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Introduced Version Senate Bill 515 History

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SB515 intr
Senate Bill No. 515

(By Senators Kessler and Barnes)

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[Introduced February 9, 2010; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §61-7-2 and §61-7-10 of the Code of West Virginia, 1931, as amended, all relating to prohibiting the purchase or attempt to purchase a firearm from a firearm dealer by certain persons; increasing fines for certain offenses; prohibiting and punishing a person other than a law- enforcement officer who knowingly solicits, persuades, encourages or entices a firearm or ammunition dealer or private seller to violate firearm sales laws; providing definitions; and conforming certain definitions to federal law.

Be it enacted by the Legislature of West Virginia:

That §61-7-2 and §61-7-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 7. DANGEROUS WEAPONS.

§61-7-2. Definitions.

As used in this article, unless the context otherwise requires:

(1) "Blackjack" means a short bludgeon consisting, at the striking end, of an encased piece of lead or some other heavy substance and, at the handle end, a strap or springy shaft which increases the force of impact when a person or object is struck. The term "blackjack" shall include, but not be limited to, a billy, billy club, sand club, sandbag or slapjack.

(2) "Gravity knife" means any knife that has a blade released from the handle by the force of gravity or the application of centrifugal force and when so released is locked in place by means of a button, spring, lever or other locking or catching device.

(3) "Knife" means an instrument, intended to be used or readily adaptable to be used as a weapon, consisting of a sharp- edged or sharp-pointed blade, usually made of steel, attached to a handle which is capable of inflicting cutting, stabbing or tearing wounds. The term "knife" shall include, but not be limited to, any dagger, dirk, poniard or stiletto, with a blade over three and one- half inches in length, any switchblade knife or gravity knife and any other instrument capable of inflicting cutting, stabbing or tearing wounds. A pocket knife with a blade three and one-half inches or less in length, a hunting or fishing knife carried for
hunting, fishing, sports or other recreational uses, or a knife designed for use as a tool or household implement shall not be included within the term "knife" as defined herein unless such knife is knowingly used or intended to be used to produce serious bodily injury or death.
(4) "Switchblade knife" means any knife having a spring- operated blade which opens automatically upon pressure being applied to a button, catch or other releasing device in its handle.

(5) "Nunchuka" means a flailing instrument consisting of two or more rigid parts, connected by a chain, cable, rope or other nonrigid, flexible or springy material, constructed in such a manner as to allow the rigid parts to swing freely so that one rigid part may be used as a handle and the other rigid part may be used as the striking end.

(6) "Metallic or false knuckles" means a set of finger rings attached to a transverse piece to be worn over the front of the hand for use as a weapon and constructed in such a manner that, when striking another person with the fist or closed hand, considerable physical damage may be inflicted upon the person struck. The terms "metallic or false knuckles" shall include any such instrument without reference to the metal or other substance or substances from which the metallic or false knuckles are made.

(7) "Pistol" means a short firearm having a chamber which is
integral with the barrel, designed to be aimed and fired by the use of a single hand.
(8) "Revolver" means a short firearm having a cylinder of several chambers that are brought successively into line with the barrel to be discharged, designed to be aimed and fired by the use of a single hand.

(9) "Deadly weapon" means an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to such use. The term "deadly weapon" shall includes, but is not limited to, the instruments defined in subdivisions (1) through (8), inclusive, of this section a firearm, blackjack, nunchuka, metallic or false knuckles, knife or other deadly weapons of like kind or character which may be easily concealed on or about the person. For the purposes of section one-a, article five, chapter eighteen-a and section eleven-a, article seven of this chapter, in addition to the definition of "knife" set forth in subdivision (3) of this section, the term "deadly weapon" also includes any instrument included within the definition of "knife" with a blade of three and one-half inches or less in length. Additionally, for the purposes of section one-a, article five, chapter eighteen-a and section eleven-a, article seven of this chapter, the term "deadly weapon" includes explosive, chemical, biological and radiological materials. Notwithstanding any other
provision of this section, the term "deadly weapon" does not include any item or material owned by the school or county board, intended for curricular use, and used by the student at the time of the alleged offense solely for curricular purposes.
(10) "Concealed" means hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried.

