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WEST virginia legislature
2023 regular session
Committee Substitute
for
Senate Bill 547
By Senators Deeds, Azinger, Hunt, Karnes, Oliverio, Queen, Roberts, Stuart, Taylor, Woodrum, Smith, Maynard, Hamilton, Weld, and Trump
[Originating in the Committee on the Judiciary; reported on February 24, 2023]
A BILL to amend and reenact §60A-4-401, §60A-4-409, §60A-4-414, and §60A-4-416, all relating to controlled substances violations; increasing sentences for certain controlled substances offenses; making certain offenses ineligible for suspension or probation, or alternative sentencing; making possession of Schedule I and II narcotics and methamphetamine a felony; expressing legislative intent; authorizing reduction from felony to misdemeanor under certain circumstances; declaring that minimum period of 10 years' incarceration for the offense of drug delivery death; requiring inert substances mixed with controlled substances to be considered a controlled substance for purposes of weight measurement; and modifying sentences for certain offenses.
Be it enacted by the Legislature of West Virginia:
(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 or which is methamphetamine, is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than three years nor more than 15 years, or fined not more than $50,000, or both fined and imprisoned; Provided, That any person who violates this section knowing that the controlled substance classified in Schedule II is fentanyl, either alone or in combination with any other substance shall be fined not more than $50,000, or be imprisoned in a state correctional facility for not less than 3 nor more than 15 years, or both fined and imprisoned;
(ii) Any other controlled substance classified in Schedule I, II, or III is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than five years, or fined not more than $15,000, or both fined and imprisoned;
(iii) A substance classified in Schedule IV is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both fined and imprisoned;
(iv) A substance classified in Schedule V is guilty of a misdemeanor and, upon conviction thereof, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both fined and confined: Provided, That for offenses relating to any substance classified as Schedule V in §60A-10-1 et seq. of this code, 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, or methamphetamine, is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than 15 years, or fined not more than $25,000, or both fined and imprisoned;
(ii) Any other counterfeit substance classified in Schedule I, II, or III is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than five years, or fined not more than $15,000, or both fined and imprisoned;
(iii) A counterfeit substance classified in Schedule IV is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both fined and imprisoned;
(iv) A counterfeit substance classified in Schedule V is guilty of a misdemeanor and, upon conviction thereof, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both fined and confined: Provided, That for offenses relating to any substance classified as Schedule V in §60A-10-1 et seq. of this code, the penalties established in said article apply. Notwithstanding the provisions of subsection (a) of this section, any person who willfully manufactures, delivers, or possesses with the intent to manufacture or deliver one kilogram or more of heroin, one kilogram or more of cocaine or cocaine base, 100 grams or more of phencyclidine, 10 grams or more of lysergic acid diethylamide, 50 grams or more of methamphetamine, or five grams or more of fentanyl, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for an indeterminate sentence of not less than 10 nor more than 30 years, or fined not more than $100,000, or both fined and imprisoned.
(c) (1) 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 or her 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 §60A-4-407 of this code, subject to the limitations specified in said section, or upon conviction thereof, the person may be confined in jail not less than 90 days nor more than six months, or fined not more than $1,000, or both fined and confined: Provided, That notwithstanding any other provision of this act to the contrary, any first offense for possession of synthetic cannabinoids as defined by §60A-1-101(d)(32) of this code; 3,4-methylenedioxypyrovalerone (MPVD) and 3,4-methylenedioxypyrovalerone and/or mephedrone as defined in §60A-1-101(f) of this code; or less than 15 grams of marijuana, shall be disposed of under §60A-4-407 of this code.
