H. B. 2581


(By Delegates Ellem, Amores and Trump)

[Introduced February 28, 2001 ; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact sections four hundred one and four hundred six, article four, chapter sixty-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to increasing penalties for manufacturing methamphetamine and distributing methamphetamine to minors or within one thousand feet of a school.

Be it enacted by the Legislature of West Virginia:
That sections four hundred one and four hundred six, article four, chapter sixty-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all 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 a 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, with the exception of methamphetamine, is guilty of a felony and, upon conviction, may be imprisoned in the penitentiary a 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) Methamphetamine, is guilty of a felony and, upon conviction, shall be imprisoned for not less than five nor more than fifteen years, or fined not more than fifteen thousand dollars, or both.
(iii) (iv) A substance classified in Schedule IV, is guilty of a felony and, upon conviction, may be imprisoned in the penitentiary a 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) (v) A substance classified in Schedule V, is guilty of a misdemeanor and, upon conviction, may be confined in the county or regional 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 a 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 a 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 a 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 or regional 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 professional practice, or except as otherwise authorized by this act. Any person who violates this subsection 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 or regional 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.
(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 or regional 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 a 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.
§60A-4-406. Distribution to persons under the age of eighteen by persons over the age of twenty-one; distribution by persons eighteen or over in or on, or within one thousand feet of, school or college; increasing mandatory period of incarceration prior to parole eligibility.

(a) Notwithstanding any other provision of law to the contrary, a person is ineligible for parole for a period of three years if he or she is sentenced to the custody of the commissioner of corrections for service of a sentence of incarceration and is convicted of a felony violation under the provisions of subdivision (i), subsection (a), section four hundred one of this article for distribution of a controlled substance and:
(1) Is twenty-one years of age or older at the time of the distribution upon which the conviction is based, and the person to whom the controlled substance was distributed was under the age of eighteen years at the time of the distribution; or
(2) Is eighteen years of age or older and the distribution upon which the conviction is based occurred in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational or secondary school or a public or private college, junior college or university in this state.
(b) Notwithstanding any other provision of law to the contrary, a person is ineligible for parole for a period of two years if he or she is sentenced to the custody of the commissioner of corrections for service of a sentence of incarceration and is convicted of a felony violation under the provisions of subdivision (ii), subsection (a), section four hundred one of this article for distribution of a controlled substance and:
(1) Is twenty-one years of age or older at the time of the distribution upon which the conviction is based, and the person to whom the controlled substance was distributed was under the age of eighteen years at the time of the distribution; or
(2) Is eighteen years of age or older and the distribution upon which the conviction is based occurred in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational or secondary school or a public or private college, junior college or university in this state.
(c) Notwithstanding any other provision of law to the contrary, a person is ineligible for parole for a period of five years if he or she is sentenced to the custody of the commissioner of corrections for service of a sentence of incarceration and is convicted of a felony violation under the provisions of subdivision (iii), subsection (a), section four hundred one of this article for distribution of a controlled substance and:
(1) Is twenty-one years of age or older at the time of the distribution upon which the conviction is based, and the person to whom the controlled substance was distributed was under the age of eighteen years at the time of the distribution; or
(2) Is eighteen years of age or older and the distribution upon which the conviction is based occurred in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational or secondary school or a public or private college, junior college or university in this state.
(c) The existence of any fact which would make any person subject to the provisions of this section may not be considered unless the fact is clearly stated and included in the indictment or presentment by which the person is charged and is either:
(1) Found by the court upon a plea of guilty or nolo contendere;
(2) Found by the jury, if the matter be tried before a jury, upon submission to the jury of a special interrogatory for such purpose; or
(3) Found by the court, if the matter be tried by the court without a jury.
(d) Nothing in this section shall be construed to limit the sentencing alternatives made available to circuit court judges under other provisions of this code.
NOTE: The purpose of this bill is to increase penalties for manufacturing methamphetamine and distributing methamphetamine to minors or within one thousand feet of a school.

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