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HomeMy WebLinkAboutCOM 0712.001 2022-2024 655 KILAUEA AVENUE %V '• HILO,HAWAI'I 96720 > p *-; KELDEN B.A.WALTJEN ���.' PH:(808) 961 961-0466 FAX:(808)PROSECUTING ATTORNEY // • , STEPHEN L.FRYE 's _ 74-675 KEALAKEHE PARKWAY FIRST DEPUTY KAILUA-KONA,HAWAI'I 96740 ° , e PH:(808)322-2552 PROSECUTING ATTORNEY '�'.rat ��M°P �, FAX:(808)322-6584 64-1067 MAMALAHOA HIGHWAY,C-3 KAMUELA,HAWAI'I 96743 PH:(808)887-3017 OFFICE OF THE PROSECUTING ATTORNEY FAX:(808W-3016C TESTIMONY IN SUPPORT OF RESOLUTION NO. 430-24 c '., rvi ram": RELATING TO DANGEROUS DOGS 'J -'in COMMITTEE ON A.,� COMMITTEE ON GOVERNMENTAL OPPERATIONS co . AND EXTERNAL AFFAIRS + 'f Councilmember Cindy Evans, Chair and Presiding Officer Councilmember Susan L. K. Lee Loy, Vice Chair Tuesday, February 6, 2024 at 9:30 a.m. • Honorable Chair and Presiding Officer Evans, Vice Chair Lee Loy, and Members of the Committee on Governmental Operations and External Affairs. The County of Hawai`i, Office of the Prosecuting Attorney submits the following testimony in support of the passage of Council Resolution No. 430-24 with comments. This resolution urges the Hawai`i State Legislature to amend Chapter 142, Hawai`i Revised Statues to set and increase fines, penalties, and other regulations as prescribed in Ordinance No. 22-36, including providing enacting felony class penalties for dog attacks resulting in substantial bodily injury(i.e. class C felony), serious bodily injury (class B felony), and/or death (class B felony). Hawaii Revised Statutes ("HRS") Section 142-75 provides the authority for each county to enact and enforce ordinances to regulate dangerous dog owners. HRS Section 46-1.5 further defines the general powers and limitations of the counties including restricting the counties power to establish ordinances and fix penalties for a violation of an ordinance as a violation (i.e. subject to a fine), petty misdemeanor, or misdemeanor offense. Notwithstanding, in April 2022, the Hawaii County Council passed Bill 125 into law as Hawaii County Code ("HCC") 4-4-32 establishing felony level offenses for dog attacks that resulted in substantial bodily injury, serious bodily injury, and/or death of another person. See attached Exhibit"A". Unfortunately, review of Sections 142-75 and 46-1.5 indicate that existing state law preempts the enactment of felony offenses via county ordinance. As a result, the class B and C felony penalties contained within HCC 4-4-32 are not enforceable much to the frustration of Hawai`i County law enforcement, officials, victims and their families, and our community. Our Office regularly meets with community groups, local government leaders, law enforcement officials, and members of the public about their concerns and interests regarding the criminal justice system. In hopes of addressing our community's concerns and prioritizing the Hawai'i County is an Equal Opportunity Provider and Employer Comm. '. !. L r� 14 Ref. To: "� '�1 111— Ref. Date EE 0 6 2024 safety and well-being of Hawai`i Island residents we have conducted several online surveys. In our 2021 online survey which ran from December 9, 2021 through December 30, 2021, a total of 1,422 individuals participated. Of those 1,422 participants, 1,144 or 81.08% supported legislation for harsher penalties for the criminal liability of dog owners in dog attacks resulting in substantial bodily injury, serious bodily injury, or death. Please see attached Exhibit "B". Prior to the start of the 2024 the legislative session, our office has worked with the Hawai`i State legislature on crafting legislation to address this needed change in this law. On February 1, 2024 Prosecuting Attorney Kelden Waltjen testified before the Hawai`i House Committee on Judiciary an Hawaiian Affairs in support with comments of House Bill No. 2058 introduced by House District 4 Representative, Vice Speaker Greggor Ilagan and co-sponsored by House District 23 Representative Scott Nishimoto and House District 8 Representative David Tarnas. House Bill No. 2058 is a positive step in the right direction. That being said, there are several concerns that may need to be addressed including the incorporation of a contested hearings process for