ENGROSSED
Senate Bill No. 400
(By Senators Bowman, Wooton, Anderson, Buckalew, Deem, Dittmar,
Miller, Oliverio, Ross, Scott and Wiedebusch)
____________
[Originating in the Committee on the Judiciary;
reported February 14, 1996.]
_____________
A BILL to repeal sections seven and eight, article three, chapter
sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
chapter by adding thereto a new article, designated article
three-e, all relating to criminal offenses involving
explosives; definitions; illegal possession of destructive
devices, explosive materials or incendiary devices; criminal
use of destructive devices, explosive materials or incendiary
devices; causing death or injury to law-enforcement officers,
public safety officers or hazardous device technicians;
causing death or injury to an explosives detection animal;
manufacture, purchase, sale, advertising for sale,
transporting or possession or use of hoax bomb; possession or
use of hoax bomb in commission of a felony; theft of explosive
material from storage magazines or buildings; receipt,
possession, storage, sale or transportation of stolen
explosive material; wanton endangerment involving destructive devices, explosive materials or incendiary devices;
exemptions; contraband, seizure and forfeiture; legislative
findings; and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That sections seven and eight, article three, chapter sixty-
one of the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be repealed; and that said chapter be further
amended by adding thereto a new article, designated article three-
e, all to read as follows:
ARTICLE 3E. OFFENSES INVOLVING EXPLOSIVES.
§61-3E-1. Definitions.
As used in this article, unless the context otherwise
requires:
(a) "Destructive device" means any bomb, grenade, mine,
rocket, missile, pipebomb or similar device containing an
explosive, incendiary, explosive gas or expanding gas which is
designed or so constructed as to explode by such filler and is
capable of causing bodily harm or property damage; any combination
of parts, either designed or intended for use in converting any
device into a destructive device and from which a destructive
device may be readily assembled.
"Destructive device" does not include a firearm as such is
defined in section two, article seven of this chapter.
(b) "Explosive material" means any chemical compound,
mechanical mixture or device that is commonly used or can be used
for the purpose of producing an explosion and which contains any oxidizing and combustive units or other ingredients in such
proportions, quantities or packaging that an ignition by fire, by
friction, by concussion, by percussion, by detonator or by any part
of the compound or mixture may cause a sudden generation of highly
heated gases. These materials include, but are not limited to,
powders for blasting, high or low explosives, blasting materials,
blasting agents, blasting emulsions, blasting fuses other than
electric circuit breakers, detonators, blasting caps and other
detonating agents and black or smokeless powders not manufactured
or used for lawful sporting purposes. Also included are all
explosive materials listed annually by the office of the state fire
marshal and published in the state register, said publication being
hereby mandated.
(c) "Hoax bomb" means any device or object that by its design,
construction, content or characteristics appears to be, or is
represented to be or to contain a destructive device, explosive
material or incendiary device as defined in this section, but is,
in fact, an inoperative facsimile or imitation of such a
destructive device, explosive material or incendiary device.
(d) "Incendiary device" means a container containing gasoline,
kerosene, fuel oil, or derivative thereof, or other flammable or
combustible material, having a wick or other substance or device
which, if set or ignited, is capable of igniting such gasoline,
kerosene, fuel oil, or derivative thereof, or other flammable or
combustible material:
Provided, That no similar device
commercially manufactured and used solely for the purpose of illumination shall be deemed to be an incendiary device.
(e) "Legal authority" means that right as expressly stated by
statute or law.
(f) "Person" shall mean an individual, corporation, company,
association, firm, partnership, society or joint stock company.
(g) "Storage magazine" is defined to mean any building or
structure, other than an explosives manufacturing building,
approved by the legal authority for the storage of explosive
materials.
(h) "Threat" is any act of menacing or declaration of one's
purpose or intention to cause injury to the person or property of
another unlawfully.
§61-3E-2. Illegal possession of destructive devices, explosive
materials or incendiary devices; penalty.
Any person who possesses or manufactures any explosive
material without first obtaining a permit to use explosives from
the office of the state fire marshal or who possesses or
manufacturers any destructive device or incendiary device shall be
guilty of a felony, and, upon conviction thereof, shall be confined
in the penitentiary for not less than one nor more than ten years
or fined not more than five thousand dollars, or both.
§61-3E-3. Criminal use of destructive device, explosive material
or incendiary device; penalty.
Any person who intentionally damages the property of another
or attempts to damage the property of another by the use of a
destructive device, explosive material or incendiary device shall be guilty of a felony, and, upon conviction thereof, shall be
confined in the penitentiary for not less than two nor more than
ten years, or fined not more than ten thousand dollars, or both.
§61-3E-4. Causing death or injury to law-enforcement officers,
public safety officers or hazardous device technicians;
penalties.
(a) Any person who violates the provisions of this article
which violation causes bodily injury to any law-enforcement
officer, public safety officer or hazardous device technician
certified as such by the federal bureau of investigation shall be
guilty of a felony, and, upon conviction thereof, shall be confined
in the penitentiary for not less than one nor more than ten years,
or fined not more than five thousand dollars, or both.
