Senate Bill No. 527

(By Senators Bowman, McKenzie, Unger, Kessler and Rowe)

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[Introduced February 6, 2002; referred to the Committee

on the Judiciary.]

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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; to amend and reenact section thirty, article three, chapter sixty-one of said code; and to amend and reenact section nineteen, article eight of said chapter, 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; that section thirty, article three, chapter sixty-one 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 bond, if the owner desires to prevent disposition of the animal by the humane officer, the owner shall post a new bond with the court within five days after the prior bond's expiration. 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 for the reasonable costs of the care, medical treatment and provisions for 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. This expense 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 immediately 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 seizes the animal, 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 recklessly 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 recklessly 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. 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 3. CRIMES AGAINST PROPERTY.
§61-3-30. Removal, injury to or destruction of property, monuments designating land boundaries and of certain no trespassing signs; penalties.

If any person unlawfully, but not feloniously, intentionally or knowingly take takes and carry carries away, or intentionally, knowingly or recklessly destroy destroys, injure injures or deface defaces any property, real or personal, not his or her own, he or her shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred one thousand dollars, or imprisoned in the county or regional jail not more than one year, or both fined and imprisoned.
If any person shall break down, destroy, injure, deface or remove any monument erected for the purpose of designating the boundaries of a municipality, tract or lot of land, or any tree marked for that purpose, or any sign or notice upon private property designating no trespassing upon such the property, except signs or notices posted in accordance with the provisions and purposes of sections seven, eight and ten, article two, chapter twenty of this code, he or she shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty dollars nor more than two hundred dollars, or imprisoned in the county or regional jail not less than one nor more than six months, or both fined and imprisoned. Justices of the peace and Magistrates shall have concurrent jurisdiction of all offenses arising under the provisions of this section. The provisions of this paragraph shall not apply to the owner, or his or her agent, of the lands on which such the signs or notices are posted.
 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 confined in the county or regional jail not more than six twelve months, or both so fined and confined.
(b) If any person tortures an animal, or kills an animal under circumstances demonstrating malice aforethought, he or she is guilty of a felony and, upon conviction thereof, shall be punished by confinement in a state correctional facility not less than one year nor more than three years and be fined not exceeding five thousand 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, 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 subsection, or who knowingly commits the violation in the immediate presence of a minor child, 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) (i) are complied with.
(h) Notwithstanding the provisions of subsection (a) of this section, any person convicted of subsection (a) is guilty of a felony and shall be punished by confinement in a state correctional facility not less than one year nor more than three years and be fined not exceeding five thousand dollars if the person has been previously convicted for two or more of the following offenses: (1) Any violation of the provisions of subsection (a) or (b) of this section, or the equivalent laws of another state; or (2) any violation of the provisions of section twenty-eight, article two, chapter sixty-one of this code, or the equivalent laws of another state.
(g) (i) 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) (j) 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, and fifteen years following entry of a felony conviction. A violation under this subsection is a misdemeanor punishable by a fine not exceeding two thousand dollars and forfeiture of the animal.


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; to establish additional methods for expense recovery; and to eliminate the probable cause requirement before a licensed veterinarian may order a suffering animal to be humanely destroyed.

§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.

 §61-3-30 is to change the culpable mental state requirement to include "recklessly" when the crime involves injury or destruction of property; and to increase the maximum fine from five hundred to one thousand dollars.

 §61-8-19 is to change the misdemeanor sentence on first offense; to establish a felony sentence for a defendant who tortures or maliciously kills an animal, or who has two or more prior convictions for animal cruelty or domestic violence; to increase the misdemeanor sentence for confinement when a defendant knowingly commits the offense in the presence of a child; to make psychiatric or psychological evaluation before probation may be granted; and prohibit a defendant from owning an animal for a certain amount of time after a misdemeanor or felony conviction.

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