H. B. 2750
(By Delegates Martin and Adkins)
[Introduced March 27, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections two, three, four and six,
article seven, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to revising definitions and procedures for
licensing persons to any dangerous weapons; and criminal
penalties.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four and six, article seven,
chapter sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-2. Definitions.
As used in this article, unless the context otherwise
requires:
(1) "Blackjack" means a short bludgeon consisting, at the
striking end, of an encased piece of lead or some other heavysubstance and, at the handle end, a strap or springy shaft which
increases the force of impact when a person or object is struck.
The term "blackjack" shall include, but not be limited to, a
billy, billy club, sand club, sandbag or slapjack.
(2) "Gravity knife" means any knife that has a blade
released from the handle by the force of gravity or the
application of centrifugal force, and when so released is locked
in place by means of a button, spring, lever, or other locking or
catching device.
(3) "Knife" means an instrument, intended to be used or
readily adaptable to be used as a weapon, consisting of a sharp-
edged or sharp-pointed blade, usually made of steel, attached to
a handle, which is capable of inflicting cutting, stabbing or
tearing wounds. The term "knife" shall include, but not be
limited to, any dagger, dirk, poniard or stiletto with a blade
over three and one-half inches in length, any switchblade knife
or gravity knife, and any other instrument capable of inflicting
cutting, stabbing, or tearing wounds. A pocket knife with a
blade three and one-half four inches or less in length, a hunting
or fishing knife carried for hunting, fishing, sports or other
recreational uses, or a knife designed for use as a tool or
household implement shall not be included within the term "knife"
as defined herein, unless such knife is knowingly used or
intended to be used to produce serious bodily injury or death.
(4) "Switchblade knife" means any knife having a spring-
operated blade which opens automatically upon pressure beingapplied to a button, catch or other releasing device in its
handle.
(5) "Nunchuka" means a flailing instrument consisting of two
or more rigid parts, connected by a chain, cable, rope or other
nonrigid, flexible or springy material, constructed in such a
manner as to allow the rigid parts to swing freely, so that one
rigid part may be used as a handle and the other rigid part may
be used as the striking end.
(6) "Metallic or false knuckles" means a set of finger rings
attached to a transverse piece, to be worn over the front of the
hand for use as a weapon, and constructed in such a manner that,
when striking another person with the fist or closed hand,
considerable physical damage may be inflicted upon the person
struck. The terms "metallic or false knuckles" shall include any
such instrument, without reference to the metal or other
substance or substances from which the metallic or false knuckles
are made.
(7) "Pistol" means a short firearm having a chamber which is
integral with the barrel, designed to be aimed and fired by the
use of a single hand.
(8) "Revolver" means a short firearm having a cylinder of
several chambers that are brought successively into line with the
barrel to be discharged, designed to be aimed and fired by the
use of a single hand.
(9) "Deadly weapon" means an instrument which is designed to
be used to produce serious bodily injury or death, or is readilyadaptable to such use. The term "deadly weapon" shall include,
but not be limited to, the instruments defined in subdivisions
(1) through (8) of this section, or other deadly weapons of like
kind or character which may be easily concealed on or about the
person.
(10) "Concealed" means hidden from ordinary observation so
as to prevent disclosure or recognition. A deadly weapon is
concealed when it is carried on or about the person in such a
manner that another person in the ordinary course of events would
not be placed on notice that the deadly weapon was being carried.
(11) "Firearm" means any weapon which will expel a
projectile by action of an explosion.
(12) "Controlled substance" shall have the same meaning as
is ascribed to that term in subsection (d), section one hundred
one, article one, chapter sixty-a of this code.
(13) "Drug" shall have the same meaning as is ascribed to
that term in subsection (l), section one hundred one, article
one, chapter sixty-a of this code.
§61-7-3. Carrying deadly weapon without license or other
authorization; penalties.
(a) Any person who carries a concealed deadly weapon,
without a state license or other lawful authorization established
under the provisions of this code, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than one hundred dollars nor more than one thousand dollars
and may be imprisoned in the county jail for not more than twelvesix months for the first offense; but upon conviction of a second
or subsequent offense, he or she shall be guilty of a felony
misdemeanor, and, upon conviction thereof, shall be imprisoned in
the penitentiary county jail not less than one nor more than five
years twelve months and fined not less than one thousand dollars
nor more than five two thousand dollars.
(b) It shall be the duty of the prosecuting attorney in all
cases to ascertain whether or not the charge made by the grand
jury is a first offense or is a second or subsequent offense and,
if it shall be a second or subsequent offense, it shall be so
stated in the indictment returned, and the prosecuting attorney
shall introduce the record evidence before the trial court of
such second or subsequent offense. and shall not be permitted to
use discretion in introducing evidence to prove the same on the
trial
§61-7-4. License to carry deadly weapons; how obtained.
