Senate Bill No. 498

(By Senators Unger, Carmichael, Cookman, Beach, Fitzsimmons, D. Hall, Tucker, Williams, Green, Cole, Stollings, Plymale, Jenkins, Kessler (Mr. President), Blair, Laird, Nohe and Prezioso)

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[Introduced February 6, 2014; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §20-2-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §61-7-2 and §61-7-6 of said code, all relating to firearms and concealed firearms licenses; permitting persons to possess firearms, other than shotguns and rifles, in a vehicle or conveyance without a concealed deadly weapons permit; changing certain provisions covering all firearms to be limited to shotguns and rifles; removing the provision that a firearm located in a storage area in or on a motor vehicle is deemed to be carried on or about a person who has a concealed handgun license; and permitting a person to transport concealed firearms in a private motor vehicle or a private water-borne conveyance without the necessity of having concealed deadly weapons permit.

Be it enacted by the Legislature of West Virginia:

    That §20-2-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §61-7-2 and §61-7-6 of said code be amended and reenacted, all to read as follows:

CHAPTER 20. NATURAL RESOURCES.

ARTICLE 2. WILDLIFE RESOURCES.

§20-2-5. Unlawful methods of hunting and fishing and other unlawful acts.

    Except as authorized by the director, it is unlawful at any time for any person to:

    (1) Shoot at or to shoot any wild bird or animal unless it is plainly visible to him or her;

    (2) Dig out, cut out or smoke out, or in any manner take or attempt to take, any live wild animal or wild bird out of its den or place of refuge except as may be authorized by rules promulgated by the director or by law;

    (3) Make use of, or take advantage of, any artificial light in hunting, locating, attracting, taking, trapping or killing any wild bird or wild animal, or to attempt to do so, while having in his or her possession or subject to his or her control, or for any person accompanying him or her to have in his or her possession or subject to his or her control, any firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or animal: Provided, That it is lawful to hunt or take coyote, fox, raccoon, opossum or skunk by the use of artificial light subject to the restrictions set forth in this subdivision. No person is guilty of a violation of this subdivision merely because he or she looks for, looks at, attracts or makes motionless a wild bird or wild animal with or by the use of an artificial light, unless at the time he or she has in his or her possession a firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or wild animal, or unless the artificial light (other than the head lamps of an automobile or other land conveyance) is attached to, a part of or used from within or upon an automobile or other land conveyance.

    Any person violating the provisions of this subdivision is guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than $100 nor more than $500 and shall be confined in jail for not less than ten days nor more than one hundred days;

    (4) Hunt for, take, kill, wound or shoot at wild animals or wild birds from an airplane, or other airborne conveyance, an automobile, or other land conveyance, or from a motor-driven water conveyance, except as authorized by rules promulgated by the director;

    (5) Take any beaver or muskrat by any means other than by trap;

    (6) Catch, capture, take or kill by seine, net, bait, trap or snare or like device of any kind any wild turkey, ruffed grouse, pheasant or quail;

    (7) Destroy or attempt to destroy needlessly or willfully the nest or eggs of any wild bird or have in his or her possession the nest or eggs unless authorized to do so under rules promulgated by or under a permit issued by the director;

    (8) Except as provided in section six of this article, carry an uncased or loaded gun in any of the woods of this state except during the open firearms hunting season for wild animals and nonmigratory wild birds within any county of the state unless he or she has in his or her possession a permit in writing issued to him or her by the director: Provided, That this section does not prohibit hunting or taking of unprotected species of wild animals and wild birds and migratory wild birds, during the open season, in the open fields, open water and open marshes of the state;

