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Key: Green = existing Code. Red = new code to be enacted
ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2088
(By Delegates
Amores and Faircloth
)
(Originating in the Committee on the Judiciary)
[January 16, 2004]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §60A-4-412, relating
to prohibiting the manufacture, distribution, dispensation or
possession of a controlled substance, marijuana or counterfeit
substance within one thousand feet of a park; providing
criminal penalties for distribution, dispensation or
possession of certain substances or conspiring to commit such
act
; providing that a map of a park area produced by any
municipal agency and certified as a true copy by the
custodian shall be prima facie evidence of the boundaries of
the park; authorizing municipal and county regulations
requiring the posting of signs designating the areas within
one thousand feet of parks; and providing affirmative defenses
to a violation of this section.
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
§60A-4-412
, to read as
follows:
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-412. Manufacturing, distributing, dispensing or possessing
controlled substance, marijuana or counterfeit
substance within one thousand feet of park;
evidence of property location and boundaries;
posting of property; affirmative defenses.
(a) No person may manufacture, distribute, dispense, or
possess with intent to distribute a controlled substance or
marijuana or a counterfeit substance in, on, or within one thousand
feet of any real property which has been dedicated and set apart by
the governing authority of any municipality or county for use as a
park, playground, recreation center or for any other recreation
purposes, unless the manufacture, distribution or dispensing is
otherwise allowed by law.
(b) Any person who violates or conspires to violate subsection
(a) of this section is guilty of a felony and, upon conviction,
shall receive the following punishment:
(1) Upon a first conviction, imprisonment for not more than
ten years or a fine of not more than twenty thousand dollars, or
both; or
(2) Upon a second or subsequent conviction, imprisonment for
not less than five years nor more than twenty years or a fine of
not more than forty thousand dollars, or both. The court shall impose a minimum sentence of five years which may not be suspended
unless otherwise provided by law.
(c) A sentence imposed under this section shall be served
consecutively to any other sentence imposed.
(d) In a prosecution under this section, a map produced or
reproduced by any municipal or county agency or department for the
purpose of depicting the location and boundaries of the area on or
within one thousand feet of real property set apart for use as a
park, playground, recreation center or for any other recreational
purposes, or a true copy of the map, shall, if certified as a true
copy by the custodian of the record, be admissible and is prima
facie evidence of the location and boundaries of the area, if the
governing body of the municipality or county has approved the map
as an official record of the location and boundaries of the area.
A map approved under this section may be revised from time to time
by the governing body of the municipality or county. The original
of every map approved or revised under this subsection or a true
copy of the original map shall be filed with the municipality or
county and shall be maintained as an official record of the
municipality or county. This subsection does not preclude the
prosecution from introducing or relying upon any other evidence or
testimony to establish any element of this offense. This
subsection does not preclude the use or admissibility of a map or
diagram other than the one which has been approved by the
municipality or county.
(e) The governing authority of a municipality or county may
adopt regulations requiring the posting of signs designating the
areas within one thousand feet of any lands or buildings set apart
for use as parks, playgrounds, recreation centers or any other
recreation purposes as "Drug-Free Recreation Zones".
(f) It is an affirmative defense to prosecution for a
violation of this section that the prohibited conduct was not
carried on for purposes of financial gain. Nothing in this
subsection establishes an affirmative defense with respect to any
offense under this chapter other than the offense provided in
subsection (a) of this section.