dog owners which would likely differ among the counties and their appropriate deciding bodies, standardizing the definitions of different types of"injury" as defined under HRS Chapter 707, and consideration of enacting a class B felony offense for serious bodily injury or death of another person. The County of Hawai`i, Office of the Prosecuting Attorney remains committed to the pursuit of justice with integrity and commitment. There is a substantial public interest to address serious incidents involving irresponsible owners of dangerous dogs. The imposition of appropriate penalties and sanctions for owners of dangerous dogs will promote respect for the law, ensure that offenders receive an appropriate sentence that reflects the seriousness of the offense, provide adequate deterrence for further criminal conduct, and protect the public. For the foregoing reasons, the, County of Hawai`i, Office of the Prosecuting.Attorney supports the passage of Council Resolution No. 430-24 with comments. Thank you for the opportunity to testify on this matter. 2 ANIM_AL,S § 4-4-29 Section 4-4-29. Leash required for public places. No person shall bring or permit any dog in any County park, public school ground, or airport unless it is held under control by a suitable leash, not more than sia.feet long; provided, however, that dogs even under control by a suitable leash shall not be allowed in any County beach park. These restrictions shall not•apply to dogs utilized by police for patrol or other police purposes. (1983 CC, c 4, art 4, sec 4-29; am 1986, ord 86-34, sec 5; am 2022, ord 22-36, sec 6.) Section 4-4-30. Penalty for permitting a dog to stray. In addition to other penalties listed in this chapter, the owner of any dog which strays upon any public lands or the private lands of another shall be fined as follows: (1) For a first offense, or any offense not preceded within a five-year period by a conviction under this section: $25. (2) For any offense which occurs within a five-year period of a prior conviction under • this section: $50. (3) For any offense which occurs within five years of two prior convictions under this section: $75. (4) For any offense which occurs within five years of three or more prior convictions • under this section; any one or more of the following: (A) A fine of up to $500. (B) Up to one hundred hours of community service. (1983 CC, c 4, art 4, sec 4-30; am 1995, ord 95-32, sec 3; am 2022, ord 22-36, sec 6.) Division 3. Dangerous Dogs. • Section 4-4-31. Dangerous dogs may be slain. (a) If any dangerous, fierce, or vicious dog shall be found running at large and cannot be taken up or tranquilized and impounded, such dog may be slain by any officer or agent authorized to perform any duty under this chapter. (b) Notwithstanding any provision to the contrary which may be found elsewhere in this chapter, where livestock have.been killed, maimed or injured by any dangerous, fierce or vicious stray dog, the owner of such livestock or the owner's agent, after being deputized as.a special officer in accordance with the provisions of section 4-2-4, may take any action necessary to protect the owner's livestock from such dangerous, fierce,.or vicious dog, including, without limitation, slaying or otherwise•disposing of the same. (1983 CC, c 4, art 4, sec 4-28; am 2022, ord 22-36, sec 6.) 4-11 SUPP. 12 (7-2022)• EXHIBIT "A" § 4-4-32 HAWAI`I COUNTY CODE • Section 4-4-32. Negligent failure to control a dangerous dog; penalties. (a) A dog owner commits the offense of negligent failure to control a dangerous dog, if the person negligently fails to take reasonable measures to prevent the dog from attacking, without provocation, a person or animal and such attack results in: (1) The maiming or causing of serious injury to or the destruction of an animal; (2) Bodily injury to a person; (3) Substantial bodily injury to a person; or (4) Serious bodily injury or death. (b) For the purposes of this section, "reasonable measures to prevent the dog from . • attacking" shall include But not be limited to: (1) Measures required to be taken under sections 4-3-1,.4-3-2, 4-3-5, 4-4-21, 4-4-24, 4-4-30 and 4-9-1 of this chapter to prevent the dog from becoming a stray; and (2) Any conditions imposed