COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 705
(By Senators Kessler and Snyder)
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[Originating in the Committee on the Judiciary;
reported February 27, 2004.]
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A BILL to amend and reenact §60A-1-101 of the code of West
Virginia, 1931, as amended, relating to removing the personal
use exception for the criminal offense of manufacturing a
controlled substance.
Be it enacted by the Legislature of West Virginia:
That §60A-1-101 of the code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 1. DEFINITIONS.
§60A-1-101. Definitions.
As used in this
act chapter:
(a) "Administer" means the direct application of a controlled
substance whether by injection, inhalation, ingestion or any other
means, to the body of a patient or research subject by:
(1) A practitioner (or, in his
or her presence, by his
or her
authorized agent); or
(2) The patient or research subject at the direction and in
the presence of the practitioner.
(b) "Agent" means an authorized person who acts on behalf of
or at the direction of a manufacturer, distributor or dispenser. It does not include a common or contract carrier, public
warehouseman or employee of the carrier or warehouseman.
(c) "Bureau" means the "Bureau of Narcotics and Dangerous
Drugs, United States Department of Justice" or its successor
agency.
(d) "Controlled substance" means a drug, substance or
immediate precursor in Schedules I through V, inclusive, article
two of this chapter.
(e) "Counterfeit substance" means a controlled substance
which, or the container or labeling of which, without
authorization, bears the trademark, trade name or other identifying
mark, imprint, number or device or any likeness thereof, of a
manufacturer, distributor or dispenser other than the person who in
fact manufactured, distributed or dispensed the substance.
(f) "Imitation controlled substance" means: (1) A controlled
substance which is falsely represented to be a different controlled
substance; (2) a drug or substance which is not a controlled
substance but which is falsely represented to be a controlled
substance; or (3) a controlled substance or other drug or substance
or a combination thereof which is shaped, sized, colored, marked,
imprinted, numbered, labeled, packaged, distributed or priced so as
to cause a reasonable person to believe that it is a controlled
substance.
(g) "Deliver" or "delivery" means the actual, constructive or
attempted transfer from one person to another of: (1) A controlled
substance, whether or not there is an agency relationship; (2) a
counterfeit substance; or (3) an imitation controlled substance.
(h) "Dispense" means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful
order of a practitioner, including the prescribing, administering,
packaging, labeling or compounding necessary to prepare the
substance for that delivery.
(i) "Dispenser" means a practitioner who dispenses.
(j) "Distribute" means to deliver, other than by administering
or dispensing, a controlled substance, a counterfeit substance or
an imitation controlled substance.
(k) "Distributor" means a person who distributes.
(l) "Drug" means: (1) Substances recognized as drugs in the
official "United States Pharmacopoeia, official Homeopathic
Pharmacopoeia of the United States, or official National
Formulary", or any supplement to any of them; (2) substances
intended for use in the diagnosis, cure, mitigation, treatment or
prevention of disease in man or animals; (3) substances (other than
food) intended to affect the structure or any function of the body
of man or animals; and (4) substances intended for use as a
component of any article specified in clause (1), (2) or (3) of
this subdivision. It does not include devices or their components,
parts or accessories.
(m) "Immediate precursor" means a substance which the "West
Virginia Board of Pharmacy" (hereinafter in this
act chapter
referred to as the state board of pharmacy) has found to be and by
rule designates as being the principal compound commonly used or
produced primarily for use, and which is an immediate chemical
intermediary used or likely to be used in the manufacture of a
controlled substance, the control of which is necessary to prevent,
curtail or limit manufacture.
(n) "Manufacture" means the production, preparation,
propagation, compounding, conversion or processing of a controlled
substance, either directly or indirectly or by extraction from
substances of natural origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical
synthesis, and includes any packaging or repackaging of the
substance or labeling or relabeling of its container:
except that
this term does not include the preparation, compounding, packaging
or labeling of a controlled substance
(1) By a practitioner as an incident to his
or her
administering or dispensing of a controlled substance in the course
of his
or her professional practice; or
(2) By a practitioner, or by his
or her authorized agent under
his
or her supervision, for the purpose of, or as an incident to,
research, teaching or chemical analysis and not for sale.
(o) "Marijuana" means all parts of the plant "Cannabis sativa
L.," whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound, manufacture, salt,
derivative, mixture or preparation of the plant, its seeds or
resin. It does not include the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative, mixture
or preparation of the mature stalks (except the resin extracted
therefrom), fiber, oil or cake, or the sterilized seed of the plant
which is incapable of germination.
(p) "Narcotic drug" means any of the following, whether
produced directly or indirectly by extraction from substances of
vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(1) Opium and opiate and any salt, compound, derivative or
preparation of opium or opiate.
(2) Any salt, compound, isomer, derivative or preparation
thereof which is chemically equivalent or identical with any of the
substances referred to in clause (1) of this subdivision, but not
including the isoquinoline alkaloids of opium.
(3) Opium poppy and poppy straw.
(4) Coca leaves and any salt, compound, derivative or
preparation of coca leaves and any salt, compound, isomer,
derivative or preparation thereof which is chemically equivalent or
identical with any of these substances, but not including
decocainized coca leaves or extractions of coca leaves which do not
contain cocaine or ecgonine.
(q) "Opiate" means any substance having an addiction-forming
or addiction-sustaining liability similar to morphine or being
capable of conversion into a drug having addiction-forming or
addiction-sustaining liability. It does not include, unless
specifically designated as controlled under section 201, article
two of this chapter, the dextrorotatory isomer of
3-methoxy-n-ethylmorphinan and its salts (dextromethorphan). It
does not include its racemic and levorotatory forms.
(r) "Opium poppy" means the plant of the species "Papaver
somniferum L.", except its seeds.
(s) "Person" means individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association or any other legal entity.
(t) "Placebo" means an inert medicament or preparation administered or dispensed for its psychological effect, to satisfy
a patient or research subject or to act as a control in
experimental series.
(u) "Poppy straw" means all parts, except the seeds, of the
opium poppy after mowing.
(v) "Practitioner" means:
(1) A physician, dentist, veterinarian, scientific
investigator or other person licensed, registered or otherwise
permitted to distribute, dispense, conduct research with respect
to, or to administer a controlled substance in the course of
professional practice or research in this state.
(2) A pharmacy, hospital or other institution licensed,
registered or otherwise permitted to distribute, dispense, conduct
research with respect to, or to administer a controlled substance
in the course of professional practice or research in this state.
(w) "Production" includes the manufacture, planting,
cultivation, growing or harvesting of a controlled substance.
(x) "State", when applied to a part of the United States,
includes any state, district, commonwealth, territory, insular
possession thereof and any area subject to the legal authority of
the United States of America.
(y) "Ultimate user" means a person who lawfully possesses a
controlled substance for his
or her own use or for the use of a
member of his
or her household or for administering to an animal
owned by him
or her or by a member of his
or her household.
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(NOTE: The purpose of this bill is to remove the personal use exception from the criminal offense of manufacturing a controlled
substance.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)