[Amended 11-19-2020 by Ord. No. 20-35]
A. Prohibited acts. Except as authorized by this Part
1, it is unlawful for any person to knowingly or intentionally manufacture, traffic, distribute, dispense or deliver, or possess with the intent to manufacture, distribute, dispense, sell, or deliver, a controlled substance or controlled substance analog. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance or a controlled substance analog prior to and after the alleged violation.
B. Penalties. Except as otherwise provided in this Part
1, any person who violates Subsection
A shall be sentenced as follows:
(1) Any person who violates this subsection, except as provided for in §§
306-11,
306-12,
306-13,
306-14, and
306-15, with respect to a controlled substance, or a controlled substance analog, that person shall be subject to a Class A misdemeanor. See §
306-29, Classification of misdemeanors.
(a) Anyone convicted under this section may be banished from the Reservation as part of sentencing for one year for the first offense.
(b) Anyone convicted under this section shall be banished as part of sentencing for two years for their second offense.
(c) Anyone convicted under this section for a third or subsequent conviction shall be referred to the Tribal Legislature for lifetime
banishment pursuant to Chapter
80.
(d) If banishment is ordered, in the event of a death in the immediate family of the convicted/banished person, the Tribal Court, in its discretion, may order permission for such person to return to the Reservation for a period not to exceed four days. The convicted/banished individual must notify the Tribal Police Department of the request and any subsequent Court order.
(e) The Tribal Court shall require that the defendant complete an AODA assessment from a licensed professional approved by the court and attend and complete any certified alcohol or drug rehabilitation program if required by the assessment.
(2) Minor enhancer. If a person 18 years of age or over violates §
306-16A by distributing or delivering a controlled substance or a controlled substance analog to a person 17 years of age or under, the maximum term of a Class A misdemeanor shall be imposed. See §
306-29, Classification of misdemeanors.
(a) Anyone convicted under this section may be banished from the Reservation as part of sentencing for one year for the first offense.
(b) Anyone convicted under this section shall banished as part of sentencing for five years for their second offense.
(c) Anyone convicted under this section for a third or subsequent conviction shall be referred to the Tribal Legislature for lifetime
banishment pursuant to Chapter
80.
(3) Causing death enhancer. If a person violates §
306-16A by distributing, selling, or delivering a controlled substance or a controlled substance analog and such violation results in or causes a part in the overdose death of the receiver of the controlled substance, the maximum term of a Class A misdemeanor shall be imposed and the person shall be referred to the Tribal Legislature for lifetime
banishment pursuant to Chapter
80.
(4) The Court, in assessing the penalties, shall take into consideration the amount of controlled substance possessed, the relative danger of the drug, prior convictions for possession and other factors the Court finds relevant.
C. This offense may be subject to federal prosecution in addition to Tribal prosecution. If the Tribal prosecution is dismissed due to federal prosecution, the federal conviction(s) may be used by the Tribal Legislature for
banishment pursuant to Chapter
80. Nothing in this chapter restricts or limits the ability of the Tribal Legislature to assert their inherent, sovereign right of exclusion or
banishment under tribal law.
[Amended 11-19-2020 by Ord. No. 20-35]
A. Prohibited act. Except as authorized by this Part 1, it is unlawful for any person to create, manufacture, distribute, deliver or possess with intent to distribute or deliver a counterfeit controlled substance.
B. Penalty. Any person who violates this section with respect to a counterfeit controlled substance shall be subject to a Class C misdemeanor. See §
306-29, Classification of misdemeanors.
C. Banishment. Anyone convicted under this section:
(1) May be banished from the Reservation as part of sentencing for one year for the first offense;
(2) Shall be banished from the Reservation as part of sentencing for two years for the second offense; and
(3) For a third or subsequent conviction shall be referred to the Tribal Legislature for lifetime
banishment pursuant to Chapter
80.
D. This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A. Prohibited act. No person may possess or attempt to possess a controlled substance or a controlled substance analog on his person, in any type of vehicle under his control, or within any type of dwelling in which he lives, visits, or happens to be found, unless the person obtains the substance or the analog 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, or unless the person is otherwise authorized by this Part 1 to possess the substance or the analog.
B. Penalties.
(1) Any person who violates this section shall be subject to a Class C misdemeanor. See §
306-29, Classification of misdemeanors.
(2) If the offense is a second drug offense violation under this code, then the penalty shall increase to a Class B misdemeanor. See §
306-29, Classification of misdemeanors.