(11) "Firearm" means:

(A) Any weapon, including a starter pistol, which will expel a projectile by action of an explosion;

(B) Except that an antique firearm, as defined in this section, may not be considered a firearm for purposes of this article.

(12) "Antique firearm" means:

(A) Any firearm a matchlock, flintlock, percussion cap or similar type of ignition system manufactured in or before 1898; or

(B) Any replica of any firearm described in paragraph (A) of this subdivision if such replica:

(i) Is not designed or redesigned for using rimfire or conventional fixed ammunition, or

(ii) Uses rimfire or conventional centerfire fixed
ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) Any muzzle loading rifle, muzzle loading shotgun or muzzle loading pistol, which is designed to use black powder or a black powder substitute, and which cannot use fixed ammunition. However, an antique firearm may not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock or any combination thereof.

(12) (13) "Controlled substance" has the same meaning as is ascribed to that term in section one hundred one, article one, chapter sixty-a (d).

(13) (14) "Drug" has the same meaning as is ascribed to that term in subsection (1) section one, article one hundred one, chapter sixty-a.

(15) "Ammunition" means ammunition or cartridge cases, primers, bullets or propellant powder designed for use in any firearm.

(16) "Crime punishable by imprisonment for a term exceeding one year" does not include:

(A) Any federal or state offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade or other similar offenses relating to the regulation of business practices; or
(B) Any state offense classified by the laws of the state as a misdemeanor and, punishable by a term of imprisonment of two years or less.

(17)(A) Except as otherwise provided in this subdivision, "misdemeanor crime of domestic violence" means an offense that:

(i) Is a misdemeanor under federal or state law; and

(ii) Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian or by a person similarly situated to a spouse, parent, or guardian of the victim.

(B) A person is not considered to have been convicted of an offense for purposes of this article, unless:

(i) The person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and

(ii) In the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in
the jurisdiction in which the case was tried, either:
(I) The case was tried by a jury, or

(II) The person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

§61-7-10. Display of deadly weapons for sale or hire; sale toprohibited persons; penalties.

(1) It shall be is unlawful for any A person to may not publicly display and offer for rent or sale, or, where the person is other than a natural person, to knowingly permit an employee thereof to publicly display and offer for rent or sale, to any passers by on any street, road or alley, any deadly weapon. machine gun, submachine gun or other fully automatic weapon, any rifle, shotgun or ammunition for same.
(2) Any person violating the provisions of this subsection shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $5,000 or shall be confined in the county jail for not more than one year, or both fined and confined, except that where the person violating the provisions of this subsection is other than a natural person, such person shall be fined not more than $10,000.
(3) It shall be unlawful for any A person to may not knowingly sell, rent, give or lend, or, where the person is other than a natural person, to knowingly permit an employee thereof to knowingly sell, rent, give or lend, any deadly weapon firearm or ammunition to a person prohibited from possessing same firearm or ammunition by any provision of this article by 18 U.S.C. §922(g) or (n) or other applicable federal law.
(4) Any person violating the provisions of who violates any of the provisions of subsection (2)of this subsection shall be section is guilty of a felony and, upon conviction thereof, shall be fined not more than twenty-five thousand dollars $100,000, or shall be imprisoned in the penitentiary of this state in a state correctional facility for a definite term of years of not less than three years nor more than ten years, or both fined and imprisoned, except that where the person violating the provisions of committing an offense punishable under this subsection is other than a natural person, such person shall be fined not more than fifty thousand dollars $250,000.
(5) A person who knowingly solicits, persuades, encourages or entices a licensed dealer or private seller of firearms or ammunition to transfer a firearm or ammunition under circumstances which the person knows would violate the laws of this state or the United States is guilty of a felony. A person who willfully procures another to engage in conduct prohibited by this subsection shall be punished as a principal. This subsection does not apply to a law-enforcement officer acting in his or her official capacity.

NOTE: The purpose of this bill is to prohibit and punish anyone, aside from law-enforcement officers, from knowingly soliciting, persuading, encouraging or enticing a firearm or ammunition dealer or private seller to violate firearm laws. This bill also conforms certain definitions to federal law.

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