REVISED
COMMITTEE SUBSTITUTE

FOR
H. B. 4025
(By Delegates Houston and Fleischauer)

(Originating in the House Committee on the Judiciary)

[February 8, 2000]

A BILL to repeal section three, article ten, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections four and five, article ten, chapter seven of said code; to amend article eighteen, chapter nineteen of said code by adding thereto a new section, designated section thirteen; to amend and reenact section eight, article twenty, chapter nineteen of said code; to amend and reenact section twenty-seven, article three, chapter sixty-one of said code; and to amend and reenact section nineteen, article eight of said chapter, all relating to humane treatment of animals; removing certain cruelty violations associated with an animal drawing or being contained in a vehicle; providing new requirements for humane destruction of animals by humane officers, animal shelters and dog wardens; clarifying liability of certain persons for costs of maintenance of confiscated animals; providing humane officers to shelter animals at places other than shelters; modifying applicability of criminal penalties for mistreating, poisoning or otherwise harming certain animals; providing a defense for killing an animal in certain circumstances; requiring the provision of shelter to animals in certain weather conditions; modifying certain criminal penalties for cruelty to certain animals.

That section three, article ten, chapter seven of the code of West Virginia one thousand nine hundred thirty-one, as amended,

§7-10-4. Custody and care of animals abandoned, neglected or cruelly treated; hearing; liability for costs; exclusions.

(a) Subject to the exclusions of subsection (g) of this section, a A humane officer shall take possession of any animal, including birds or wildlife in captivity, known or believed to be abandoned, neglected, deprived of necessary sustenance, shelter or medical care or cruelly treated or used, as defined in sections nineteen and nineteen-a, article eight, chapter sixty-one of this code.
(b) The owner, or person in possession, if his or her identity and residence is known, of any animal seized pursuant to subsection (a) of this section, shall be provided written notice of such the seizure, their liability for the cost and care of the animal seized as herein provided in this section, and the right to request a hearing before a magistrate in the county wherein where the animal was seized. The magistrate court shall schedule any hearing so requested within ten working days of the receipt of the request. The failure of an owner or person in possession to request a hearing within five working days of the seizure shall be deemed is prima facie evidence of the abandonment of said the animal. At the hearing, if requested, the magistrate shall determine if probable cause exists to believe that such the animal was abandoned, neglected or deprived of necessary sustenance, shelter or medical care, or otherwise treated or used cruelly as set forth herein in this section.
(c) Upon finding of such probable cause, or if no hearing is requested, if the magistrate finds probable cause based upon the affidavit of the humane officer, the magistrate shall enter an order authorizing any humane officer to maintain possession of the animal pending further proceedings, appeal or the disposition of any criminal charges pursuant to chapter sixty-one of this code. During this period the humane officer is authorized to place the animal in a safe private home or other safe private setting in lieu of retaining the animal in an animal shelter. The person whose animal is seized is liable for all costs of the care of the seized animal.
(d) Any person whose animal is seized and against whom a finding of probable cause is rendered pursuant to this section is liable for the costs of the care, medical treatment and provisions for such the animal during any period it remains in the possession of the humane officer. The magistrate may require the person liable for these costs to post bond to provide for the maintenance of the seized animal.
(e) If, after the humane officer takes possession of the animal pursuant to the finding of probable cause, it is determined by a licensed veterinarian determines that the animal should be humanely destroyed to end its suffering, the veterinarian may order
the animal to be humanely destroyed according to acceptable humane standards and neither the humane officer nor the veterinarian may be is subject to any civil or criminal liability as a result of any such determination. such action.
(f) (1) The term "humanely destroyed" as used in this section means:
(A) humane euthanasia of an animal by hypodermic injection by a licensed veterinarian, or by a certified animal euthanasia technician in accordance with the provisions of article ten-a, chapter thirty of this code, or
(B) any other humane euthanasia procedure approved by the American Veterinary Medical Association, the Humane Society of the United States, or the American Humane Association.
(2) Only in case of emergency, where humane euthanasia of an animal cannot be implemented expeditiously, the animal may be destroyed by shooting, if:
(A) The shooting is performed by someone properly trained, using a weapon and ammunition of suitable caliber and other characteristics to produce instantaneous death by a single shot; and
(B) Maximum precaution is taken to minimize the animal's suffering and protect the general public, employees and other animals.
(f) (g) The provisions of this section do not apply to farm livestock, poultry, gaming fowl or wildlife kept in private or licensed game farms if kept and maintained according to usual and accepted standards of livestock, poultry, gaming fowl, wildlife or game farm production and management, nor to the humane use of animals or activities regulated under and in conformity with the provisions of 7 U.S.C. §2131 et seq. and the regulations promulgated thereunder, as both such statutes and regulations are in effect on the effective date of this section.

§7-10-5. Destruction of animals.

Any such humane officer may lawfully humanely destroy or cause to be humanely destroyed any animal in his or her charge, in a manner consistent with the provisions of section four of this article, when in the judgment of such the humane officer, and by the written certificate of a regularly licensed veterinary surgeon, such the animal appears to be injured, disabled, diseased past recovery or the animal is unclaimed.
CHAPTER 19. AGRICULTURE.
ARTICLE 18. GENERAL STOCK LAW.
§19-18-13. Education program for humane officers.
The department of agriculture is authorized to the extent funds are available and at its sole discretion to establish a training program for humane officers and other interested persons for the purpose of educational instruction on the usual and accepted standards of farm animal husbandry. This training program may include, but is not limited to, instruction on accepted farm animal management practices and appropriate treatment of farm animals. The training program is intended to instruct participants in: appropriate handling techniques of livestock and other farm animals; identification of accepted farm animal management practices; and methods for identifying neglect or abuse of these animals.
ARTICLE 20. DOGS AND CATS.

