2C:38-3 Producing or possessing chemical weapons, biological agents or nuclear or radiological devices; definitions.

3. Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices.

a. A person who, purposely or knowingly, unlawfully develops, produces, otherwise acquires, transfers, receives, stockpiles, retains, owns, possesses or uses, or threatens to use, any chemical weapon, biological agent, toxin, vector or delivery system for use as a weapon, or nuclear or radiological device commits a crime of the first degree, except that:

(1) Notwithstanding any other provision of law to the contrary, any person convicted under this subsection shall be sentenced to a term of 30 years, during which the person shall not be eligible for parole, or to a specific term of years which shall be between 30 years and life imprisonment, of which the person shall serve not less than 30 years before being eligible for parole.

(2) If a violation of this section results in death, the person shall be sentenced to a term of life imprisonment, during which time the person shall not be eligible for parole.

b. Any manufacturer, distributor, transferor, possessor or user of any toxic chemical, biological agent, toxin or vector, or radioactive material that is related to a lawful industrial, agricultural, research, medical, pharmaceutical or other activity, who recklessly allows an unauthorized individual to obtain access to the toxic chemical or biological agent, toxin or vector or radioactive material, commits a crime of the second degree and, notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, shall be subject to a fine of up to $250,000 for each violation.

c. For the purposes of this section:

(1) "Chemical weapon" means:

(a) a toxic chemical and its precursors, except where intended for a lawful purpose as long as the type and quantity is consistent with such a purpose. "Chemical weapon" shall include, but not be limited to:

(i) nerve agents, including GA (Tabun) cyanide irreversible inhibitor, Sarin (GB), GB (Soman) fluorine, reversible "slow aging," GF, and VX sulfur, irreversible;

(ii) choking agents, including Phosgene (CG) and Diphosgene (DP);

(iii) blood agents, including Hydrogen Cyanide (AC), Cyanogen Chloride (CK), and Arsine (SA); and

(iv) blister agents, including mustards (H, HD {sulfur mustard}, HN-1, HN-2, HN-3 {nitrogen mustard}), arsenicals, such as Lewisite (L), and urticants, including CX; and

(v) incapacitating agents, including BZ; or

(b) a munition or device specifically designed to cause death or other harm through the toxic properties of those chemical weapons defined in subparagraph (a) of paragraph (1) of subsection c. of this section, which would be released as a result of the employment of such munition or device; or

(c) any equipment specifically designed for use directly in connection with the employment of munitions or devices specified in subparagraph (b) of paragraph (1) of subsection c. of this section.

(2) "Biological agent" means any microorganism, virus, bacteria, rickettsiae, fungi, toxin, infectious substance or biological product that may be engineered as a result of biotechnology, or any naturally occurring or bioengineered component of any such microorganism, virus, bacteria, rickettsiae, fungi, infectious substance or biological product, capable of causing:

(a) death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism; or

(b) deterioration of food, water, equipment, supplies, or material of any kind; or

(c) deleterious alteration of the environment.

"Biological agent" shall include, but not be limited to: viruses, including Crimean-Congo hemorrhagic fever virus, eastern equine encephalitis virus, ebola viruses, equine morbilli virus, lassa fever virus, Marburg virus, Rift Valley fever virus, South American hemorrhagic fever viruses (Junin, Machupo, Sabia, Flexal, Guanarito), tick-borne encephalitis complex viruses, variola major virus (smallpox virus), Venezuelan equine encephalitis virus, viruses causing hantavirus pulmonary syndrome, and yellow fever virus; bacteria including Bacillus anthracis (commonly known as anthrax), Brucella abortus, Brucella melitensis, Brucella suis, Burkholderia (pseudomonas) mallei, Burkholderia (pseudomonas) pseudomallei, Clostridium botulinum, Francisella tularensis, Yersinia pestis (commonly known as plague); rickettsiae, including Coxiella burnetii, Rickettsia prowazekii and Rickettsia rickettsii; Coccidioides immitis fungus; and toxins, including abrin, aflatoxins, Botulinum toxins, Clostridium perringes epsilon toxin, conotoxins, diacetoxyscirpenol, ricin, saxitoxin, shigatoxin, Staphylococcal enterotoxins, tetrodotoxins and T-2 toxin.

(3) "Toxin" means the toxic material of plants, animals, microorganisms, viruses, fungi, or infectious substances, or a recombinant molecule, whatever its origin or method of production, including:

(a) any poisonous substance or biological product that may be engineered as a result of biotechnology or produced by a living organism; or

(b) any poisonous isomer or biological product, homolog, or derivative of such a substance.

(4) "Vector" means a living organism or molecule, including a recombinant molecule, or biological product that may be engineered as a result of biotechnology, capable of carrying a biological agent or toxin to a host.

(5) "Nuclear or radiological device" includes: (a) any nuclear device which is an explosive device designed to cause a nuclear yield; (b) a radiological dispersal device which is an explosive device used to spread radioactive material; or (c) a simple radiological dispersal device which is any act,container or any other device used to release radiological material for use as a weapon.

(6) "Delivery system" means any apparatus, equipment, device, or means of delivery specifically designed to deliver or disseminate a biological agent, toxin or vector.

(7) "For use as a weapon" means all situations in which the circumstances indicate that the person intended to employ an item's ready capacity of lethal use or of inflicting serious bodily injury.

d. This section shall not apply to the development, production, acquisition, transfer, receipt, possession or use of any toxic chemical, biological agent, toxin or vector that is related to a lawful industrial, agricultural, research, medical, pharmaceutical, or other activity.

e. This section shall not apply to any device whose possession is otherwise lawful pursuant to N.J.S.2C:39-6.

f. Nothing contained in this section shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for murder under the provisions of N.J.S.2C:11-3 or any other offense.

L.2002,c.26,s.3.