    (9) Have in his or her possession a crossbow with a nocked bolt, a loaded firearm or a firearm shotgun or rifle or a shotgun or rifle from the magazine of which all shells and cartridges have not been removed, in or on any vehicle or conveyance, or its attachments, within the state, except as may otherwise be provided by law or regulation. Except as hereinafter provided, between five o'clock postmeridian of one day and seven o'clock antemeridian, eastern standard time of the day following, any unloaded firearm shotgun or rifle or crossbow, being lawfully carried in accordance with the foregoing provisions, may be so carried only when in a case or taken apart and securely wrapped. During the period from July 1 to September 30, inclusive, of each year, the foregoing requirements relative to carrying certain unloaded firearms shotguns or rifles are permissible only from eight-thirty o'clock postmeridian to five o'clock antemeridian, eastern standard time: firearms Provided, That the time periods for carrying unloaded and uncased shotguns or rifles are extended for one hour after the postmeridian times and one hour before the antemeridian times established above if a hunter is preparing to or in the process of transporting or transferring the firearms shotgun or rifles to or from a hunting site, campsite, home or other place of abode;

    (10) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement by which wildlife may be taken after the hour of five o'clock antemeridian on Sunday on private land without the written consent of the landowner any wild animals or wild birds except when a big game season opens on a Monday, the Sunday prior to that opening day will be closed for any taking of wild animals or birds after five o'clock antemeridian on that Sunday: Provided, That traps previously and legally set may be tended after the hour of five o'clock antemeridian on Sunday and the person so doing may carry only a twenty-two caliber firearm for the purpose of humanely dispatching trapped animals. Any person violating the provisions of this subdivision is guilty of a misdemeanor and, upon conviction thereof, in addition to any fines that may be imposed by this or other sections of this code, is subject to a $100 fine;

    (11) Hunt, catch, take, kill, injure or pursue a wild animal or bird with the use of a ferret;

    (12) Buy raw furs, pelts or skins of fur-bearing animals unless licensed to do so;

    (13) Catch, take, kill or attempt to catch, take or kill any fish at any time by any means other than by rod, line and hooks with natural or artificial lures unless otherwise authorized by law or rules issued by the Director: Provided, That snaring of any species of suckers, carp, fallfish and creek chubs shall at all times be lawful;

    (14) Employ or hire, or induce or persuade, by the use of money or other things of value, or by any means, any person to hunt, take, catch or kill any wild animal or wild bird except those species on which there is no closed season, or to fish for, catch, take or kill any fish, amphibian or aquatic life which is protected by the provisions of this chapter or rules of the director or the sale of which is prohibited;

    (15) Hunt, catch, take, kill, capture, pursue, transport, possess or use any migratory game or nongame birds included in the terms of conventions between the United States and Great Britain and between the United States and United Mexican States for the protection of migratory birds and wild mammals concluded, respectively, August 16, 1916, and February 7, 1936, except during the time and in the manner and numbers prescribed by the federal Migratory Bird Treaty Act, 16 U.S.C. §703, et seq., and regulations made thereunder;

    (16) Kill, take, catch or have in his or her possession, living or dead, any wild bird other than a game bird; or expose for sale or transport within or without the state any bird except as aforesaid. No part of the plumage, skin or body of any protected bird may be sold or had in possession for sale except mounted or stuffed plumage, skin, bodies or heads of the birds legally taken and stuffed or mounted, irrespective of whether the bird was captured within or without this state, except the English or European sparrow (passer domesticus), starling (sturnus vulgaris) and cowbird (molothrus ater), which may not be protected and the killing thereof at any time is lawful;

    (17) Use dynamite or any like explosive or poisonous mixture placed in any waters of the state for the purpose of killing or taking fish. Any person violating the provisions of this subdivision is guilty of a felony and, upon conviction thereof, shall be fined not more than $500 or imprisoned for not less than six months nor more than three years, or both fined and imprisoned;

    (18) Have a bow and gun, or have a gun and any arrow or arrows, in the fields or woods at the same time;

    (19) Have a crossbow in the woods or fields or use a crossbow to hunt for, take or attempt to take any wildlife except as otherwise provided in section 42w forty-two-w of this article;

