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Introduced Version Senate Bill 605 History

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sb605 intr
Senate Bill No. 605

(By Senator Sprouse)

____________

[Introduced March 21, 2005; referred to the Committee

on the Judiciary.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-2-10c; to amend and reenact §61-8D-2a of said code; to amend said code by adding thereto a new section, designated §61-8D-10 ; and to amend said code by adding thereto a new section, designated §62-1C-17d, all relating to creating a new crime for bodily injury to law enforcement and other first responders exposed to the illegal manufacturing of controlled substances; creating a crime for parents, guardians or custodians who cause the death of a child by allowing the child to be present during the illegal manufacturing of controlled substances; creating the crime of abuse of a child due to the child's presence in a place where a controlled substance is manufactured; and creating a bail procedure designed to determine bail in cases involving the illegal manufacturing of controlled substances.

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 §61-2-10c; that
§61-8D-2a of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §61-8D-10 ; and that said code be amended by adding thereto a new section, designated §62-1C-17d, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-10c. Injury to law enforcement and first responders due to exposure to manufacture and cultivation of a controlled substance.

(a) Any person who unlawfully and intentionally manufactures or cultivates, or attempts to manufacture or cultivate, a controlled substance as defined in article four, chapter sixty-one-a of this code, and a police officer, probation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee or state correctional employee, acting in his or her official capacity, ingests, inhales, or is dermally exposed to a chemical, product, by-product, residue, or substance involved in the manufacture or cultivation of such controlled substance, without prior knowledge of such, which causes bodily injury to such person, shall be guilty of a felony and, upon conviction thereof, shall be fined not less than five hundred nor more than five thousand dollars and committed to the custody of the Division of Corrections for not less than one year nor more than five years.
(b) Any person who unlawfully and intentionally manufactures or cultivates, or attempts to manufacture or cultivate, a controlled substance as defined in article four, chapter sixty-one-a of this code, and a police officer, probation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee or state correctional employee acting in his or her official capacity, ingests, inhales, or is dermally exposed to a chemical, product, by-product, residue, or substance involved in the manufacture or cultivation of such controlled substance, without prior knowledge of such, and which places such person in reasonable apprehension of receiving a bodily injury, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars and shall be confined in jail for not more than one year.
ARTICLE 8D. CHILD ABUSE.
§61-8D-2a. Death of a child by a parent, guardian or custodian or other person by child abuse; criminal penalties.

(a) If any parent, guardian or custodian shall maliciously and intentionally inflict upon a child under his or her care, custody or control substantial physical pain, illness or any impairment of physical condition by other than accidental means, thereby causing the death of such child, then such parent, guardian or custodian shall be guilty of a felony.
(b) If any parent, guardian or custodian shall knowingly allow any other person to maliciously and intentionally inflict upon a child under the care, custody or control of such parent, guardian or custodian substantial physical pain, illness or any impairment of physical condition by other than accidental means, which thereby causes the death of such child, then such other person and such parent, guardian or custodian shall each be guilty of a felony.
(c) If any parent, guardian or custodian shall cause the death of a child under his or her care, custody or control by knowingly allowing such child to be present in a dwelling, vehicle, or within the immediate vicinity thereof, where such parent, guardian or custodian, or any other person is manufacturing, cultivating, or attempting to manufacture or cultivate a controlled substance, then such other person and such parent, guardian or custodian shall each be guilty of a felony. (d) (c) Any person convicted of a felony described in subsection (a), or (b), or (c) of this section shall be punished by a definite term of imprisonment in the penitentiary a state correctional facility which is not less than ten nor more than forty years. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of ten years of his or her sentence or the minimum period required by the provisions of section thirteen, article twelve, chapter sixty-two of this code, whichever is greater.
(e) (d) The provisions of this section shall not apply to any parent, guardian or custodian or other person who, without malice, fails or refuses, or allows another person to, without malice, fail or refuse, to supply a child under the care, custody or control of such parent, guardian or custodian with necessary medical care, when such medical care conflicts with the tenets and practices of a recognized religious denomination or order of which such parent, guardian or custodian is an adherent or member. The provisions of this section shall not apply to any health care provider who fails or refuses, or allows another person to fail or refuse, to supply a child with necessary medical care when such medical care conflicts with the tenets and practices of a recognized religious denomination or order of which the parent, guardian or custodian of the child is an adherent or member, or where such failure or refusal is pursuant to a properly executed do not resuscitate form.
§61-8D-10. Abuse of child due to presence in place of manufacture of a controlled substance.

If any parent, guardian or custodian knowingly allows a child under his or her care, custody or control to be present in a dwelling, vehicle, or within the immediate vicinity thereof, where such parent, guardian or custodian, or any other person is manufacturing, cultivating, or attempting to manufacture or cultivate a controlled substance, then such parent, guardian or custodian shall be guilty of a felony and, upon conviction thereof, shall be fined not less than five hundred nor more than five thousand dollars and committed to the custody of the Division of Corrections for not less than two years nor more than ten years.
CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 1C. BAIL.
§62-1C-17d. Bail in cases of manufacture of a controlled substance.

(a) When the offense charged is an offense defined in chapter sixty-one-a of this code, in determining bond and other conditions of release, the judicial officer shall consider any evidence that the person is in any manner dependent upon a controlled substance or has a pattern of regular, illegal use of any controlled substance. A rebuttable presumption that no conditions of release on bond would assure the safety of the community or any person therein shall arise if the state shows by a preponderance of the evidence:
(b) The person is arrested for a violation of section four hundred eleven-a, article four, chapter sixty-one-a of this code, relating to possession of a substance to be used as a precursor to manufacture of a controlled substance; and
(c) The person is in any manner dependent upon a controlled dangerous substance or has a pattern of regular illegal use of a controlled dangerous substance, and the violation referred to in paragraph (i) of this section was committed or attempted in order to maintain or facilitate the dependence or pattern of illegal use in any manner.


NOTE: The purpose of this bill is
to create a new crime for bodily injury to law enforcement and other first responders exposed to the illegal manufacture of controlled substances while creating a crime for parents, guardians or custodians who cause the death of a child by allowing the child to be present during the illegal manufacture of controlled substances. The bill additionally creates the crime of abuse of a child due to the child's presence in a place of manufacture of a controlled substance while providing a bail procedure designed to determine bail in cases involving the illegal manufacture of controlled substances.

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

§61-2-10c, §61-8D-10 and §62-1C-17d are new; therefore, strike-throughs and underscoring have been omitted.
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