H. B. 4443
(By Delegates DeLong, Stemple, Crosier, Iaquinta, Hartman,
Proudfoot, Fragale and Caputo)
[Introduced February 6, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §60A-1-101 of the Code of West
Virginia, 1931, as amended; and to amend and reenact
§60A-4-401 of said code, all relating to defining terms and
creating the offense of carrying, using, or possessing a
firearm or other destructive device during the commission of
a drug related crime.
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; and that §60A-4-401 of said code
be amended and reenacted, all to read as follows:
ARTICLE 1. UNIFORM CONTROLLED SUBSTANCES ACT.
§60A-1-101. Definitions.
As used in this act:
(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 presence, by his 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)
"Brandish" means, with respect to a firearm, to display
all or part of the firearm, or otherwise make the presence of the
firearm known to another person in order to intimidate that person
regardless of whether the firearm is directly visible to that
person.
(d) "Bureau" means the "Bureau of Narcotics and Dangerous
Drugs, United States Department of Justice" or its successor
agency.
(d)(e) "Controlled substance" means a drug, substance or
immediate precursor in Schedules I through V of article two.
(e)(f) "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)(g) "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)(h) "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)(i) "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)(j) "Dispenser" means a practitioner who dispenses.
(j)(k) "Distribute" means to deliver, other than by administering or dispensing, a controlled substance, a counterfeit
substance or an imitation controlled substance.
(k)(l) "Distributor" means a person who distributes.
(l)(m) "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.
(n) "Drug trafficking" means any felony punishable under the
controlled substances act.
(o) "Firearm" means any weapon which will expel a projectile
by action of an explosion.
(m)(p) "Immediate precursor" means a substance which the "West
Virginia Board of Pharmacy" (hereinafter in this act 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)(q) "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 administering or
dispensing of a controlled substance in the course of his
professional practice; or
(2) By a practitioner, or by his authorized agent under his
supervision, for the purpose of, or as an incident to, research,
teaching or chemical analysis and not for sale.
(o)(r) "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)(s) "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 paragraph (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)(t) "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 two hundred
one, article two of this chapter, the dextrorotatory isomer of 3-
methoxy-n-methylmorphinan and its salts (dextromethorphan). It does
not include its racemic and levorotatory forms.
(r)(u) "Opium poppy" means the plant of the species "Papaver
somniferum L.", except its seeds.
(s)(v) "Person" means individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association, or any other legal entity.
(t)(w) "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)(x) "Poppy straw" means all parts, except the seeds, of the
opium poppy after mowing.
(v)(y) "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)(z) "Production" includes the manufacture, planting,
cultivation, growing or harvesting of a controlled substance.
(x)(aa) "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)(bb) "Ultimate user" means a person who lawfully possesses
a controlled substance for his own use or for the use of a member
of his household or for administering to an animal owned by him or
by a member of his household.
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-401. Prohibited acts A; penalties.
(a) Except as authorized by this act, it is unlawful for any
person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance.
Any person who violates this subsection with respect to:
(i) A controlled substance classified in Schedule I or II,
which is a narcotic drug, is guilty of a felony and, upon conviction, may be imprisoned in the state correctional facility
for not less than one year nor more than fifteen years, or fined
not more than twenty-five thousand dollars, or both;
(ii) Any other controlled substance classified in Schedule I,
II or III is guilty of a felony and, upon conviction, may be
imprisoned in the state correctional facility for not less than one
year nor more than five years, or fined not more than fifteen
thousand dollars, or both;
(iii) A substance classified in Schedule IV is guilty of a
felony and, upon conviction, may be imprisoned in the state
correctional facility for not less than one year nor more than
three years, or fined not more than ten thousand dollars, or both;
(iv) A substance classified in Schedule V is guilty of a
misdemeanor and, upon conviction, may be confined in jail for not
less than six months nor more than one year, or fined not more than
five thousand dollars, or both:
Provided, That for offenses
relating to any substance classified as Schedule V in article ten
of this chapter, the penalties established in said article apply.
(b) Except as authorized by this act, it is unlawful for any
person to create, deliver, or possess with intent to deliver, a
counterfeit substance.