(3) Third or subsequent drug offense violations shall follow §
306-27.
(4) In addition to the above penalties, the Court shall require that the defendant complete an AODA assessment from a licensed professional approved by the court and attend and complete any certified alcohol or drug rehabilitation program if required by the assessment.
C. This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A. Prohibited act. No person may knowingly distribute or deliver, attempt to distribute or deliver or cause to be distributed or delivered a noncontrolled substance and expressly or impliedly represent any of the following to the recipient:
(1) That the substance is a controlled substance.
(2) That the substance is of a nature, appearance or effect that will allow the recipient to display, sell, distribute, deliver or use the noncontrolled substance as a controlled substance, if the representation is made under circumstances in which the person has reasonable cause to believe that the noncontrolled substance will be used or distributed for use as a controlled substance.
(3) Proof of any of the following is prima facie evidence of a representation specified in Subsection
A(1) or
(2).
(a) The physical appearance of the finished product containing the substance is substantially the same as that of a specific controlled substance.
(b) The substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance.
(c) The substance is not labeled in accordance with 21 U.S.C. §§ 352 or 353.
(d) The person distributing or delivering, attempting to distribute or deliver or causing distribution or delivery of the substance to be made states to the recipient that the substance may be resold at a price that substantially exceeds the value of the substance.
B. Penalty. Any person who violates this subsection is guilty of a Class D misdemeanor. See §
306-29, Classification of misdemeanors.
C. Banishment. Anyone convicted under this section:
(1) May be banished from the Reservation as part of sentencing for one year for the first offense;
(2) Shall be banished from the Reservation as part of sentencing for two years for the second offense; and
(3) For a third or subsequent conviction shall be referred to the Tribal Legislature for lifetime
banishment pursuant to Chapter
80.
D. This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A. Prohibited act. It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure or place, which is resorted to by persons using controlled substances in violation of this Part 1 for the purpose of using these substances, or which is used for manufacturing, keeping or delivering them in violation of this Part 1.
B. Penalty.
(1) Any person who violates this subsection is guilty of a Class B misdemeanor. See §
306-29, Classification of misdemeanors.
(2) Any person who violates this subsection within 1,000 feet of any school, boys and girls club, ceremonial grounds, playgrounds, sport fields/parks, or a park is guilty of a Class A misdemeanor. See §
306-29, Classification of misdemeanors.
C. Banishment. Anyone convicted under this section:
(1) May be banished from the Reservation as part of sentencing for one year for the first offense;
(2) Shall be banished from the Reservation as part of sentencing for five years for the second offense; and
(3) For a third or subsequent conviction shall be referred to the Tribal Legislature for lifetime
banishment pursuant to Chapter
80.
D. This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A. Prohibited act. It is unlawful for any person:
(1) To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge;
(2) Without authorization, to make, distribute or possess any punch, die, plate, stone or other instrument designed to print, imprint or reproduce the trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as:
(a) To make a counterfeit substance; or
(b) To duplicate substantially the physical appearance, form, package or label of a controlled substance.
B. Penalty. Any person who violates this subsection is guilty of a Class A misdemeanor. See §
306-29, Classification of misdemeanors.
C. This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A. Prohibited act. It is unlawful for any person who has attained the age of 17 years to knowingly solicit, hire, direct, employ or use a person who is under the age of 17 years for the purpose of violating §
306-16A.
B. Penalty. For any person who violates this subsection, the maximum term of a Class A misdemeanor shall be imposed. See §
306-29, Classification of misdemeanors.
C. Banishment. Anyone convicted under this section:
(1) May be banished from the Reservation as part of sentencing up to five years for the first offense;
(2) Shall be banished from the Reservation as part of sentencing for 10 years for the second offense; and
(3) For a third or subsequent conviction shall be referred to the Tribal Legislature for lifetime
banishment pursuant to Chapter
80.
D. The knowledge requirement under Subsection
A does not require proof of knowledge of the age of the child. It is not a defense to a prosecution under this section that the actor mistakenly believed that the person solicited, hired, directed, employed or used under §
306-16 had attained the age of 18 years, even if the mistaken belief was reasonable.
E. If the conduct described under §
306-22A results in a violation under §
306-16, the actor is subject to prosecution and conviction under §
306-16A or this section, or both.
