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Introduced Version House Bill 3047 History

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hb3047 intr
H. B. 3047


(By Mr. Speaker, Mr. Kiss, and Delegates
Stemple, Varner, Hunt, Michael, Mahan,
Kominar, Craig, Staton, Amores and Palumbo)
[Introduced March 15, 2005; referred to the
Committee on the Judiciary.]


A BILL to amend and reenact §60A-4-403a and §60A-4-411 of the Code of West Virginia, 1931, as amended, all relating to illegal drug offenses and penalties generally; adding certain objects, substances, instruments or devices used for manufacturing, compounding, converting, producing, processing or preparing methamphetamine as illegal drug paraphernalia; providing that a person operating a clandestine drug laboratory capable of producing in excess of ten pounds of methamphetamine in one twenty-four hour production cycle is guilty of a felony and setting penalties for violations including ineligibility for parole and presumption of ineligibility for bond; providing that a person who operates or attempts to operate a clandestine drug laboratory in a house, dwelling, structure or motor vehicle in which children under the age of eighteen years are present or are exposed is guilty of a felony; presumption of unfit parent and placement in foster care; providing that a person who operates or attempts to operate a clandestine drug laboratory within five hundred feet of a building, house, structure or facility in which children under the age of eighteen years are present is guilty of a felony and providing penalties therefor; presumption of unfit parent and placement in foster care; seizure of clandestine lab real and personal property; decontamination and sale; exception for owner without knowledge; and providing that offenders are not eligible for parole until the minimum term is served.

Be it enacted by the Legislature of West Virginia:
That §60A-4-403a and §60A-4-411 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
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 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; and
(xiv) Any object, substance, instrument or device 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 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.
§60A-4-411. Operating or attempting to operate clandestine drug laboratories; offenses; penalties.

(a) Any person who operates or attempts to operate a clandestine drug laboratory is guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than two years nor more than ten years or fined not less than five thousand dollars nor more than twenty-five thousand dollars, or both.
(b) For purposes of this section, a "clandestine drug laboratory" means any property, real or personal, on, or in which a person assembles any chemicals or equipment or combination thereof for the purpose of manufacturing methamphetamine, methylenedioxymethamphetamine or lysergic acid diethylamide in violation of the provisions of section four hundred one of this article.
(c) Any person who operates or attempts to operate a clandestine drug laboratory capable of producing in excess of ten pounds of methamphetamine in one twenty-four hour production cycle, is guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than twenty-six years nor more than life or fined not less than one hundred thousand dollars nor more than one million dollars, or both.
Notwithstanding any other provision of law to the contrary, a person convicted under the provisions of this subsection is ineligible for parole . It is a rebuttable presumption that any person charged with a violation of this subsection should be denied bond in that the activity is inherently dangerous or because the person is addicted and release on bond would likely facilitate a dependence or pattern of illegal use.
(d) Any person who operates or attempts to operate a clandestine drug laboratory in a house, dwelling, structure or motor vehicle in which children under the age of eighteen years are present or are exposed to the operation of the drug laboratory, is guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than seven years nor more than fourteen years or fined not less than twenty thousand dollars nor more than fifty thousand dollars, or both. Any person convicted of the provisions of this subsection is presumed to be an unfit parent and all of his or her children under eighteen years of age shall be considered abused and neglected children for the purposes of removal and placement in foster care.

(e)Any person who operates or attempts to operate a clandestine drug laboratory within five hundred feet of a building, house, structure or facility in which children under the age of eighteen years are present, is guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than seven years nor more than fourteen years or fined not less than twenty thousand dollars nor more than fifty thousand dollars, or both. Any person convicted of the provisions of this subsection is presumed to be an unfit parent and all of his or her children under eighteen years of age shall be considered abused and neglected children for the purposes of removal and placement in foster care.

(f) Any real and personal property in which a clandestine laboratory is located, operated or stored and owned by any person convicted of violation of subsections (a), (c), (d) and (e) of this section shall be seized by order of the court sentencing the offender. Any property seized shall have all contaminants removed and be sold at public auction with the proceeds of the sale paid to the law-enforcement agencies involved in the arrest of the offender as ordered by the court. The provisions of this subsection do not apply to an owner or lessor who is without knowledge of the fact that a clandestine drug laboratory
is located, operated or stored or used to operate in his or her house, dwelling, structure or motor vehicle.
(g) 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.
(g) (h) Any person convicted of a violation of subsection subsections (a), (c), (d) and (e) of this section shall be responsible for all reasonable costs, if any, associated with remediation of the site of the clandestine drug laboratory.



NOTE: The purpose of this bill is to
add certain objects, substances, instruments or devices used for manufacturing, compounding, converting, producing, processing or preparing methamphetamine as illegal drug paraphernalia and to provide increased sentences for persons convicted of: (1) operating clandestine drug laboratory capable of producing in excess of ten pounds of methamphetamine in one twenty-four hour production cycle including ineligibility for parole and presumption of ineligibility for bond;(2) operating or attempting to operate a clandestine drug laboratory in a house, dwelling, structure or motor vehicle in which children under the age of eighteen years are present or are exposed, presumption of unfit parent and placement in foster care; (3) operating or attempting to operate a clandestine drug laboratory within five hundred feet of a building, house, structure or facility in which children under the age of eighteen years are present, presumption of unfit parent and placement in foster care. The bill also provides for the seizure and sale of clandestine lab real and personal property and provides for the sale of that property. An exception to the confiscation is made for an owner who is without knowledge of the clandestine lab. Finally, the bill provides that offenders are not eligible for parole until the minimum term is served.

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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