|The Senate Judiciary Committee on Thursday passed committee substitute for Senate Bill 572, which adds a new section to codify the common-law cause of action of public nuisance that is consistent with originally intended and historical applications.
Public nuisance is defined as an ongoing and unlawful condition that proximately causes an interference with an established public right. An established public right means a right commonly held by all members of the public to the use of public land, air, or water.
Senator Mark Maynard of Wayne County offered an amendment relating to sporting events venues that was adopted.
Bill creates reckless-driving felony
The Senate Judiciary Committee passed committee substitute for Senate Bill 660 after a lengthy discussion. The bill creates a new felony offense of reckless driving causing death and establishes penalties.
Senator Patricia Rucker of Jefferson County asked what exactly the bill would pertain to.
Counsel said, “It will be interpreted by the prosecutor and the court.” He added that it is implicit in case law that the behavior would be considered by a normal person to be outrageous and showed a willful or wanton disregard.
Jefferson County Prosecuting Attorney Matthew Harvey spoke in favor of the bill on behalf of the citizens of Jefferson County. He described having to sit with families whose child had been taken by a reckless driver, but the person who caused the death would face a maximum sentence of six months under current law.
Examples given by Prosecutor Harvey included drag racing and killing someone or passing a school bus with lights on and killing someone. He noted that the man who drove into a parade in Minnesota and killed eight people could only be charged for eight misdemeanors.
Chairman Charles Trump of Morgan County asked Prosecutor Harvey to tell the Committee about a particularly egregious case in Jefferson County. Prosecutor Harvey said a young man had just gotten his license and had lied to get it. He traveled at a high rate of speed in an old SUV, lost control, and struck a Dodge Ram truck head on with enough force to throw it up a bank. The woman driving it was killed instantly, and the young man’s passenger was also killed.
Prosecutor Harvey said the driver causing the accident was sentenced to 60 days in jail and was out in 30 days.
Senator Ryan Weld of Brooke County asked him whether the statute would provide a modicum of justice in that case; Harvey said it would.
Senator Mark Hunt of Kanawha County proposed an amendment that speed alone cannot be the sole basis for a charge of reckless driving. Chairman Charles Trump spoke against the amendment, saying, “Sometimes speed alone is the sole cause of reckless driving.”
Senator Weld responded to the amendment with an example of drag racing on an Interstate, hitting a car going slower, and killing a person. The sole factor was speeding, but the amendment wouldn’t allow the driver to be charged with a felony.
Senator David Stover of Wyoming County weighed in, saying he always drives the speed limit and is passed on a regular basis.
“Everybody speeds. Are they all felons?” asked Senator Stover. Chairman Trump responded that a jury would decide whether the conduct was reckless.
Senator Hunt argued that the bill with his amendment gave prosecutors a lot of leeway, but the amendment failed.
Bill increases penalties for drug possession
Committee substitute for Senate Bill 547 passed the Committee after testimony from several prosecuting attorneys.
The bill would increase the penalties for drug possession based primarily on weight. Counsel gave the example that the sentence for possession of five or more grams of fentanyl would be 10 to 30 years or a fine of $100,000 or both.
The bill also increases penalties for transportation and distribution of controlled substances into West Virginia
Counsel explained that using felony status for possession of schedule 1 or 2 narcotics could facilitate treatment options that are more available with a felony charge.
Senator Chandler Swope of Mercer County asked whether five grams of fentanyl is a fatal dose.
“Five grams of fentanyl would kill a whole lot of people,” said Counsel.
Patrick Via, Greenbrier County Prosecuting Attorney for 15 years, was asked by Senator Vince Deeds of Greenbrier County, “What is lacking in current code?”
Prosecutor Via said the bill offers effective deterrents for those selling drugs, particularly methamphetamine, heroin, cocaine, and fentanyl. He said current code is out of step with federal guidelines and other states.
Via added that another important component of the bill is to create a felony offense for possession of schedule 1 and 2 narcotics. The reason for this, he said, is to act as crime prevention and early intervention into addiction.
“We currently can do nothing with possession cases,” said Via, adding there is no force and effect. “This bill gives us the opportunity to intervene before that person, an addict, becomes a criminal who breaks and enters.”
Prosecutor Via went on to explain that the felony possession would leave discretion for law enforcement and prosecutors, based on other charges. He pointed out that if a person has no extended criminal history, that person can enter existing programs.
Anthony Ciliberti Jr., Fayette County Prosecutor, told the committee that the bill is important because whether a person sells a gram or a pound of methamphetamine, the sentence is not less than one year or more than 15 years.
In Fayette County, Prosecutor Ciliberti said the majority of cases involve fentanyl and methamphetamine, and often the heroin turns out to be fentanyl. He added that dealers often think they are selling heroin that turns out to be fentanyl.
This bill allows a charge of one count per controlled substance sold rather than one count for the sale of multiple controlled substances in one transaction.
Ryan Blake, Assistant Prosecutor in Greenbrier County, said the bill would allow intervention for simple possession. As the Drug Court prosecutor in his county, he said currently the court has to wait until crimes are committed to get a person into a drug court program.
“This bill is going to be an excellent opportunity for intervention,” he concluded.
Bill creates Kratom Consumer Protection Act
Committee substitute for Senate Bill 220, passed by Senate Judiciary, deals with kratom. The purpose of the bill is to create the Kratom Consumer Protection Act, regulating the preparation, distribution, and sale of kratom products and prohibiting adulterated products.
Kratom commonly refers to an herbal substance that can produce opioid and stimulant like effects. Kratom and kratom-based products are currently legal and accessible although the United States, and international agencies are reviewing emerging evidence about its use. No uses have been approved by the U. S. Food and Drug Administration.
Bill extends juvenile competency process to status offenders
The Senate Judiciary Committee passed committee substitute for Senate Bill 681, clarifying that the juvenile competency determination process extends to status offenders. Counsel explained the bill fixes an omission in code.
Counsel said the bill provides that persons under the age of 14 will be determined as competent or incompetent on a case-by-case basis rather than “presumptively incompetent.”