(2) Notwithstanding the provisions of subdivision (1) of this subsection, possession of a controlled substance classified in Schedule I or II which is a narcotic drug or which is methamphetamine is a felony, and upon conviction, the person shall be imprisoned in a state correctional facility for not less than one year nor more than five years: Provided, That a person charged pursuant to this subdivision may, upon successful completion of a court ordered or approved drug treatment program, have his or her offense revert to a misdemeanor with disposition under subdivision (1) of this subsection: Provided, That the modification in law effected by the amendment to this subsection enacted during the 2023 Regular Session of the Legislature is expressly designed to assist in getting persons unlawfully using controlled substances in Schedules I and II which are narcotic drugs or methamphetamine in obtaining treatment for any substance abuse issue they may have; Provided, however, That the legislature recommends that courts and prosecuting attorneys, where possible, avail themselves of the full panoply of sentencing alternatives available in code, including but not limited to the provisions of §62-11B-1, et seq., §62-11C-1, et seq. §62-11F-1 et seq. , and §62-13-1, et seq.
(d) It is unlawful for any person knowingly or intentionally:
(1) To create, distribute, deliver, or possess with intent to distribute or deliver, an imitation controlled substance; or
(2) To create, possess, sell, or otherwise transfer any equipment with the intent that the 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 thereof, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both fined and confined. Any person 18 years old or more who violates subdivision (1) of this subsection and distributes or delivers an imitation controlled substance to a minor child who is at least three years younger than that person is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both fined and imprisoned.
(4) The provisions of subdivision (1) of this subsection shall not apply to a practitioner who administers or dispenses a placebo.
(d) Notwithstanding the provisions of subsection (a) of this section, any person who willfully manufactures or delivers or possesses with intent to manufacture or deliver not less than 100 but fewer than 1,000 grams of heroin, not less than 100 but fewer than 1,000 grams of cocaine or cocaine base, not less than 10 but fewer than 100 grams of phencyclidine, not less than one but fewer than 10 grams of lysergic acid diethylamide, or not less than five but fewer than 50 grams of methamphetamine, or one gram or more but less than five grams of fentanyl, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for an indeterminate sentence of not less than five nor more than twenty years, or fined not more than $75,000, or both fined and imprisoned.
(e) For purposes of determining the weight of any controlled substance under this section, a mixture must contain only a detectable amount of a controlled substance for the entire mixture to be considered that controlled substance. If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense penalty.
(f) Under this section, where one act involves two or more controlled substances, the manufacture, delivery, or possession with intent to manufacture or deliver of each controlled substance shall be considered a separate and distinct offense unless the controlled substances are mixed together.
(g) 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, or methamphetamine, is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than 15 years, or fined not more than $25,000, or both fined and imprisoned;
(ii) Any other counterfeit substance classified in Schedule I, II, or III is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than five years, or fined not more than $15,000, or both fined and imprisoned;
(iii) A counterfeit substance classified in Schedule IV is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both fined and imprisoned;
(iv) A counterfeit substance classified in Schedule V is guilty of a misdemeanor and, upon conviction thereof, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both fined and confined: Provided, That for offenses relating to any substance classified as Schedule V in §60A-10-1 et seq. of this code, the penalties established in said article apply.
(c) (h) 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 or her professional practice, or except as otherwise authorized by this act.
(d) (i) It is unlawful for any person knowingly or intentionally:
(1) To create, distribute, deliver, or possess with intent to distribute or deliver, an imitation controlled substance; or
(2) To create, possess, sell, or otherwise transfer any equipment with the intent that the 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 thereof, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both fined and confined. Any person 18 years old or more who violates subdivision (1) of this subsection and distributes or delivers an imitation controlled substance to a minor child who is at least three years younger than that person is guilty of a felony and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor more than three five years, or fined not more than $10,000, or both fined and imprisoned.
(4) The provisions of subdivision (1) of this subsection shall not apply to a practitioner who administers or dispenses a placebo.
(a) Except as otherwise authorized by the provisions of this code, it is unlawful for any person to transport or cause to be transported into this state a controlled substance with the intent to deliver the same or with the intent to manufacture a controlled substance.
