Ordinance and Rules Committee

CITY OF CHARLESTON WEST VIRGINIA Council Member – Ward 20 Chad Robinson Ordinance and Rules Committee, Chair 793 Lower Donnally Rd. Parks and Recreation Committee Charleston, WV 25304 Finance Committee 304- 389-7373 Parking Facilities Committee chad.robinson@cityofcharleston. org A meeting of the Council Committee on Ordinance & Rules will be held on Thursday, August 15, 2024 at 5:00 PM. To be held in person AV ROOM #308, CITY HALL *Join via Zoom: https://us02web.zoom.us/j/82879900081?pwd=vkbcaqEGDzW7aDpelbChz9oEnIPLOq.1 Passcode: 130539 *Join via Telephone: (312) 626-6799 or (929) 436-2866 Webinar ID: 828 7990 0081 Agenda APPROVAL OF PREVIOUS MINUTES 1. 7-15-2024 BILLS 1. Bill No. 8039 Committee Substitute - A BILL to amend the Municipal Code relating to updating, clarifying, and reforming the controlled substances offenses in the Municipal Code, incorporating the state code definitions and schedules of controlled substances, reducing the penalties for simple possession of certain controlled substances; making simple possession of marijuana a non-jailable offense; clarifying the conditional discharge statutes for simple possession charges; and expanding the possibilities for discharge of controlled substance possession charges. ADJOURN CR/ns *Meetings may be recorded and broadcast via internet https://charlestonwv.civicclerk.com Page | 1 of Page | 2 of  MINUTES ORDINANCE AND RULES COMMITTEE MEETING 5:30 P. M., JULY 15, 2024 THE MEETING WAS HELD IN PERSON IN THE AV ROOM #308 IN CITY HALL. Chad Robinson, Chairperson, called the meeting of the Charleston City Council Committee on Ordinance and Rules to order at 5:30 p.m., July 15, 2024. Committee Members Present: Chad Robinson, Chair Patrick Salango, Vice Chair Frank Annie Becky Ceperley Joseph Jenkins Emmett Pepper Absent: Sam Minardi Other Councilmembers Present: Beth Kerns Joe Solomon Bruce King Chuck Overstreet Mary Beth Hoover Shawn Taylor Caitlin Cook 1. Approval of Previous Minutes – Councilmember Ceperley motioned to approve the previous minutes from 7-8-2024. Councilmember Annie seconded the motion. With those being present having voted unanimously in the affirmative, the Chair declared the minutes as approved as amended. Page | 3 of  2. Bill No. 8039 Committee Substitute - A BILL to amend the Municipal Code by adding a new section related to controlled substances offenses in Municipal Code. City Attorney Kevin Baker explained that Section 371 now incorporates new language that incorporates the definition and schedules from State Code. Section 373 is broken into three subdivisions. It sets a first offense for simple possession of marijuana and synthetic cannabinoids to a fine of $0 and no jail time. Second offense is set at up to $500 fine and no jail time. They both require the diversion program to be used. The reference of 15 grams of marijuana has been removed. Councilmember Jenkins pointed out that “prohibited” should be added to Section 78-373 b for consistency. Baker agreed. Councilmember Ceperley received clarification from Baker that the bill would not legalize marijuana. It would reduce the penalty by removing jail time in Municipal Court. Councilmember Ceperley asked what the reason for the bill was. Councilmember Annie replied that it reflects the trends throughout the country. The person would still have to go to court and pay court fees. Councilmember Robinson added that the bill is a modernization of City Code. Councilmember Robinson confirmed that the 15 grams was removed in the definition per Councilmember Pepper’s amendment during the previous meeting. Police Chief Dempsey added that the removal of the “15 grams” would change police operations as to how certain crimes were charged. Councilmember Jenkins added that nation trends are moving to where resources are better spent on enforcing harder drugs, violent crimes, etc. Removing jail time also removes the cost to the city. Councilmember Jenkins asked if it could impact the police’s ability to leverage a simple possession charge. Chief Dempsey replied that he thought it would to a certain extent. He cautioned the Committee to consider all factors when making their decision. Councilmember Robinson confirmed with Baker that the Municipal Court has given jail time to anyone with simple possession charge of marijuana for some time. Councilmember Pepper confirmed with Baker that the deferment plan is an option for other types of possession, and there are other ways to get individuals treatment. Attorney David Potters added that the Public Defender’s Office pays for a panel counsel to represent individuals that qualify for a free lawyer from their budget. From the audience, Councilmember Taylor asked if the Municipal Judge had been consulted. Councilmember Robinson replied that the Attorney’s Office did discuss it with them generally. Councilmember Taylor added that there are court costs imposed and required by State Code. He added that a non-jailable offense removes the right for an individual to apply for free counsel. Page | 4 of Councilmember Pepper motioned to approve Bill No. 8039 Committee Substitute with the previously mentioned technical clean up. Councilmember Annie seconded. With those being present having voted in the majority in the affirmative, with one recognized Nay from Ceperley, the Chair declared Bill No. 8039 Committee Substitute as approved. 