Title 13: Crimes and Criminal Procedure
Chapter 8: Humane and Proper Treatment Of Animals
§ 354. Enforcement; possession of abused animal; searches and seizures; forfeiture
- The commissioner of agriculture, food and markets shall be consulted prior to any enforcement action brought pursuant to this chapter which involves livestock and poultry.
VACTF Notes: An "enforcement action" includes anything beyond the initial investigation conducted by the humane agent. See also "Consulting with the Department of Agriculture on Livestock Cruelty" on page 212 of Appendix II, Resource Agencies.
- Any humane officer as defined in section 351 of this title may enforce this chapter. As part of an enforcement action, a humane officer may seize an animal being cruelly treated in violation of this chapter.
VACTF Notes: While humane officers are given broad powers to seize animals in cruelty cases, it is critical for them to be familiar with 4th Amendment law. While Vermont law allows for the seizure of animals without a search warrant under special circumstances (see Section 354 (b) 3 below), it is STRONGLY recommended that a search warrant be obtained whenever possible. Humane officers employed by private shelters are also well-advised to partner with local law enforcement agencies when seizing animals since they have experience and training in preparing and executing search warrants. Improper seizure is a violation of the 4th Amendment, and will most likely result in a case that cannot be prosecuted as well as a possible return of the animals seized.
- Voluntary surrender. A humane officer may accept animals voluntarily surrendered by the owner anytime during the cruelty investigation. The humane officer shall have a surrendered animal examined and assessed within 72 hours by a veterinarian licensed to practice in the state of Vermont.
- Search and seizure using a search warrant. A humane officer having probable cause to believe an animal is being subjected to cruel treatment in violation of this subchapter may apply for a search warrant pursuant to the Rules of Criminal Procedure to authorize the officer to enter the premises where the animal is kept and seize the animal. The application and affidavit for the search warrant shall be reviewed and authorized by an attorney for the state when sought by an officer other than an enforcement officer defined in 23 V.S.A. § 4(11). A veterinarian licensed to practice in Vermont must accompany the humane officer during the execution of the search warrant.
VACTF Notes: A Vermont licensed veterinarian must be present during the execution of a search warrant.
- Seizure without a search warrant. If the humane officer witnesses a situation in which the humane officer determines that an animal's life is in jeopardy and immediate action is required to protect the animal's health or safety, the officer may seize the animal without a warrant. The humane officer shall immediately take an animal seized under this subdivision to a licensed veterinarian for medical attention to stabilize the animal's condition and to assess the health of the animal.
VACTF Notes: It is STRONGLY recommended that animals not be seized without a warrant unless immediate action is necessary to protect the animal's life. Note the requirement for the seized animal to immediately be seen by a licensed veterinarian for medical attention, stabilization and assessment.
- A humane officer shall provide suitable care at a reasonable cost for an animal seized under this section, and have a lien on the animal for all expenses incurred. A humane officer may arrange for the euthanasia of a severely injured, diseased, or suffering animal upon the recommendation of a licensed veterinarian. A humane officer may arrange for euthanasia of an animal seized under this section when the owner is unwilling or unable to provide necessary medical attention required while the animal is in custodial care or when the animal cannot be safely confined under standard housing conditions. An animal not destroyed by euthanasia shall be kept in custodial care until final disposition of the criminal charges except as provided in subsections (d) through (h) of this section. The custodial caregiver shall be responsible for maintaining the records applicable to all animals seized, including identification, residence, location, medical treatment, and disposition of the animals.
- If an animal is seized under this section, the state may institute a civil proceeding for forfeiture of the animal in the territorial unit of the district court where the offense is alleged to have occurred. The proceeding shall be instituted by a motion of forfeiture, which shall be filed with the court and served upon the animal's owner.
VACTF Notes: This section permits the state to request forfeiture of the animal(s) before the criminal case is resolved. This requires a hearing in which the state must present testimony that establishes by "clear and convincing evidence" of a Section 352 or 352a violation. If the state meets its burden:
- The caregiver can recover its costs for caring for the animal if the person is later convicted of the criminal charge (See Section 354 (g)(1) below).
- If the defendant is acquitted of charges, their animals are returned to them (see Sections 354 (g)(2)(a) and (b))and they are not responsible for caregiver's costs of caring for the animals (see Section 354 (g)(2)(c)).
- (e) The court shall set a hearing to be held within 21 days after institution of a forfeiture proceeding under this section. Time limits under this subsection shall not be construed as jurisdictional. (Added 2004, No. 120)
VACTF Notes: The court does not lose its ability to still hear the case if the forfeiture hearing is not set within 21 days.
- At the hearing on the motion for forfeiture, the state shall have the burden of establishing by clear and convincing evidence that the animal was subjected to cruelty, neglect or abandonment in violation of section 352 or 352a of this title. The court shall make findings of fact and conclusions of law and shall issue a final order. If the state meets its burden of proof, the motion shall be granted and the court shall order the immediate forfeiture of the animal in accordance with the provisions of subsection 353(c) of this title.
- If the defendant is convicted of criminal charges under this chapter or if an order of forfeiture is entered against an owner under this section, the defendant or owner shall be required to repay all reasonable costs incurred by the custodial caregiver for caring for the animal, including veterinary expenses.
- If the defendant is acquitted of criminal charges under this chapter and a civil forfeiture proceeding under this section is not pending, an animal that has been taken into custodial care shall be returned to the defendant unless the state institutes a civil forfeiture proceeding under this section within seven days of the acquittal. (Added 2004, No. 120)
VACTF Notes: If the defendant is acquitted of criminal charges, the state may still seek a civil forfeiture proceeding within 7 days of the acquittal.
- If the court rules in favor of the owner in a civil forfeiture proceeding under this section and criminal charges against the owner under this chapter are not pending, an animal that has been taken into custodial care shall be returned to the owner unless the state files criminal charges under this section within seven days after the entry of final judgment. (Added 2004, No. 120)
VACTF Notes: Criminal charges may still be filed within 7 days after entry of final judgment, even if the court rules in favor of the defendant.
- If an animal is returned to a defendant or owner under this subdivision, the defendant or owner shall not be responsible for the costs of caring for the animal. (Added 2004, No. 120)
- An order of the district court under this section may be appealed as a matter of right to the supreme court. The order shall not be stayed pending appeal.
VACTF Notes: If the defendant appeals to the Supreme Court, the forfeiture orders remains in place and is not "frozen" pending appeal.
- The provisions of this section are in addition to and not in lieu of the provisions of section 353 of this title.
- It is unlawful for a person to interfere with a humane officer or the secretary of agriculture, food and markets engaged in official duties under this chapter. A person who violates this subsection shall be prosecuted under section 3001 of this title. (Added 1989, No. 270 (Adj. Sess.), § 2; amended 1997, No. 130 (Adj. Sess.), § 11.)