Senate Bill No. 354
(By Senators Sprouse, Weeks, Deem, Smith and Boley)
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[Introduced January 24, 2003; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section one hundred one, article one,
chapter sixty-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and reenact
sections four hundred one, four hundred three-a and four
hundred six, article four of said chapter, all relating to
providing for the felony offense of possessing chemicals with
the intent of producing methamphetamine or allowing a
methamphetamine laboratory on one's premises; defining certain
terms; and providing for parole ineligibility for persons
convicted of possessing chemicals with the intent to
manufacture methamphetamine or allow a methamphetamine
laboratory on their premises.
Be it enacted by the Legislature of West Virginia:
That section one hundred one, article one, chapter sixty-a of
the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections four hundred
one, four hundred three-a and four hundred six, article four of
said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. DEFINITIONS.
§60A-1-101. Definitions.
As used in this chapter:
(a) "Administer" means the direct application of a controlled
substance whether by injection, inhalation, ingestion, or any other
means, to the body of a patient or research subject by:
(1) A practitioner (or, in his presence, by his authorized
agent), or
(2) The patient or research subject at the direction and in
the presence of the practitioner.
(b) "Agent" means an authorized person who acts on behalf of
or at the direction of a manufacturer, distributor or dispenser.
It does not include a common or contract carrier, public
warehouseman, or employee of the carrier or warehouseman.
(c) "Bureau" means the "Bureau of Narcotics and Dangerous
Drugs, United States Department of Justice," or its successor
agency.
(d) "Controlled substance" means a drug, substance or
immediate precursor in Schedules I through V of article two.
(e) "Counterfeit substance" means a controlled substance
which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other
identifying mark, imprint, number or device, or any likeness
thereof, of a manufacturer, distributor or dispenser other than the
person who in fact manufactured, distributed or dispensed the
substance.
(f) "Imitation controlled substance" means: (1) A controlled
substance which is falsely represented to be a different controlled
substance; or (2) a drug or substance which is not a controlled
substance but which is falsely represented to be a controlled
substance; or (3) a controlled substance or other drug or substance
or a combination thereof which is shaped, sized, colored, marked,
imprinted, numbered, labeled, packaged, distributed or priced so as
to cause a reasonable person to believe that it is a controlled
substance.
(g) "Deliver" or "delivery" means the actual, constructive, or
attempted transfer from one person to another of: (1) A controlled
substance, whether or not there is an agency relationship; (2) a
counterfeit substance; or (3) an imitation controlled substance.
(h) "Dispense" means to deliver a controlled substance to an
ultimate user or research subject by or pursuant to the lawful
order of a practitioner, including the prescribing, administering,
packaging, labeling, or compounding necessary to prepare the
substance for that delivery.
(i) "Dispenser" means a practitioner who dispenses.
(j) "Distribute" means to deliver, other than by administering
or dispensing, a controlled substance, a counterfeit substance, or
an imitation controlled substance.
(k) "Distributor" means a person who distributes.
(l) "Drug" means: (1) Substances recognized as drugs in the
official "United States Pharmacopoeia, official Homeopathic
Pharmacopoeia of the United States, or official National
Formulary," or any supplement to any of them; (2) substances
intended for use in the diagnosis, cure, mitigation, treatment or
prevention of disease in man or animals; (3) substances (other than
food) intended to affect the structure or any function of the body
of man or animals; and (4) substances intended for use as a
component of any article specified in clause (1), (2) or (3) of
this subdivision. It does not include devices or their components,
parts or accessories.
(m) "Immediate precursor" means a substance which the "West
Virginia Board of Pharmacy" (hereinafter in this act referred to as
the state board of pharmacy) has found to be and by rule designates
as being the principal compound commonly used or produced primarily
for use, and which is an immediate chemical intermediary used or
likely to be used in the manufacture of a controlled substance, the
control of which is necessary to prevent, curtail or limit
manufacture.
(n) "Manufacture" means the production, preparation, propagation, compounding, conversion or processing of a controlled
substance, either directly or indirectly or by extraction from
substances of natural origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical
synthesis, and includes any packaging or repackaging of the
substance or labeling or relabeling of its container, except that
this term does not include the preparation or compounding of a
controlled substance by an individual for his own use or the
preparation, compounding, packaging or labeling of a controlled
substance:
(1) By a practitioner as an incident to his administering or
dispensing of a controlled substance in the course of his
professional practice, or
(2) By a practitioner, or by his authorized agent under his
supervision, for the purpose of, or as an incident to, research,
teaching, or chemical analysis and not for sale.
(o) "Marihuana" means all parts of the plant "Cannabis sativa
L.," whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or
resin. It does not include the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative, mixture
or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant
which is incapable of germination.
