WEST virginia Legislature

2017 regular session

Introduced

House Bill 2516

By Delegates Byrd, Rohrbach, Fluharty, Fleischauer and Baldwin

[Introduced February 16, 2017; Referred
to the Committee on Prevention and Treatment of Substance Abuse then the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended by adding thereto a new section, designated §15-9-4a; to amend and reenact §16-1-4 of said code; to amend and reenact §18-2-7b of said code; to amend and reenact §60A-4-401; to amend said code by adding thereto a new section, designated §60A-4-414; and to amend said code by adding thereto a new section, designated §61-2-4a, all relating to substance abuse; mandating  studies by the Governor’s committee on crime, delinquency and correction on reforms to state drug sentencing laws; requiring said committee to coordinate school education program by law-enforcement officers; authorizing the State Department of Health to promulgate rules regulating the exchange of syringes and providing immunity for certain actions relating thereto; directing the State Board of Education to requiring county boards to provide substance abuse training education; directing State Board of Education to coordinate its activities with state law enforcement agencies; providing a penalty enhancement for use of a firearm during manufacture or distribution of controlled or imitation controlled substance; providing that an attempt or conspiracy to attempt to distribute controlled substances or imitation controlled substance is the same as the actual act; and establishing new criminal penalty for causing death by distributing a controlled substance.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §15-9-4a; that §16-1-4 of said code be amended and reenacted; that §18-2-7b of said code be amended and reenacted; that §60A-4-401 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §60A-4-414; and that said code be amended by adding thereto a new section, designated §61-2-4a, all to read as follows:

CHAPTER 15. PUBLIC SAFETY.

ARTICLE 9. GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION.

§15-9-4a. Sentencing study for drug offenders; promotion of student education about alcohol, drug abuse and police practices.

(a) The Governor’s committee on crime, delinquency and correction shall conduct comprehensive research and recommend to the Legislature by January 1, 2018, reforms to our criminal sentencing laws and procedures relating to:

(1) Revision of nonviolent drug offenses for individuals found to have committed crimes as a result of their addictions to or the illegal use of drugs. The committee shall focus on recommendations to the Legislature for shifting criminal penalties of our laws away from incarceration, focusing on interdiction, counseling and rehabilitation, to address the underlying causes of addition of these individuals;

(2) The committee shall also conduct a comprehensive review and study of national and local trends and programs that have proven successful in addressing and overcoming addiction and identifying the nature of the causes of addiction and criminal behavior related to drug addiction. The committee shall provide recommendations to the Legislature for the creation of programs and establishment of facilities in the state that provide how the state can best shift its expenditures in a revenue neutral fashion away from incarceration to interdiction programs, facilities and related services; and

(3) The committee shall study and make recommendations to the Legislature relating to criminal sentencing statutes relating to controlled substance distribution.

(b) The Governor’s committee on crime, delinquency and correction shall facilitate a program between state law-enforcement personnel and the State Board of Education and county school boards to coordinate activities established in section seven-b, article two, chapter eighteen of this code, directing law-enforcement agencies periodically providing opportunities for age appropriate student education on law enforcement practices and relay the experiences of law- enforcement officers and others on the impacts of illegal alcohol and drug use. This program is to be designed to facilitate understanding and appreciation for the risks of illegal alcohol and drug use and likely actions by law-enforcement officers when conducting investigations. The instruction is to include principles of law enforcement criminal investigations and how to appropriately respond to an officer during a vehicular stop or criminal investigation, to promote understanding of students on the risks to and duties of law-enforcement officers, and how to appropriately interact with law-enforcement officers during these circumstances, including problematic or dangerous actions or behaviors that could result in detention or arrest.

         CHAPTER 16.  PUBLIC HEALTH.

ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.

§16-1-4.  Proposal of rules by the secretary.

