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Introduced Version House Bill 2775 History

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Key: Green = existing Code. Red = new code to be enacted
hb2775 intr


H. B. 2775


(By Delegates Trump, Ellem, Howard,
Amores, Kominar and Beane)

[Introduced January 29, 2003; referred to the
Committee on the Judiciary.]



A BILL to amend and reenact section one hundred one, article one, chapter sixty-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections four hundred one, four hundred three-a and four hundred six, article four of said chapter, all relating to providing for the felony offense of possessing chemicals with the intent of producing methamphetamine or allowing a methamphetamine laboratory on one's premises; defining certain terms; and, providing for parole ineligibility for persons convicted of possessing chemicals with the intent to manufacture methamphetamine or allowing a methamphetamine laboratory on their premises.

Be it enacted by the Legislature of West Virginia:
That section one hundred one, article one, chapter sixty-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections four hundred one, four hundred three-a and four hundred six, article four of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. DEFINITIONS.

§60A-1-101. Definitions.

As used in this chapter:
(a) "Administer" means the direct application of a controlled substance whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:
(1) A practitioner (or, in his or her presence, by his or her
authorized agent), or
(2) The patient or research subject at the direction and in the presence of the practitioner.
(b) "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor or dispenser. It does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman.
(c) "Bureau" means the "Bureau of Narcotics and Dangerous Drugs, United States Department of Justice," or its successor agency.
(d) "Controlled substance" means a drug, substance or immediate precursor in Schedules I through V of article two.
(e) "Counterfeit substance" means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor or dispenser other than the person who in fact manufactured, distributed or dispensed the substance.
(f) "Imitation controlled substance" means: (1) A controlled substance which is falsely represented to be a different controlled substance; or (2) a drug or substance which is not a controlled substance but which is falsely represented to be a controlled substance; or (3) a controlled substance or other drug or substance or a combination thereof which is shaped, sized, colored, marked, imprinted, numbered, labeled, packaged, distributed or priced so as to cause a reasonable person to believe that it is a controlled substance.
(g) "Deliver" or "delivery" means the actual, constructive, or attempted transfer from one person to another of: (1) A controlled substance, whether or not there is an agency relationship; (2) a counterfeit substance; or (3) an imitation controlled substance.
(h) "Dispense" means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.
(i) "Dispenser" means a practitioner who dispenses.
(j) "Distribute" means to deliver, other than by administering or dispensing, a controlled substance, a counterfeit substance, or an imitation controlled substance.
(k) "Distributor" means a person who distributes.
(l) "Drug" means: (1) Substances recognized as drugs in the official "United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary," or any supplement to any of them; (2) substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; (3) substances (other than food) intended to affect the structure or any function of the body of man or animals; and (4) substances intended for use as a component of any article specified in clause (1), (2) or (3) of this subdivision. It does not include devices or their components, parts or accessories.
(m) "Immediate precursor" means a substance which the "West Virginia Board of Pharmacy" (hereinafter in this chapter referred to as the state board of pharmacy) has found to be and by rule designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manufacture.
(n) "Manufacture" means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his or her
own use or the preparation, compounding, packaging or labeling of a controlled substance:
(1) By a practitioner as an incident to his or her
administering or dispensing of a controlled substance in the course of his or her professional practice, or
(2) By a practitioner, or by his or her
authorized agent under his or her supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.
(o) "Marihuana" means all parts of the plant "Cannabis sativa L.," whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.
(p) "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
(1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate.
(2) Any salt, compound, isomer, derivative or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause (1) of this subdivision, but not including the isoquinoline alkaloids of opium.
(3) Opium poppy and poppy straw.
(4) Coca leaves and any salt, compound, derivative or preparation of coca leaves, and any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine.
(q) "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under section 201, article two of this chapter, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does not include its racemic and levorotatory forms.
(r) "Opium poppy" means the plant of the species "Papaver somniferum L.," except its seeds.
(s) "Person" means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.
(t) "Placebo" means an inert medicament or preparation administered or dispensed for its psychological effect, to satisfy a patient or research subject or to act as a control in experimental series.
(u) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.
(v) "Methamphetamine" means methamphetamine, any salt, isomer or salt of or isomer of methamphetamine, or any compound, mixture, preparation, or substance containing methamphetamine or any salt, isomer, or salt of an isomer or methamphetamine.
(w) "Illegal methamphetamine laboratory" means any laboratory or other premises that is used for the manufacture or production of methamphetamine in violation of this chapter.
(v) (x) "Practitioner" means:
(1) A physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state.
(2) A pharmacy, hospital, or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state.
(w) (y) "Production" includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance.
(x) (z) "State," when applied to a part of the United States, includes any state, district, commonwealth, territory, insular possession thereof, and any area subject to the legal authority of the United States of America.
(y) (aa) "Ultimate user" means a person who lawfully possesses a controlled substance for his or her
own use or for the use of a member of his or her household or for administering to an animal owned by him or her or by a member of his or her household.
ARTICLE 4. OFFENSES AND PENALTIES.

§60A-4-401. Prohibited acts A; penalties.

