Committee Substitute
House Bill 2088 History
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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 or housing
project; providing criminal penalties for distribution,
dispensation or possession of certain substances or conspiring
to commit such act
; providing that a map of a park or housing
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 or housing project; authorizing
municipal and county regulations requiring the posting of
signs designating the areas within one thousand feet of parks
and housing projects; 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 or
housing project prohibited; 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) 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 of any publicly owned or publicly operated housing
project, unless the manufacture, distribution or dispensing is
otherwise allowed by law. For the purposes of this section, the
term "housing project" means any facilities under the jurisdiction of a housing authority which constitute single or multifamily
dwelling units occupied by low or moderate-income families pursuant
to section one, article fifteen, chapter sixteen of this code.
(c) Any person who violates or conspires to violate
subsections (a) and (b) 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; and
(d) A sentence imposed under this section shall be served
consecutively to any other sentence imposed.
(e) 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 the real property of any publicly owned
or publicly operated housing project or the 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.
(f) 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" and designating
the areas within one thousand feet of the real property of any
publicly owned or publicly operated housing project as "Drug-Free
Residential Zones".
(g) It is an affirmative defense to prosecution for a
violation of this section that the prohibited conduct took place
entirely within a private residence, that no person seventeen years
of age or younger was present in the private residence at any time during the commission of the offense, and 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 subsections (a) and (b) of this section.