(a) The secretary may propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code that are necessary and proper to effectuate the purposes of this chapter. The secretary may appoint or designate advisory councils of professionals in the areas of hospitals, nursing homes, barbers and beauticians, postmortem examinations, mental health and intellectual disability centers and any other areas necessary to advise the secretary on rules.

(b) The rules may include, but are not limited to, the regulation of:

(1) Land usage endangering the public health: Provided, That no rules may be promulgated or enforced restricting the subdivision or development of any parcel of land within which the individual tracts, lots or parcels exceed two acres each in total surface area and which individual tracts, lots or parcels have an average frontage of not less than one hundred fifty feet even though the total surface area of the tract, lot or parcel equals or exceeds two acres in total surface area, and which tracts are sold, leased or utilized only as single-family dwelling units. Notwithstanding the provisions of this subsection, nothing in this section may be construed to abate the authority of the department to:

(A) Restrict the subdivision or development of a tract for any more intense or higher density occupancy than a single-family dwelling unit;

(B) Propose or enforce rules applicable to single-family dwelling units for single-family dwelling unit sanitary sewerage disposal systems; or

(C) Restrict any subdivision or development which might endanger the public health, the sanitary condition of streams or sources of water supply;

(2) The sanitary condition of all institutions and schools, whether public or private, public conveyances, dairies, slaughterhouses, workshops, factories, labor camps, all other places open to the general public and inviting public patronage or public assembly, or tendering to the public any item for human consumption and places where trades or industries are conducted;

(3) Occupational and industrial health hazards, the sanitary conditions of streams, sources of water supply, sewerage facilities and plumbing systems and the qualifications of personnel connected with any of those facilities, without regard to whether the supplies or systems are publicly or privately owned; and the design of all water systems, plumbing systems, sewerage systems, sewage treatment plants, excreta disposal methods and swimming pools in this state, whether publicly or privately owned;

(4) Safe drinking water, including:

(A) The maximum contaminant levels to which all public water systems must conform in order to prevent adverse effects on the health of individuals and, if appropriate, treatment techniques that reduce the contaminant or contaminants to a level which will not adversely affect the health of the consumer. The rule shall contain provisions to protect and prevent contamination of wellheads and well fields used by public water supplies so that contaminants do not reach a level that would adversely affect the health of the consumer;

(B) The minimum requirements for: Sampling and testing; system operation; public notification by a public water system on being granted a variance or exemption or upon failure to comply with specific requirements of this section and rules promulgated under this section; record keeping; laboratory certification; as well as procedures and conditions for granting variances and exemptions to public water systems from state public water systems rules; and

(C) The requirements covering the production and distribution of bottled drinking water and may establish requirements governing the taste, odor, appearance and other consumer acceptability parameters of drinking water;

(5) Food and drug standards, including cleanliness, proscription of additives, proscription of sale and other requirements in accordance with article seven of this chapter as are necessary to protect the health of the citizens of this state;

(6) The training and examination requirements for emergency medical service attendants and emergency medical care technician-paramedics; the designation of the health care facilities, health care services and the industries and occupations in the state that must have emergency medical service attendants and emergency medical care technician-paramedics employed and the availability, communications and equipment requirements with respect to emergency medical service attendants and to emergency medical care technician-paramedics. Any regulation of emergency medical service attendants and emergency medical care technician- paramedics may not exceed the provisions of article four-c of this chapter;

(7) The health and sanitary conditions of establishments commonly referred to as bed and breakfast inns. For purposes of this article, “bed and breakfast inn” means an establishment providing sleeping accommodations and, at a minimum, a breakfast for a fee. The secretary may not require an owner of a bed and breakfast providing sleeping accommodations of six or fewer rooms to install a restaurant-style or commercial food service facility. The secretary may not require an owner of a bed and breakfast providing sleeping accommodations of more than six rooms to install a restaurant-type or commercial food service facility if the entire bed and breakfast inn or those rooms numbering above six are used on an aggregate of two weeks or less per year;

(8) Fees for services provided by the Bureau for Public Health including, but not limited to, laboratory service fees, environmental health service fees, health facility fees and permit fees;

(9) The collection of data on health status, the health system and the costs of health care;

(c) The secretary shall propose a rule for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the distribution of state aid to local health departments and basic public health services funds.

