H. B. 3047
(By Mr. Speaker, Mr. Kiss, and Delegates
Stemple, Varner, Hunt, Michael, Mahan,
Kominar, Craig, Staton, Amores and Palumbo)
[Introduced March 15, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §60A-4-403a and §60A-4-411 of the Code
of West Virginia, 1931, as amended, all relating to illegal
drug offenses and penalties generally; adding certain
objects, substances,
instruments or devices used
for
manufacturing, compounding, converting, producing, processing
or preparing methamphetamine as illegal drug
paraphernalia;
providing that a person operating a clandestine drug
laboratory capable of producing in excess of ten pounds of
methamphetamine in one twenty-four hour production cycle is
guilty of a felony
and setting penalties for violations
including ineligibility for parole and presumption of
ineligibility for bond; providing that
a person who operates
or attempts to operate a clandestine drug laboratory in a
house, dwelling, structure or motor vehicle in which children
under the age of eighteen years are present or are exposed is
guilty of a felony; presumption of unfit parent and placement
in foster care; providing that a person who operates or
attempts to operate a clandestine drug laboratory within five hundred feet of a building, house, structure or facility in
which children under the age of eighteen years are present is
guilty of a felony and
providing penalties therefor;
presumption of unfit parent and placement in foster care;
seizure of clandestine lab real and personal property;
decontamination and sale; exception for owner without
knowledge; and providing that offenders are not eligible for
parole until the minimum term is served.
Be it enacted by the Legislature of West Virginia:
That §60A-4-403a and §60A-4-411 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-403a. Prohibition of illegal drug paraphernalia
businesses; definitions; places deemed common
and public nuisances; abatement; suit to
abate nuisances; injunction; search warrants;
forfeiture of property; penalties.
(a) Any person who conducts, finances, manages, supervises,
directs or owns all or part of an illegal drug paraphernalia
business is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than five thousand dollars, or confined in
jail not less than six months nor more than one year, or both.
(b) A person violates subsection (a) of this section when:
(1) The person conducts, finances, manages, supervises,
directs, or owns all or part of a business which for profit, in the regular course of business or as a continuing course of conduct,
manufactures, sells, stores, possesses, gives away or furnishes
objects designed to be primarily useful as drug devices.
(2) The person knows or has reason to know that the design of
such objects renders them primarily useful as drug devices.
(c) As used in this section, "drug device" means an object
usable for smoking marijuana, for smoking controlled substances
defined as tetrahydrocannabinols, or for ingesting or inhaling
cocaine, and includes, but is not limited to:
(i) Metal, wooden, acrylic, glass, stone, plastic or ceramic
pipes with or without screens, permanent screens, hashish heads, or
punctured metal bowls;
(ii) Water pipes;
(iii) Carburetion tubes and devices;
(iv) Smoking and carburetion masks;
(v) Roach clips; meaning objects used to hold burning
material, such as a marijuana cigarette, that has become too small
or too short to be held in the hand;
(vi) Chamber pipes;
(vii) Carburetor pipes;
(viii) Electric pipes;
(ix) Air-driven pipes;
(x) Chillums;
(xi) Bongs;
(xii) Ice pipes or chillers;
and
(xiii) Miniature cocaine spoons, and cocaine vials;
and
(xiv) Any object, substance, instrument or device
for
manufacturing, compounding, converting, producing, processing or
preparing methamphetamine or any salt, isomer or salt of an isomer
of methamphetamine.
In any prosecution under this section, the question whether an
object is a drug device shall be a question of fact.
(d) A place where drug devices are manufactured, sold, stored,
possessed, given away or furnished in violation of this section
shall be deemed a common or public nuisance. Conveyances or
vehicles of any kind shall be deemed places within the meaning of
this section and may be proceeded against under the provisions of
subsection (e) of this section. A person who shall maintain, or
shall aid or abet or knowingly be associated with others in
maintaining such common or public nuisance shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be punished by a
fine of not more than one thousand dollars, or by confinement in
jail not more than six months for each offense, and judgment shall
be given that such nuisance be abated or closed as a place for the
manufacture, sale, storage, possession, giving away or furnishing
of drug devices.
(e) The prosecuting attorney or a citizen of the county or
municipality where a nuisance as defined in subsection (d) is
located, may maintain a suit in the name of the state to abate and
perpetually enjoin the same. Circuit courts shall have
jurisdiction thereof. The injunction may be granted at the
commencement of the suit and no bond shall be required if such action for injunction be brought by the prosecuting attorney. If
such suit for injunction be brought or maintained by a citizen of
the county or municipality where such nuisance is alleged to be
located, then the court may require a bond as in other cases of
injunction. On the finding that the material allegations of the
complaint are true, the court or judge thereof in vacation shall
order the injunction for such period of time as it or he or she may
think proper, with the right to dissolve the injunction upon the
application of the owner of the place, if a proper case is shown
for such dissolution.
The continuance of the injunction as provided in this section
may be ordered, although the place complained of may not at the
time of hearing be unlawfully used.
