H. B. 3331
(By Delegates Armstead, Walters, Carmichael and Lane)
[Introduced March 25, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-2-10b of the Code of West Virginia,
1931, as amended, relating to creating the crime of chemical
battery; imposing criminal penalties.
Be it enacted by the Legislature of West Virginia:
That §61-2-10b of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-10b. Malicious assault; unlawful assault; battery and
recidivism of battery; assault on police officers,
conservation officers, probation officers, humane
officers, emergency medical service personnel,
firefighters, fire marshal, division of forestry
employees and county or state correctional
employees; penalties.
(a)
Malicious assault. -- Any person who maliciously shoots,
stabs, cuts or wounds or by any means causes bodily injury with
intent to maim, disfigure, disable or kill a police officer, probation officer, conservation officer, humane officer, emergency
medical service personnel, firefighter, State Fire Marshal or
employee, Division of Forestry employee, county correctional
employee or state correctional employee, employee of an urban mass
transportation system acting in his or her official capacity and
the person committing the malicious assault knows or has reason to
know that the victim is a police officer, probation officer,
conservation officer, humane officer, emergency medical service
personnel, firefighter, State Fire Marshal or employee, Division of
Forestry employee, county correctional employee, state correctional
employee, employee of an urban mass transportation system acting in
his or her official capacity, is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility
for not less than three nor more than fifteen years.
(b)
Unlawful assault. -- Any person who unlawfully but not
maliciously shoots, stabs, cuts or wounds or by any means causes a
police officer, probation officer, conservation officer, humane
officer, emergency medical service personnel, firefighter, State
Fire Marshal or employee, Division of Forestry employee, county
correctional employee or state correctional employee, employee of
an urban mass transportation system acting in his or her official
capacity, bodily injury with intent to maim, disfigure, disable or
kill him or her and the person committing the unlawful assault
knows or has reason to know that the victim is a police officer,
probation officer, conservation officer, humane officer, emergency
medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional
employee, state correctional employee, employee of an urban mass
transportation system acting in his or her official capacity, is
guilty of a felony and, upon conviction thereof, shall be confined
in a correctional facility for not less than two nor more than five
years.
(c)
Battery. -- Any person who unlawfully, knowingly and
intentionally makes physical contact of an insulting or provoking
nature with a police officer, probation officer, conservation
officer, humane officer, emergency medical service personnel,
firefighter, State Fire Marshal or employee, Division of Forestry
employee, county correctional employee, state correctional
employee, employee of a mass transportation system acting in his or
her official capacity, or unlawfully and intentionally causes
physical harm to a police officer, probation officer, conservation
officer, humane officer, emergency medical service personnel,
firefighter, State Fire Marshal or employee, Division of Forestry
employee, county correctional employee, state correctional
employee, employee of an urban mass transportation system acting in
such capacity, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in
the county or regional jail for not
less than one month nor more than twelve months, fined the sum of
five hundred dollars, or both. If any person commits a second such
offense, he or she is guilty of a felony and, upon conviction
thereof, shall be confined in a correctional facility for not less
than one year nor more than three years or fined the sum of one thousand dollars or both fined and confined. Any person who
commits a third violation of this subsection is guilty of a felony
and, upon conviction thereof, shall be confined in a correctional
facility not less than two years nor more than five years or fined
not more than two thousand dollars or both fined and confined.
(d) Chemical battery. -- The exposure of any police officer,
probation officer, conservation officer, humane officer, emergency
medical service personnel, firefighter, State Fire Marshal or
employee, Division of Forestry employee, county correctional
employee, state correctional employee, employee of a mass
transportation system acting in his or her official capacity to
toxic chemicals, fumes, vapors, and spills inherent in the
operation or the attempted operation of a clandestine drug
laboratory capable of producing in excess of ten pounds of
methamphetamine in one twenty-four hour production cycle shall
constitute prima facie evidence of the commission of chemical
battery. Any person who is convicted of such offense shall be
guilty of a felony and, upon conviction thereof, shall be fined the
sum of not less than three thousand nor more than ten thousand
dollars and shall be confined in jail for a period of not less than
two years and not more than ten years, or both fined and
imprisoned.
(d) (e) Assault. -- Any person who unlawfully attempts to
commit a violent injury to the person of a police officer,
probation officer, conservation officer, humane officer, emergency
medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional
employee, state correctional employee, employee of a mass
transportation system acting in his or her official capacity, or
unlawfully commits an act which places a police officer, probation
officer, conservation officer, humane officer, emergency medical
service personnel, firefighter, Division of Forestry employee,
county correctional employee or state correctional employee,
employee of a mass transportation system acting in his or her
official capacity in reasonable apprehension of immediately
receiving a violent injury, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in
the county or regional
jail for not less than twenty-four hours nor more than six months,
fined not more than two hundred dollars, or both fined and
confined.
(e) For purposes of this section:
(1) "Police officer" means any person employed by the State
Police, any person employed by the state to perform law-enforcement
duties, any person employed by a political subdivision of this
state who is responsible for the prevention or detection of crime
and the enforcement of the penal, traffic or highway laws of this
state or employed as a special police officer as defined in section
forty-one, article three of this chapter.
(2) "Employee of an urban mass transportation system" means
any person employed by an urban mass transportation system as such
is defined in section three, article twenty-seven, chapter eight of
this code or by a system that receives federal transit administration funding under 49 U.S.C. §5307 or 5311.
(3) "Division of Forestry employee" means an officer, agent,
employee, or servant, whether full-time or not, of the Division of
Forestry.
NOTE: The purpose of this bill is to create the crime of
chemical battery and impose criminal penalties.
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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