COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 527
(By Senators Bowman, McKenzie, Unger, Kessler and Rowe)
____________
[Originating in the Committee on the Judiciary;
reported February 27, 2002.]
____________
A BILL to amend and reenact section four, article ten, chapter
seven of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section twelve,
article twenty, chapter nineteen of said code; and to amend
and reenact section nineteen, article eight, chapter sixty-one
of said code, all relating to the West Virginia animal
protection act.
Be it enacted by the Legislature of West Virginia:
That section four, article ten, chapter seven of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that section twelve, article twenty, chapter
nineteen of said code be amended and reenacted; and that section
nineteen, article eight, chapter sixty-one of said code be amended
and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 10. HUMANE OFFICERS.
§7-10-4. Custody and care of animals abandoned, neglected or
cruelly treated; hearing; bonds; liability for costs; liens;
exclusions.
(a) Subject to the provisions of subsection (h) of this
section, 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,
medical care or reasonable protection from fatal freezing or heat
exhaustion, 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 the
seizure, his or her liability for the cost and care of the animal
seized as provided in this section and the right to request a
hearing before a magistrate in the county where the animal was
seized. The magistrate court shall schedule any hearing 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 is prima facie evidence of the
abandonment of the animal. At the hearing, if requested, the
magistrate shall determine if probable cause exists to believe that
the animal was abandoned, neglected or deprived of necessary
sustenance, shelter, medical care or reasonable protection from
fatal freezing or heat exhaustion, or otherwise treated or used cruelly as set forth in this section.
(c)
(1) Upon finding of probable cause, or if no hearing is
requested and 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 awarding all interest in the
animal to any humane officer for further disposition in accordance
with reasonable practices for the humane treatment of animals
unless the owner of the animal posts a bond with the court in an
amount sufficient to provide for the reasonable costs of care,
medical treatment and provisions for the animal for at least thirty
days. The bond shall be filed with the court within five days
following the court's finding of probable cause. At the end of the
time for which expenses are covered by the original bond if the
animal remains in the care of the humane officer and the owner
desires to prevent disposition of the animal by the humane officer,
the owner shall post an additional bond with the court within five
days of the expiration of the original bond. 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.
(2) If a bond has been posted in accordance with subdivision
(1) of this subsection, the custodial animal care agency may draw
from the bond the actual reasonable costs incurred by the agency in
providing care, medical treatment and provisions to the impounded animal from the date of initial impoundment to the date of final
disposition of the animal in the criminal action.
(d) Any person whose animal is seized and against whom a
finding of probable cause is rendered pursuant to this section is
liable
during any period it remains in the possession of the humane
officer
for the reasonable costs of the care, medical treatment and
provisions for the animal not covered by the posting of the bond as
provided in subdivision (1), subsection (c) of this section. 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. This
expense, if any, becomes a lien on the animal and must be
discharged before the animal is released to the owner following the
acquittal of the owner or withdrawal of the criminal complaint. If
the lien is not satisfied within five days following acquittal of
the owner or withdrawal of the criminal complaint, all interest in
the impounded animal shall transfer to the humane officer for
further disposition in accordance with reasonable practices for the
humane treatment of animals. Any additional expense above the
value of the animal may be recovered by the humane officer or
custodial agency in a civil action.
(e) If, after the humane officer takes possession of the
animal pursuant to the finding of probable cause 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 and neither the humane officer, animal euthanasia technician, nor the veterinarian is subject to
any civil or criminal liability as a result of such action.
(f) The term "humanely destroyed" as used in this section
means:
(1) Humane euthanasia of an animal by hypodermic injection by
a licensed veterinarian or by an animal euthanasia technician
certified in accordance with the provisions of article ten-a,
chapter thirty of this code; or
(2) Any other humane euthanasia procedure approved by the
American veterinary medical association, the humane society of the
United States or the American humane association.
(g) In case of an emergency in which an animal cannot be
humanely destroyed in an expeditious manner, an animal may be
destroyed by shooting if:
(1) The shooting is performed by someone trained in the use of
firearms with a weapon and ammunition of suitable caliber and other
characteristics designed to produce instantaneous death by a single
shot; and
(2) Maximum precaution is taken to minimize the animal's
suffering and to protect other persons and animals.
(h) 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.
CHAPTER 19. AGRICULTURE.
ARTICLE 20. DOGS AND CATS.
§19-20-12. Dogs, other animals and reptiles protected by law;
unlawful killing thereof; aggrieved owner's remedy; penalties;
penalties for unlawful stealing of pets.
