H. B. 4013
(By Delegate Gillespie and Damron)
[Introduced January 15, 1998; referred to the
Committee on the Judiciary.]
A BILL to repeal sections four, five and six, article seven,
chapter sixty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
sections one, three, eleven, and eleven-a, article seven of
said chapter; and to further amend said article by adding
thereto a new section, designated section fifteen, all
relating to possession of a dangerous weapon; eliminating
licensing requirements for carrying a concealed deadly
weapon; legislative findings; carrying deadly a weapon with
intent to commit crime; brandishing a deadly weapon;
prohibiting the possession of a deadly weapon at assemblies
and on premises where alcohol is sold and consumed; and
providing for statewide uniformity in regulating the
possession of deadly weapons.
Be it enacted by the Legislature of West Virginia:
That sections four, five and six, article seven, chapter
sixty-one of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that sections one, three,
eleven, and eleven-a, article seven of said chapter be amended
and reenacted; and that said article be further amended by adding
thereto a new section, designated section fifteen, all to read as
follows:
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-1. Legislative findings.
The Legislature finds that the ability of citizens in other
states to defend themselves with deadly force can contribute to
very low crime rates in those jurisdictions having the fewest
controls on the right of the people to keep and bear arms. The
Legislature also finds that the overwhelming support of the
citizens of West Virginia overwhelmingly support for article
three, section twenty-two of the constitution of this state,
commonly known as the "Right to Keep and Bear Arms Amendment."
combined with the obligation of the state to reasonably regulate
the right of persons to keep and bear arms for self-defense
requires the reenactment of this article Thus, the Legislature
intends to provide a strong deterrence to criminal offenders and
to minimize the regulation of the rights of West Virginians.
§61-7-3. Carrying deadly weapon with intent to commit crime;
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 with the intent to commit a
crime, 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 twelve months for the first
offense; but upon conviction of a second or subsequent offense,
he or she shall be guilty of a felony and, upon conviction
thereof, shall be imprisoned in the penitentiary not less than
one nor more than five years and fined not less than one thousand
dollars nor more than five 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 may not be permitted
to use discretion in introducing evidence to prove the same on
the trial.
(c) For the purposes of this section the term "intent" means
that a person, with foreknowledge and reasoning, concealed a
deadly weapon and in a subsequent criminal act, for which a
conviction had been obtained thereof, intended the deadly weapon
to be available for use in such criminal act.
§61-7-11. Brandishing deadly weapons; threatening or causing breach of the peace; criminal penalties.
It shall be unlawful for any person armed with a firearm or
other deadly weapon, whether licensed to carry the same or not,
to carry, brandish or use such the weapon in a way or manner to
cause, or threaten, a breach of the peace except in the defense
of self, family, home or state. Any person violating this
section shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than fifty nor more than one
thousand dollars, or shall be confined in the county jail not
less than ninety days nor more than one year, or both.
§61-7-11a. Possessing deadly weapons on premises of educational
facilities; reports by school principals; suspension of driver license; possessing deadly weapons on premises housing courts of law and in offices of family law master; possessing weapons
at assemblies and on premises where alcoholic beverages are sold and consumed.
(a) The Legislature hereby finds that the safety and welfare
of the citizens of this state are inextricably dependent upon
assurances of safety for children attending, and the persons
employed by, schools in this state and for those persons employed
with the judicial department of this state. It is for the
purpose of providing such assurances of safety, therefore, that
subsections (b), (g) and (h) of this section are enacted as a
reasonable regulation of the manner in which citizens may
exercise those rights accorded to them pursuant to section
twenty-two, article three of the Constitution of the state of
West Virginia.
(b) (1) It shall be is unlawful for any person to possess
any firearm or any other deadly weapon on any school bus as
defined in section one, article one, chapter seventeen-a of this
code, or in or on any public or private primary or secondary
education building, structure, facility or grounds thereof,
including any vocational education building, structure, facility
or grounds thereof where secondary vocational education programs
are conducted or at any school-sponsored function.
