ENROLLED
Senate Bill No. 400
(By Senators Bowman, Wooton, Anderson, Buckalew, Deem, Dittmar,
Miller, Oliverio, Ross, Scott and Wiedebusch)
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[Passed March 9, 1996; in effect ninety days from passage.]
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AN ACT 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; penalties cumulative; illegal
possession of destructive devices, explosive materials or
incendiary devices; criminal use of destructive devices,
explosive materials or incendiary devices; causing death or
injury, penalties; 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:
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 or model
rockets and their components as defined in section twenty-three,
article three, chapter twenty-nine of this code.
(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 or fireworks defined in
section twenty-three, article three, chapter twenty-nine of this
code which are not used in violation of this article. 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.
§61-3E-2. Penalties cumulative.
It is the intention of the Legislature in enacting this
article that all criminal offenses and penalties defined in this
article shall be cumulative and shall be in addition to any other
offenses and penalties provided for by law. The Legislature
contemplates and authorizes separate and consecutive sentences for
the offenses defined in this article and other offenses provided
for or defined by law. The Legislature declares as a matter of law
that for the offenses defined in this article that involve injuries
or death to persons those offenses are separate offenses as to each
person whose injury or death results from the conduct proscribed by
this article.
§61-3E-3. 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 committed to the custody of the division of corrections for not less than one
nor more than ten years or fined not more than five thousand
dollars, or both.
§61-3E-4. Criminal use of destructive device, explosive material
or incendiary device; penalty.
Any person who unlawfully and 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 committed to the custody of the division of
corrections for not less than two nor more than ten years, or fined
not more than ten thousand dollars, or both.
§61-3E-5. Causing death or injury; penalties.
(a) Any person who violates the provisions of this article
which violation causes bodily injury to any person shall be guilty
of a felony and, upon conviction thereof, shall be committed to the
custody of the division of corrections for not less than two 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 person shall be
guilty of a felony and, upon conviction thereof, shall be committed
to the custody of the division of corrections 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 person shall be guilty of
a felony and, upon conviction thereof, shall be committed to the
custody of the division of corrections 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-6. 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 committed to the custody of the division of corrections for not
less than one year nor more than five years or fined not more than
five thousand dollars, or both.
§61-3E-7. 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 committed to the custody of the
division of corrections for not less than one nor more than ten
years, or fined not more than ten thousand dollars, or both.
§61-3E-8. 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 committed to the custody of the
division of corrections for not less than one nor more than ten
years or fined not more than ten thousand dollars, or both.
§61-3E-9. 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 committed to the
custody of the division of corrections for not less than one nor
more than ten years or fined not more than ten thousand dollars, or
both.
§61-3E-10. 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
committed to the custody of the division of corrections for not
less than two years nor more than ten years or fined not more than
ten thousand dollars, or both.
§61-3E-11. 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. 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. Any
person engaged in otherwise lawful blasting activities failing to
obtain a permit or in possession of an expired permit issued by the
office of the state fire marshal shall not be construed to be in
violation of the article.
§61-3E-12. 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-13. 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.