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Introduced Version House Bill 2187 History

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


H. B. 2187


(By Delegate L. Smith)

[Introduced February 14, 2001; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact section four hundred one, article four, chapter sixty-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to increasing, with the exception of marihuana, the penalty for unlawful possession of a controlled substance to a felony.

Be it enacted by the Legislature of West Virginia:

That section four hundred one, article four, chapter sixty-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

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, may be imprisoned in the penitentiary 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, may be imprisoned in the penitentiary 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, may be imprisoned in the penitentiary 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 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, may be imprisoned in the penitentiary 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, may be imprisoned in the penitentiary 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, may be imprisoned in the penitentiary 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, may be confined in the county 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 felony and disposition may be made under section 407, subject to the limitations specified in said section 407, or and, upon conviction, such person may be imprisoned confined in the a correctional facility for county jail not less than ninety days nor more than six months, not less than one year nor more than three years, or fined not more than one ten thousand dollars, or both: Provided, That notwithstanding any other provision of this act to the contrary, any first offense for possession of less than fifteen 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, may be imprisoned in the county 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, may be imprisoned in the penitentiary 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.

NOTE: The purpose of this bill is, with the exception of marihuana, to increase the criminal liability for persons who unlawfully possess controlled substances.

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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