3. Bill No. 8043 - A BILL to amend the Municipal Code of the City of Charleston by adding a new Section 78-374, entitled "Marijuana laws and penalties,” relating to lowering the penalty for misdemeanor marijuana possession to the lowest penalty by State Law. The chair removed the item from the agenda. 4. Bill No. 8038 - A BILL to amend the Municipal Code relating to expanding the urban deer hunt to allow for urban bear and coyote hunting; authorizing the use of air rifles of .22 caliber or larger to hunt coyotes as part of the urban hunt; and expanding the hours to allow for hunting of coyotes at night on private property. Baker explained that the bill expands the current Urban Deer Hunt to include the possible hunting of coyote and bear. The time period remains the same, and requirements remain the same, with the exception that a hunter may use an air rifle to hunt coyotes in accordance with County and State Code. Councilmember Ceperley confirmed with Baker that bears can only be hunted with bow and arrow or compound bow. Councilmember Robinson confirmed that the bag limit for coyote was unlimited and two per year for bear. Councilmember Pepper asked what problem the bill would solve. Councilmember Robinson replied that coyotes are dangerous to humans and other animals (pets), and are in several neighborhoods. There have also been multiple sightings of bears every year in certain neighborhoods, in trash, on cars and in backyards and patios. Councilmember Annie added that the initial reason for the bill was that cats were being killed by coyotes in his neighborhood. Councilmember Pepper asked if any other municipalities in the State have similarly authorized hunting. Baker replied that was not part of his research for the bill. Councilmember Pepper added that he would want to know if there had been any Page | 5 of instances of dogs being mistaken for coyotes, are coyotes more aggressive if they have been shot but not killed, etc. He added that he has not heard from constituents regarding bears or coyotes. Part of the problem with these two animals is that they are getting food near houses, and the bill does not address that. From the audience, Councilmember Solomon advocated that a study be first conducted as to population distribution, locations of incidents, the role such animals play in the environment, etc. Baker added that the bill is silent on whether dogs be allowed to hunt bears. State Code allows it. It would be reasonable to assume City Code does as well unless otherwise stated. Councilmember Annie motioned to approve Bill No. 8038 Councilmember Ceperley seconded. With those being present having voted in the majority in the affirmative, with one recognized Nay from Ceperley, the Chair declared Bill No. 8038 as approved. 5. Bill No. 8040 Committee Substitute - A BILL to amend the Municipal Code relating to dogs running at large, and the penalties and impoundment therefore. Baker explained that the bill contains some clean up language that essentially requires a god to be on a lease unless it is on the owner’s property. It would provide more discretion to the Court as to penalties and fines within the set range. The Committee Substitute clarifies the definition of an aggressive dog. Councilmember Annie added that the bill is in response to previous incidents of loose dogs in his Ward. Councilmember Jenkins pointed out that the fines for first offenses for loos and aggressive dogs were the same. He asked what would happen to an aggressive dog that was not voluntarily surrendered. Baker replied that a dog deemed aggressive by the Municipal Court would be required to be insured, microchipped and wear a muzzle while leashed in public. State Court has the process to euthanize the dog. Councilmember Jenkins motioned to amend the fine for aggressive dogs for first offense to be $100 and second and subsequent offenses to be $100 no more than $500. From the audience, Councilmember Taylor shared his experience with these types of cases as a former Municipal Judge, and added that they often have heightened emotions. From the audience, Councilmember Steelhammer confirmed with the Committee that electronic leashes are mainly used for training hunting dogs. Councilmember Ceperley Page | 6 of confirmed that her friend uses one for their very large dog. Councilmember Ceperley asked if stray/feral cats were protected from aggressive dogs in the bill. Potters replied that it did not seem that they would not be included. Councilmember Jenkins motioned to amend the bill by amending Section 10-162(b) to change to offenses for an aggressive dog to the amounts previously discussed. With those being present having voted unanimously in the affirmative, the Chair declared the amendment as passed. Councilmember Annie motioned to approve Bill