HOUSE BILL 258
51st legislature - STATE OF NEW MEXICO - first session, 2013
INTRODUCED BY
Terry H. McMillan
AN ACT
RELATING TO THE DANGEROUS DOG ACT; CLARIFYING LIABILITY FOR DOG BITES; REMOVING THE REQUIREMENT THAT A DOG BE CLASSIFIED AS POTENTIALLY DANGEROUS OR DANGEROUS FOR THE OWNER TO BE CHARGED WITH A FELONY FOR AN INJURY CAUSED BY A DOG; ADDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Dangerous Dog Act is enacted to read:
"[NEW MATERIAL] LIABILITY FOR DOG BITES--PROVOCATION AS A DEFENSE.--
A. The owner of a dog that bites a person when the person is in or on a public place or lawfully in or on a private place, including the property of the owner of the dog, is liable for damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of its viciousness.
B. Nothing in this section shall permit the bringing of an action for damages against any governmental agency using a dog in military or police work if the bite occurred while the dog was used by a law enforcement official for legitimate law enforcement purposes.
C. Proof of provocation of the attack by the person injured shall be a defense to the action for damages. The issue of provocation shall be determined by whether a reasonable person would expect that the conduct or circumstances would be likely to provoke a dog."
SECTION 2. Section 77-1A-1 NMSA 1978 (being Laws 2005, Chapter 61, Section 1) is amended to read:
"77-1A-1. SHORT TITLE.--[This act] Chapter 77, Article 1A NMSA 1978 may be cited as the "Dangerous Dog Act"."
SECTION 3. Section 77-1A-2 NMSA 1978 (being Laws 2005, Chapter 61, Section 2) is amended to read:
"77-1A-2. DEFINITIONS.--As used in the Dangerous Dog Act:
A. "animal control authority" means an entity authorized to enforce the animal control laws of a city, county or state, whether acting alone or in concert with other governmental authorities. In those areas not served by an animal control authority, the sheriff or municipal law enforcement shall carry out the duties of the animal control authority under the Dangerous Dog Act;
B. "dangerous dog" means a dog that caused a serious injury to a person or domestic animal;
C. "minor injury" means a physical injury that results in outpatient medical treatment but does not rise to the level of serious injury;
[C.] D. "owner" means a person who possesses, harbors, keeps or has control or custody of a dog or, if that person is under the age of eighteen, that person's parent or guardian;
[D.] E. "potentially dangerous dog" means a dog that may reasonably be assumed to pose a threat to public safety as demonstrated by the following behaviors:
(1) causing an injury to a person or domestic animal that is less severe than a serious injury;
(2) chasing or menacing a person or domestic animal in an aggressive manner and without provocation; or
(3) acting in a highly [aggressively] aggressive manner within a fenced yard or enclosure and appearing able to jump out of the yard or enclosure;
[E.] F. "proper enclosure" means secure confinement indoors or outdoors, such as in a fenced yard, locked pen or other structure, that is designed to prevent the animal from escaping the confined area and young children from entering the confined area but does not include chaining, restraining or otherwise affixing the animal to a stationary object; [and]
[F.] G. "serious injury" means a physical injury that results in broken bones, multiple bites or disfiguring lacerations requiring sutures or simple reconstructive surgery; and
H. "severe injury" means a physical injury that results in prolonged or multiple hospitalizations or multiple reconstructive surgical procedures, or both."
SECTION 4. Section 77-1A-4 NMSA 1978 (being Laws 2005, Chapter 61, Section 4) is amended to read:
"77-1A-4. SEIZURE OF DOG--PETITION TO COURT.--
A. If an animal control authority has probable cause to believe that a dog is a dangerous dog, [and] a potentially dangerous dog or the dog poses an imminent threat to public safety, the animal control authority may apply to a court of competent jurisdiction in the county where the animal is located for a warrant to seize the animal.
[B. If an animal control authority has probable cause to believe that a dog is a potentially dangerous dog and poses a threat to public safety, the animal control authority may apply to a court of competent jurisdiction in the county where the animal is located for a warrant to seize the animal.
C.] B. After seizure, the animal control authority shall impound the dog pending disposition of the case or until the owner has fulfilled the requirements for a certificate of registration pursuant to the provisions of Section [5 of the Dangerous Dog Act] 77-1A-5 NMSA 1978.
[D.] C. After seizure:
(1) the owner may admit that the dog is dangerous or potentially dangerous and comply with the requirements for a certificate of registration pursuant to Section [5 of the Dangerous Dog Act] 77-1A-5 NMSA 1978; or
(2) the animal control authority may, within fourteen days after seizure of the dog, bring a petition in court seeking a determination of whether the dog is dangerous or potentially dangerous. If the court finds, by clear and convincing evidence, that the dog is dangerous and poses an imminent threat to public safety or potentially dangerous and poses a threat to public safety, the court shall order the owner to comply with the registration and handling requirements for the dog and obtain a certificate of registration within thirty days or have the dog humanely destroyed. If the court does not make the required findings pursuant to this paragraph, the court shall immediately order the release of the dog to its owner.
[E.] D. If the owner does not admit that the dog is dangerous or potentially dangerous and the animal control authority does not bring a petition in court within fourteen days of seizure of the dog, the court shall immediately order the release of the dog to its owner.
[F.] E. If the owner admits that the dog is dangerous and transfers ownership of the dog to the animal control authority, the animal control authority may humanely destroy the dog.
[G.] F. A determination that a dog is not dangerous or potentially dangerous shall not prevent an animal control authority from making a subsequent application for seizure based on the dog's subsequent behavior."
SECTION 5. Section 77-1A-6 NMSA 1978 (being Laws 2005, Chapter 61, Section 6) is amended to read:
"77-1A-6. PROHIBITED ACTS--PENALTIES.--
A. It is unlawful for an owner of a dangerous or potentially dangerous dog to:
(1) keep the dog without a valid certificate of registration;
(2) violate the registration and handling requirements for the dog;
(3) fail to notify the animal control authority immediately upon:
(a) the escape of the dog; or
(b) an attack by the dog upon a human being or a domestic animal;
(4) fail to notify the animal control authority of the dog's death within five business days;
(5) fail to notify the animal control authority within twenty-four hours if the dog has been sold or given away and provide the name, address and telephone number of the new owner of the dog;
(6) fail to surrender the dog to an animal control authority for safe confinement pending a determination of the case when there is reason to believe that the dog poses an imminent threat to public safety; or
(7) fail to comply with special handling or care requirements for the dog that a court has ordered.
B. Whoever violates a provision of Subsection A of this section is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978 and, for a second or subsequent offense, is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
C. An owner of a [dangerous or potentially dangerous] dog that causes serious injury or death to a domestic animal, without provocation, is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
D. An owner of a dog that causes minor injury to a human being, without provocation, is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
[D.] E. An owner of a [dangerous or potentially dangerous] dog that causes serious injury to a human being, without provocation, is guilty of a [third] fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
F. An owner of a dog that causes severe injury to a human being, without provocation, is guilty of a third degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
[E.] G. An owner of a [dangerous or potentially dangerous] dog that causes the death of a human being, without provocation, is guilty of a third degree felony resulting in the death of a human being and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978.
[F.] H. Prosecution pursuant to this section requires a showing that:
(1) an owner knew of the propensity of a dog to inflict [serious] injury; or
(2) the dog had previously been found by a court to be a dangerous or potentially dangerous dog."
SECTION 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.
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