(a) Any dog which is registered, kept and controlled as
provided in this article or any dog, cat or other animal or any
reptile which is owned, kept and maintained as a pet by any person,
irrespective of age, shall be protected by law; and any person who
shall intentionally,
knowingly or with reckless disregard for any
dog, cat or other animal or any reptile and unlawfully kill, injure
or poison any such dog, cat, other animal or any reptile as
specified above, or shall, in any other manner, intentionally,
knowingly or reckless disregard for any dog, cat or other animal or
any reptile and unlawfully cause the death or injury of any such
dog, cat, other animal or any reptile shall be guilty of a
misdemeanor and, upon conviction thereof, shall be ordered to
provide public service for not less than thirty nor more than
ninety days or fined not
more less than three hundred dollars, or
both:
Provided, That this section shall not apply to a dog who is
killed while attacking either a person, a pet or livestock. Any
person whose dog, cat, other animal or reptile as specified herein
shall be killed or injured wrongfully or unlawfully by any other person shall have a right of action against the person who shall so
kill or injure such dog, cat, animal or reptile
. but in no case
involving a dog can recovery be had in excess of the assessed value
of such dog.
(b) Any person who shall intentionally and unlawfully steal a
dog, cat, other animal or reptile as specified in subsection (a) of
this section shall be guilty of a misdemeanor and, upon conviction
thereof, shall be ordered to provide public service for not less
than thirty nor more than ninety days or fined not less than three
hundred nor more than five hundred dollars, or both. Any person
violating the provisions of this subsection shall, for second or
subsequent offense, be guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county
or regional jail for a
period of not less than ninety days nor more than six months, or
shall be ordered to provide public service for not more than one
year and fined not less than five hundred dollars nor more than one
thousand dollars. In no case can any action or prosecution
relating to a dog under the provisions of this section be
maintained if the dog concerned shall not have been duly registered
pursuant to the provisions of this article or owned and kept
pursuant to the provisions of this section or owned and kept
pursuant to the provisions of this section at the time the cause of
action shall have arisen.
(c) The commissioner of agriculture is hereby authorized to
designate such reasonable number of his
or her present employees as
may be necessary to investigate alleged incidents of the unlawful stealing of dogs, other domestic animals or reptiles alleged
incidents of cruelty to
such the animals or reptiles and the
alleged incidents of the unlawful stealing of
such the animals or
reptiles for the purpose of sale to medical or other research
companies.
Such The deputies shall make the results of their
investigations known to any law-enforcement officers who have
authority to enforce the provisions of this article.
(d) It shall be the duty of all members of the
department of
public safety West Virginia state police, sheriffs and police
officers to aid in the enforcement of the provisions of this
article and, for services rendered in the enforcement thereof,
such
these persons shall be entitled to fees in the amounts set forth in
section eight.
Such The fees shall be paid by the county
commission from the dog and kennel fund.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
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 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 three hundred nor more than
one two
thousand dollars, or
imprisoned confined in the county
or regional jail not more than six months, or both.
(b) If any person tortures an animal, or kills an animal under
circumstances demonstrating malice aforethought, he or she is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for a period of not less
than ninety days nor more than six months, or shall be ordered to
provide public service for not more than one year and
fined not
less than five hundred dollars. For purposes of this subsection,
"torture" means an action taken for the primary purpose of
inflicting pain.
(b) (c) 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) (d) 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) (e) 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) (f) 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, to dogs who are killed
while attacking either a person, pet or livestock, 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) (g) Notwithstanding the provisions of subsection (a) of
this section, any person convicted of a second violation of said
either subsection (a) or (b) is guilty of a misdemeanor and shall
be confined in 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) (h) are complied with.
(g) (h) 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) or (b) 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.
(h) (i) In addition to any other penalty which can be imposed
for a violation of this section, a court may, as a condition of
probation, shall prohibit any person so convicted from possessing,
or owning or residing with any animal or type of animal during the
period of probation for a period of five years following entry of
a misdemeanor conviction.
____________
(NOTE: The purpose of this bill is to amend §7-10-4
to
establish bonds for the costs of care of a seized animal; to expand
the owner's liability and establish a lien for reasonable costs
incurred for seized animals; and to establish additional methods
for expense recovery.
§19-20-12 is to change the culpable mental state requirement
for killing, injuring or poisoning an animal of another person; to
change the fine to a minimum of three hundred dollars; and to
eliminate the limitation on recovery in a civil action.
§61-8-19 is to establish a misdemeanor sentence for a
defendant who tortures or maliciously kills an animal and prohibit
a defendant from owning an animal for a certain amount of time
after a misdemeanor conviction.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
Email
Webmaster | © 2024 West Virginia Legislature **
