H. B. 2187
(By Delegate L. Smith)
[Introduced February 14, 2001; referred to the
Committee on the Judiciary.]
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
increasing, with the exception of marihuana, the penalty
for unlawful possession of a controlled substance to a
felony.
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 chapter, 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 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
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 chapter, 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 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 or her
professional practice, or except as otherwise authorized by this
act. Any person who violates this subsection is guilty of a
misdemeanor felony and disposition may be made under section 407,
subject to the limitations specified in said section 407, or and,
upon conviction, such person may be imprisoned confined in the
a correctional facility for county jail not less than ninety days
nor more than six months, not less than one year nor more than
three years, or fined not more than one ten thousand dollars, or
both: Provided, That notwithstanding any other provision of this
act to the contrary, any first offense for possession of less than fifteen 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
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 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, with the exception of
marihuana, to increase the criminal liability for persons who
unlawfully possess controlled substances.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.