What Wisconsinites Need to Know About Marijuana Legalization in Neighboring States

March 5, 2021

As everyone is likely aware, marijuana has been legalized in several states across the country. In some states, it is legalized for medicinal purposes, while other states have legalized recreational use.  Recently, our neighbor to the south, Illinois, has legalized marijuana for both medicinal and recreational use.  Even with a new dispensary a few miles from the Wisconsin border, that does not mean it is legal for Wisconsin residents.

Marijuana legalization in Illinois does not mean it can be lawfully possessed in Wisconsin.  It is still a crime to possess marijuana, paraphernalia (pipes, grinders, torches, etc.) and edibles in Wisconsin.  A first offense for possession in Wisconsin is still a crime and carries penalties up to six months in jail and a $1,000 fine.   A second offense for possession could result in a felony conviction, with up to 3 years and 6 months in prison, and up to a $10,000 fine.  Wisconsin law enforcement still enforces marijuana laws so you need to be aware of the laws in Wisconsin, if traveling to and from the dispensary right across the border.

Despite recent and ongoing decriminalization for possession in some Wisconsin counties, the risk for driving-related offenses for both Illinois and Wisconsin drivers is still high. Let’s say you travel to Illinois to use marijuana legally, travel back to Wisconsin, and end up having a car accident or any other situation where you could potentially face a blood draw due to driving. If you test positive for delta-9-tetrahydrocannabinol (delta 9) which is an active metabolite of marijuana, you could face a charge of operating a motor vehicle under the influence of a restricted, controlled substance.  Wisconsin does not permit lawful possession of marijuana, and the fact that an individual has any detectible amount of a controlled substance (marijuana) in their blood, means a person could be guilty of an OWI.  Because marijuana use and possession is still illegal in Wisconsin, there is not a “legal limit” for the amount of delta 9 permitted in a person’s system.  Delta 9 can remain in a person’s system for anywhere from weeks up to months depending on how that person metabolizes the drug.  This means you could have traveled to Illinois, legally possessed and used marijuana a month earlier, and end up facing an OWI.  While a First Offense OWI in Wisconsin is not a criminal violation, it may still cause significant expense, require an ignition interlock device be installed in your vehicle, and be a nightmare to try to navigate reinstating your driving privileges should you be convicted. For those individuals who have Illinois driver’s licenses, the requirements of a Wisconsin OWI restricted controlled substance offense is extraordinarily challenging and time consuming to comply with during the term of any suspension or revocation of their driver’s license, and in the reinstatement process. For those people who live in Illinois and travel to Wisconsin for work, this is potentially a daily risk.

This area of law is distinct, time sensitive, and challenging. Attorney Erika Bierma routinely handles these matters across the state. If you or a loved one needs assistance in navigating possession of marijuana or OWI restricted controlled substance offenses, please contact Ms. Bierma for a free consultation.