No. 8040 Committee Substitute as Amended. Councilmember Jenkins seconded. With those being present having voted unanimously in the affirmative, the Chair declared Bill No. 8040 Committee Substitute as Amended as approved. Councilmember Annie motioned to adjourn the meeting. Meeting adjourned. Page | 7 of  Bill No. 8039 Committee Substitute (Revised 8/6/24) Introduced in Council: Adopted by Council: July 1, 2024 Introduced by: Referred to: Frank Annie and Chad Robinson Ordinance & Rules______ 1 Bill No. 8039 Committee Substitute - A BILL to amend and reenact Sections 78-371, 2 78-372, and 78-373 of the Municipal Code of the City of Charleston, as amended, and to 3 amend said Code by adding thereto a new section, designated Section 78-374, all relating 4 updating, clarifying, and reforming the controlled substances offenses in Municipal Code, 5 to incorporating the state code definitions and schedules of controlled substances, 6 reducing the penalties for simple possession of certain controlled substances and the 7 criminal penalties therefore; making first offense simple possession of marijuana and 8 related substances specified in State code a non-jailable offense; clarifying the conditional 9 discharge statutes for first offense simple possession charges; and expanding the 10 possibilities for discharge of controlled substance possession charges; and updating state 11 law references and other terminology. 12 13 Now, therefore, be it ordained by the Council of the City of Charleston: 14 15 That Subdivision I of Division 5 of Article V of Chapter 78, specifically, Sections 78-371, 16 78-372, and 78-373 of the Municipal Code of the City of Charleston, as amended, are 17 hereby amended and reenacted and that a new section, designated Section 78-374, is 18 added thereto, all to read as follows: 19 20 DIVISION 5. - DRUGS AND RELATED OFFENSES 21 22 Subdivision I. - In General 23 24 Sec. 78-371. -– Definitions and Schedules Incorporated. Conditional discharge for 25 first offense of simple possession of controlled substances; possession of 15 26 grams or less of marijuana; expungement of records; subsequent offenses. 27 28 (a) Whenever any person who has not previously been convicted of any offense under 29 this chapter subdivision or under any statute of the United States or of any state relating 30 to controlled substances, narcotic drugs, marijuana, or stimulant, depressant, or 31 hallucinogenic drugs, pleads guilty to or is found guilty under this section, the court, 32 without entering a judgment of guilt and with the consent of the accused, may defer further 33 proceedings and place him or her on probation upon terms and conditions which may 34 include, but is not limited to, participation in a substance abuse treatment program. Upon 35 violation of a term or condition, the court may enter an adjudication of guilt and proceed Page | 8 of 36 as otherwise provided. Upon fulfillment of the terms and conditions, the court shall 37 discharge the person and dismiss the proceedings against him or her. Discharge and 38 dismissal under this section shall be without adjudication of guilt and is not a conviction 39 for purposes of this section or for purposes of disqualifications or disabilities imposed by 40 law upon conviction of a crime. The effect of the dismissal and discharge shall be to 41 restore the person in contemplation of law to the status he or she occupied prior to arrest 42 and trial. No person as to whom a dismissal and discharge have been effected shall be 43 thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement 44 by reason of his or her failure to disclose or acknowledge his or her arrest or trial in 45 response to any inquiry made of him or her for any purpose. There may be only one 46 discharge and dismissal under this section with respect to any person. 47 48 (b) Notwithstanding any other provision of this section to the contrary, any first offense for 49 possession of marijuana shall be disposed of as described in section (a) above. The 50 definitions set forth in Article I of the West Virginia Controlled Substances Act at West 51 Virginia Code § §60A-1-101, et seq., and the schedules of controlled substances set forth 52 in Article II of the West Virginia Controlled Substances Act at West Virginia Code § 60A- 53 2-201, et seq., including as they may be amended from time to time, are hereby fully 54 incorporated and made a part of this Chapter by reference,. 55 56 (c) After a period of not less than six months which shall begin to run immediately upon 57 the expiration of a term of probation imposed upon any person under this chapter, the 58 person may apply to the court for an order to expunge from all official records all 59 recordations recordation of his or her arrest, trial, and conviction, pursuant to this section. 60 If the court determines after a hearing that the person during the period of his or her 61 probation and during the period of time prior to his or her application to the court under 62 this section has not been guilty of any serious or repeated violation of the conditions of 63 his or her probation, it shall order the expungement. 