F. This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A. Prohibited act. No person may use, or possess with the primary intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this Part 1.
B. Penalty. Any person who violates this subsection is subject to a Class E misdemeanor. See §
306-29, Classification of misdemeanors.
C. This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A. Prohibited act. No person may deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing that it will be primarily used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this Part 1.
B. Penalty.
(1) Any person who violates this subsection is subject to a Class D misdemeanor. See §
306-29, Classification of misdemeanors.
(2) If any person 18 years of age or over violates Subsection
A by delivering drug paraphernalia to a person 17 years of age or under the penalty shall be subject to a Class C misdemeanor. See §
306-29, Classification of misdemeanors.
C. This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A. In this section:
ABUSE To ingest, inhale, or otherwise introduce into the human body a hazardous substance in a manner that does not comply with any cautionary labeling that is required for the hazardous substance under § 100.37, Wis. Stats., under federal law, under tribal law, or in a manner that is not intended by the manufacturer of the hazardous substance, and that is intended to induce intoxication or elation, to stupefy the central nervous system, or to change the human audio, visual, or mental processes.
CORROSIVE Any substance which, in contact with living tissue, will cause destruction of tissue by chemical action, but does not refer to action on inanimate surfaces.
DISTRIBUTE To transfer a hazardous substance from one person to another.
HAZARDOUS SUBSTANCE Includes any substance or mixture of substances, including a toy or other article intended for use by children, which is toxic, is corrosive, is an irritant, is a strong sensitizer, is flammable or combustible, or generates pressure through decomposition, heat or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children. "Hazardous substance" also includes any substance or mixture of substances that has the capacity to produce personal injury or illness to a person who abuses the substance and includes any household product, or any mixture of household products.
HOUSEHOLD PRODUCT Any food, drug, device or cosmetic or any article, product or commodity of any kind or class which is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which usually is consumed or expended in the course of that consumption or use.
B. Whoever does any of the following is guilty of a Class B misdemeanor:
(1) Possesses a hazardous substance with the intent to abuse the hazardous substance.
(2) Intentionally abuses a hazardous substance.
(3) Whoever distributes, or possesses with intent to distribute, a hazardous substance, knowing or having reason to know that the hazardous substance will be abused, is guilty of a Class A misdemeanor.
C. Subsection
B(2) does not apply to a person who possesses or uses the hazardous substance if the substance is obtained from, or pursuant to a valid prescription or order of, a practitioner, as defined in §
306-3, while acting in the course of professional practice. See §
306-29, Classification of misdemeanors.
D. Subsection
B(3) does not apply to a person who distributes a hazardous substance in an ordinary course of business.
E. This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
Prohibited act. Any person who attempts or conspires to commit any offense defined in this article shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
[Amended 11-19-2020 by Ord. No. 20-35]
A. If a person is charged with a third or subsequent offense within the last 10 years under this article or equivalent state or federal law and the person is convicted of that third or subsequent offense, the maximum term of imprisonment for the offense shall be increased one level, not to exceed 12 months in jail and/or a fine of $5,000 unless the offense is charged subject to enhanced sentencing.
B. Unless specified differently in the specific offense sections, anyone convicted and sentenced pursuant to this section may be banished from the Reservation as part as sentencing up to five years per offense.
C. The third or subsequent offense shall be calculated within the 10 years by counting the prior offense(s) date(s) from date of conviction or release from incarceration or whichever is less, except that years banished shall not be counted.
[Amended 11-19-2020 by Ord. No. 20-35]
A. If any person violates any part of this Article
III by possessing with intent to deliver or distribute a controlled substance or analog of any of these substances, and the delivery, distribution or possession takes place under any of the following circumstances, the maximum term of incarceration prescribed by law for that crime may be increased by the following, but not to exceed 12 months in jail and/or a fine of $5,000.
B. While the person is in or on the premises of a public housing project, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
C. At a tribal or county park, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
D. At a jail or correctional facility, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
E. At a public swimming area or pool open to members of the public, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
F. At a youth center or a community center, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
G. At any private, tribal or public school premises, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
H. At any Menominee transportation vehicle or facility, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
I. While the person is in or on the premises of an approved treatment facility that provides alcohol and other drug abuse treatment, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
J. No additional penalty stated above shall make any penalty in subsection exceed 12 months in jail and/or a fine of $5,000 unless it is done pursuant to enhanced sentencing requirements.