(2) This subsection shall does not apply to:
(A) A law-enforcement officer acting in his or her official
capacity;
(B) A person specifically authorized by the board of education of the county or principal of the school where the
property is located to conduct programs with valid educational
purposes;
(C) A person who, as otherwise permitted by the provisions
of this article, possesses an unloaded firearm or deadly weapon
in a motor vehicle, or leaves an unloaded firearm or deadly
weapon in a locked motor vehicle;
(D) Programs or raffles conducted with the approval of the
county board of education or school which include the display of
unloaded firearms; or
(E) The official mascot of West Virginia University,
commonly known as "The Mountaineer", acting in his or her
official capacity.
(3) Any person violating this subsection shall be is guilty
of a felony, and, upon conviction thereof, shall be imprisoned in
the penitentiary of this state a state correctional facility for
a definite term of years of not less than two years nor more than
ten years, or fined not more than five thousand dollars, or both
imprisoned and fined.
(c) It shall be the duty of The principal of each school
subject to the authority of the state board of education to
shall report any violation of subsection (b) of this section
discovered by such principal to the state superintendent of schools within seventy-two hours after such violation occurs.
The state board of education shall keep and maintain such reports
and may prescribe rules establishing policy and procedures for
the making and delivery of the same them as required by this
subsection. In addition, it shall be the duty of the principal
of each school subject to the authority of the state board of
education to shall report any violation of subsection (b) of this
section discovered by such principal to the appropriate local
office of the division of public safety state police within
seventy-two hours after such violation occurs.
(d) In addition to the methods of disposition provided by
article five, chapter forty-nine of this code, any court which
adjudicates a person who is fourteen years of age or older as
delinquent for a violation of subsection (b) of this section may,
in its discretion, order the division of motor vehicles to
suspend any driver's license or instruction permit issued to such
person for such period of time as the court may deem appropriate,
such the suspension, however, not to extend beyond such the
person's nineteenth birthday; or, where such person has not been
issued a driver's license or instruction permit by this state,
order the division of motor vehicles to deny such person's
application for the same either for such period of time as the
court may deem appropriate, such the denial, however, not to extend beyond such the person's nineteenth birthday. Any
suspension ordered by the court pursuant to this subsection shall
be effective upon the date of entry of such order. Where the
court orders the suspension of a driver's license or instruction
permit pursuant to this subsection, the court shall confiscate
any driver's license or instruction permit in the adjudicated
person's possession and forward the same it to the division of
motor vehicles.
(e) (1) If a person eighteen years of age or older is
convicted of violating subsection (b) of this section, and if
such person does not act to appeal such conviction within the
time periods described in subdivision (2) of this subsection,
such person's license or privilege to operate a motor vehicle in
this state shall be revoked in accordance with the provisions of
this section.
(2) The clerk of the court in which the person is convicted
as described in subdivision (1) of this subsection shall forward
to the commissioner a transcript of the judgment of conviction.
If the conviction is the judgment of a magistrate court, the
magistrate court clerk shall forward such transcript when the
person convicted has not requested an appeal within twenty days
of the sentencing for such conviction. If the conviction is the
judgment of a circuit court, the circuit clerk shall forward such transcript when the person convicted has not filed a notice of
intent to file a petition for appeal or writ of error within
thirty days after the judgment was entered.
(3) If, upon examination of the transcript of the judgment
of conviction, the commissioner shall determine determines that
the person was convicted as described in subdivision (1) of this
subsection, the commissioner shall make and enter an order
revoking such person's license or privilege to operate a motor
vehicle in this state for a period of one year, or, in the event
the person is a student enrolled in a secondary school, for a
period of one year or until the person's twentieth birthday,
whichever is the greater period. The order shall contain the
reasons for the revocation and the revocation period. The order
of suspension shall advise the person that because of the receipt
of the court's transcript, a presumption exists that the person
named in the order of suspension is the same person named in the
transcript. The commissioner may grant an administrative hearing
which substantially complies with the requirements of the
provisions of section two, article five-a, chapter seventeen-c of
this code upon a preliminary showing that a possibility exists
that the person named in the notice of conviction is not the same
person whose license is being suspended. Such request for
hearing shall be made within ten days after receipt of a copy of the order of suspension. The sole purpose of this hearing shall
be is for the person requesting the hearing to present evidence
that he or she is not the person named in the notice. In the
event the commissioner grants an administrative hearing, the
commissioner shall stay the license suspension pending the
commissioner's order resulting from the hearing.
