A BILL to amend and reenact sections one, three, four and ten, article three-e, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article three-e by adding thereto two new sections, designated sections three-a and three-b, all relating to adding definitions to the criminal law involving explosives; providing definitions for weapon of mass destruction, toxin and biological agent; providing that possession of a weapon of mass destruction, biological agent or toxin is illegal; setting forth the crime of illegal permitting of blasting; setting forth criminal penalties; setting forth the crimes of possession or use of destructive devices, explosive materials, weapon of mass destruction, toxin, biological agent or incendiary devices by persons convicted of domestic or family violence; and providing for the crime of wanton endangerment by fire, weapon of mass destruction, biological agent or toxin.

Be it enacted by the Legislature of West Virginia:
That sections one, three, four and ten, article three-e, chapter sixty-one

ARTICLE 3E. OFFENSES INVOLVING EXPLOSIVES.

§61-3E-1. Definitions.
As used in this article, unless the context otherwise requires:
(a) "Biological agent" means any microorganism, virus, infectious substance, or biological product that may be engineered as a result of biotechnology, or any naturally occurring or bioengineered component of any microorganism, virus, infectious substance, or biological product, capable of causing: (1) Death, disease or other biological malfunction in a human, an animal, a plant or another living organism; (2) deterioration of food, water, equipment, supplies or material of any kind; or (3) deleterious alteration of the environment.
(a) (b) "Destructive device" means any bomb, grenade, mine, rocket, missile, pipebomb or similar device containing an explosive, incendiary, explosive gas or expanding gas which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts, either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled.
"Destructive device" does not include a firearm as such is defined in section two, article seven of this chapter or model rockets and their components as defined in section twenty-three, article three, chapter twenty-nine of this code.
(b) (c) "Explosive material" means any chemical compound, mechanical mixture or device that is commonly used or can be used for the purpose of producing an explosion and which contains any oxidizing and combustive units or other ingredients in such proportions, quantities or packaging that an ignition by fire, by friction, by concussion, by percussion, by detonator or by any part of the compound or mixture may cause a sudden generation of highly heated gases. These materials include, but are not limited to, powders for blasting, high or low explosives, blasting materials, blasting agents, blasting emulsions, blasting fuses other than electric circuit breakers, detonators, blasting caps and other detonating agents and black or smokeless powders not manufactured or used for lawful sporting purposes or fireworks defined in section twenty-three, article three, chapter twenty-nine of this code which are not used in violation of this article. Also included are all explosive materials listed annually by the office of the state fire marshal and published in the state register, said publication being hereby mandated.
(c) (d) "Hoax bomb" means any device or object that by its design, construction, content or characteristics appears to be, or is represented to be or to contain a destructive device, explosive material or incendiary device as defined in this section, but is, in fact, an inoperative facsimile or imitation of such a destructive device, explosive material or incendiary device.
(d) (e) "Incendiary device" means a container containing gasoline, kerosene, fuel oil, or derivative thereof, or other flammable or combustible material, having a wick or other substance or device which, if set or ignited, is capable of igniting such gasoline, kerosene, fuel oil, or derivative thereof, or other flammable or combustible material: Provided, That no similar device commercially manufactured and used solely for the purpose of illumination shall be deemed considered to be an incendiary device.
(e) (f) "Legal authority" means that right as expressly stated by statute or law.
(f) (g) "Person" shall mean an individual, corporation, company, association, firm, partnership, society or joint stock company.
(g) (h) "Storage magazine" is defined to mean any building or structure, other than an explosives manufacturing building, approved by the legal authority for the storage of explosive materials.
(i) "Toxin" means the toxic material of plants, animals, microorganisms, viruses, fungi or infectious substances, or a recombinant molecule, whatever its origin or method of production, including, but not limited to: (1) Any poisonous substance or biological product that may be engineered as a result of biotechnology produced by a living organism; or (2) any poisonous isomer or biological product, homolog or derivative of such a substance.
(j) "Weapon of mass destruction" means: (1) Any destructive device as defined in Section 921 of Title 18 of the United States Code; (2) any weapon designed or intended to cause death or serious bodily injury or disease through the release, dissemination or impact of toxic or poisonous chemicals or their precursors; (3) any weapon involving a disease organism; (4) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life; or (5) any weapon containing a biological agent or toxin.