(f) If there be complaint on oath or affirmation supported by
affidavit or affidavits setting forth the facts for such belief
that drug devices are being manufactured, sold, kept, stored or in
any manner held, used or concealed in a particular house or other
place with intent to engage in illegal drug paraphernalia business
in violation of law, a magistrate or a circuit court, or the judge
thereof in vacation to whom such complaint is made, if satisfied
that there is probable cause for such belief, shall issue a warrant
to search such house or other place for such devices. Such
warrants, except as herein otherwise provided, shall be issued,
directed and executed in accordance with the laws of West Virginia
pertaining to search warrants. Warrants issued under this section
for the search of any automobile, boat, conveyance or vehicle, or for the search of any trunk, grip or other article of baggage, for
such devices, may be executed in any part of the state where the
same are overtaken, and shall be made returnable before any
magistrate or circuit court, or the judge thereof in vacation,
within whose jurisdiction such automobile, boat, conveyance,
vehicle, trunk, grip or other article of baggage, or any of them,
were transported or attempted to be transported.
An officer charged with the execution of a warrant issued
under this section, may, whenever it is necessary, break open and
enter a house, or other place herein described.
(g) Any property, including money, used in violation of the
provisions of this section may be seized and forfeited to the
state.
§60A-4-411. Operating or attempting to operate clandestine drug
laboratories; offenses; penalties.
(a) Any person who operates or attempts to operate a
clandestine drug laboratory is guilty of a felony and, upon
conviction, shall be confined in a state correctional facility for
not less than two years nor more than ten years or fined not less
than five thousand dollars nor more than twenty-five thousand
dollars, or both.
(b) For purposes of this section, a "clandestine drug
laboratory" means any property, real or personal, on, or in which
a person assembles any chemicals or equipment or combination thereof
for the purpose of manufacturing methamphetamine,
methylenedioxymethamphetamine or lysergic acid diethylamide in violation of the provisions of section four hundred one of this
article.
(c) Any person who operates or attempts to operate a
clandestine drug laboratory capable of producing in excess of ten
pounds of methamphetamine in one twenty-four hour production cycle,
is guilty of a felony and, upon conviction, shall be confined in a
state correctional facility for not less than twenty-six years nor
more than life or fined not less than one hundred thousand dollars
nor more than one million dollars, or both.
Notwithstanding any
other provision of law to the contrary, a person convicted under the
provisions of this subsection is ineligible for parole
. It is a
rebuttable presumption that any person charged with a violation of
this subsection should be denied bond in that the activity is
inherently dangerous or because the person is addicted and release
on bond would likely facilitate a dependence or pattern of illegal
use.
(d) Any person who operates or attempts to operate a
clandestine drug laboratory in a house, dwelling, structure or motor
vehicle in which children under the age of eighteen years are
present or are exposed to the operation of the drug laboratory, is
guilty of a felony and, upon conviction, shall be confined in a
state correctional facility for not less than seven years nor more
than fourteen years or fined not less than twenty thousand dollars
nor more than fifty thousand dollars, or both. Any person convicted
of the provisions of this subsection is presumed to be an unfit
parent and all of his or her children under eighteen years of age shall be considered abused and neglected children for the purposes
of removal and placement in foster care.
(e)Any person who operates or attempts to operate a clandestine
drug laboratory within five hundred feet of a building, house,
structure or facility in which children under the age of eighteen
years are present, is guilty of a felony and, upon conviction, shall
be confined in a state correctional facility for not less than seven
years nor more than fourteen years or fined not less than twenty
thousand dollars nor more than fifty thousand dollars, or both. Any
person convicted of the provisions of this subsection is presumed
to be an unfit parent and all of his or her children under eighteen
years of age shall be considered abused and neglected children for
the purposes of removal and placement in foster care.
(f) Any real and personal property in which a clandestine
laboratory is located, operated or stored and owned by any person
convicted of violation of subsections (a), (c), (d) and (e) of this
section shall be seized by order of the court sentencing the
offender. Any property seized shall have all contaminants removed
and be sold at public auction with the proceeds of the sale paid to
the law-enforcement agencies involved in the arrest of the offender
as ordered by the court. The provisions of this subsection do not
apply to an owner or lessor who is without knowledge of the fact
that a clandestine drug laboratory
is located, operated or stored
or
used to operate
in his or her house, dwelling, structure or
motor vehicle.
(g) Notwithstanding any other provision of law to the contrary, a person is ineligible for parole for the minimum number of years
he or she is sentenced to the custody of the Division of Corrections
upon a felony conviction for possessing, with intent to deliver,
manufacture or assemble chemicals intended for the manufacture or
production of methamphetamine, or owning or permitting a
methamphetamine laboratory upon his or her premises.
(g) (h) Any person convicted of a violation of subsection
subsections (a), (c), (d) and (e) of this section shall be
responsible for all reasonable costs, if any, associated with
remediation of the site of the clandestine drug laboratory.
NOTE: The purpose of this bill is to
add certain objects,
substances,
instruments or devices used
for manufacturing,
compounding, converting, producing, processing or preparing
methamphetamine as illegal drug
paraphernalia and to provide
increased sentences for
persons convicted of: (1) operating
clandestine drug laboratory capable of producing in excess of ten
pounds of methamphetamine in one twenty-four hour production cycle
including ineligibility for parole and presumption of ineligibility
for bond;(2)
operating or attempting to operate a clandestine drug
laboratory in a house, dwelling, structure or motor vehicle in which
children under the age of eighteen years are present or are exposed,
presumption of unfit parent and placement in foster care; (3)
operating or attempting to operate a clandestine drug laboratory
within five hundred feet of a building, house, structure or facility
in which children under the age of eighteen years are present,
presumption of unfit parent and placement in foster care. The bill
also provides for the seizure and sale of clandestine lab real and
personal property and provides for the sale of that property.
An
exception to the confiscation is made for an owner who is without
knowledge of the clandestine lab. Finally, the bill provides that
offenders are not eligible for parole until the minimum term is
served.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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