by the court for the training of the dog or owner or for the supervision, confinement or restraint of the dog for a previous conviction • under this section. (c) A person convicted under this section of a violation of subsections (a)(1) or (a)(2) shall be guilty of a petty misdemeanor and sentenced to one or more of the • - following: (1) A fine of not less than $200 nor more than $1,000; (2) A period of imprisonment of up to thirty days or, in lieu of imprisonment, a period of probation of not more than six months'in accordance with the procedures, terms and conditions provided in chapter 706, part II, Hawai`i • Revised Statutes; or (3) Restitution to any individual who has suffered bodily injury or property damage as a result of an attack by the dog. (d) A person convicted under this section of a violation of subsection (a)(3) shall be guilty of a class C felony and sentenced to one or more of the following: (1) • A fine of not less than $500 nor more than $10,000; (2) A period of imprisonment of up to five years or,.in lieu of imprisonment, a period of probation of four years with up to one year of imprisonment,,in accordance with the procedures, terms and conditions provided in chapter 706, part II, Hawai`i Revised Statutes; (3) Restitution to any individual who has suffered bodily injury or property damage as a result of an attack by the dog; or (4) The dog shall be humanely destroyed. (e) A person convicted under this section of a violation of subsection (a)(4) shall be guilty of a class B felony and sentenced to one or more of the following:. (1) A fine of not less than $500 nor more than $25,000; - (2) A period of imprisonment of up to ten years or, a period of probation of four years with up to eighteen months of imprisonment, in accordance with the procedures, terms and conditions provided in chapter 706,•part II, Hawai`i Revised Statutes; SUPP. 12 (7-2022) 4-12 • ANIMALS § 4-4-32 (3) Restitution to any individual who has suffered bodily injury or property damage as a result of an attack by the dog; or • (4) The dog shall be humanely destroyed. (2002, ord 02-138, sec 3; am 2022, ord 22-36, secs 6 and 7.) Section 4-4-33. Habitual negligent failure to control a dangerous dog; penalties. (a) A dog owner commits the offense of habitual negligent failure to control a dangerous dog, if the person was convicted of a violation of section 4-4-32 within five years prior to the present incident, the prior violation involved the same dog, and the dog owner negligently failed to take reasonable measures to prevent the dog from attacking, without provocation, a person or animal and such attack results in: (I.) The maiming or causing of serious injury to or the destruction of an animal; or (2) Bodily injury to a person. (b) A person convicted under this subsection shall be guilty of a misdemeanor and sentenced to one or both of the following procedures, terms and conditions provided in chapter 706, part II, Hawai`i Revised Statutes: (1) A fine of not less than $200 nor more than $2,000; (2) A period of imprisonment of up to one year, or in lieu of imprisonment, a period of probation of no,t more than one year in accordance with the procedures, terms and conditions provided in chapter 706, part II, Hawai`i Revised Statutes; (3) Restitution to any individual who has suffered bodily injury or property damage as a result of an attack by the dog; or (4) The dog shall be humanely destroyed. (2022, ord 22-36, sec 10; am 2022, ord 2.2-36, sec 10.) Section 4-4-34. Citation and summons;.seizure; relinquishment of ownership. (a) Upon finding probable cause to believe that there has been a violation of sections 4-4-32 or 4-4-33, an enforcement officer may arrest or issue a summons and citation to the dog's owner, or both. In addition to arresting or issuing a summons and citation to the owner,- an enforcement officer shall have the dog seized and impounded until: (1) the Court orders that the dog be humanely destroyed or returned to the owner, or; (2) a criminal case arising out of the violation of section 4-4-32 or 4-4-33 is dismissed, whichever comes first. Such impoundment may be at the premises of a licensed veterinarian, a County animal control facility, or at a commercial kennel. All expenses incurred by the County relating to the care and custody of the dog shall be borne by the owner regardless of whether the alleged offense results in a conviction pursuant to the provisions of chapter 4. (b) If a dog is seized and impounded pursuant to this section, the citation shall notify the owner that if the owner does not appear at the time and place stated in the summons, the dog shall be subject to relinquishment pursuant to subsection (d). 