§19-20-8. Impounding and disposition of dogs; costs and fees.
(a) All dogs seized and impounded as provided in this article, except dogs taken into custody under section two of this article, shall be kept housed and fed in the county dog pound for five days after notice of seizure and impounding shall have has been given or posted as required by this article, at the expiration of which time all dogs which have not previously been redeemed by their owners as herein provided in this article, shall be sold or humanely destroyed. No dog sold as herein provided shall in this section may be discharged from the pound until such the dog shall have has been registered and provided with a valid registration tag.
(1) The term "humanely destroyed" as used in this section means:
(A) humane euthanasia of an animal by hypodermic injection by a licensed veterinarian, or by a certified animal euthanasia technician in accordance with the provisions of article ten-a, chapter thirty of this code, or
(B) other humane euthanasia procedure approved by the American Veterinary Medical Association, the Humane Society of the United States, or the American Humane Association.
(2) Only in cases of emergency, where humane euthanasia of dogs cannot be implemented expeditiously, the dog may be destroyed by shooting, if:

(A) The shooting is performed by someone properly trained, using a weapon and ammunition of suitable caliber and other characteristics to produce instantaneous death by a single shot; and
(B) Maximum precaution is taken to minimize the dog's suffering and protect the general public, employees and other animals.

(b) The owner, keeper or harborer of any dog seized and impounded under the provisions of this article may, at any time prior to the expiration of five days from the time that notice of the seizure and impounding of the dog shall have has been given or posted as required by this article, redeem the same dog by paying to the dog warden or his or her authorized agent or deputy all of the costs assessed against such the dog, and by providing a valid certificate of registration and registration tag for such the dog.
(c) Reasonable costs and fees, in such an amount as may to be determined from time to time by the county commission, shall be assessed against every dog seized and impounded under the provisions of this article, except dogs taken into custody under section two of this article. Such The cost shall be a valid claim in favor of the county against the owner, keeper or harborer of any dog seized and impounded under the provisions of this article and not redeemed or sold as herein provided in this section, and such the costs shall be recovered by the sheriff in a civil action against such the owner, keeper or harborer.
(d) A record of all dogs impounded, the disposition of such the dogs and a statement of costs assessed against each dog shall be kept by the dog warden and a transcript thereof shall be furnished to the sheriff quarterly.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-27. Killing of animals by poison or otherwise; penalty.

If a person maliciously knowingly and without the consent of the owner administers poison to, or exposes poison with the intent that it should be taken by, any horse, cow or other animal of another person, or if any person maliciously knowingly and without the consent of the owner

sentencing determinations available to the court, the court in lieu of a sentence of confinement for conviction of a felony as provided for herein, may sentence the person to public service.
ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-19. Cruelty to animals; penalties; exclusions.
(a) If any person cruelly mistreats, abandons or withholds proper sustenance, including food, water, shelter or medical treatment necessary to sustain normal health and fitness or to end suffering or abandons any animal to die, during extreme weather conditions fails to take reasonable measures to prevent freezing, heat exhaustion or other severe injury, or uses, trains or possesses any domesticated animal for the purpose of seizing, detaining or maltreating any other domesticated animal, he or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred nor more than one thousand dollars, or confined in the county or regional jail not more than six months or both so fined and confined imprisoned.
(b) Any person, other than a licensed veterinarian or a person acting under the direction or with the approval of a licensed veterinarian, who knowingly and willfully administers or causes to be administered to any animal participating in any contest any controlled substance or any other drug for the purpose of altering or otherwise affecting said animal's performance is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred nor more than one thousand dollars.
(c) Any person convicted of a violation of this section shall forfeit his or her interest in any such animal and all interest in such animal shall vest in the humane society or county pound of the county in which said conviction was rendered, and such person shall, in addition to any fine imposed, be liable for any costs incurred or to be incurred by the humane society or county pound as a result.
(d) For the purpose of this section, the term "controlled substance" shall have the same meaning ascribed to it by subsection (d), section one hundred one, article one, chapter sixty-a of this code.
(e) The provisions of this section do not apply to lawful acts of hunting, fishing, trapping or animal training or farm livestock, poultry, gaming fowl or wildlife kept in private or licensed game farms if kept and maintained according to usual and accepted standards of livestock, poultry, gaming fowl or wildlife or game farm production and management, nor to humane use of animals or activities regulated under and in conformity with the provisions of 7 U.S.C. §2131 et seq. and the regulations promulgated thereunder, as both such statutes and regulations are in effect on the effective date of this section.
(f) Notwithstanding the other provisions of subsection (a) of this section, any person convicted of a second violation of said subsection under the provisions of this section is guilty of a misdemeanor and shall be confined in a county or regional jail for a period of not less than ninety days nor more than one year, fined not less than five hundred dollars nor more than one thousand dollars, or both. The incarceration set forth in this subsection shall be mandatory unless the provisions of subsection (g) are complied with.
(g) Notwithstanding any provision of this code to the contrary, no person who has been convicted of a second or subsequent violation of the provisions of subsection (a) of this section may be granted probation until the defendant has undergone a complete psychiatric or psychological evaluation and the court has reviewed such evaluation. Unless the defendant is determined by the court to be indigent, he or she shall be responsible for the cost of said evaluation. In addition to any additional

(h) In addition to any other penalty which can be imposed for a violation of this section, a court may, as a condition of probation, prohibit any person so convicted from possessing or owning any animal or type of animal during the period of probation.