is that the defendant either know the identity of the substance or, not knowing the precise identity, know that the substance is a substance which is controlled by law.

 

§ 961.41(1m) Possession of a controlled substance/analog with intent to deliver

Summary

To be guilty of this offense, the prosecution must prove that the defendant possessed a controlled substance or controlled substance analog with the intent to deliver it, without proper authorization.

Elements of the Offense

1. Possession: The defendant must have possessed a controlled substance or a controlled substance analog.
2. Intent to Deliver: The defendant must have had the intent to deliver the controlled substance or controlled substance analog.
3. Knowledge: The defendant must know or believe that the substance was a controlled substance or controlled substance analog.*

Jury Instruction

Wis JI-Criminal 6035
Wis JI-Criminal 6005

* A knowledge requirement for controlled substances cases was established by the Wisconsin Supreme Court in State v. Christel, 61 Wis.2d 143, 211 N.W.2d 801 (1973): Knowledge of the precise chemical name is not required. Lunde v. State, 85 Wis.2d 80, 270 N.W.2d 180 (1978). What is required is that the defendant either know the identity of the substance or, not knowing the precise identity, know that the substance is a substance which is controlled by law.

 

§ 961.41(1m) Possession of a controlled substance/analog with intent to manufacture

Summary

To be guilty of this offense, the prosecution must prove that the defendant possessed a controlled substance or controlled substance analog with the intent to manufacture it, without proper authorization.

Elements of the Offense

1. Possession: The defendant must have possessed a controlled substance or a controlled substance analog.
2. Intent to Manufacture: The defendant must have had the intent to manufacture the controlled substance or controlled substance analog.
3. Knowledge: The defendant must know or believe that the substance was a controlled substance or controlled substance analog.*

Jury Instruction

Wis JI-Criminal 6036
Wis JI-Criminal 6005

* A knowledge requirement for controlled substances cases was established by the Wisconsin Supreme Court in State v. Christel, 61 Wis.2d 143, 211 N.W.2d 801 (1973): Knowledge of the precise chemical name is not required. Lunde v. State, 85 Wis.2d 80, 270 N.W.2d 180 (1978). What is required is that the defendant either know the identity of the substance or, not knowing the precise identity, know that the substance is a substance which is controlled by law.

 

§ 961.41(3g) Possession of a controlled substance /analog

Summary

To be guilty of this offense, the prosecution must prove that the defendant possessed or attempted to possess a controlled substance or controlled substance analog without proper authorization.

Elements of the Offense

1. Possession: The defendant must have possessed or attempted to possess a controlled substance or a controlled substance analog.
2. Knowledge: The defendant must know or believe that the substance was a controlled substance or controlled substance analog.*

Jury Instruction

Wis JI-Criminal 6030
Wis JI-Criminal 6005

* A knowledge requirement for controlled substances cases was established by the Wisconsin Supreme Court in State v. Christel, 61 Wis.2d 143, 211 N.W.2d 801 (1973): Knowledge of the precise chemical name is not required. Lunde v. State, 85 Wis.2d 80, 270 N.W.2d 180 (1978). What is required is that the defendant either know the identity of the substance or, not knowing the precise identity, know that the substance is a substance which is controlled by law.

 

§ 961.41(4)(am) Delivery of an imitation controlled substance: felony

Summary

To be guilty of this offense, the prosecution must prove that the defendant knowingly distributed or delivered a noncontrolled substance while representing it as a controlled substance or something that could be used as such.

Elements of the Offense

1. Distribution or Delivery: The defendant knowingly distributed or delivered, attempted to distribute or deliver, or caused to be distributed or delivered a noncontrolled substance.
2. Representation: The defendant expressly or impliedly represented to the recipient:
   • That the noncontrolled substance is a controlled substance.
   • That the noncontrolled substance has a nature, appearance, or effect that will allow the recipient to display, sell, distribute, deliver, or use it as a controlled substance, under circumstances where the defendant had reasonable cause to believe that the noncontrolled substance would be used or distributed for use as a controlled substance.
3. Knowledge: The defendant must know that the substance was not a controlled substance.*

Jury Instruction

Wis JI-Criminal 6040

* The knowledge element of the instruction is based on a plain language reading of the statute: “knowingly deliver a noncontrolled substance” means that the person must know that what he or she delivers is a noncontrolled substance. This is believed to be consistent with the rule for Criminal Code offenses, to which § 939.23(2) applies: “‘Know’ requires only that the actor believes that the specified fact exists.” Here, the “specified fact” is that the substance is noncontrolled.

 

§ 961.41(4)(bm) Delivery of an imitation controlled substance: misdemeanor

Summary

To be guilty of this offense, the prosecution must prove that the defendant agreed or offered to deal in a controlled substance, whether lawfully or unlawfully, but then provided or arranged to provide a noncontrolled substance instead.

Elements of the Offense

1. Agreement or Offer: The defendant agreed, consented, or offered to unlawfully deliver a controlled substance to another person, or offered, arranged, or negotiated to have a controlled substance unlawfully delivered.
2. Substitute Substance: The defendant then delivered or offered, arranged, or negotiated to have delivered, a substance which is not a controlled substance.

Jury Instruction

Wis JI-Criminal 6042

 

§ 961.42 Keeping or maintaining a place resorted to by persons using controlled substances in violation of chapter 961 for the purpose of using controlled substances

Summary

To be guilty of this offense, the prosecution must prove that the defendant knowingly maintained a specified type of place where people used controlled substances illegally or where controlled substances were manufactured, kept, or delivered in violation of the law.