(b) Any person who violates this section with respect to:
(1) A controlled substance classified in Schedule I or II, which is a narcotic drug, shall be guilty of a felony and, upon conviction thereof, may be imprisoned in the state correctional facility for not less than one 10 years nor more than 15 20 years, or fined not more than $25,000 $50,000 or both fined and imprisoned. Provided, That any person who violates this section knowing that the controlled substance classified in Schedule II is fentanyl, either alone or in combination with any other substance shall be fined not more than $50,000 or imprisoned in a state correctional facility for a definite term of not less than 10 nor more than 20 years, or both fined and imprisoned
(2) Any other controlled substance classified in Schedule I, II or III shall be is guilty of a felony and, upon conviction thereof, may be imprisoned in the state correctional facility for not less than one year nor more than 10 years, or fined not more than $15,000, or both: Provided, That for the substance marijuana, as scheduled in subdivision (24) subsection (d), §60A-2-204(d)(24) of this code, the penalty, upon conviction of a violation of this subsection, shall be that set forth in subdivision (3) of this subsection.
(3) A substance classified in Schedule IV shall be is guilty of a felony and, upon conviction thereof, may be imprisoned in the state correctional facility for not less than one year nor more than five years, or fined not more than $10,000, or both.
(4) A substance classified in Schedule V shall be is guilty of a misdemeanor and, upon conviction thereof, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both: Provided, That for offenses relating to any substance classified as Schedule V in §60A-10-1 et seq. of this code, the penalties established in said article apply.
(c) Notwithstanding the provisions of subsection (b) of this section, any person violating or causing a violation of subsection (a) of this section involving one kilogram or more of heroin, five kilograms one kilogram or more of cocaine or cocaine base, 100 grams or more of phencyclidine, 10 grams or more of lysergic acid diethylamide, or 50 grams or more of methamphetamine, or five grams or more of fentanyl 500 grams of a substance or material containing a measurable amount of methamphetamine, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate an indeterminate sentence of not less than two 15 nor more than 30 years.
(d) Notwithstanding the provisions of subsection (b) of this section, any person violating or causing a violation of subsection (a) of this section involving 100 but fewer than 1,000 grams of heroin, not less than 500 100 but fewer than 5,000 1000 grams of cocaine or cocaine base, not less than 10 but fewer than 99 grams of phencyclidine, not less than one but fewer than 10 grams of lysergic acid diethylamide, or not less than five but fewer than 50 grams of methamphetamine or not less than 50 grams but fewer than 500 grams of a substance or material containing a measurable amount of methamphetamine, or one gram or more but less than five grams of fentanyl is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate an indeterminate sentence of not less than two 7 nor more than 20 years.
(e) Notwithstanding the provisions of subsection (b) of this section, any person violating or attempting to violate the provisions of subsection (a) of this section involving not less than 10 grams nor more than 100 grams of heroin, not less than 50 10 grams nor more than 500 100 grams of cocaine or cocaine base, not less than two grams nor more than 10 grams of phencyclidine, not less than 200 micrograms nor more than one gram of lysergic acid diethylamide, or not less than 499 milligrams one gram nor more than five grams of methamphetamine or not less than 20 grams nor more than 50 grams of a substance or material containing a measurable amount of methamphetamine or less than one gram of fentanyl is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate an indeterminate sentence of not less than two 5 nor more than 15 years.
(f) The offense established by this section shall be in addition to and a separate and distinct offense from any other offense set forth in this code.
(h) Under this section, where the transportation into the state involves two or more controlled substances, the transportation into the state of each controlled substance shall be considered a separate and distinct offense unless the controlled substances are mixed together.
(5) (i) The sentences provided in this section upon conviction for a violation of this article are mandatory and are not subject to suspension or probation.
(a) Any person who willfully conspires with one or more persons to commit a felony violation of section four hundred one §60A-4-401 of this article code, if one or more of such persons does any act to effect the object of the conspiracy, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate sentence of not less than two nor more than 10 years: Provided, That the provisions of this subsection are inapplicable to felony violations of section four hundred one §60A-4-401 of this article code prohibiting the manufacture, delivery or possession with intent to manufacture or deliver marijuana.
