Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                 Introduced Senate Bill 154
  BY SENATORS DEEDS, HAMILTON, HUNT, OLIVERIO,
  PHILLIPS, QUEEN, ROBERTS, SWOPE, TARR, TAYLOR,
         WOODRUM, STUART, AND JEFFRIES
           [Introduced January 10, 2024]
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  A BILL to amend and reenact §60A-4-401, §60A-4-409, §60A-4-414, and §60A-4-416 of the Code
         of West Virginia, 1931, as amended, all relating to controlled substances violations;
         increasing sentences for certain controlled substances offenses; making certain offenses
         ineligible for suspension, probation, or alternative sentencing; making possession of
         Schedule I and II narcotics and methamphetamine a felony; expressing legislative intent;
         authorizing reduction from felony to misdemeanor under certain circumstances; declaring
         a minimum period of 10 years’ incarceration for the offense of drug delivery death;
         requiring inert substances mixed with controlled substances to be considered a controlled
         substance for purposes of weight measurement; setting forth a method for measurement
        where more than one controlled substance is in a mixture; and modifying sentences for
        certain offenses.
     Be it enacted by the Legislature of West Virginia:
     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 or which
  is methamphetamine, is guilty of a felony and, upon conviction thereof, may be imprisoned in a
  state correctional facility for not less than one year three years nor more than 15 years, or fined
  not more than $25,000 $50,000, or both fined and imprisoned:; Provided, That any person who
  violates this section knowing that the controlled substance classified in Schedule II is fentanyl,
  either alone or in combination with any other substance shall be fined not more than $50,000, or
 be imprisoned in a state correctional facility for not less than 3 nor more than 15 years, or both
 fined and imprisoned;
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         (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 a state correctional facility for not less than one
 year nor more than five years, or fined not more than $15,000, or both fined and imprisoned;
         (iii) A substance classified in Schedule IV is guilty of a felony and, upon conviction thereof,
 may be imprisoned in a state correctional facility for not less than one year nor more than three
 years, or fined not more than $10,000, or both fined and imprisoned;
         (iv) A substance classified in Schedule V is guilty of a misdemeanor and, upon conviction
 thereof, 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 fined and confined: Provided, That for offenses relating to any
 substance classified as Schedule V in §60A-10-1 et seq. of this code, 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, or
 methamphetamine, is guilty of a felony and, upon conviction thereof, may be imprisoned in a state
 correctional facility for not less than one year nor more than 15 years, or fined not more than
 $25,000, or both fined and imprisoned;
         (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 a state correctional facility for not less than
 one year nor more than five years, or fined not more than $15,000, or both fined and imprisoned;
         (iii) A counterfeit substance classified in Schedule IV is guilty of a felony and, upon
 conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor
 more than three years, or fined not more than $10,000, or both fined and imprisoned;
         (iv) A counterfeit substance classified in Schedule V is guilty of a misdemeanor and, upon
 conviction thereof, may be confined in jail for not less than six months nor more than one year, or
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 fined not more than $5,000, or both fined and confined: Provided, That for offenses relating to any
 substance classified as Schedule V in §60A-10-1 et seq. of this code, the penalties established
 in said article apply. Notwithstanding the provisions of subsection (a) of this section, any person
 who willfully manufactures, delivers, or possesses with the intent to manufacture or deliver one
 kilogram or more of heroin, one kilogram or more of cocaine or cocaine base, 100 grams or more
 of phencyclidine, 10 grams or more of lysergic acid diethylamide, 50 grams or more of
 methamphetamine, or five grams or more of fentanyl, is guilty of a felony and, upon conviction
 thereof, shall be imprisoned in a state correctional facility for an indeterminate sentence of not
 less than 10 nor more than 30 years, or fined not more than $100,000, or both fined and
 imprisoned.
        (c)(1) 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, and disposition may be made under §60A-4-407 of this code, subject to the
 limitations specified in said section, or upon conviction thereof, the person may be confined in jail
 not less than 90 days nor more than six months, or fined not more than $1,000, or both fined and
 confined: Provided, That notwithstanding any other provision of this act to the contrary, any first
 offense for possession of synthetic cannabinoids as defined by §60A-1-101(d)(32) of this code;
 3,4-methylenedioxypyrovalerone       (MPVD)      and    3,4-methylenedioxypyrovalerone and/or
 mephedrone as defined in §60A-1-101(f) of this code; or less than 15 grams of marijuana, shall
 be disposed of under §60A-4-407 of this code.