(a) Any person desiring to obtain a state license to carry
a concealed deadly weapon shall apply to the circuit court of his
or her county for such license, and shall pay to the clerk of the
circuit court, at the time of application, a filing fee of twenty
dollars. The applicant shall file with the clerk of the circuit
court an application in writing on a form prepared by the state
tax commissioner duly verified, which sets forth only the
following:
(1) That the applicant is a citizen of the United States of
America or lawfully resides in the United States of America;
(2) That, on the date the application is made, the applicant
is a bona fide resident of this state and of the county in which
the application is made;
(3) That the applicant is eighteen years of age or older and
the applicant is not enrolled in a public or private secondary
school;
(4) That the applicant is not addicted to alcohol, a
controlled substance or a drug, and is not an unlawful user
thereof;
(5) That the applicant has not been convicted of a felony or
of an act of violence involving the misuse of such deadly weapon;
(6) That the applicant desires to carry such deadly weapon
for the defense of self, family, home or state, or other lawful
purpose;
(7) (6) That the applicant is physically and mentally
competent to carry such deadly weapon;
(8) (7) That, in the case of a person applying for a license
to carry a concealed pistol or revolver, the applicant has
qualified under minimum requirements for handling and firing such
firearms. These minimum requirements are those promulgated by
the department of natural resources and attained under the
auspices of the department of natural resources: Provided, That
the court shall waive this requirement in the case of a renewal
applicant who has previously qualified: Provided, however, That
the following may be substituted for those minimum requirements
promulgated by the department of natural resources:
(A) Successful completion of any official national rifle
association firearms safety or training course;
(B) Successful completion of any firearms safety or training
course or class available to the general public offered by an
official law-enforcement organization, community college, junior
college, college, or private or public institution or
organization or firearms training school, utilizing instructors
currently certified by the national rifle association;
(C) Successful completion of any firearms training or safety
course or class conducted by a firearms instructor certified as
such by the state or by the national rifle association;
(D) Equivalent experience with a firearm through
participation in organized shooting competition or military
service.
A photocopy of a certificate of completion of any of the
courses or classes or an affidavit from the instructor, school,
club, organization, or group that conducted or taught said course
or class attesting to the successful completion of the course or
class by the applicant or a copy of any document which shows
successful completion of the course or class verifies information
required by subdivisions (A) through (D) of this subsection shall
constitute evidence of qualification under this section.
(8) That the applicant authorizes the sheriff of the county,
or his or her designee, to conduct an investigation relative only
to that information contained in the application.
(b) The court shall issue or deny such license within thirtydays after the application is filed with the circuit clerk. The
court shall, if necessary, hear evidence within the thirty-day
period upon all matters stated in such application and upon any
other matter related to the eligibility of the applicant under
subsection (a) of this section. If Unless from such application
or the proof it appears that the purpose for such person to carry
such weapon is defense of self, family, home or state, or other
lawful purpose, unlawful and all other if conditions in
subsection (a) are complied with, the court, or the judge thereof
in vacation, shall grant such license.
(c) In the event an application is denied, the specific
reasons for the denial shall be stated in the order of the court
denying the application. Upon denial of an application and at
the request of the applicant made within ten thirty days of such
denial, the court shall schedule the matter for a hearing. The
applicant may be represented by counsel, but in no case shall the
court be required to appoint counsel for an applicant. The final
order of the court shall include the court's findings of fact and
conclusions of law. If the final order upholds the denial, the
applicant may file an appeal in accordance with the rules of
appellate procedure of the supreme court of appeals.
(d) If an application is approved, the court shall require
in its order granting the license that before any license shall
be issued or become effective, the applicant shall pay to the
sheriff a license fee in the amount of fifty thirty dollars upon
issuance of such license. Any such license shall be validthroughout the state at all times for five years, unless sooner
revoked.
(e) All license fees collected hereunder shall be paid by
the sheriff and accounted for to the auditor as other license
taxes are collected and paid, and the state tax commissioner
shall prepare all suitable forms for licenses and certificates
showing that such license has been granted. and shall do any
other act required to be done to protect the state and see to the
enforcement of this section In the event a license is lost or
destroyed, the person to whom the license was issued may obtain
a duplicate or substitute license for a fee of ten dollars by
filing a notarized statement with the sheriff indicating that the
license has been lost or destroyed.
(f) The clerk of the circuit court shall, immediately after
the license is granted as aforesaid, furnish the superintendent
of the department division of public safety a certified copy of
the order of the court granting such license. for which service
the clerk shall be paid a fee of two dollars which shall be taxed
as costs in the proceeding It shall be the duty of the clerk of
each circuit court to furnish to the superintendent of the
department division of public safety, at any time so requested,
a certified list of all such licenses issued in the county.
(g) No person who is engaged in the receipt, review, or in
the issuance of such license shall incur any civil liability as
the result of the lawful performance of his or her duties under
this article.
§61-7-6. Exceptions as to prohibitions against carrying
concealed deadly weapons.
The licensure provisions set forth in this article
provisions of section three of this article shall not apply to:
(1) Any person carrying a deadly weapon upon his own
premises; nor shall anything herein prevent a person from
carrying any firearm, unloaded, from the place of purchase to his
or her home, residence or place of business or to a place of
repair and back to his or her home, residence or place of
business, nor shall anything herein prohibit a person from
possessing a firearm while hunting in a lawful manner or while
traveling from his or her home, residence or place of business to
a hunting site, and returning to his or her home, residence or
place of business;
(2) Any person, who is a member of a properly organized
target-shooting club authorized by law to obtain firearms by
purchase or requisition from this state, or from the United
States for the purpose of target practice, from carrying any
pistol, as defined in this article, unloaded, from his home,
residence or place of business to a place of target practice, and
from any such place of target practice back to his home,
residence or place of business, for using any such weapon at such
place of target practice in training and improving his skill in
the use of such weapons;
(3) Any person who has in his or her possession a valid
license or permit to carry a weapon issued pursuant to the law ofany other state;
(3) (4) Any law-enforcement officer or law-enforcement
official as such are defined in section one, article twenty-nine,
chapter thirty of this code;
(4) (5) Any employee of the West Virginia department of
corrections duly appointed pursuant to the provisions of section
five, article five, chapter twenty-eight of this code while such
employee is on duty;
(5) (6) Any member of the armed forces of the United States
or the militia of this state while such member is on duty;
(6) (7) Any circuit judge, prosecuting attorney, assistant
prosecuting attorney or a duly appointed investigator employed by
a prosecuting attorney.
NOTE: This bill revises definitions, criminal penalties and
procedures relating to licensing persons to carry dangerous
weapons.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.