64 65 (d) Notwithstanding any provision of this Code to the contrary, any person prosecuted 66 pursuant to the provisions of this article whose case is disposed of pursuant to the 67 provisions of this section shall be liable for any court costs assessable against a person 68 convicted of a violation of this section. Payment of such costs may be made a condition 69 of probation. 70 71 (e) Any person convicted of a second or subsequent offense under this section may be 72 fined up to $500.00 and/or sentenced to 30 days in jail. For purposes of this section an 73 offense is considered a second or subsequent offense if, prior to his conviction of the 74 offense, the offender has at any time been convicted under this Code or under any state 75 statute or statute of the United States or of any state relating to narcotic drugs, marijuana, 76 depressant, stimulant or hallucinogenic drugs. 77 78 Sec. 78-372. - Purporting to sell controlled substances. 79 80 (a) No person shall at any time sell any substance which that person purports to be a 81 controlled substance, as defined under schedules I through V of article II of the Uniform Page | 9 of  82 Controlled Substances Act (W. Va. Code § 60A-2-201 et seq.) when in actuality the 83 substance sold contains no controlled substances. 84 85 (b) Whoever violates the provisions of this section shall, upon conviction, be guilty of a 86 misdemeanor and fined not more than $100.00 or be imprisoned for a period not to 87 exceed 30 days, or both. Subsequent violations upon conviction shall be punishable by a 88 mandatory $100.00 fine and, in the discretion of the court, imprisonment not to exceed 89 30 days. 90 91 Sec. 78-373. - Illegal Simple possession of marijuana, synthetic cannabinoids, and 92 other controlled substances; simple possession of marijuana. 93 94 (a) Simple Possession of Controlled Substances Prohibited. It is unlawful for any person 95 knowingly or intentionally to possess a controlled substance, specifically a drug, 96 substance or immediate precursor in schedules I through V as set forth in W. Va. Code 97 §§ 60A-2-204, 60A-2-206, 60A-2-208, 60A-2-210 and 60A-2-212 (W. Va. Code § 60A-2- 98 204, et seq.), unless the substance was obtained directly from or pursuant to, a valid 99 prescription or order of a practitioner while acting in the course of his professional 100 practice, or except as otherwise authorized by this Code or West Virginia law. Any Except 101 as provided in subsection (b) of this section for simple possession of synthetic 102 cannabinoids, 3,4-methylenedioxypyrovalerone (MDPV), 4-methylmethcathinone 103 (mephedrone), or less than 15 grams of marijuana, any person who violates this section 104 is guilty of a misdemeanor and may be fined up to $500.00 and/or sentenced to 30 days 105 in jail; however, notwithstanding any other provision of this division to the contrary, any 106 first offense for possession of 15 grams or less of marihuana shall be disposed of under 107 section 78-371(e). 108 109 (b) Conditional discharge for first offense of possession. 110 111 (1) Whenever any person who has not previously been convicted of any offense under 112 this Code or under any state statute or statute of the United States relating to narcotic 113 drugs, marihuana, or stimulants, depressant or hallucinogenic drugs pleads guilty to or is 114 found guilty of possession of a controlled substance under this section, the court, without 115 entering a judgment of guilt and with the consent of the accused, may defer further 116 proceedings and place such persons on probation upon terms and conditions. Upon 117 violation of a term or condition, the court may enter an adjudication of guilt and proceed 118 as otherwise provided. Upon fulfillment of the terms and conditions, the court shall 119 discharge the person and dismiss the proceedings against him. Discharge and dismissal 120 under this section shall be without adjudication of guilt and is not a conviction for purpose 121 of this section or for purpose of disqualifications or disabilities imposed by law upon 122 conviction of a crime, including the additional penalties imposed for second or subsequent 123 convictions. The effect of such dismissal and discharge shall be to restore such person 124 in contemplation of law to the status he occupied prior to such arrest and trial. No person 125 as to whom such dismissal and discharge have been effected shall be thereafter held to 126 be guilty of perjury, false swearing or otherwise giving a false statement by reason of his 127 failure to disclose or acknowledge such arrest or trial in response to any inquiry made of Page | 10 of 128 him for any purpose. There may be only one discharge and dismissal under this section 129 with respect to any person. 130 131 (2) After a period of not less than six months which shall begin to run immediately upon 132 the expiration of a term of probation imposed upon any person under this division, such 133 person may apply to the court for an order to expunge from all official records all 134 recordings of his arrest, trial and conviction pursuant to this section. 