H. B. 2159


(By Delegates Prunty and Caputo)
[Introduced January 13, 1999; referred to the
Committee on the Judiciary.]




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; and to amend and reenact sections nineteen and twenty-one, article eight, chapter sixty-one of said code, all relating to animal cruelty; clarification of types of animals protected; standard of care for certain animals; enhanced and additional criminal and civil penalties for convictions; prohibition of animal ownership upon conviction; disbursement of civil penalty assessments to humane society or county pound; conditions of probation; and clarification that a humane officer can take immediate possession of a cruelly mistreated animal, subject to a magistrate hearing after the seizure.

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; and that sections nineteen and twenty-one, 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; liability for costs; exclusions.

(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 seizure, their liability for the cost and care of the animal seized as herein provided, and the right to request a hearing before a magistrate in the county wherein 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 prima facie evidence of the abandonment of said animal. At the hearing, if requested, the magistrate shall determine if probable cause exists to believe that such animal was abandoned, neglected or deprived of necessary sustenance, shelter or medical care or otherwise treated or used cruelly as set forth herein.
(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.
(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 animal during any period it remains in the possession of the humane officer.
(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 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 subject to any civil or criminal liability as a result of any such determination.
(f) 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 customary practices which are accepted by colleges of agriculture or veterinary medicine, 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. It is the intention of the Legislature that all animals, whether they are privately owned, strays, domesticated, feral, farm, corporately or institutionally owned, under private, local, state, or federally funded scientific or medical activities, or otherwise being situated in West Virginia shall be protected from intentional cruelty. Nothing in subsection (f) precludes the enforcement of the provisions of this section where there is neglect or cruel mistreatment of an animal which clearly does not conform to usual and customary practices which are accepted by colleges of agriculture or veterinary medicine, or where there is neglect or cruel mistreatment of an animal used for scientific or medical research which clearly does not conform to standards set forth in 7 U.S.C. section 2131 et seq. and the regulations promulgated thereunder, or where there is neglect or cruel mistreatment of an animal which clearly does not conform to fish and game or wildlife laws of this state.
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 confined in jail for a period of not less than ninety days nor more than one year, or be fined assessed a civil penalty of not less than one hundred five hundred nor more than one thousand dollars, or confined in the county jail not more than six months, or both. so fined and confined The incarceration set forth in this subsection is mandatory unless there is compliance with the provisions of subsection (g). A person convicted of a first violation of this subsection is prohibited from possessing or owning any animal for a period of five years from the date of conviction.
(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 assessed a civil penalty of not less than one hundred five 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 civil penalty imposed, be liable for any costs incurred or to be incurred by the humane society or county pound as a result. One half of the amount of any civil penalty assessed for a violation under this section shall go to the humane society or county pound in the county where such violation occurred. Nothing in this subsection precludes a humane officer from taking immediate possession of an abandoned, neglected or cruelly mistreated animal, subject to a magistrate hearing after the seizure, as set forth in section four, article ten, chapter seven of this code.
(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 customary practices which are accepted by colleges of agriculture or veterinary medicine, 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. It is the intention of the Legislature that all animals, whether they are privately owned, strays, domesticated, feral, farm, corporately or institutionally owned, under private, local, state or federally funded scientific or medical activities, or otherwise being situated in West Virginia shall be protected from intentional cruelty. Nothing in this subsection precludes prosecution under subsection (a) where there is neglect or cruel mistreatment of an animal which clearly does not conform to usual and customary practices which are accepted by colleges of agriculture or veterinary medicine, or where there is neglect or cruel mistreatment of an animal used for scientific or medical research which clearly does not conform to standards set forth in 7 U.S.C. section 2131 et seq. and the regulations promulgated thereunder, or where there is neglect or cruel mistreatment of an animal which clearly does not conform to fish and game or wildlife laws of this state.
(f) Notwithstanding the provisions of subsection (a) of this section, any person convicted of a second or subsequent violation of said subsection (a) is guilty of a misdemeanor felony and, upon conviction thereof, shall be confined imprisoned in jail the penitentiary for a period of not less than ninety days one year nor more than one year five years, and, fined assessed a civil penalty of not less than five hundred one thousand dollars nor more than one thousand five thousand dollars. or both. The incarceration set forth in this subsection shall be is mandatory. unless the provisions of subsection (g) are complied with A person convicted of a second or subsequent violation of subsection (a) is permanently prohibited from possessing or owning any animal.
(g) Notwithstanding any provision of this code to the contrary, no person who has been convicted of a second or subsequent first 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.
(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.
§61-8-21. Search warrants relating to cruelty to animals.
If complaint is made to a court or magistrate which is authorized to issue warrants in criminal cases that the complainant believes, and has reasonable cause to believe, that the laws relative to cruelty to animals have been or are violated in any particular building or place, such court or magistrate, if satisfied that there is reasonable cause for such belief, shall issue a search warrant authorizing any sheriff, deputy sheriff, constable, or police officer or humane officer to search such building or place. but no such search shall be made after sunset, unless specially authorized by the magistrate upon satisfactory cause shown Nothing in this section precludes a humane officer from taking immediate possession of an abandoned, neglected or cruelly mistreated animal, subject to a magistrate hearing after the seizure, as set forth in section four, article ten, chapter seven of this code.


NOTE: The purpose of this bill is to change the penalty for a second or subsequent offense of cruelty to animals to a felony and to make incarceration mandatory; to increase the penalty for a first offense and to provide for a psychological evaluation as a condition of probation; to prohibit ownership of an animal for a period of five years after a first offense and to permanently prohibit such ownership after a second or subsequent offense; to allocate one half of any civil penalties collected to the humane society or county pound in the county where an offense occurs; to clarify that livestock and certain other animals are protected under these provisions where there is cruel mistreatment which is clearly outside the bounds of customarily accepted treatment for that type of animal; and to clarify that a humane officer has the authority to take immediate possession of a cruelly mistreated animal, subject to a magistrate hearing after the seizure.

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