(a) Except as authorized by this chapter, 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, is guilty of a felony and, upon conviction thereof, may be imprisoned in the penitentiary a state correctional facility
for not less than one year nor more than fifteen years, or fined not more than twenty-five thousand dollars, or both;
(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 the penitentiary a state correctional facility for not less than one year nor more than five years, or fined not more than fifteen thousand dollars, or both;
(iii) A substance classified in Schedule IV, is guilty of a felony and, upon conviction thereof,
may be imprisoned in the penitentiary a state correctional facility for not less than one year nor more than three years, or fined not more than ten thousand dollars, or both;
(iv) A substance classified in Schedule V, is guilty of a misdemeanor and, upon conviction, may be confined in the county or regional jail for not less than six months nor more than one year, or fined not more than five thousand dollars, or both.
(b) Except as authorized by this chapter, 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, is guilty of a felony and, upon conviction thereof,
may be imprisoned in the penitentiary a state correctional facility for not less than one year nor more than fifteen years, or fined not more than twenty-five thousand dollars, or both;
(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 the penitentiary a state correctional facility for not less than one year nor more than five years, or fined not more than fifteen thousand dollars, or both;
(iii) A counterfeit substance classified in Schedule IV, is guilty of a felony and, upon conviction thereof,
may be imprisoned in the penitentiary a state correctional facility for not less than one year nor more than three years, or fined not more than ten thousand dollars, or both;
(iv) A counterfeit substance classified in Schedule V, is guilty of a misdemeanor and, upon conviction thereof,
may be confined in the county or regional jail for not less than six months nor more than one year, or fined not more than five thousand dollars, or both.
(c) 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 section 407, subject to the limitations specified in said section 407, or upon conviction, such person may be confined in the county or regional jail not less than ninety days nor more than six months, or fined not more than one thousand dollars, or both: Provided, That notwithstanding any other provision of this act to the contrary, any first offense for possession of less than 15 grams of marihuana shall be disposed of under said section 407.
(d) It is unlawful for any person knowingly or intentionally:
(1) To create, distribute or deliver, or possess with intent to distribute or deliver, an imitation controlled substance; or
(2) To create, possess or sell or otherwise transfer any equipment with the intent that such 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 imprisoned in the county or regional jail for not less than six months nor more than one year, or fined not more than five thousand dollars, or both. Any person being eighteen years old or more, who violates subdivision (1) of this subsection and, in so doing distributes or delivers an imitation controlled substance to a minor child who is at least three years younger than such person, is guilty of a felony and, upon conviction thereof, may be imprisoned in the penitentiary a state correctional facility for not less than one year nor more than three years, or fined not more than ten thousand dollars, or both.
(4) The provisions of subdivision (1) of this subsection shall not apply to a practitioner who administers or dispenses a placebo.
(e) Except as authorized by this chapter, no person may knowingly assemble or possess two or more chemicals in a quantity sufficient for use in the manufacture of a controlled substance listed in either Schedule I or II. Any person who violates this section is guilty of a felony, and upon conviction thereof, may be imprisoned in a correctional facility for a period not less than two nor more than ten years or fined not less than five thousand dollars nor more than fifty thousand dollars, or both fined and imprisoned.
ARTICLE 4. OFFENSES AND PENALTIES.

§60A-4-403a. Prohibition of illegal drug paraphernalia businesses; definitions; places deemed common and public nuisances; abatement; suit to abate nuisances; injunction; search warrants; forfeiture of property; penalties.

