(A) No person knowingly or intentionally shall possess an amount of cocaine/crack cocaine, less than three grams in weight, unless the cocaine/crack 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.
(B) (1) Whenever any person who has not previously been convicted of any offense under the Uniform Controlled Substances Act, to wit, W.Va. Code Ch. 60A, as amended, or under any statute of the United States or of any state relating to narcotic drugs, stimulant, depressant or hallucinogenic drugs, plead guilty to or is found guilty of possession of an amount of cocaine/crack cocaine weighing less than three grams in violation of division (A) above, the judge may discharge the person and dismiss proceedings against him or her after any fine or jail sentence imposed hereunder has been paid or served.
(2) The judge, in determining whether or not to discharge the defendant and to dismiss proceedings against him or her, shall take into account the following factors:
(a) The attitude of the defendant toward the offense mentioned herein; and
(b) Whether or not the defendant has sought professional counseling in relation to the possession of cocaine/crack cocaine, as well as the nature and extent of such counseling and the defendant’s response to such counseling; provided, that the defendant has been advised of the availability of such counseling and has had at least 30 days time thereafter to begin participation in such counseling.
(3) Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. The effect of such dismissal and discharge shall be to restore such person in contemplation of law to the status he or she occupied prior to such arrest or citation trial. No person as to whom such dismissal and discharge have been effected shall be thereafter held to be guilty of perjury, false swearing or otherwise giving a false statement by reason of his or her failure to disclose or acknowledge such arrest or citation or trial in response to any inquiry made of him or her for any purpose.
(C) After discharge and dismissal under this section and upon proper motion by the defendant, the court may issue an order expunging from all official records all recordings of the defendant’s arrest, trial and conviction pursuant to this section. The court also shall contact all federal and state agencies which may have in their possession official records relating to the offense herein mentioned and request that all recording relating to the defendant’s arrest, trial and conviction, pursuant to this section, be expunged from such records.
(1986 Code, § 529.08) (Ord. passed 8-14-2006) Penalty, see § 136.99