(b) Notwithstanding the provisions of subsection (a) of this section, any person who willfully conspires with one or more persons to manufacture, deliver or possess with intent to manufacture or deliver one kilogram or more of heroin, five kilograms one kilogram or more of cocaine or cocaine base, 100 grams or more of phencyclidine, 10 grams or more of lysergic acid diethylamide, or 50 grams or more of methamphetamine, or five grams or more of fentanyl five hundred grams of a substance or material containing a measurable amount of methamphetamine, if one or more of such persons does any act to effect the object of the conspiracy, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate an indeterminate sentence of not less than two 5 nor more than thirty years.
(c) Notwithstanding the provisions of subsection (a) of this section, any person who willfully conspires with one or more persons to manufacture, deliver or possess with intent to manufacture or deliver not less than 100 but fewer than 1,000 grams of heroin, not less than five 100 but fewer than five 1,000 grams of cocaine or cocaine base, not less than 10 but fewer than 100 grams of phencyclidine, not less than one but fewer than 10 grams of lysergic acid diethylamide, or not less than five but fewer than 50 grams of methamphetamine, or one gram or more but less than five grams of fentanyl not less than fifty grams but fewer than five hundred grams of a substance or material containing a measurable amount of methamphetamine, if one or more of such persons does any act to effect the object of the conspiracy, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate an indeterminate sentence of not less than two 3 nor more than 20 years.
(d) Notwithstanding the provisions of subsection (a) of this section, any person who willfully conspires with one or more persons to manufacture, deliver, possess with intent to manufacture, or deliver not less than 10 grams nor more than 100 grams of heroin, not less than fifty 10 grams nor more than five 100 grams of cocaine or cocaine base, not less than two grams nor more than 10 grams of phencyclidine, not less than 200 micrograms nor more than one gram of lysergic acid diethylamide, or not less than four hundred ninety-nine milligrams one gram nor more than five grams of methamphetamine, or less than one gram of fentanyl not less than twenty grams nor more than fifty grams of a substance or material containing a measurable amount of methamphetamine, if one or more of such persons does any act to effect the object of the conspiracy, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate an indeterminate sentence of not less than two nor more than 15 years.
(e) The trier of fact shall determine the quantity of the controlled substance attributable to the defendant beyond a reasonable doubt based on evidence adduced at trial.
(f) The determination of the trier of fact as to the quantity of controlled substance attributable to the defendant in a charge under this section may include all of the controlled substances manufactured, delivered, or possessed with intent to deliver or manufacture by other participants or members of the conspiracy.
(g) For purposes of determining the weight of any controlled substance under this section, a mixture must contain only a detectable amount of a controlled substance for the entire mixture to be considered that controlled substance. If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense penalty.
(h) Under this section, where the conspiracy involves two or more controlled substances, each controlled substance shall be considered a separate and distinct offense unless the controlled substances are mixed together.
(g) (i) Offenses in this section proscribing conduct involving lesser quantities are lesser included offenses of offenses proscribing conduct involving larger quantities.
(h) (j) A person may be charged under the provisions of §61-10-31, of this code for conduct that is charged under this section.
(i) (k) Nothing in this section may be construed to place any limitation whatsoever upon alternative sentencing options available to a court.
(a) Any person who knowingly and willfully delivers a controlled substance or counterfeit controlled substance in violation of the provisions of §60A-4-401 of this code, for an illicit purpose and the use, ingestion, or consumption of the controlled substance or counterfeit controlled substance alone or in combination with one or more other controlled substances, proximately causes the death of a person using, ingesting, or consuming the controlled substance, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for a determinate sentence of not less than three 10 years nor more than 40 years. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of 10 years of his or her sentence.
(b) Any person who, while engaged in the illegal use of a controlled substance with another, who knowingly fails to seek medical assistance for such the other person when the other person suffers an overdose of the controlled substance or suffers a significant adverse physical reaction to the controlled substance and the overdose or adverse physical reaction proximately causes the death of the other person, is guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one year two years nor more than 10 years. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of two years of his or her sentence.
(c) The sentences provided in this section upon conviction for a violation of this article are mandatory and are not subject to suspension or probation.
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