    (20) Take or attempt to take turkey, bear, elk or deer with any arrow unless the arrow is equipped with a point having at least two sharp cutting edges measuring in excess of three fourths of an inch wide;

    (21) Take or attempt to take any wildlife with an arrow having an explosive head or shaft, a poisoned arrow or an arrow which would affect wildlife by any chemical action;

    (22) Shoot an arrow across any public highway or from aircraft, motor-driven watercraft, motor vehicle or other land conveyance;

    (23) Permit any dog owned by him or her or under his or her control to chase, pursue or follow upon the track of any wild animal or wild bird, either day or night, between May 1 and the August 15 next following: Provided, That dogs may be trained on wild animals and wild birds, except deer and wild turkeys, and field trials may be held or conducted on the grounds or lands of the owner or by his or her bona fide tenant or tenants or upon the grounds or lands of another person with his or her written permission or on public lands at any time: Provided, however, That nonresidents may not train dogs in this state at any time except during the legal small game hunting season: Provided further, That the person training said dogs does not have firearms or other implements in his or her possession during the closed season on wild animals and wild birds, whereby wild animals or wild birds could be taken or killed;

    (24) Conduct or participate in a field trial, shoot-to-retrieve field trial, water race or wild hunt hereafter referred to as trial: Provided, That any person, group of persons, club or organization may hold the trial at any time of the year upon obtaining a permit as is provided in section fifty-six of this article. The person responsible for obtaining the permit shall prepare and keep an accurate record of the names and addresses of all persons participating in said trial and make same readily available for inspection by any natural resources police officer upon request;

    (25) Except as provided in section four of this article, hunt, catch, take, kill or attempt to hunt, catch, take or kill any wild animal, wild bird or wild fowl except during the open season established by rule of the director as authorized by subdivision (6), section seven, article one of this chapter;

    (26) Hunting on public lands on Sunday after five o'clock antemeridian is prohibited;

    (27) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement which wildlife can be taken, on private lands on Sunday after the hour of five o'clock antemeridian: Provided, That the provisions of this subdivision do does not apply in any county until the county commission of the county holds an election on the question of whether the provisions of this subdivision prohibiting prohibits hunting on Sunday shall apply within the county and the voters approve the allowance of hunting on Sunday in the county. The election is determined by a vote of the resident voters of the county in which the hunting on Sunday is proposed to be authorized. The county commission of the county in which Sunday hunting is proposed shall give notice to the public of the election by publication of the notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication is the county in which the election is to be held. The date of the last publication of the notice shall fall on a date within the period of the fourteen consecutive days next preceding the election.

    On the local option election ballot shall be printed the following:

    Shall hunting on Sunday be authorized in ________ County?

              [ ] Yes        [ ] No

    (Place a cross mark in the square opposite your choice.)

    Any local option election to approve or disapprove of the proposed authorization of Sunday hunting within a county shall be in accordance with procedures adopted by the commission. The local option election may be held in conjunction with a primary or general election or at a special election. Approval shall be by a majority of the voters casting votes on the question of approval or disapproval of Sunday hunting at the election.

    If a majority votes against allowing Sunday hunting, no election on the issue may be held for a period of one hundred four weeks. If a majority votes "yes,” no election reconsidering the action may be held for a period of five years. A local option election may thereafter be held if a written petition of qualified voters residing within the county equal to at least five percent of the number of persons who were registered to vote in the next preceding general election is received by the county commission of the county in which Sunday hunting is authorized. The petition may be in any number of counterparts. The election shall take place at the next primary or general election scheduled more than ninety days following receipt by the county commission of the petition required by this subsection: Provided, That the issue may not be placed on the ballot until all statutory notice requirements have been met. No local law or regulation providing any penalty, disability, restriction, regulation or prohibition of Sunday hunting may be enacted and the provisions of this article preempt preempts all regulations, rules, ordinances and laws of any county or municipality in conflict with this subdivision; and

    (28) Hunt or conduct hunts for a fee where the hunter is not physically present in the same location as the wildlife being hunted within West Virginia.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

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 include, but not be limited to, the instruments defined in subdivisions (1) through (8), inclusive, of this section 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 of this code 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 of this code 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. For purposes of concealed handgun licensees, a licensee shall be deemed to be carrying on or about his or her person while in or on a motor vehicle if the firearm is located in a storage area in or on the motor vehicle.