(p) "Methamphetamine" means methamphetamine, any salt, isomer
or salt of or isomer of methamphetamine, or any compound, mixture,
preparation, or substance containing methamphetamine or any salt,
isomer, or salt of an isomer or methamphetamine.
(q) "Methamphetamine laboratory" means any laboratory or other
premises that is used for the manufacture or production of
methamphetamine in violation of this chapter.
(p) (r) "Narcotic drug" means any of the following, whether
produced directly or indirectly by extraction from substances of
vegetable origin, or independently by means of chemical synthesis,
or by a combination of extraction and chemical synthesis:
(1) Opium and opiate, and any salt, compound, derivative, or
preparation of opium or opiate.
(2) Any salt, compound, isomer, derivative or preparation
thereof which is chemically equivalent or identical with any of the
substances referred to in clause (1) of this subdivision, but not
including the isoquinoline alkaloids of opium.
(3) Opium poppy and poppy straw.
(4) Coca leaves and any salt, compound, derivative or
preparation of coca leaves, and any salt, compound, isomer,
derivative, or preparation thereof which is chemically equivalent
or identical with any of these substances, but not including decocainized coca leaves or extractions of coca leaves which do not
contain cocaine or ecgonine.
(q) (s) "Opiate" means any substance having an
addiction-forming or addiction-sustaining liability similar to
morphine or being capable of conversion into a drug having
addiction-forming or addiction-sustaining liability. It does not
include, unless specifically designated as controlled under section
201, article two of this chapter, the dextrorotatory isomer of 3-
methoxy-n-methylmorphinan and its salts (dextromethorphan). It
does not include its racemic and levorotatory forms.
(r) (t) "Opium poppy" means the plant of the species "Papaver
somniferum L.," except its seeds.
(s) (u) "Person" means individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association, or any other legal entity.
(t) (v) "Placebo" means an inert medicament or preparation
administered or dispensed for its psychological effect, to satisfy
a patient or research subject or to act as a control in
experimental series.
(u) (w) "Poppy straw" means all parts, except the seeds, of
the opium poppy, after mowing.
(v) (x) "Practitioner" means:
(1) A physician, dentist, veterinarian, scientific
investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect
to, or to administer a controlled substance in the course of
professional practice or research in this state.
(2) A pharmacy, hospital, or other institution licensed,
registered, or otherwise permitted to distribute, dispense, conduct
research with respect to, or to administer a controlled substance
in the course of professional practice or research in this state.
(w) (y) "Production" includes the manufacture, planting,
cultivation, growing or harvesting of a controlled substance.
(x) (z) "State," when applied to a part of the United States,
includes any state, district, commonwealth, territory, insular
possession thereof, and any area subject to the legal authority of
the United States of America.
(y) (aa) "Ultimate user" means a person who lawfully possesses
a controlled substance for his own use or for the use of a member
of his household or for administering to an animal owned by him or
by a member of his household.
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 thereof, 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, is guilty of a felony and, upon conviction thereof, 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 substance classified in Schedule IV, is guilty of a
felony and, upon conviction thereof, 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 substance classified in Schedule V, is guilty of a
misdemeanor and, upon conviction thereof, 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 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 thereof, 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 thereof, 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 thereof, 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 thereof, 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 chapter. 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 chapter 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 thereof, 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 thereof, 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.
(e) Except as authorized by this chapter, no person may
knowingly assemble or possess two or more chemicals in a quantity
sufficient for use in the manufacture of a controlled substance
listed in either Schedule I or II. Any person who violates this
section is guilty of a felony and, upon conviction thereof, may be
imprisoned in a state correctional facility for a period not less
than two nor more than ten years or fined not less than five
thousand dollars nor more than fifty thousand dollars, or both
fined and imprisoned.
ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-403a. Prohibition of illegal drug paraphernalia
businesses; definitions; places deemed common
and public nuisances; abatement; suit to
abate nuisances; injunction; search warrants; forfeiture of property; penalties.
(a) Any person who conducts, finances, manages, supervises,
directs or owns all or part of an illegal drug paraphernalia
business is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than five thousand dollars, or confined in
the county or regional jail not less than six months nor more than
one year, or both.
(b) A person violates subsection (a) of this section when:
(1) The person conducts, finances, manages, supervises,
directs, or owns all or part of a business which for profit, in the
regular course of business or as a continuing course of conduct,
manufactures, sells, stores, possesses, gives away or furnishes
objects designed to be primarily useful as drug devices.
(2) The person knows or has reason to know that the design of
such objects renders them primarily useful as drug devices.