The rule shall include the following provisions:

Base allocation amount for each county;

Establishment and administration of an emergency fund of no more than two percent of the total annual funds of which unused amounts are to be distributed back to local boards of health at the end of each fiscal year;

A calculation of funds utilized for state support of local health departments;

Distribution of remaining funds on a per capita weighted population approach which factors coefficients for poverty, health status, population density and health department interventions for each county and a coefficient which encourages counties to merge in the provision of public health services;

A hold-harmless provision to provide that each local health department receives no less in state support for a period of four years beginning in the 2009 budget year.

The Legislature finds that an emergency exists and, therefore, the secretary shall file an emergency rule to implement the provisions of this section pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code. The emergency rule is subject to the prior approval of the Legislative Oversight Commission on Health and Human Resources Accountability prior to filing with the Secretary of State.

(d) The secretary shall propose a rule for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for a syringe exchange program operated by a local health department. A local health department, including the local health officer, that operates a syringe exchange program in compliance with a legislative rule promulgated in accordance with this subdivision is immune from any civil or criminal liability arising out of any act or omission resulting from the syringe exchange program unless the act or omission was the result of gross negligence or willful misconduct. The Legislature finds that for the purposes of section fifteen, article three, chapter twenty-nine-a of this code, an emergency exists requiring the promulgation of an emergency rule to preserve the public peace, health, safety or welfare and to prevent substantial harm to the public interest.

(d) (e) The secretary may propose rules for legislative approval that may include the regulation of other health-related matters which the department is authorized to supervise and for which the rule-making authority has not been otherwise assigned.

CHAPTER 18. EDUCATION.

ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-7b. Programs in drug prevention and violence reduction.

(a) In order for the schools to become healthy learning environments and to provide a strong defense against drug use and violence, the State Board of Education shall prescribe programs within the existing health and physical education program which teach resistance and life skills to counteract societal and peer pressure to use drugs, alcohol and tobacco, and shall include counselors, teachers and staff in full implementation of the program. The board shall also prescribe programs to coordinate violence reduction efforts in schools and between schools and their communities and to train students, teachers, counselors and staff in conflict resolution skills. The program shall be comprehensive, interdisciplinary and shall begin in elementary school. The state board shall report to the Legislative Oversight Commission on education accountability on the status of the programs no later than July 1, 1995.

(b) No later than the start of the 2017-2018 school year, the State Board of Education shall require each county board of education to implement a comprehensive drug awareness and prevention program that mandates students in grades K through 12 to receive instruction regarding the dangers of substance abuse. The purpose of the drug awareness and prevention program is to:

(1) Keep students from illegally using alcohol, tobacco or other drugs;

(2) Reduce or eliminate the incidence and prevalence of student alcohol, tobacco and other drug abuse;

(3) Reduce the factors that place students at risk with alcohol, tobacco or other drugs through school and community based planning processes;

(4) Contribute to the development of school environments and alternative activities that are alcohol, tobacco and drug-free;

(5) Increase the knowledge and skills of students, staff and community members for avoiding the harmful effects of alcohol, tobacco, drug-use and blood borne pathogens; and

(6) Actively involve staff, students, parents, and other community members in the development and implementation of the drug awareness and prevention program plans. 

(c) The state board shall coordinate the directives of subsection (b) this section with educators, drug rehabilitation specialists and law-enforcement agencies to periodically provide opportunities for age appropriate student education on their experiences on the impacts of illegal alcohol and drug use. Further, the program is to facilitate understanding and appreciation for the risks to, duties of, and likely actions by law-enforcement officers when conducting investigations, instruction is to include how to respond to an officer during a vehicular or other stop or police interaction, including problematic or dangerous actions and behaviors that could result in a person being detained or arrested.