(4) For the purposes of this subsection, a person is
convicted when such person enters a plea of guilty or is found
guilty by a court or jury.
(f) (1) It shall be is unlawful for any parent(s),
guardian(s) or custodian(s) of a person less than eighteen years
of age who knows that said the person is in violation of
subsection (b) of this section, or who has reasonable cause to
believe that said the person's violation of said the subsection
is imminent, to fail to immediately report such knowledge or
belief to the appropriate school or law-enforcement officials.
(2) Any person violating this subsection shall be is guilty
of a misdemeanor, and, upon conviction thereof, shall be fined
not more than one thousand dollars, or shall be confined in a
county or regional jail not more than one year, or both fined and
confined.
(g) (1) It shall be is unlawful for any person to possess
any firearm or any other deadly weapon on any premises which houses a court of law or in the offices of a family law master.
(2) This subsection shall does not apply to:
(A) A law-enforcement officer acting in his or her official
capacity; and
(B) A person exempted from the provisions of this subsection
by order of record entered by a court with jurisdiction over such
premises or offices.
(3) Any person violating this subsection shall be is guilty
of a misdemeanor, and, upon conviction thereof, shall be fined
not more than one thousand dollars, or shall be confined in a
county or regional jail not more than one year, or both fined and
confined.
(h) (1) It shall be is unlawful for any person to possess
any firearm or any other deadly weapon on any premises which
houses a court of law or in the offices of a family law master
with the intent to commit a crime.
(2) Any person violating this subsection shall be is guilty
of a felony, and, upon conviction thereof, shall be imprisoned in
the penitentiary of this state a state correctional facility for
a definite term of years of not less than two years nor more than
ten years, or fined not more than five thousand dollars, or both
imprisoned and fined.
(i) (1) It is unlawful for a person to possess or carry any firearm or any other deadly weapon into any assembly where a fee
has been charged for admission thereto, or into any establishment
in which alcoholic beverages are sold and consumed.
(2) This subsection does not apply to:
(A) A law enforcement officer acting in his or her official
capacity;
(B) The owner or lessee of the premises or business
establishment;
(C) A person participating in the event, if he or she is
carrying a firearm or other deadly weapon with the permission of
the owner, lessee, or person or organization sponsoring the
event; and
(D) A person registered or hired as a security guard by the
owner, lessee, or person or organization sponsoring the event. (3) Any person violating this subsection is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not
more than five hundred dollars, or confined in the county or
regional jail not more than one year, or both fined and
imprisoned.
(i) (j) Nothing in this section may be construed to be in
conflict with the provisions of federal law.
§61-7-15. Statewide uniformity.
It is the intent of the Legislature to insure statewide uniformity in regulating the possession of a firearm or other
deadly weapon, including the carrying of a concealed deadly
weapon. No political subdivision, board or agency of the State,
or any county, municipality, or any department or agency thereof,
may enact any ordinance or rule regulating the possession of a
firearm or other deadly weapon, including the carrying of a
concealed deadly weapon, except that a unit of local government
may adopt an ordinance prohibiting the possession of a firearm or
deadly weapon, including the carrying of a concealed deadly
weapon, in local government buildings, their appurtenant
premises, and parks.
NOTE: The purpose of this bill is to repeal the licensing
requirement to carry a concealed weapon and bring this article in
conformity with the Constitutional Right to Keep and Bear Arms
Amendment. The bill adds the element of "intent to commit a
crime" to the misdemeanor offense of carrying a concealed weapon.
The bill also prohibits the possession of a deadly weapon at
assemblies or on premises where alcohol is sold and consumed.
Additionally, the bill makes uniform statewide the laws governing
the regulation of possessing deadly weapons by prohibiting
political subdivisions from enacting ordinances regulating the
possession of a deadly weapon, including the carrying of a
concealed deadly weapon.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§61-7-15 is new; therefore, strike-throughs and underscoring
have been omitted.