COMMITTEE SUBSTITUTE
FOR
H. B. 2475
(By Delegates Amores, Hunt, Seacrist,
Johnson, Tillis, Faircloth and Thomas)
(Originating in the Committee on the Judiciary)
[April 2, 1997]
A BILL to amend article four, chapter sixty-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new section, designated section four
hundred ten, relating to prohibiting the manufacture,
distribution, dispensation or possession of a controlled or
counterfeit substance within one thousand feet of a park or
housing project; providing criminal penalties; providing
that a conviction under this section may not merge with a
conviction under any other section; providing that a map of
a park or housing area produced by any municipal agency and
certified as a true copy by the custodian shall be prima
facie evidence of the boundaries of the park or housing
project; authorizing regulations requiring the posting of
signs designating the areas within one thousand feet of
parks and housing projects; and providing affirmative
defenses to a violation of this code section.
Be it enacted by the Legislature of West Virginia:
That article four, chapter sixty-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section four
hundred ten, to read as follows:
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-410. Manufacturing, distributing, dispensing, or possessing controlled or counterfeit substance within one thousand feet of park or housing project prohibited; nonmerger of offenses evidence of property location and boundaries; posting of property; affirmative defenses.
(a) It is unlawful for any person to manufacture,
distribute, dispense, or possess with intent to distribute a
controlled or a counterfeit substance in, on, or within one
thousand feet of any real property which has been dedicated and
set apart by the governing authority of any municipality or
county for use as a park, playground, recreation center, or for
any other recreation purposes.
(b) It is unlawful for any person to manufacture,
distribute, dispense, or possess with intent to distribute a
controlled or a counterfeit substance in, on, or within one
thousand feet of any real property of any publicly owned or
publicly operated housing project. For the purposes of this code
section, the term "housing project" means any facilities under
the jurisdiction of a housing authority which constitute single
or multifamily dwelling units occupied by low or moderate-income
families pursuant to section one-a, article fifteen, chapter
sixteen.
(c) Any person who violates or conspires to violate subsections (a) and (b) of this code section is guilty of a
felony and, upon conviction, shall receive the following
punishment:
(1) Upon a first conviction, imprisonment for not less than
one nor more than fifteen years or a fine of not more than twenty
thousand dollars, or both; or
(2) Upon a second or subsequent conviction, imprisonment
for not less than five years nor more than forty years or a fine of not more than forty thousand dollars, or both. The court
shall impose a minimum sentence of five years which may not be
suspended unless otherwise provided by law.
A sentence imposed under this code section shall be served
consecutively to any other sentence imposed.
(d) A conviction arising under this code section may not
merge with a conviction arising under any other provision of this
article.
(e) In a prosecution under this code section, a map
produced or reproduced by any municipal or county agency or
department for the purpose of depicting the location and
boundaries of the area on or within one thousand feet of the real
property of any publicly owned or publicly operated housing
project or the real property set apart for use as a park,
playground, recreation center, or for any other recreational
purposes, or a true copy of the map, shall, if certified as a
true copy by the custodian of the record, be admissible and shall
constitute prima facie evidence of the location and boundaries of
the area, if the governing body of the municipality or county has
approved the map as an official record of the location and
boundaries of the area. A map approved under this code section may be revised from time to time by the governing body of the
municipality or county. The original of every map approved or
revised under this subsection or a true copy of the original map
shall be filed with the municipality or county and shall be
maintained as an official record of the municipality or county.
This subsection does not preclude the prosecution from
introducing or relying upon any other evidence or testimony to
establish any element of this offense. This subsection does not
preclude the use or admissibility of a map or diagram other than
the one which has been approved by the municipality or county.
(f) The governing authority of a municipality or county may
adopt regulations requiring the posting of signs designating the
areas within one thousand feet of any lands or buildings set
apart for use as parks, playgrounds, recreation centers, or any
other recreation purposes as "Drug-free Recreation Zones" and
designating the areas within one thousand feet of the real
property of any publicly owned or publicly operated housing
project as "Drug-free Residential Zones."
(g) It is an affirmative defense to prosecution for a
violation of this code section that the prohibited conduct took
place entirely within a private residence, that no person seventeen years of age or younger was present in such private
residence at any time during the commission of the offense, and
that the prohibited conduct was not carried on for purposes of
financial gain. Nothing in this subsection shall be construed to
establish an affirmative defense with respect to any offense
under this chapter other than the offense provided in subsections
(a) and (b) of this code section.
NOTE: The purpose of this bill is to prohibit the
manufacture, distribution, dispensation or possession of
controlled or counterfeit substances within one thousand feet of
a park or housing project; provide that a conviction under this
code section may not merge with an offense under any other
section; provide that a map of a park or housing area produced by
any municipal agency and certified as a true copy by the
custodian shall be prima facie evidence of the boundaries of the
area; authorizing regulations requiring the posting of signs
designating the areas within one thousand feet of parks and
housing projects; and providing for affirmative defenses to the
offenses created by this code section.
This section is new; therefore, strike-throughs and
underscoring have been omitted.