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Introduced Version Senate Bill 219 History

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FISCAL NOTEWEST virginia Legislature

2017 regular session

Introduced

Senate Bill 219

By Senator Weld

[Introduced February 9, 2017; referred
to the Committee on the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60A-4-414, relating to conspiracy to commit violations of the Uniform Controlled Substances Act; creating the felony offense of conspiracy; providing penalties; establishing a sentencing guideline based upon quantity for certain controlled substances; authorizing the court to make the determination of applicable quantity; and authorizing the aggregation of quantities from all participants and members of the conspiracy.

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-4-414, to read as follows:

ARTICLE 4. OFFENSES AND PENALTIES.

§60A-4-414. Conspiracy.


(a) Legislative findings. -- The Legislature finds and declares that the substance abuse issues which plague the state are significant factors in the decline of the state’s economic conditions, a lack of growth in its population, the inability to attract new businesses, and a massive drain on the resources of the state and its people.  In order to be competitive in developing new employment opportunities for the citizens of the state, maintain a drug-free workforce, improve the mental and physical health of West Virginians, and create opportunities to keep its people from leaving, the Legislature must make all efforts to fight back against the substance abuse issues the state faces.  Further, the Legislature also finds that a significant amount of the illegal substances which are sold in the state are brought across state lines by individuals who do so on the behalf of others in another state.

(b) Legislative intent. -- It is the intent of the Legislature in the enactment of this section to help stem the flow of controlled substances into West Virginia from surrounding states.  As a consequence, it is the intent of the Legislature to increase the penalties for those who conspire with another to distribute controlled substances, to provide law enforcement with a greater ability to arrest those individuals who conspire to distribute controlled substances in this state but who may seek safe harbor in another state, and finally to give the courts flexibility in their determination of a defendant’s sentence who is found to be in violation of this section.

(c) Any person who conspires with one or more other persons to commit an offense enumerated in this chapter shall, if one or more of such persons does any act to effect the object of the conspiracy, be deemed guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two nor more than ten years: Provided, That if the offense involves one of the substances and quantities specified in the guideline in subsection (d) of this section, then the person shall be sentenced to the applicable penalty specified in the guideline in subsection (d).

(d) For those persons convicted under subsection (c) of this section for a controlled substance specified in the guideline below, the person shall be imprisoned pursuant to the specified penalty in the guideline based upon the applicable quantity:

Substance             Quantity                                                  Imprisonment

                                                                                    (not less than/nor more than)

Heroin

                        1 kilogram or more                                         20 years/60 years      

                        100 to 999 grams                                            10 years /30 years     

            Less than 100 grams                                      5 years/15 years

Cocaine/Cocaine base

                        5 kilograms or more                                        20 years/60 years

                        500 to 4999 grams                                          10 years/30 years

                        Less than 500 grams                                      5 years/15 years

PCP (phencyclidine)

                        100 grams or more                                         20 years/60 years

                        10 to 99 grams                                                10 years/30 years

                        Less than 10 grams                                        5 years/15 years

LSD (lysergic acid diethylamide)

                        10 grams or more                                           20 years/60 years

                        1 to 9 grams                                                    10 years/30 years

                        Less than 1 gram                                            5 years/15 years

Methamphetamine

                        50 grams or more (or 500 grams                   20 years/60 years

 or more of a mixture)                                    

5 to 49 grams (or 50 to 499                            10 years/30 years

grams or more of a mixture)

Less than 5 grams (or less than                     5 years/15 years

50 grams of mixture)

(e) As part of sentencing, the court shall make the determination as to the applicable quantity based upon information before the court or that may be made known to the court through plea agreement, proffer, stipulation, presentence investigation, or evidence adduced at trial. If necessary, the court may require presentation of evidence by the state to determine the applicable quantity as part of sentencing under the guideline. The court’s determination as to the applicable quantity may be based upon reasonable estimates derived and calculable from information or evidence before the court.

(f) For purposes of sentencing under this section, the determination as to the applicable quantity of controlled substances may include any quantity or type of controlled substance involved in the conspiracy including, but not be limited to, controlled substances manufactured, distributed, delivered, possessed, or obtained by other participants or members of the conspiracy.

(g) Nothing in this section shall be interpreted by the courts as placing any limitations whatsoever upon alternative sentencing options which may be available to the courts in determining the sentence of a defendant found guilty of violating this section.  These options shall include, but shall not be limited to, home confinement pursuant to article eleven-b, chapter sixty-two, or probation pursuant to article twelve, chapter sixty-two both of this code

(h) Any defendant charged in violation of this section may not also be charged with the general conspiracy offense provided within section thirty-one, article ten of chapter sixty-one of this code:  Provided, That a defendant may be charged under the general conspiracy offense in addition to this offense provided that the conspiracy is not related to any offenses under article four of this chapter.

 

NOTE: The purpose of this bill is to create a criminal offense to hold all participants involved in a conspiracy to violate the drug laws responsible. The bill establishes sentences based upon quantities for certain controlled substances, and allows all substances possessed or delivered among the members of the conspiracy to be attributed to a defendant.

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

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