Senate Bill No. 605
(By Senator Sprouse)
____________
[Introduced March 21, 2005; referred to the Committee
on the Judiciary.]
____________
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §61-2-10c; to amend
and reenact
§61-8D-2a
of said code; to amend said code by
adding thereto a new section, designated
§61-8D-10
; and to
amend said code by adding thereto a new section, designated
§62-1C-17d, all relating to creating a new crime for bodily
injury to law enforcement and other first responders exposed
to the illegal manufacturing of controlled substances;
creating a crime for parents, guardians or custodians who
cause the death of a child by allowing the child to be present
during the illegal manufacturing of controlled substances;
creating the crime of abuse of a child due to the child's
presence in a place where a controlled substance is
manufactured; and creating a bail procedure designed to
determine bail in cases involving the illegal manufacturing of
controlled substances.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §61-2-10c; that
§61-8D-2a
of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated
§61-8D-10
; and
that said code be amended by adding thereto a new section,
designated §62-1C-17d, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-10c. Injury to law enforcement and first responders due to
exposure to manufacture and cultivation of a
controlled substance.
(a) Any person who unlawfully and intentionally manufactures
or cultivates, or attempts to manufacture or cultivate, a
controlled substance as defined in article four, chapter
sixty-one-a of this code, and a police officer, probation officer,
humane officer, emergency medical service personnel, firefighter,
State Fire Marshal or employee, Division of Forestry employee,
county correctional employee or state correctional employee, acting
in his or her official capacity, ingests, inhales, or is dermally
exposed to a chemical, product, by-product, residue, or substance
involved in the manufacture or cultivation of such controlled
substance, without prior knowledge of such, which causes bodily
injury to such person, shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than five hundred nor
more than five thousand dollars and committed to the custody of the
Division of Corrections for not less than one year nor more than five years.
(b) Any person who unlawfully and intentionally manufactures
or cultivates, or attempts to manufacture or cultivate, a
controlled substance as defined in article four, chapter
sixty-one-a of this code, and a police officer, probation officer,
humane officer, emergency medical service personnel, firefighter,
State Fire Marshal or employee, Division of Forestry employee,
county correctional employee or state correctional employee acting
in his or her official capacity, ingests, inhales, or is dermally
exposed to a chemical, product, by-product, residue, or substance
involved in the manufacture or cultivation of such controlled
substance, without prior knowledge of such, and which places such
person in reasonable apprehension of receiving a bodily injury,
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars and shall be
confined in jail for not more than one year.
ARTICLE 8D. CHILD ABUSE.
§61-8D-2a. Death of a child by a parent, guardian or custodian or
other person by child abuse; criminal penalties.
(a) If any parent, guardian or custodian shall maliciously and
intentionally inflict upon a child under his or her care, custody
or control substantial physical pain, illness or any impairment of
physical condition by other than accidental means, thereby causing
the death of such child, then such parent, guardian or custodian
shall be guilty of a felony.
(b) If any parent, guardian or custodian shall knowingly allow any other person to maliciously and intentionally inflict upon a
child under the care, custody or control of such parent, guardian
or custodian substantial physical pain, illness or any impairment
of physical condition by other than accidental means, which thereby
causes the death of such child, then such other person and such
parent, guardian or custodian shall each be guilty of a felony.
(c) If any parent, guardian or custodian shall cause the death
of a child under his or her care, custody or control by knowingly
allowing such child to be present in a dwelling, vehicle, or within
the immediate vicinity thereof, where such parent, guardian or
custodian, or any other person is manufacturing, cultivating, or
attempting to manufacture or cultivate a controlled substance, then
such other person and such parent, guardian or custodian shall each
be guilty of a felony.
(d) (c) Any person convicted of a felony described in
subsection (a), or (b), or (c) of this section shall be punished by
a definite term of imprisonment in the penitentiary a state
correctional facility which is not less than ten nor more than
forty years. A person imprisoned pursuant to the provisions of
this section is not eligible for parole prior to having served a
minimum of ten years of his or her sentence or the minimum period
required by the provisions of section thirteen, article twelve,
chapter sixty-two of this code, whichever is greater.
(e) (d) The provisions of this section shall not apply to any
parent, guardian or custodian or other person who, without malice,
fails or refuses, or allows another person to, without malice, fail or refuse, to supply a child under the care, custody or control of
such parent, guardian or custodian with necessary medical care,
when such medical care conflicts with the tenets and practices of
a recognized religious denomination or order of which such parent,
guardian or custodian is an adherent or member. The provisions of
this section shall not apply to any health care provider who fails
or refuses, or allows another person to fail or refuse, to supply
a child with necessary medical care when such medical care
conflicts with the tenets and practices of a recognized religious
denomination or order of which the parent, guardian or custodian of
the child is an adherent or member, or where such failure or
refusal is pursuant to a properly executed do not resuscitate form.
§61-8D-10. Abuse of child due to presence in place of manufacture
of a controlled substance
.
If any parent, guardian or custodian knowingly allows a child
under his or her care, custody or control to be present in a
dwelling, vehicle, or within the immediate vicinity thereof, where
such parent, guardian or custodian, or any other person is
manufacturing, cultivating, or attempting to manufacture or
cultivate a controlled substance, then such parent, guardian or
custodian shall be guilty of a felony and, upon conviction thereof,
shall be fined not less than five hundred nor more than five
thousand dollars and committed to the custody of the Division of
Corrections for not less than two years nor more than ten years.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1C. BAIL.
§62-1C-17d. Bail in cases of manufacture of a controlled
substance.
(a) When the offense charged is an offense defined in chapter
sixty-one-a of this code, in determining bond and other conditions
of release, the judicial officer shall consider any evidence that
the person is in any manner dependent upon a controlled substance
or has a pattern of regular, illegal use of any controlled
substance. A rebuttable presumption that no conditions of release
on bond would assure the safety of the community or any person
therein shall arise if the state shows by a preponderance of the
evidence:
(b) The person is arrested for a violation of section four
hundred eleven-a, article four, chapter sixty-one-a of this code,
relating to possession of a substance to be used as a precursor to
manufacture of a controlled substance; and
(c) The person is in any manner dependent upon a controlled
dangerous substance or has a pattern of regular illegal use of a
controlled dangerous substance, and the violation referred to in
paragraph (i) of this section was committed or attempted in order
to maintain or facilitate the dependence or pattern of illegal use
in any manner.
NOTE: The purpose of this bill is
to create a new crime for
bodily injury to law enforcement and other first responders exposed
to the illegal manufacture of controlled substances while creating
a crime for parents, guardians or custodians who cause the death of
a child by allowing the child to be present during the illegal
manufacture of controlled substances. The bill additionally
creates the crime of abuse of a child due to the child's presence
in a place of manufacture of a controlled substance while providing a bail procedure designed to determine bail in cases involving the
illegal manufacture of controlled substances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§61-2-10c, §61-8D-10 and §62-1C-17d are new; therefore,
strike-throughs and underscoring have been omitted.
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