Out-of-state prescription no defense to marijuana charge

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A prescription from an out-of-state doctor for medical marijuana is no defense to an illegal possession charge.

Section 961.41(3g) permits possession of controlled substances if it is obtained pursuant to a valid prescription from a “practitioner.” But, the Wisconsin Court of Appeals read the definition of “practitioner” in sec. 961.01(19)(a) narrowly to include only physicians licensed “in this state.”

Accordingly, the court held on April 20, “Having failed to allege or demonstrate his California physician met that definition, [the defendant] failed to show he met the sec. 961.41(3g) exception for possession pursuant to a valid prescription or order.”

Michael Kettner was arrested in 2009 in Grand Chute for possessing two grams of marijuana and two pipes. He was cited under Grand Chute’s municipal ordinance prohibiting possession.

At trial, Kettner stipulated he possessed the marijuana and pipes, but presented a medical authorization to possess marijuana, signed by a licensed California doctor.

The circuit court held that Kettner as not entitled to the benefit of the California laws, because he was not a California resident when he received his medical authorization.

Kettner appealed, and in an unpublished one-judge opinion, Judge Michael W. Hoover affirmed in part, and reversed in part.

Section 961.41(3g) provides, “No person may possess or attempt to possess a controlled substance … unless the person obtains the substance … directly from, or pursuant to a valid prescription or order of, a practitioner who is acting in the course of his or her professional practice…”

The court concluded that, on its face, this statute does not criminalize the possession of marijuana if the defendant has a valid out-of-state order for it.

Reading the provision in tandem with sec. 961.01(19)(a), however, the court concluded that Kettner’s possession was illegal.

That statute provides, “‘Practitioner’ means … [a] physician … licensed, registered, certified or otherwise permitted to … dispense … a controlled substance in the course of professional practice … in this state (emphasis added by court).”

Accordingly, the court held Kettner could validly be convicted of violating the state statute.

However, Kettner wasn’t charged with violating the state statute, or a municipal ordinance explicitly adopting that section. Instead, Grand Chute drafted its own possession ordinance.

That ordinance provides, “No person shall possess any amount of marijuana … unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a license[d] physician … for a valid medical purpose. Their marijuana in possession should be consistent with the amount needed for personal use only, and not in an amount that is intended for distribution.”

Notably, the ordinance does not limit the definition of “licensed physician” to those licensed in Wisconsin, as the state statute does. Because Kettner was charged with violating the Grand Chute ordinance rather than the state statute, the court reversed the conviction.

Case analysis

Because the charge is a municipal forfeiture, the appeal was heard by only one judge and is ineligible for publication. As a signed unpublished opinion, it can be cited for its persuasive value only.

But should any prosecutor attempt to do so, the defense can rebut the argument, merely by printing, in full, sec. 961.01(19)(a), on which the court relied.

The opinion prints only a partial definition of “practitioner,” with several sets of ellipses. But the inclusion of ellipses changes the meaning.

The definition included in the opinion provides, “‘Practitioner’ means … [a] physician … licensed, registered, certified or otherwise permitted to … dispense … a controlled substance in the course of professional practice … in this state (emphasis added by court).”

In full, the statute provides, “‘Practitioner’ means: … A physician, advanced practice nurse, dentist, veterinarian, podiatrist, optometrist, scientific investigator or, subject to s. 448.21 (3), (http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=448.21%20) a physician assistant, or other person licensed, registered, certified or otherwise permitted to distribute, dispense, conduct research with respect to, administer or use in teaching or chemical analysis a controlled substance in the course of professional practice or research in this state.”

The more reasonable interpretation of the statute is that a “practitioner” is one of the following: a physician, advanced practice nurse, dentist, veterinarian, podiatrist, optometrist, or scientific investigator, wherever licensed; or a physician assistant or other person licensed “in this state” under sec. 448.21(3).

To read the statute otherwise would create absurd results. Under the court’s interpretation, a resident of Iowa, who obtained a prescription for any controlled substance from an Iowa doctor, would be in violation of the law if he crossed into Wisconsin with his prescription, merely because his doctor is not a physician licensed in Wisconsin.

The Legislature could not have intended such a result, and the language of the statute does not compel such a result.

The more natural reading, and the more reasonable one, would apply the term “in this state,” only to that part of the definition coming after the first “or,” and not to the listed practitioners preceding the “or.”

David Ziemer can be reached at [email protected].