135 136 (b)(a) Simple Possession of Synthetic Cannabinoids, MDPV, Mephedrone, and Less 137 Than 15 Grams of Marijuana Prohibited. It is unlawful for any person knowingly or 138 intentionally to possess synthetic cannabinoids, 3,4-methylenedioxypyrovalerone 139 (MDPV), 4-methylmethcathinone (mephedrone), or less than 15 grams of marijuana, 140 unless the substance was obtained directly from, or pursuant to, a valid prescription or 141 order of a practitioner while acting in the course of his or her professional practice, or 142 except as otherwise authorized by West Virginia law. Any person who violates this section 143 subsection is guilty of a misdemeanor, and, upon a conviction: (1) for a first offense, may 144 be fined not more than $100.00$0.00; or (2) for a second offense, may be fined not more 145 than $250.00, or (3) for a third or subsequent offense, may be fined not more than 146 $500.00, imprisoned not more than 30 days in the regional jail, or both fined and 147 imprisoned. Further, notwithstanding any other provision of this code to the contrary, 148 whenever a person has not previously been convicted within the previous one year of any 149 offense under this subsection subdivision or under any statute of the United States or of 150 any state for relating to controlled substances, narcotic drugs, marijuana, or stimulant, 151 depressant, or hallucinogenic drugssimple possession of synthetic cannabinoids, MDPV, 152 mephedrone, or less than 15 grams of marijuana, such initial conviction shall be disposed 153 of under section 78-371(a)78-374. 154 155 (b) Simple Possession of Synthetic Cannabinoids, MDPV, and Mephedrone Prohibited. 156 It is unlawful for any person knowingly or intentionally to possess synthetic cannabinoids, 157 3,4-methylenedioxypyrovalerone (MDPV) or 4-methylmethcathinone (mephedrone), 158 unless the substance was obtained directly from, or pursuant to, a valid prescription or 159 order of a practitioner while acting in the course of his or her professional practice, or 160 except as otherwise authorized by West Virginia law. Any person who violates this 161 subsection is guilty of a misdemeanor, and, upon a conviction: (1) for a first offense, may 162 be fined not more than $100.00; or (2) for a second offense or subsequent offense, may 163 be fined not more than $500.00, imprisoned not more than 30 days in the regional jail, or 164 both fined and imprisoned. Further, notwithstanding any other provision of this code to 165 the contrary, whenever a person has not previously been convicted of any offense under 166 this subdivision or under any statute of the United States or of any state relating to 167 controlled substances, narcotic drugs, marijuana, or stimulant, depressant, or 168 hallucinogenic drugs, such initial conviction shall be disposed of under section 78-374. 169 170 (c) Simple Possession of Controlled Substances Prohibited. It is unlawful for any person 171 knowingly or intentionally to possess any other controlled substance not specified in 172 subsection (a) or (b) of this section, unless the substance was obtained directly from or 173 pursuant to, a valid prescription or order of a practitioner while acting in the course of his Page | 11 of 174 professional practice, or except as otherwise authorized by this Code or West Virginia 175 law. Any person who violates this subsection is guilty of a misdemeanor and may be fined 176 up to $500.00 or confined up to 30 days in jail, or both fined and confined. 177 178 Sec. 78-374. – Conditional discharge for simple possession of controlled 179 substances; expungement of records. 180 181 (a) Except as otherwise provided in this Code, whenever any person who has not been 182 convicted of any offense under this subdivision or under any statute of the United States 183 or of any state relating to controlled substances, narcotic drugs, marijuana, or stimulant, 184 depressant, or hallucinogenic drugs, pleads guilty to or is found guilty under section 78- 185 373, the court, without entering a judgment of guilt and with the consent of the accused, 186 may defer further proceedings and place him or her on probation upon terms and 187 conditions which may include, but is not limited to, participation in a substance abuse 188 treatment program. Upon violation of a term or condition, the court may enter an 189 adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and 190 conditions, the court shall discharge the person and dismiss the proceedings against him 191 or her. Discharge and dismissal under this section shall be without adjudication of guilt 192 and is not a conviction for purposes of this section or for purposes of disqualifications or 193 disabilities imposed by law upon conviction of a crime. The effect of the dismissal and 194 discharge shall be to restore the person in contemplation of law to the status he or she 195 occupied prior to arrest and trial. No person as to whom a dismissal and discharge have 196 been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise 197 giving a false statement by reason of his or her failure to disclose or acknowledge his or 198 her arrest or trial in response to any inquiry made of him or her for any purpose. There 199 may be only one discharge and dismissal under this section with respect to any person: 200 Provided, That this limitation does not apply to anyone charged under Section 78-373(a) 201 for possession of marijuana. 