§61-3E-3. Illegal possession of destructive devices, explosive materials, weapon of mass destruction, biological agent, toxin or incendiary devices; penalty.

Any person who possesses or manufactures any explosive material without first obtaining a permit to use explosives from the office of the state fire marshal or who possesses or manufacturers any destructive device, weapon of mass destruction, biological agent, toxin or incendiary device shall be guilty of a felony and, upon conviction thereof, shall be committed to the custody of the division of corrections for not less than one nor more than ten years or fined not more than five thousand dollars, or both.

§61-3E-3a. Illegal permitting of blasting, destructive devices, explosive materials or incendiary devices; penalty.

Any person who permits, or purports to permit any blasting, destructive devices, explosive materials or incendiary devices without first ascertaining that the applicant has obtained a valid and current permit to use explosives from the office of the state fire marshal is guilty of a felony and, upon conviction thereof, shall be committed to the custody of the division of corrections for not less than one nor more than ten years or fined not more than five thousand dollars, or both. It is a bar to prosecution under this section if the issuer of any such permit has a copy of the permit issued by the office of the state fire marshal.

§61-3E-3b. Possession of destructive devices, explosive materials, or incendiary devices by persons convicted of domestic or family violence offense; penalty.

No person who is subject to a domestic violence protective order that: (a) Was issued after a hearing of which the person received actual notice and at which such person had an opportunity to participate; (b) restrains the person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (c)(1) includes a finding that the person represents a credible threat to the physical safety of such intimate partner or child; or (2) by its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or has been convicted in any court of a misdemeanor crime of domestic violence may possess or manufacture any explosive material, destructive devices, explosive materials or incendiary devices.
Any person who violates the provisions of this section is guilty of a felony and, upon conviction thereof, shall be committed to the custody of the division of corrections for not less than one nor more than three years or fined not more than one thousand dollars, or both.

§61-3E-4. Criminal use of destructive device, explosive material, weapon of mass destruction, biological agent, toxin or incendiary device; penalty.

Any person who unlawfully and intentionally damages the property of another or attempts to damage the property of another by the use of a destructive device, explosive material, weapon of mass destruction, biological agent, toxin or incendiary device shall be guilty of a felony and, upon conviction thereof, shall be committed to the custody of the division of corrections for not less than two nor more than ten years, or fined not more than ten thousand dollars, or both.

§61-3E-10. Wanton endangerment involving destructive devices, explosive materials, weapon of mass destruction, biological agent, toxin, or by fire, or incendiary devices; penalty.

Any person who wantonly performs any act with a destructive device, explosive material, weapon of mass destruction, biological agent, toxin, or by fire or incendiary device which creates substantial risk of death or serious bodily injury to another shall be is guilty of a felony and, upon conviction thereof, shall be committed to the custody of the division of corrections for not less than two years nor more than ten years or fined not more than ten thousand dollars, or both fined and imprisoned.


NOTE: The bill adds certain definitions to offenses involving explosives to pick up some of the anti-terrorist provisions from Federal law, including chemical and biological type weapons and weapons of mass destruction. The bill makes it a crime to use and/or possess such weapons. The bill further makes it illegal for persons convicted of domestic or family violence penalties to possess destructive devices, explosive materials or incendiary devices and the bill makes it a crime for anyone to permit, or purport to permit any use of explosives unless they have ascertained that the applicant has a permit issued by the State Fire Marshal.

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

§§61-3E-3a and 3b are new; therefore, strike-throughs and underscoring have been omitted.