CHAPTER 60A. UNIFORM CONTROLLED SUBSTANCE ACT.

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 state correctional facility for not less than one year nor more than fifteen years, or fined not more than $25,000, 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 state correctional facility for not less than one year nor more than five years, or fined not more than $15,000, or both;

(iii) A substance classified in Schedule IV is guilty of a felony and, upon conviction, may be imprisoned in the state correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both;

(iv) A substance classified in Schedule V is guilty of a misdemeanor and, upon conviction, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both: Provided, That for offenses relating to any substance classified as Schedule V in article ten of this chapter, the penalties established in said article apply.

(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 state correctional facility for not less than one year nor more than fifteen years, or fined not more than $25,000, 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 state correctional facility for not less than one year nor more than five years, or fined not more than $15,000, or both;

(iii) A counterfeit substance classified in Schedule IV is guilty of a felony and, upon conviction, may be imprisoned in the state correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both;

(iv) A counterfeit substance classified in Schedule V is guilty of a misdemeanor and, upon conviction, may be confined in jail for not less than six months nor more than one year, or fined not more than $5,000, or both: Provided, That for offenses relating to any substance classified as Schedule V in article ten of this chapter, the penalties established in said article apply.

(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 four hundred seven of this article, subject to the limitations specified in said section, or upon conviction, such person may be confined in jail not less than ninety days nor more than six months, or fined not more than $1,000, or both: Provided, That notwithstanding any other provision of this act to the contrary, any first offense for possession of Synthetic Cannabinoids as defined by subdivision (32) subsection, (d), section 101, article 1 of this chapter; 3,4-methylenedioxypyrovalerone (MPVD)and 3,4-methylenedioxypyrovalerone and/or mephedrone as defined in subsection (f), section 101, article 1 of this chapter; or less than 15 grams of marijuana, shall be disposed of under said section.

(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 jail for not less than six months nor more than one year, or fined not more than $5,000, 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 state correctional facility for not less than one year nor more than three years, or fined not more than $10,000, or both.

(4) The provisions of subdivision (1) of this subsection shall not apply to a practitioner who administers or dispenses a placebo.

(e) If any person who possesses with the intent to deliver, manufactures or delivers a controlled substance or imitation controlled substance while using or possessing a firearm, upon a finding by the court that the firearm was used or possessed in connection with the possession with the intent to deliver, manufacture or delivery of such substance, the court shall sentence the person to serve a minimum of one third of the maximum sentence the person is eligible to serve for such offense.

§60A-4-414. Conspiracy to distribute.

Any person who attempts or conspires to commit any offense defined in this article is subject to the same penalties as those prescribed for the same offense which was the object of to the attempt or subject conspiracy.

CHAPTER 61. CRIMES & THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-4a. Causing death by distribution of controlled substance.

Any person who, without intent to cause death, causes the death of a person by, directly or indirectly, distributing a controlled substance as defined in section one hundred one, article one, chapter sixty-a of this code, is guilty of involuntary manslaughter.

NOTE: The purpose of this bill is to  address substance abuse and facilitate the reduction thereof; mandating the Governor’s committee on crime, delinquency and correction on reforms to conduct a study of state drug sentencing laws; requiring the committee to coordinate school education program with law-enforcement officers; authorizing the Department of Health to promulgate rules regulating the exchange of syringes, and providing immunity for certain actions relating thereto; directing the State Board of Education to requiring each county board to provide substance abuse training education; directing State Board of Education to coordinate its activities with law enforcement and drug rehabilitation agencies; providing a penalty enhancement for us of a firearm during manufacture or distribution of controlled or imitation controlled substance;  providing that an attempt or conspiracy to attempt to distribute controlled substances is the same as the actual act; and establishing new criminal penalty for causing death by distributing a controlled substance to that person.

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