(a) Any person who conducts, finances, manages, supervises, directs or owns all or part of an illegal drug paraphernalia business is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five thousand dollars, or confined in the county or regional jail not less than six months nor more than one year, or both.
(b) A person violates subsection (a) of this section when:
(1) The person conducts, finances, manages, supervises, directs, or owns all or part of a business which for profit, in the regular course of business or as a continuing course of conduct, manufactures, sells, stores, possesses, gives away or furnishes objects designed to be primarily useful as drug devices.
(2) The person knows or has reason to know that the design of such objects renders them primarily useful as drug devices.
(c) As used in this section, "drug device" means an object usable for smoking marijuana, for smoking controlled substances defined as tetrahydrocannabinols, or for ingesting or inhaling cocaine, and includes, but is not limited to:
(i) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
(ii) Water pipes;
(iii) Carburetion tubes and devices;
(iv) Smoking and carburetion masks;
(v) Roach clips; meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;
(vi) Chamber pipes;
(vii) Carburetor pipes;
(viii) Electric pipes;
(ix) Air-driven pipes;
(x) Chillums;
(xi) Bongs;
(xii) Ice pipes or chillers; and
(xiii) Miniature cocaine spoons, and cocaine vials.
(xiv) Any object, instrument or device used for manufacturing, compounding, converting, producing, processing or preparing methamphetamine or any salt, isomer or salt of an isomer of methamphetamine.
In any prosecution under this section, the question whether an object is a drug device shall be a question of fact.
(d) A place where drug devices are manufactured, sold, stored, possessed, given away or furnished in violation of this section shall be deemed a common or public nuisance. Conveyances or vehicles of any kind shall be deemed places within the meaning of this section and may be proceeded against under the provisions of subsection (e) of this section. A person who shall maintain, or shall aid or abet or knowingly be associated with others in maintaining such common or public nuisance shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars, or by confinement in the county or regional jail not more than six months for each offense, and judgment shall be given that such nuisance be abated or closed as a place for the manufacture, sale, storage, possession, giving away or furnishing of drug devices.
(e) The prosecuting attorney or a citizen of the county or municipality where a nuisance as defined in subsection (d) is located, may maintain a suit in the name of the state to abate and perpetually enjoin the same. Circuit courts shall have jurisdiction thereof. The injunction may be granted at the commencement of the suit and no bond shall be required if such action for injunction be brought by the prosecuting attorney. If such suit for injunction be brought or maintained by a citizen of the county or municipality where such nuisance is alleged to be located, then the court may require a bond as in other cases of injunction. On the finding that the material allegations of the complaint are true, the court or judge thereof in vacation shall order the injunction for such period of time as it or he or she may think proper, with the right to dissolve the injunction upon the application of the owner of the place, if a proper case is shown for such dissolution.
The continuance of the injunction as provided in this section may be ordered, although the place complained of may not at the time of hearing be unlawfully used.
(f) If there be complaint on oath or affirmation supported by affidavit or affidavits setting forth the facts for such belief that drug devices are being manufactured, sold, kept, stored or in any manner held, used or concealed in a particular house or other place with intent to engage in illegal drug paraphernalia business in violation of law, a magistrate or a circuit court, or the judge thereof in vacation to whom such complaint is made, if satisfied that there is probable cause for such belief, shall issue a warrant to search such house or other place for such devices. Such warrants, except as herein otherwise provided, shall be issued, directed and executed in accordance with the laws of West Virginia pertaining to search warrants. Warrants issued under this section for the search of any automobile, boat, conveyance or vehicle, or for the search of any trunk, grip or other article of baggage, for such devices, may be executed in any part of the state where the same are overtaken, and shall be made returnable before any magistrate or circuit court, or the judge thereof in vacation, within whose jurisdiction such automobile, boat, conveyance, vehicle, trunk, grip or other article of baggage, or any of them, were transported or attempted to be transported.
An officer charged with the execution of a warrant issued under this section, may, whenever it is necessary, break open and enter a house, or other place herein described.
(g) Any property, including money, used in violation of the provisions of this section may be seized and forfeited to the state.
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-406. Distribution to persons under the age of eighteen by persons over the age of twenty-one; distribution by persons eighteen or over in or on, or within one thousand feet of, school or college; increasing mandatory period of incarceration prior to parole eligibility.

(a) Notwithstanding any other provision of law to the contrary, a person is ineligible for parole for a period of three years if he or she is sentenced to the custody of the commissioner of corrections for service of a sentence of incarceration and is convicted of a felony violation under the provisions of subdivision (i), subsection (a), section four hundred one of this article for distribution of a controlled substance and:
(1) Is twenty-one years of age or older at the time of the distribution upon which the conviction is based, and the person to whom the controlled substance was distributed was under the age of eighteen years at the time of the distribution; or
(2) Is eighteen years of age or older and the distribution upon which the conviction is based occurred in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational or secondary school or a public or private college, junior college or university in this state.
(b) Notwithstanding any other provision of law to the contrary, a person is ineligible for parole for a period of two years if he or she is sentenced to the custody of the commissioner of corrections for service of a sentence of incarceration and is convicted of a felony violation under the provisions of subdivision (ii), subsection (a), section four hundred one of this article for distribution of a controlled substance and:
(1) Is twenty-one years of age or older at the time of the distribution upon which the conviction is based, and the person to whom the controlled substance was distributed was under the age of eighteen years at the time of the distribution; or
(2) Is eighteen years of age or older and the distribution upon which the conviction is based occurred in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational or secondary school or a public or private college, junior college or university in this state.
(c) Notwithstanding any other provision of law to the contrary, a person is ineligible for parole for the minimum number of years he or she is sentenced to the custody of the division of corrections upon a felony conviction for possessing, with intent to deliver, manufacture or assemble chemicals intended for the manufacture or production of methamphetamine, or owning or permitting a methamphetamine laboratory upon his or her premises.
(c) (d) The existence of any fact which would make any person subject to the provisions of this section may not be considered unless the fact is clearly stated and included in the indictment or presentment by which the person is charged and is either:
(1) Found by the court upon a plea of guilty or nolo contendere;
(2) Found by the jury, if the matter be tried before a jury, upon submission to the jury of a special interrogatory for such purpose; or
(3) Found by the court, if the matter be tried by the court without a jury.
(d) (e) Nothing in this section shall be construed to limit the sentencing alternatives made available to circuit court judges under other provisions of this code.



NOTE: The purpose of this bill is to
provide for the felony offense of possessing chemicals with the intent of producing methamphetamine or allowing a methamphetamine laboratory on one's premises. The bill, additionally, defines certain terms while providing for parole ineligibility for persons convicted of possessing chemicals with the intent to manufacture methamphetamine or for allowing a methamphetamine laboratory on their premises.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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