202 203 (b) After a period of not less than six months which shall begin to run immediately upon 204 the expiration of a term of probation imposed upon any person pursuant to this section, 205 the person may apply to the court for an order to expunge from all official records all 206 recordation of his or her arrest, trial, and conviction. If the court determines after a hearing 207 that the person during the period of his or her probation and during the period of time prior 208 to his or her application to the court under this section has not been guilty of any serious 209 or repeated violation of the conditions of his or her probation, it shall order the 210 expungement. 211 212 (c) Notwithstanding any provision of this Code to the contrary, any person prosecuted 213 pursuant to the provisions of this subdivision whose case is disposed of pursuant to the 214 provisions of this section shall be liable for any court costs assessable against a person 215 convicted of a violation of this subdivision. Payment of such costs may be made a 216 condition of probation. 217 Page | 12 of  Bill No. 8039 Committee Substitute (Revised 8/6/24) Introduced in Council: Adopted by Council: July 1, 2024 Introduced by: Referred to: Frank Annie and Chad Robinson Ordinance & Rules______ 1 Bill No. 8039 Committee Substitute - A BILL to amend and reenact Sections 78-371, 2 78-372, and 78-373 of the Municipal Code of the City of Charleston, as amended, and to 3 amend said Code by adding thereto a new section, designated Section 78-374, all relating 4 updating, clarifying, and reforming the controlled substances offenses in Municipal Code, 5 incorporating the state code definitions and schedules of controlled substances, reducing 6 the penalties for simple possession of certain controlled substances; making simple 7 possession of marijuana a non-jailable offense; clarifying the conditional discharge 8 statutes for simple possession charges; and expanding the possibilities for discharge of 9 controlled substance possession charges. 10 11 Now, therefore, be it ordained by the Council of the City of Charleston: 12 13 That Subdivision I of Division 5 of Article V of Chapter 78, specifically, Sections 78-371, 14 78-372, and 78-373 of the Municipal Code of the City of Charleston, as amended, are 15 hereby amended and reenacted and that a new section, designated Section 78-374, is 16 added thereto, all to read as follows: 17 18 DIVISION 5. - DRUGS AND RELATED OFFENSES 19 20 Subdivision I. - In General 21 22 Sec. 78-371. – Definitions and Schedules Incorporated. 23 24 The definitions set forth in Article I of the West Virginia Controlled Substances Act at West 25 Virginia Code § §60A-1-101, et seq., and the schedules of controlled substances set forth 26 in Article II of the West Virginia Controlled Substances Act at West Virginia Code § 60A- 27 2-201, et seq., including as they may be amended from time to time, are hereby fully 28 incorporated and made a part of this Chapter by reference. 29 30 Sec. 78-372. - Purporting to sell controlled substances. 31 32 (a) No person shall at any time sell any substance which that person purports to be a 33 controlled substance when in actuality the substance sold contains no controlled 34 substances. 35 Page | 13 of 36 (b) Whoever violates the provisions of this section shall, upon conviction, be guilty of a 37 misdemeanor and fined not more than $100.00 or be imprisoned for a period not to 38 exceed 30 days, or both. Subsequent violations upon conviction shall be punishable by a 39 mandatory $100.00 fine and, in the discretion of the court, imprisonment not to exceed 40 30 days. 41 42 Sec. 78-373. - Simple possession of marijuana, synthetic cannabinoids, and other 43 controlled substances. 44 45 (a) Simple Possession of Less Than 15 Grams of Marijuana Prohibited. It is unlawful for 46 any person knowingly or intentionally to possess less than 15 grams of marijuana, unless 47 the substance was obtained directly from, or pursuant to, a valid prescription or order of 48 a practitioner while acting in the course of his or her professional practice, or except as 49 otherwise authorized by West Virginia law. Any person who violates this subsection is 50 guilty of a misdemeanor, and, upon a conviction: (1) for a first offense, may be fined not 51 more than $0.00; or (2) for a second offense, may be fined not more than $250.00, or (3) 52 for a third or subsequent offense, may be fined not more than $500.00. Further, 53 notwithstanding any other provision of this code to the contrary, whenever a person has 54 not been convicted within the previous one year of any offense under this subdivision or 55 under any statute of the United States or of any state relating to controlled substances, 56 narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, such 57 conviction shall be disposed of under section 78-374. 