K. Banishment. Anyone convicted under this section, unless subject to greater terms of banishment:
(1) May be banished from the Reservation as part of sentencing up to one year for the first offense;
(2) Shall be banished from the Reservation as part of sentencing for two years for the second offense; and
(3) For a third or subsequent conviction shall be referred to the Tribal Legislature for lifetime
banishment pursuant to Chapter
80.
[Amended 11-19-2020 by Ord. No. 20-35]
A. Misdemeanors in this chapter are criminal acts that are classified as follows:
(1) Class A misdemeanor. The penalty for a Class A misdemeanor shall be the following:
(a) A term of probation not to exceed one year;
(b) A mandatory minimum sentence of 270 days of imprisonment that must be served and of which no portion may be stayed;
(c) An additional term of imprisonment not to exceed one year, when combined with the mandatory minimum sentence, may be implemented at the Court's discretion (95 days); and/or
(d) A fine not less than $2,501 and not to exceed $5,000.
(2) Class B misdemeanor. The penalty for a Class B misdemeanor shall be the following:
(a) A term of probation not to exceed one year;
(b) A mandatory minimum sentence of 180 days of imprisonment that must be served and of which no portion may be stayed;
(c) An additional term of imprisonment not to exceed 270 days, when combined with the mandatory minimum sentence, may be implemented at the Court's discretion (90 days); and/or
(d) A fine not less than $1,001 and not to exceed $2,500.
(3) Class C misdemeanor. The penalty for a Class C misdemeanor shall be the following:
(a) A term of probation not to exceed one year;
(b) A mandatory minimum sentence of 90 days of imprisonment that must be served and of which no portion may be stayed;
(c) An additional term of imprisonment not to exceed 180 days, when combined with the mandatory minimum sentence, may be implemented at the Court's discretion (90 days); and/or
(d) A fine not less than $501 and not to exceed $1,000.
(4) Class D misdemeanor. The penalty for a Class D misdemeanor shall be the following:
(a) A term of probation not to exceed one year;
(b) A mandatory minimum sentence of 30 days of imprisonment that must be served and of which no portion may be stayed;
(c) An additional term of imprisonment not to exceed 90 days, when combined with the mandatory minimum sentence, may be implemented at the Court's discretion (60 days); and/or
(d) A fine not less than $251 and not to exceed $500.
(5) Class E misdemeanor. The penalty for a Class E misdemeanor shall be the following:
(a) A term of probation not to exceed one year;
(b) A term of imprisonment not to exceed 30 days, which may be imposed or stayed at the Court's discretion; and/or
(c) A fine not less than $101 and not to exceed $250.
B. The sentencing guidelines in the misdemeanor schedule in this subsection shall apply only to violations in this chapter.
C. If banishment is ordered:
(1) The Tribal Court, in its discretion may allow a convicted and banished person to return to the Reservation for medical or behavioral health services at the Menominee Tribal Clinic and the Maehnowesekiyah Wellness Center. The convicted/banished individual must notify Tribal Police of their appointment prior to their scheduled appointment and shall carry proof, such as a letter and/or appointment card signed by an official from the service provider, of their appointment; travel must be directly to the appointment and the individual must immediately leave the reservation following the conclusion of their appointment.
(2) In the event of a death in the immediate family of the convicted/banished person, the Tribal Court, in its discretion, may order permission for such person to return to the Reservation for a period not to exceed four days. The convicted/banished individual must notify the Tribal Police Department of the request and any subsequent Court order.
D. Referrals to Drug Treatment and Diversion Court Programs may be made by the Court for cases that qualify under established program guidelines.
E. Court may require that the defendant complete an AODA assessment from a licensed professional approved by the court and attend and complete any certified alcohol or drug rehabilitation program if required by the assessment.
F. Court may order restitution.
G. Offenses in the article may be subject to federal prosecution in addition to Tribal prosecution. If the Tribal prosecution is dismissed due to federal prosecution, the federal conviction(s) may be used by the Tribal Legislature for
banishment pursuant to Chapter
80. Nothing in this chapter restricts or limits the ability of the Tribal Legislature to assert their inherent, sovereign right of exclusion or
banishment under tribal law.
The Menominee Tribal Legislature authorizes and directs the Menominee tribal law enforcement officers to complete drug identification by use of a standard drug field test kit or use of The Drug Identification Bible and its associated website. A positive reading for any controlled substance shall be taken as prima facie evidence of a controlled substance.