        (2) Notwithstanding the provisions of subdivision (1) of this subsection, possession of a
 controlled substance classified in Schedule I or II which is a narcotic drug or which is
 methamphetamine is a felony, and upon conviction, the person shall be imprisoned in a state
 correctional facility for not less than one year nor more than five years: Provided, That a person
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 charged pursuant to this subdivision may, upon successful completion of a court ordered or
 approved drug treatment program, have his or her offense revert to a misdemeanor with
 disposition under subdivision (1) of this subsection: Provided, That the modification in law effected
 by the amendment to this subsection enacted during the 2024 Regular Session of the Legislature
 is expressly designed to assist in getting persons unlawfully using controlled substances in
 Schedules I and II which are narcotic drugs or methamphetamine in obtaining treatment for any
 substance abuse issue they may have: Provided, however, That the legislature recommends that
 courts and prosecuting attorneys, where possible, avail themselves of the full panoply of
 sentencing alternatives available in code, including but not limited to the provisions of §62-11B-1
 et seq., §62-11C-1 et seq. , §62-11F-1 et seq., and §62-13-1 et seq. of this code.
        (d) It is unlawful for any person knowingly or intentionally:
        (1) To create, distribute, deliver, or possess with intent to distribute or deliver, an imitation
 controlled substance; or
        (2) To create, possess, sell, or otherwise transfer any equipment with the intent that the
 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 confined in jail for not less than six months nor more than one year, or
 fined not more than $5,000, or both fined and confined. Any person 18 years old or more who
 violates subdivision (1) of this subsection and distributes or delivers an imitation controlled
 substance to a minor child who is at least three years younger than that person is guilty of a felony
 and, upon conviction thereof, may be imprisoned in a state correctional facility for not less than
 one year nor more than three years, or fined not more than $10,000, or both fined and imprisoned.
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         (4) The provisions of subdivision (1) of this subsection shall not apply to a practitioner who
  administers or dispenses a placebo.
         (d) Notwithstanding the provisions of subsection (a) of this section, any person who
  willfully manufactures or delivers or possesses with intent to manufacture or deliver not less than
  100 but fewer than 1,000 grams of heroin, not less than 100 but fewer than 1,000 grams of cocaine
  or cocaine base, not less than 10 but fewer than 100 grams of phencyclidine, not less than one
  but fewer than 10 grams of lysergic acid diethylamide, or not less than five but fewer than 50
  grams of methamphetamine, or one gram or more but less than five grams of fentanyl, is guilty of
  a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for an
  indeterminate sentence of not less than five nor more than 20 years, or fined not more than
  $75,000, or both fined and imprisoned.
        (e) For purposes of determining the weight of any controlled substance under this section,
 a mixture must contain only a detectable amount of a controlled substance for the entire mixture
 to be considered that controlled substance. If a mixture or substance contains more than one
 controlled substance, the weight of the entire mixture or substance is assigned to the controlled
 substance that results in the greater offense penalty.
        (f) Under this section, where one act involves two or more controlled substances, the
 manufacture, delivery, or possession with intent to manufacture or deliver of each controlled
 substance shall be considered a separate and distinct offense unless the controlled substances
 are mixed together.
        (g) 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, or
 methamphetamine, is guilty of a felony and, upon conviction thereof, may be imprisoned in a state
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 correctional facility for not less than one year nor more than 15 years, or fined not more than
 $25,000, or both fined and imprisoned;
           (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 a state correctional facility for not less than
 one year nor more than five years, or fined not more than $15,000, or both fined and imprisoned;
           (iii) A counterfeit substance classified in Schedule IV is guilty of a felony and, upon
 conviction thereof, may be imprisoned in a state correctional facility for not less than one year nor
 more than three years, or fined not more than $10,000, or both fined and imprisoned;
           (iv) A counterfeit substance classified in Schedule V is guilty of a misdemeanor and, upon
 conviction thereof, 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 fined and confined: Provided, That for offenses relating to any
 substance classified as Schedule V in §60A-10-1 et seq. of this code, the penalties established
 in said article apply.