Elements of the Offense

1. Knowledge: The defendant knowingly kept or maintained a place.
2. Type of Place: The place is a store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place.
3. Purpose of the Place: The place is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or the place is used for manufacturing, keeping, or delivering controlled substances in violation of this chapter.

Jury Instruction

Wis JI-Criminal 6037A
Wis JI-Criminal 6037B

 

§ 961.43(1)(a) Acquiring possession of a controlled substance by misrepresentation

Summary

To be guilty of this offense, the prosecution must prove that the defendant acquired or obtained possession of a controlled substance by using misrepresentation, fraud, forgery, deception, or subterfuge.

Elements of the Offense

1. Acquisition or Possession: The defendant acquired or obtained possession of a controlled substance.
2. Method: The defendant did so by means of misrepresentation, fraud, forgery, deception, or subterfuge.
3. Knowledge: The defendant must believe that the substance was a controlled substance.*

Jury Instruction

Wis JI-Criminal 6038

* The defendant must believe that the substance was a controlled substance. State v. Christel, 61 Wis.2d 143, 211 N.W.2d 801 (1973). Knowledge of the precise chemical name is not required. Lunde v. State, 85 Wis.2d 80, 270 N.W.2d 180 (1978). While proof of knowledge is required for conviction, an information which charges the offense in the words of the statute (thereby omitting an allegation of knowledge) is sufficient to confer subject-matter jurisdiction, at least where there is no timely objection or showing of prejudice. State v. Nowakowski, 67 Wis.2d 545, 227 N.W.2d 497 (1975).

 

§ 961.455 Using a child to deliver a controlled substance

Summary

To be guilty of this offense, the prosecution must prove that the defendant, who is at least 17 years old, knowingly solicited, hired, directed, employed, or used a person under the age of 17 years for the purpose of violating s. 961.41(1). The statute does not require proof of the defendant's knowledge of the minor's age, and it is not a defense if the defendant mistakenly believed the minor was 18 years or older.

Elements of the Offense

1. Age of the Defendant: The defendant must be at least 17 years old.
2. Knowledge: The defendant knowingly solicited, hired, directed, employed, or used a person who is under the age of 17 years.
3. Purpose: The solicitation, hiring, directing, employment, or use of the minor must be for the purpose of violating s. 961.41(1) (which pertains to the manufacture, distribution, or delivery of a controlled substance).

Jury Instruction

Wis JI-Criminal 6046
Wis JI-Criminal 6047

 

§ 961.573(1) Possession of drug paraphernalia

Summary

To be guilty of this offense, the prosecution must prove that the defendant used or possessed drug paraphernalia with the primary intent to engage in activities related to controlled substances or controlled substance analogs, such as planting, propagating, cultivating, manufacturing, processing, preparing, testing, packing, storing, concealing, injecting, ingesting, inhaling, or otherwise introducing the substance into the human body.

Elements of the Offense

1. Use or Possession: The defendant used or possessed drug paraphernalia.
2. Primary Intent: The primary intent of using or possessing the drug paraphernalia was to ingest, inhale, or otherwise introduce into the human body a controlled substance.

Jury Instruction

Wis JI-Criminal 6050

 

§ 961.573(3)(a) Possession of drug paraphernalia: methamphetamine

Summary

To be guilty of this offense, the prosecution must prove that the defendant used or possessed drug paraphernalia with the primary intent manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, or store methamphetamine.

Elements of the Offense

1. Use or Possession: The defendant used or possessed drug paraphernalia.
2. Primary Intent: The primary intent of using or possessing the drug paraphernalia was to manufacture methamphetamine.

Jury Instruction

Wis JI-Criminal 6053

 

§ 961.65 Possessing materials for manufacturing methamphetamine

Summary

To be guilty of this offense, the prosecution must prove that the defendant possessed an ephedrine or pseudoephedrine product, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, or pressurized ammonia with the intent to manufacture methamphetamine and that the possession was not authorized.

Elements of the Offense

1. Possession: The defendant possessed one or more of the following materials:
   • Ephedrine or pseudoephedrine product
   • Red phosphorus
   • Lithium metal
   • Sodium metal
   • Iodine
   • Anhydrous ammonia
   • Pressurized ammonia
2. Intent: The defendant had the intent to manufacture methamphetamine.

Jury Instruction

Wis JI-Criminal 6065

 

§ 961.67(2)(a) Possession of methamphetamine waste

Summary

To be guilty of this offense, the prosecution must prove that the defendant knowingly possessed methamphetamine manufacturing waste.

Elements of the Offense

1. Possession: The defendant possessed methamphetamine manufacturing waste.
2. Knowledge: The defendant knowingly possessed the methamphetamine manufacturing waste.
3. Knowledge: The accused knew that the substance was methamphetamine manufacturing waste.*

Jury Instruction

Wis JI-Criminal 6044

* This requirement is based on the statute’s requirement that the defendant “knowingly possess” methamphetamine manufacturing waste.

 

§ 961.69 Possession of a masking agent

Summary

To be guilty of this offense, the prosecution must prove that the defendant used or possessed a masking agent with the primary intent to defraud, circumvent, interfere with, or provide a substitute for a bodily fluid in a lawfully administered drug test.

Elements of the Offense

1. Possession or Use: The defendant either used or possessed a masking agent.
2. Intent: The primary intent of the defendant in using or possessing the masking agent was to defraud, circumvent, interfere with, or provide a substitute for a bodily fluid in conjunction with a lawfully administered drug test.

Jury Instruction

Wis JI-Criminal 6070

 

Updated January 2025