Possession of a Controlled Substance in Wisconsin
Charged with possession of a controlled substance in Wisconsin? Contact Chirafisi Anderson, S.C. for a free and confidential consultation.
What the Law Says About Drug Possession in Wisconsin
Wisconsin law makes it a crime to possess or attempt to possess a controlled substance unless the substance was obtained pursuant to a valid prescription or other statutory authorization. Under Wis. Stat. § 961.41(3g), possession offenses range from misdemeanors to felonies, depending on the substance involved and the defendant’s prior record.
Possession does not require ownership, exclusive control, or a large quantity. Prosecutors frequently rely on constructive possession theories, circumstantial evidence, and assumptions about knowledge. As a result, many possession cases are defensible—particularly where drugs are found in shared spaces, vehicles, or residences.
At Chirafisi Anderson, S.C., our attorneys regularly represent individuals charged with drug possession across Southern and Central Wisconsin, including Dane, Rock, Jefferson, Columbia, Sauk, Iowa, Dodge, and Green Counties. We understand how possession is proven, where constructive possession theories fail, and how to challenge overbroad charging decisions.
Key Points About Possession Charges in Wisconsin
- Possession may be actual, constructive, or shared.
- Ownership of the substance is not required.
- Any amount of a controlled substance can support a charge.
- Knowledge that the substance was controlled is required.
- Some possession offenses are misdemeanors, while others are felonies by statute.
What the State Must Prove to Convict on Possession in Wisconsin
To convict someone of possession of a controlled substance, the State must prove each element beyond a reasonable doubt, as set forth in Wisconsin Jury Instruction – Criminal 6030:
Under Wisconsin law, the State must prove the following:
- Possession: The defendant knowingly possessed a substance.
- Possession may be actual (physical control) or constructive (control over the area with intent to exercise control). Possession may also be shared.
- Controlled Substance: The substance involved was a controlled substance whose possession is prohibited by law.
- In THC cases, the State must prove the substance contained delta-9 THC above the legal threshold and was not hemp or otherwise exempt.
- Knowledge or Belief: The defendant knew or believed that the substance was a controlled substance.
- The State does not need to prove the defendant knew the precise chemical name, only that they knew the substance was illegal.
Knowledge and possession must be proven from conduct, statements, and surrounding circumstances—not presumed.
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Actual vs. Constructive Possession
Many possession cases do not involve drugs found on a person. Instead, prosecutors rely on constructive possession, arguing the defendant had control over the area where drugs were found.
Courts consider factors such as:
- Proximity to the substance
- Control over the location (vehicle, bedroom, residence)
- Personal belongings found near the substance
- Statements or conduct suggesting awareness
Mere presence near drugs is not enough. Constructive possession must be supported by corroborating evidence.
Penalties and Sentencing for Possession of a Controlled Substance
Penalties for possession depend on the type of substance, prior convictions, and statutory classification under § 961.41(3g).
Delivery of Cocaine Penalties
|
Substance Category |
First Offense |
Second or Subsequent Offense |
|---|---|---|
|
Schedule I or II Narcotic Drugs (e.g. Heroin) |
Class I Felony |
Class I Felony |
|
Cocaine / Cocaine Base |
Misdemeanor (up to 1 year in jail) |
Class I Felony |
|
Certain Hallucinogens & Stimulants (e.g., LSD, MDMA, Amphetamine) |
Misdemeanor |
Class I Felony |
|
THC / Marijuana |
Misdemeanor (up to 6 months in jail) |
Class I Felony |
|
Synthetic Cannabinoids |
Misdemeanor |
Class I Felony |
|
Methamphetamine |
Class I Felony |
Class I Felony |
|
Ketamine, GHB, Flunitrazepam |
Class H Felony |
Class H Felony |
|
Most Other Controlled Substances |
Misdemeanor |
Misdemeanor or Felony depending on the substance |
A prior drug conviction does not need to be proven to the jury to elevate penalties, but it can significantly increase sentencing exposure.
Sentencing Exposure and Judicial Considerations
Judges consider factors such as:
- Substance type and statutory classification
- Prior drug-related convictions
- Location and context of the alleged possession
- Strength of constructive possession evidence
- Eligibility for treatment-based resolutions or diversion
Because possession charges can escalate quickly based on priors, early defense involvement is critical to limit long-term consequences.
THC, Marijuana, and Hemp Possession Cases in Wisconsin
THC possession cases are legally distinct. Under current law:
- Hemp and certain CBD products are lawful
- THC must exceed delta-9 concentration thresholds to be illegal
- The State bears the burden of proving the substance is prohibited THC
Lab testing, chain of custody, and statutory exclusions are frequently litigated in marijuana possession cases.
Defenses and Legal Strategies for Possession Charges
Common defense strategies include:
Possession cases often hinge on early motion practice and evidentiary challenges.
Why Hiring a Drug Possession Defense Lawyer Matters
Possession charges are among the most frequently filed drug offenses in Wisconsin—and among the most frequently overcharged. These cases require careful analysis of possession theories, laboratory evidence, and constitutional compliance. The attorneys at Chirafisi Anderson, S.C. have the experience and proven results to protect your rights and challenge weak possession cases.
Drug Possession Case Results
View Criminal Case Results from the Attorneys at Chirafisi Anderson, S.C.
Contact Chirafisi Anderson, S.C.
If you are under investigation or charged with possession of a controlled substance, early legal representation can make a decisive difference. Contact us today for a free and confidential consultation.