           (e) (h) It is unlawful for any person knowingly or intentionally:
           (1) To adulterate another controlled substance using fentanyl as an adulterant;
           (2) To create a counterfeit substance or imitation controlled substance using fentanyl; or
           (3) To cause the adulteration or counterfeiting or imitation of another controlled substance
 using fentanyl.
           (4) Any person who violates this subsection is guilty of a felony and, upon conviction
 thereof, shall be imprisoned in a state correctional facility for not less than three nor more than 15
 years, or fined not more than $50,000, or both fined and imprisoned.
           (5) For purposes of this section:
           (i) A controlled substance has been adulterated if fentanyl has been mixed or packed with
 it; and
           (ii) Counterfeit substances and imitation controlled substances are further defined in §60A-
 1-101 of this code.
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     §60A-4-409. Prohibited acts – Transportation of controlled substances into state;
            penalties.
         (a) Except as otherwise authorized by the provisions of this code, it is unlawful for any
  person to transport or cause to be transported into this state a controlled substance with the intent
  to deliver the same or with the intent to manufacture a controlled substance.
         (b) Any person who violates this section with respect to:
         (1) A controlled substance classified in Schedule I or II, which is a narcotic drug, shall be
  guilty of a felony and, upon conviction thereof, may be imprisoned in the state correctional facility
  for not less than one year five years nor more than 15 20 years, or fined not more than $25,000
  $50,000 or both fined and imprisoned. Provided, That any person who violates this section
  knowing that the controlled substance classified in Schedule II is fentanyl, either alone or in
 combination with any other substance shall be fined not more than $50,000 or imprisoned in a
 state correctional facility for a definite term of not less than 10 nor more than 20 years, or both
 fined and imprisoned
        (2) Any other controlled substance classified in Schedule I, II or III shall be is guilty of a
 felony and, upon conviction thereof, may be imprisoned in the state correctional facility for not
 less than one year nor more than 10 years, or fined not more than $15,000, or both: Provided,
 That for the substance marijuana, as scheduled in subdivision (24) subsection (d), §60A-2-
 204(d)(24) of this code, the penalty, upon conviction of a violation of this subsection, shall be that
 set forth in subdivision (3) of this subsection.
        (3) A substance classified in Schedule IV shall be is guilty of a felony and, upon conviction
 thereof, may be imprisoned in the state correctional facility for not less than one year nor more
 than five years, or fined not more than $10,000, or both;
        (4) A substance classified in Schedule V shall be is guilty of a misdemeanor and, upon
 conviction thereof, 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
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 classified as Schedule V in §60A-10-1 et seq. of this code, the penalties established in said article
 apply.
          (c) Notwithstanding the provisions of subsection (b) of this section, any person violating
 or causing a violation of subsection (a) of this section involving one kilogram or more of heroin,
 five kilograms one kilogram or more of cocaine or cocaine base, 100 grams or more of
 phencyclidine, 10 grams or more of lysergic acid diethylamide, or 50 grams or more of
 methamphetamine, or five grams or more of fentanyl 500 grams of a substance or material
 containing a measurable amount of methamphetamine, is guilty of a felony and, upon conviction
 thereof, shall be imprisoned in a state correctional facility for a determinate an indeterminate
 sentence of not less than two 15 nor more than 30 years.
          (d) Notwithstanding the provisions of subsection (b) of this section, any person violating
 or causing a violation of subsection (a) of this section involving 100 but fewer than 1,000 grams
 of heroin, not less than 500 100 but fewer than 5,000 1,000 grams of cocaine or cocaine base,
 not less than 10 but fewer than 99 grams of phencyclidine, not less than one but fewer than 10
 grams of lysergic acid diethylamide, or not less than five but fewer than 50 grams of
 methamphetamine or not less than 50 grams but fewer than 500 grams of a substance or material
 containing a measurable amount of methamphetamine, or one gram or more but less than five
 grams of fentanyl is guilty of a felony and, upon conviction thereof, shall be imprisoned in