(b) Any person who violates the provisions of this article
which violation causes serious bodily injury to any law-enforcement
officer, public safety officer or hazardous device technician
certified as such by the federal bureau of investigation shall be
guilty of a felony, and, upon conviction thereof, shall be confined
in the penitentiary for not less than three nor more than fifteen
years, or fined not more than ten thousand dollars, or both.
(c) Any person who violates the provisions of this article
which violation causes the death of any law-enforcement officer,
public safety officer or hazardous device technician certified as
such by the federal bureau of investigation shall be guilty of a
felony, and, upon conviction thereof, shall be confined in the
penitentiary for a definite term of years of not less than ten years nor more than forty years. No person sentenced to a period
of imprisonment pursuant to the provisions of this subsection shall
be eligible for parole prior to having served a minimum of ten
years.
§61-3E-5. Causing death or injury to an explosives detection
animal; penalty.
Any person who violates the provisions of this article which
violation causes death, serious or debilitating bodily injury to an
explosives detection animal owned or used by a law-enforcement
agency, shall be guilty of a felony, and, upon conviction thereof,
be confined in the penitentiary for not less than one year nor more
than five years or fined not more than five thousand dollars, or
both.
§61-3E-6. Manufacture, purchase, sale, advertising for sale,
transporting or possession or use of a hoax bomb; possession
or use in commission of a felony; penalty.
(a) Any person who knowingly manufactures, purchases, sells,
advertises for sale, transports or possesses a hoax bomb with
intent to violate any provision of this code shall be guilty of a
misdemeanor. Any person convicted of a violation of this section
shall be incarcerated in a county or regional jail for not less
than six months nor more than one year, or fined five thousand
dollars, or both.
(b) Notwithstanding the provisions of subsection (a) of this
section, any person who possesses or uses a hoax bomb to commit or
attempt to commit any felony shall be guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary for not
less than one nor more than ten years, or fined not more than ten
thousand dollars, or both.
§61-3E-7. Theft of explosive material from storage magazines or
buildings; penalty.
Any person who breaks and enters or shall enter without
breaking any storage magazine, shop, office, storehouse, warehouse
or any other building or out-house adjoining thereto, any railcar,
boat, vessel or motor vehicle within the jurisdiction of any county
within this state where explosive material is stored, with the
intent to commit larceny shall be guilty of a felony, and, upon
conviction thereof, shall be confined in the penitentiary for not
less than one nor more than ten years or fined not more than ten
thousand dollars, or both.
§61-3E-8. Receipt, possession, storage, sale or transportation of
stolen explosive material; penalty.
Any person who receives, conceals, transports, ships, stores,
barters, sells or disposes of any explosive material knowing or
have reason to know that such materials is stolen is guilty of a
felony, and, upon conviction thereof, shall be confined in the
penitentiary for not less than one nor more than ten years or fined
not more than ten thousand dollars, or both.
§61-3E-9. Wanton endangerment involving destructive devices,
explosive materials or incendiary devices; penalty.
Any person who wantonly performs any act with a destructive
device, explosive material or incendiary device which creates substantial risk of death or serious bodily injury to another shall
be guilty of a felony, and, upon conviction thereof, shall be
confined in the penitentiary for not less than two years nor more
than ten years or fined not more than ten thousand dollars, or
both.
§61-3E-10. Exemptions.
(a) Unless specifically prohibited by any provision of this
code or the laws of the United States, nothing in this article
shall prohibit the authorized manufacture, sale, transportation,
distribution, use or possession of any explosive material by any
person holding a permit for such issued by the office of the state
fire marshal or the division of environmental protection. Any
person performing a lawful activity pursuant to or regulated by the
terms of a permit issued by the division of environmental
protection, or any office thereof, shall be exempt from the
provisions of this article.
(b) Unless specifically prohibited by any other provision of
this code or the laws of the United States, nothing in this section
shall prohibit the authorized manufacture, transportation,
distribution, use or possession of any explosive, destructive
device or incendiary device by a member of the armed forces or law-
enforcement officers whenever such persons are acting lawfully and
in the line of duty; nor shall it prohibit the manufacture,
transportation, distribution, use or possession of any explosive
material, destructive device or incendiary device to be used solely
for lawful scientific research or lawful educational purposes.
§61-3E-11. Contraband, seizure, forfeiture.
Any destructive device, explosive material, incendiary device or hoax bomb possessed, involved in, used or intended to be used in
a violation of this article or any violation of any criminal law or
regulation of this state are hereby declared to be contraband and
any property interest therein shall be vested in the state of West
Virginia. Said contraband may be seized by the office of the state
fire marshal or other law-enforcement agency conducting said
investigation and upon application to the circuit court of the
county in which said contraband is seized be forfeited to the state
of West Virginia for destruction or for training purposes by the
office of the state fire marshal or other law-enforcement agency.
§61-3E-12. Legislative findings.
The Legislature hereby finds and declares that the seizure and
use of items under the provisions of this article is not
contemplated to be a forfeiture as the same is used in section
five, article XII of the Constitution of West Virginia and to the
extent that such seizure and use may be found to be such a
forfeiture, the Legislature hereby finds and declares that the
proceeds from a seizure and use under this article is not part of
net proceeds as the same is contemplated by section five, article
XII of the Constitution of West Virginia.