    (11) “Firearm” means any weapon which will expel a projectile by action of an explosion.

    (12) “Controlled substance” has the same meaning as is ascribed to that term in subsection (d), section one hundred one, article one, chapter sixty-a of this code.

    (13) “Drug” has the same meaning as is ascribed to that term in subsection (1), section one hundred one, article one, chapter sixty-a of this code.

§61-7-6. Exceptions as to prohibitions against carrying concealed handguns; exemptions from licensing fees.

    (a) The licensure provisions set forth in this article do not apply to:

    (1) Any person:

    (A) Carrying a deadly weapon upon his or her own premises;

    (B) Carrying a firearm, unloaded, from the place of purchase to his or her home, residence or place of business or to a place of repair and back to his or her home, residence or place of business; or

    (C) Possessing a firearm while hunting in a lawful manner or while traveling from his or her home, residence or place of business to a hunting site and returning to his or her home, residence or place of business;

    (2) Any person who is a member of a properly organized target-shooting club authorized by law to obtain firearms by purchase or requisition from this state or from the United States for the purpose of target practice from carrying any pistol, as defined in this article, unloaded, from his or her home, residence or place of business to a place of target practice and from any place of target practice back to his or her home, residence or place of business, for using any such weapon at a place of target practice in training and improving his or her skill in the use of the weapons;

    (3) Any law-enforcement officer or law-enforcement official as defined in section one, article twenty-nine, chapter thirty of this code;

    (4) Any employee of the West Virginia Division of Corrections duly appointed pursuant to the provisions of section eleven-c, article one, chapter twenty-five of this code while the employee is on duty;

    (5) Any member of the armed forces of the United States or the militia of this state while the member is on duty;

    (6) Any resident of another state who holds a valid permit or license to possess or carry a handgun issued by a state or a political subdivision subject to the provisions and limitations set forth in section six-a of this article;

    (7) Any federal law-enforcement officer or federal police officer authorized to carry a weapon in the performance of the officer’s duty;

    (8) Any Hatfield-McCoy Regional Recreation Authority Ranger while the ranger is on duty; and

    (9) Any parole officer appointed pursuant to section fourteen, article twelve, chapter sixty-two of this code in the performance of their duties; and

    (10) Any person transporting a firearm concealed in or on a private motor vehicle or a private water-borne conveyance.

    (b) On and after July 1, 2013, the following judicial officers and prosecutors and staff shall be exempted from paying any application fees or licensure fees required under this article. However, on and after that same date, they shall be required to make application and satisfy all licensure and handgun safety and training requirements set forth in section four of this article before carrying a concealed handgun in this state:

    (1) Any justice of the Supreme Court of Appeals of West Virginia;

    (2) Any circuit judge;

    (3) Any retired justice or retired circuit judge designated senior status by the Supreme Court of Appeals of West Virginia;

    (4) Any family court judge;

    (5) Any magistrate;

    (6) Any prosecuting attorney;

    (7) Any assistant prosecuting attorney; or

    (8) Any duly appointed investigator employed by a prosecuting attorney.

    NOTE: The purpose of this bill is to permit a person to possess firearms, other than shotguns and rifles, in a vehicle or conveyance without a concealed deadly weapons permit. The bill changes certain provisions covering all firearms to be limited to shotguns and rifles. The bill removes the provision that a firearm located in a storage area in or on a motor vehicle is deemed to be carried on or about a person who has a concealed handgun license. The bill permits a person to transport concealed firearms in a private motor vehicle or a private water-borne conveyance without the necessity of having a concealed deadly weapons permit.

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