Any person who violates this subsection with respect to:
(i) A counterfeit substance classified in Schedule I or II, which is a narcotic drug, is guilty of a felony and, upon
conviction, may be imprisoned in the state correctional facility
for not less than one year nor more than fifteen years, or fined
not more than twenty-five thousand dollars, or both;
(ii) Any other counterfeit substance classified in Schedule I,
II or III is guilty of a felony and, upon conviction, may be
imprisoned in the state correctional facility for not less than one
year nor more than five years, or fined not more than fifteen
thousand dollars, or both;
(iii) A counterfeit substance classified in Schedule IV is
guilty of a felony and, upon conviction, may be imprisoned in the
state correctional facility for not less than one year nor more
than three years, or fined not more than ten thousand dollars, or
both;
(iv) A counterfeit substance classified in Schedule V is
guilty of a misdemeanor and, upon conviction, may be confined in
jail for not less than six months nor more than one year, or fined
not more than five thousand dollars, or both:
Provided, That for
offenses relating to any substance classified as Schedule V in
article ten of this chapter, the penalties established in said
article apply.
(c) It is unlawful for any person knowingly or intentionally
to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of his professional
practice, or except as otherwise authorized by this act. Any person
who violates this subsection is guilty of a misdemeanor, and
disposition may be made under section four hundred seven of this
article, subject to the limitations specified in said section, or
upon conviction, such person may be confined in jail not less than
ninety days nor more than six months, or fined not more than one
thousand dollars, or both:
Provided, That notwithstanding any other
provision of this act to the contrary, any first offense for
possession of less than 15 grams of marijuana shall be disposed of
under said section.
(d) It is unlawful for any person knowingly or intentionally:
(1) To create, distribute or deliver, or possess with intent
to distribute or deliver, an imitation controlled substance; or
(2) To create, possess or sell or otherwise transfer any
equipment with the intent that such equipment shall be used to
apply a trademark, trade name, or other identifying mark, imprint,
number or device, or any likeness thereof, upon a counterfeit
substance, an imitation controlled substance, or the container or
label of a counterfeit substance or an imitation controlled
substance.
(3) Any person who violates this subsection is guilty of a misdemeanor and, upon conviction, may be imprisoned in jail for not
less than six months nor more than one year, or fined not more than
five thousand dollars, or both. Any person being eighteen years old
or more who violates subdivision (1) of this subsection and, in so
doing, distributes or delivers an imitation controlled substance to
a minor child who is at least three years younger than such person
is guilty of a felony and, upon conviction, may be imprisoned in
the state correctional facility for not less than one year nor more
than three years, or fined not more than ten thousand dollars, or
both.
(4) The provisions of subdivision (1) of this subsection shall
not apply to a practitioner who administers or dispenses a placebo.
(e) Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other provision of
law, any person who, during and in relation to any crime of drug
trafficking, uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall, in addition to, the
punishment provided for such crime be sentenced to a term of
confinement of not less than five years; if the firearm is
brandished, be sentenced to a term of confinement of not less than
seven years; and, if the firearm is discharged, be sentenced to a
term of confinement of not less than ten years.
(i) If the firearm possessed by a person convicted of a
violation of this subsection is a short-barreled rifle, short-barreled shotgun, or semi-automatic assault weapon, the person
shall be sentenced to a term of confinement of not less than ten
years; or is a machine gun or a destructive device, or is equipped
with a firearm silencer or firearm muffler, the person shall be
sentenced to a term of confinement of not less than thirty years.
(ii) In the case of a second or subsequent conviction under
this subsection, the person shall be sentenced to a term of
confinement of not less than twenty-five years; and if the firearm
involved is a machine gun or destructive device, or is equipped
with a firearm silencer or firearm muffler, be sentenced to
imprisonment for life.
(iii) Notwithstanding any other provision of law a court shall
not place on probation any person convicted of a violation of this
subsection; and no term of confinement imposed on a person under
this subsection shall run concurrently with any other term of
confinement imposed on the person, including any term of
confinement imposed for the crime of violence or drug trafficking
crime during which the firearm was used, carried, or possessed.
NOTE: The purpose of this bill is to define certain terms and
create the offense of carrying, using or possessing a firearm or
other destructive device during the commission of a drug related
crime.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.