58 59 (b) Simple Possession of Synthetic Cannabinoids, MDPV, and Mephedrone Prohibited. 60 It is unlawful for any person knowingly or intentionally to possess synthetic cannabinoids, 61 3,4-methylenedioxypyrovalerone (MDPV) or 4-methylmethcathinone (mephedrone), 62 unless the substance was obtained directly from, or pursuant to, a valid prescription or 63 order of a practitioner while acting in the course of his or her professional practice, or 64 except as otherwise authorized by West Virginia law. Any person who violates this 65 subsection is guilty of a misdemeanor, and, upon a conviction: (1) for a first offense, may 66 be fined not more than $100.00; or (2) for a second or subsequent offense, may be fined 67 not more than $500.00, imprisoned not more than 30 days in the regional jail, or both 68 fined and imprisoned. Further, notwithstanding any other provision of this code to the 69 contrary, whenever a person has not previously been convicted of any offense under this 70 subdivision or under any statute of the United States or of any state relating to controlled 71 substances, narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, 72 such initial conviction shall be disposed of under section 78-374. 73 74 (c) Simple Possession of Controlled Substances Prohibited. It is unlawful for any person 75 knowingly or intentionally to possess any other controlled substance not specified in 76 subsection (a) or (b) of this section, unless the substance was obtained directly from or 77 pursuant to, a valid prescription or order of a practitioner while acting in the course of his 78 professional practice, or except as otherwise authorized by this Code or West Virginia 79 law. Any person who violates this subsection is guilty of a misdemeanor and may be fined 80 up to $500.00 or confined up to 30 days in jail, or both fined and confined. 81 Page | 14 of  82 Sec. 78-374. – Conditional discharge for simple possession of controlled 83 substances; expungement of records. 84 85 (a) Except as otherwise provided in this Code, whenever any person who has not been 86 convicted of any offense under this subdivision or under any statute of the United States 87 or of any state relating to controlled substances, narcotic drugs, marijuana, or stimulant, 88 depressant, or hallucinogenic drugs, pleads guilty to or is found guilty under section 78- 89 373, the court, without entering a judgment of guilt and with the consent of the accused, 90 may defer further proceedings and place him or her on probation upon terms and 91 conditions which may include, but is not limited to, participation in a substance abuse 92 treatment program. Upon violation of a term or condition, the court may enter an 93 adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and 94 conditions, the court shall discharge the person and dismiss the proceedings against him 95 or her. Discharge and dismissal under this section shall be without adjudication of guilt 96 and is not a conviction for purposes of this section or for purposes of disqualifications or 97 disabilities imposed by law upon conviction of a crime. The effect of the dismissal and 98 discharge shall be to restore the person in contemplation of law to the status he or she 99 occupied prior to arrest and trial. No person as to whom a dismissal and discharge have 100 been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise 101 giving a false statement by reason of his or her failure to disclose or acknowledge his or 102 her arrest or trial in response to any inquiry made of him or her for any purpose. There 103 may be only one discharge and dismissal under this section with respect to any person: 104 Provided, That this limitation does not apply to anyone charged under Section 78-373(a) 105 for possession of marijuana. 106 107 (b) After a period of not less than six months which shall begin to run immediately upon 108 the expiration of a term of probation imposed upon any person pursuant to this section, 109 the person may apply to the court for an order to expunge from all official records all 110 recordation of his or her arrest, trial, and conviction. If the court determines after a hearing 111 that the person during the period of his or her probation and during the period of time prior 112 to his or her application to the court under this section has not been guilty of any serious 113 or repeated violation of the conditions of his or her probation, it shall order the 114 expungement. 115 116 (c) Notwithstanding any provision of this Code to the contrary, any person prosecuted 117 pursuant to the provisions of this subdivision whose case is disposed of pursuant to the 118 provisions of this section shall be liable for any court costs assessable against a person 119 convicted of a violation of this subdivision. Payment of such costs may be made a 120 condition of probation. 121 Page | 15 of