(c) As used in this section, "drug device" means an object
usable for smoking marijuana, for smoking controlled substances
defined as tetrahydrocannabinols, or for ingesting or inhaling
cocaine, and includes, but is not limited to:
(i) Metal, wooden, acrylic, glass, stone, plastic or ceramic
pipes with or without screens, permanent screens, hashish heads, or
punctured metal bowls;
(ii) Water pipes;
(iii) Carburetion tubes and devices;
(iv) Smoking and carburetion masks;
(v) Roach clips; meaning objects used to hold burning
material, such as a marijuana cigarette, that has become too small
or too short to be held in the hand;
(vi) Chamber pipes;
(vii) Carburetor pipes;
(viii) Electric pipes;
(ix) Air-driven pipes;
(x) Chillums;
(xi) Bongs;
(xii) Ice pipes or chillers; and
(xiii) Miniature cocaine spoons, and cocaine vials.
(xiv) Any object, instrument or device used for manufacturing
compounding, converting, producing, processing or preparing
methamphetamine or any salt, isomer or salt of an isomer of
methamphetamine.
In any prosecution under this section, the question whether an
object is a drug device shall be a question of fact.
(d) A place where drug devices are manufactured, sold, stored,
possessed, given away or furnished in violation of this section
shall be deemed a common or public nuisance. Conveyances or
vehicles of any kind shall be deemed places within the meaning of
this section and may be proceeded against under the provisions of
subsection (e) of this section. A person who shall maintain, or shall aid or abet or knowingly be associated with others in
maintaining such common or public nuisance shall be guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a
fine of not more than one thousand dollars, or by confinement in a
county or regional jail not more than six months for each offense,
and judgment shall be given that such nuisance be abated or closed
as a place for the manufacture, sale, storage, possession, giving
away or furnishing of drug devices.
(e) The prosecuting attorney or a citizen of the county or
municipality where a nuisance as defined in subsection (d) is
located, may maintain a suit in the name of the state to abate and
perpetually enjoin the same. Circuit courts shall have
jurisdiction thereof. The injunction may be granted at the
commencement of the suit and no bond shall be required if such
action for injunction be brought by the prosecuting attorney. If
such suit for injunction be brought or maintained by a citizen of
the county or municipality where such nuisance is alleged to be
located, then the court may require a bond as in other cases of
injunction. On the finding that the material allegations of the
complaint are true, the court or judge thereof in vacation shall
order the injunction for such period of time as it or he may think
proper, with the right to dissolve the injunction upon the
application of the owner of the place, if a proper case is shown
for such dissolution.
The continuance of the injunction as provided in this section
may be ordered, although the place complained of may not at the
time of hearing be unlawfully used.
(f) If there be complaint on oath or affirmation supported by
affidavit or affidavits setting forth the facts for such belief
that drug devices are being manufactured, sold, kept, stored or in
any manner held, used or concealed in a particular house or other
place with intent to engage in illegal drug paraphernalia business
in violation of law, a magistrate or a circuit court, or the judge
thereof in vacation to whom such complaint is made, if satisfied
that there is probable cause for such belief, shall issue a warrant
to search such house or other place for such devices. Such
warrants, except as herein otherwise provided, shall be issued,
directed and executed in accordance with the laws of West Virginia
pertaining to search warrants. Warrants issued under this section
for the search of any automobile, boat, conveyance or vehicle, or
for the search of any trunk, grip or other article of baggage, for
such devices, may be executed in any part of the state where the
same are overtaken, and shall be made returnable before any
magistrate or circuit court, or the judge thereof in vacation,
within whose jurisdiction such automobile, boat, conveyance,
vehicle, trunk, grip or other article of baggage, or any of them,
were transported or attempted to be transported.
An officer charged with the execution of a warrant issued under this section, may, whenever it is necessary, break open and
enter a house, or other place herein described.
(g) Any property, including money, used in violation of the
provisions of this section may be seized and forfeited to the
state.
ARTICLE 4. OFFENSES AND PENALTIES.
§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 the minimum number
of years he or she is sentenced to the custody of the department of
corrections upon a felony conviction for possessing, with intent to deliver, manufacture or assemble chemicals intended for the
manufacture or production of methamphetamine, or owning or
permitting a methamphetamine laboratory upon his or her premises.
(c) (d) 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) (e) 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
provide for the felony
offense of possessing chemicals with the intent of producing
methamphetamine or allowing a methamphetamine laboratory on one's
premises. The bill, additionally, defines certain terms while
providing for parole ineligibility for persons convicted of
possessing chemicals with the intent to manufacture methamphetamine
or for allowing a methamphetamine laboratory on their premises.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.