Senate Bill No. 160
(By Senator Ball, Love and Ross)
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[Introduced January 20, 2000; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section four hundred one, article four,
chapter sixty-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to offenses and
penalties of the uniform controlled substances act; and making
it a felony, rather than a misdemeanor, for simple possession
of certain controlled substances.
Be it enacted by the Legislature of West Virginia:
That section four hundred one, article four, chapter sixty-a
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-401. Prohibited acts A; penalties.
(a) Except as authorized by this act, it is unlawful for any
person to manufacture, deliver or possess with intent to
manufacture or deliver, a controlled substance.
Any person who violates this subsection with respect to:
(i) A controlled substance classified in Schedule I or II
which is a narcotic drug, is guilty of a felony and, upon
conviction, may be imprisoned in the penitentiary state
correctional facility for not less than one year nor more than
fifteen years, or fined not more than twenty-five thousand dollars,
or both;
(ii) Any other controlled substance classified in Schedule I,
II or III, is guilty of a felony and, upon conviction, may be
imprisoned in the penitentiary state correctional facility for not
less than one year nor more than five years, or fined not more than
fifteen thousand dollars, or both;
(iii) A substance classified in Schedule IV, is guilty of a
felony and, upon conviction, may be imprisoned in the penitentiary
state correctional facility for not less than one year nor more
than three years, or fined not more than ten thousand dollars, or
both;
(iv) A substance classified in Schedule V, is guilty of a misdemeanor and, upon conviction, may be confined in the county
jail for not less than six months nor more than one year, or fined
not more than five thousand dollars, or both.
(b) Except as authorized by this act, it is unlawful for any
person to create, deliver or possess with intent to deliver, a
counterfeit substance.
Any person who violates this subsection with respect to:
(i) A counterfeit substance classified in Schedule I or II
which is a narcotic drug, is guilty of a felony and, upon
conviction, may be imprisoned in the penitentiary state
correctional facility for not less than one year nor more than
fifteen years, or fined not more than twenty-five thousand dollars,
or both;
(ii) Any other counterfeit substance classified in Schedule I,
II or III, is guilty of a felony and, upon conviction, may be
imprisoned in the penitentiary state correctional facility for not
less than one year nor more than five years, or fined not more than
fifteen thousand dollars, or both;
(iii) A counterfeit substance classified in Schedule IV, is
guilty of a felony and, upon conviction, may be imprisoned in the
penitentiary state correctional facility for not less than one year nor more than three years, or fined not more than ten thousand
dollars, or both;
(iv) A counterfeit substance classified in Schedule V, is
guilty of a misdemeanor and, upon conviction, may be confined in
the county jail for not less than six months nor more than one
year, or fined not more than five thousand dollars, or both.
(c) It is unlawful for any person knowingly or intentionally
to possess a controlled substance unless the substance was obtained
directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of his or her professional
practice, or except as otherwise authorized by this act.
For the violation of any provision of this subsection,
disposition may be made under the provisions of section 407,
article four of this chapter, subject to the limitations specified
in section 407.
Any person who violates this subsection with respect to: is
guilty of a misdemeanor, and disposition may be made under section
407, subject to the limitations specified in said section 407, or
upon conviction, such person may be confined in the county jail not
less than ninety days nor more than six months, or fined not more
than one thousand dollars, or both: Provided, That notwithstanding any other provision of this act to the contrary, any first offense
for possession of less than 15 grams of marihuana shall be disposed
of under said section 407.
(i) A controlled substance classified in Schedule I or II
which is a narcotic drug, is guilty of a felony and, upon
conviction, may be imprisoned in a state correctional facility for
not less than one year nor more than five years, or fined not more
than two thousand dollars, or both fined and imprisoned;
(ii) Any other controlled substance classified in Schedule I,
II or III, other than marihuana, is guilty of a felony and, upon
conviction, may be imprisoned in a state correctional facility for
not less than one year nor more than five years, or fined not more
than one thousand dollars, or both fined and imprisoned;
(iii) A controlled substance classified in Schedule IV or V,
is guilty of a misdemeanor and, upon conviction, may be imprisoned
in the county or regional jail for not more than six months, or
fined not more than five hundred dollars, or both fined and
imprisoned;
(iv) Marihuana, in an amount of greater than 100 grams, is
guilty of a felony and, upon conviction, may be imprisoned in a
state correctional facility for not less than one year nor more than five years, or fined not more than two thousand dollars, or
both fined and imprisoned;
(v) Marihuana, in an amount less than 100 grams, but not more
than 50 grams, is guilty of a felony and, upon conviction, may be
imprisoned in a state correctional facility for not less than one
year nor more than three years, or fined not more than one thousand
dollars, or both fined and imprisoned;
(vi) Marihuana, in an amount less than 50 grams, is guilty of
a misdemeanor and, upon conviction, may be imprisoned in the county
or regional jail for not more than six months, or fined not more
than five hundred dollars, or both fined and imprisoned: Provided,
That, notwithstanding any other provision of this article to the
contrary, any first offense for possession of less than 15 grams of
marihuana shall be disposed of under the provisions of section four
hundred seven of this article.
(d) It is unlawful for any person knowingly or intentionally:
(1) To create, distribute or deliver or possess with intent to
distribute or deliver, an imitation controlled substance; or
(2) To create, possess or sell or otherwise transfer any
equipment with the intent that such equipment shall be used to
apply a trademark, trade name or other identifying mark, imprint, number or device, or any likeness thereof, upon a counterfeit
substance, an imitation controlled substance, or the container or
label of a counterfeit substance or an imitation controlled
substance.
(3) Any person who violates this subsection is guilty of a
misdemeanor and, upon conviction, may be imprisoned in the county
jail for not less than six months nor more than one year, or fined
not more than five thousand dollars, or both. Any person being
eighteen years old or more, who violates subdivision (1) of this
subsection, and, in so doing distributes or delivers an imitation
controlled substance to a minor child who is at least three years
younger than such person, is guilty of a felony and, upon
conviction, may be imprisoned in the penitentiary state
correctional facility for not less than one year nor more than
three years, or fined not more than ten thousand dollars, or both.
(4) The provisions of subdivision (1) of this subsection shall
not apply to a practitioner who administers or dispenses a placebo.
NOTE: The purpose of this bill is to amend the offenses and
penalties of the uniform controlled substances act, making it a
felony, rather than a misdemeanor, for simple possession of certain controlled substances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.