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Waukesha county criminal defense lawyerWhen it comes to drug possession charges in Wisconsin, there are two types of possession that can lead to criminal prosecution: actual possession and constructive possession. The type of possession the prosecution chooses to allege will have an impact on what kind of defenses might be available to the defendant. Today, we will look at the differences between these two types of possession, as well as some possible defenses for each.

Actual Drug Possession

Actual drug possession is just what it sounds like—the drugs are found on the person who is charged with possession. This can be in the form of drugs being found in a person's pocket, purse, or even in their hand. If drugs are found in any of these places, it is going to be very difficult for the defendant to assert any type of defense because it is going to be assumed that they knew the drugs were there and that they intended to use them.

Possible Defenses to Charges for Actual Possession

If the police find drugs on someone’s person, that does not mean that a conviction is guaranteed. There are still some possible defenses that can be effective. One such defense is illegal search and seizure. If the police conducted a search without a warrant or without probable cause, anything they found as a result of that search cannot be used against the defendant in court. Another defense is entrapment. This occurs when law enforcement encourages someone to commit a crime they would not have otherwise committed.


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Waukesha Marijuana Possession Drug Defense LawyerWhile more states, including neighboring Michigan and Illinois, have decriminalized and legalized marijuana use over the past few years, the substance remains illegal in Wisconsin. However, more momentum may be gathering in Madison for legalization, as bills to legalize medicinal and recreational marijuana use were both introduced this past year but did not advance. Assembly Majority Leader Jim Steineke said that legalization is likely to happen eventually in Wisconsin. Hearings were held this spring and while there was support from members of both parties, numbers were not great enough to take action on the bills. Other lawmakers believed the bills were nothing more than an election-year strategy to get publicity with no real hope of getting them passed.

A Marquette University poll indicated that 61% of Wisconsin voters favor legalization, with even higher percentages supportive of medical marijuana, with 80% in favor. Medical marijuana is now legal in 38 states.

Marijuana Charges in Wisconsin

For now though, marijuana cultivation, possession, or sale remains illegal in Wisconsin. Currently, possession of marijuana by a first-time offender is a first-degree misdemeanor. An offender may face a maximum fine of $1,000 and a maximum jail sentence of up to six months. After your first offense, subsequent arrests for marijuana possession are charged as a felony. This charge could carry a fine of up to $10,000 and jail time of up to 3.5 years. The manufacture, delivery, or distribution of marijuana is also a felony in Wisconsin, with jail time ranging from 3.5 years to 15 years and fines between $10,000 and $50,000 depending on the amount seized.


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Pewaukee drug crimes attorneyPublic perception of drug use in America has changed rapidly over the last ten years or so. As more states legalize medical marijuana and even the federal government moves towards treating drug addicts rather than penalizing them, society’s understanding of drug use has relaxed. 

Unfortunately, many states still have harsh laws that are a holdover from America’s infamous “War on Drugs” period. Mandatory minimum sentencing, large fines, and other punitive measures were meant to prevent drug use and distribution. As overdose deaths continue to skyrocket, these measures appear to have failed in their intent and instead have left many lives ruined by impractical punishments. Recognizing this, Wisconsin allows judges to consider deferred prosecution, probation, and other types of alternative sentences to allow citizens charged with drug crimes to properly make amends without completely derailing their lives. 

Pre- and Post-Conviction Diversion

If you have been charged with or convicted of a drug crime, a diversion program may allow you to receive substance abuse treatment services, mental health services, and even job training instead of going to jail. For up to two years, you will have to pass drug tests, go to therapy, perform community service, pay any restitution or fees, or do any other rehabilitative behaviors ordered by the court. 


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Menomonee Falls criminal defense attorney drug possession

Since the 1970s, Americans have been attempting to fight what has been dubbed the infamous “War on Drugs” by the Nixon administration. To combat what was seen as the “greatest threat to American society,” many measures were taken in an effort to punish drug users, such as creating mandatory minimum sentencing laws for use and possession, among others. Nearly 50 years later, the country is just now starting to implement more programs and other initiatives aimed at actually rehabilitating drug users and offenders, rather than simply throwing them in jail. Not every state offers alternative sentencing programs, but thankfully the state of Wisconsin offers various diversion, deferred prosecution, and other alternative sentencing programs for those charged with and convicted of drug crimes.

What Is the Treatment Alternative and Diversion (TAD) Program?

In Wisconsin, the program that handles all criminal diversions when it comes to drug crimes is called the Treatment Alternative and Diversion (TAD) program. TAD funds these programs, which allow non-violent adult offenders whose substance abuse was a contributing factor to their criminal activity, to receive treatment for their drug problem in exchange for their criminal charges being lessened or dropped altogether, depending on the stage of the process they are in. The type of diversion program used, pre-trial versus post-conviction, depends on the type of deal that is worked out between the defense attorney and the state prosecutor. 


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Drug possession charges are difficult for some defendants to face because they force them to look at what they've been doing with their lives. At this point, some may realize that their addiction must be addressed. Unfortunately, this doesn't mean that the court is going to just drop the charges.

There is a chance that you might be able to get help for your addiction even though you are facing criminal charges. Drug court is one option that enables you to get help for your addiction while still remaining accountable to the court. If you find that you need inpatient treatment, be sure that you work with the court so that you don't end up missing hearings due to being in a treatment facility.


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