4-13 SUPP. 12 (7-2022) § 4-4-34 HAWAII COUNTY CODE • (c) Any person who refuses to surrender a dog that is subject to relinquishment pursuant to this section shall be guilty of a petty misdemeanor and fined not less than $200 nor more than $2,000, imprisoned not more than thirty days, or both. (d) In the event that the owner of a dog seized and impounded pursuant to this section fails to appear in court as required, ownership of the dog shall be deemed relinquished and the court may order disposition of the dog as it deems appropriate. (e) Notwithstanding any relinquishment of ownership of the dog pursuant to . subsection (d) or voluntary relinquishment of ownership of the dog, the owner shall still be responsible for all expenses of boarding the dog and any penalties which may be imposed by the court. (2002, ord. 02-1.38, sec 3; am 2022, ord 22-36, secs 6 and 9.) Section 4-4-35. Additional penalties. (a) Unless the dog has been or is ordered to be humanely destroyed, the dog owner shall also be sentenced to the following provisions, in addition to the provisions of sections 4-4-32 and 4-4-33: (1) The owner shall provide the owner's name, address and telephone number to the County animal control service; (2) The owner shall provide the location at which the dog is currently kept, if such location is not the owner's address; • (3) The owner shall promptly notify the appropriate animal control service of: (A) Any changes in the ownership of the dog or the location of the dog along with the names, addresses, and telephone numbers of new owners or the new address at which the dog is located; (B) Any further instances of an attack by the dog upon a person or an • animal; • • (C) Any claims made or lawsuits brought as a result of further instances of an attack by the dog; or • (D) The death of the dog. (4) The owner shall obtain a license for the dog pursuant to section 143-2, Hawai`i . Revised Statutes, if the dog is not currently licensed; and • (5) Unless already identified by microchip, the dog shall be permanently identified, at the owner's expense, by injecting into the dog an identification microchip using standard veterinary procedures and practices. The microchip identification number of the dog shall be provided to the County animal control service. (b) Unless the dog has been or is ordered to be humanely destroyed, in addition to the provisions of subsection (a), the dog owner may also be sentenced to any of the following terms or conditions: (1) When indoors, the dog be under the control of a person eighteen years of age or older; (2) When outdoors and unattended, the dog be kept within a locked fenced or walled area from which it cannot escape; (3) When outdoors and unattended, the dog be confined to an escape-proof kennel; • SUPP. 12 (7-2022) 4-14 • • ANIMALS § 4-4-35 (4) When outdoors, the dog be attended and kept within a fenced or walled area from which it cannot escape; • (5) When outdoors, the dog be attended and kept on a leash no longer than six feet in length and under the control of a person eighteen years of age or older; (6) When outdoors, the dog be attended and muzzled with a muzzle that prevents the dog from biting any person or animal but does not cause injury to the dog or interfere with its vision or respiration; • (7) A sign or signs be placed in a location or locations directed by the court • advising the public of the presence and dangerousness of the dog; (8) The owner and dog, at the owner's expense, attend training sessions conducted • by an animal behaviorist, a licensed veterinarian, or other recognized expert in the field; (9) The dog be neutered or spayed at the owner's expense, unless the neutering or spaying of the dog is medically contraindicated; (10) The owner procure liability insurance or post bond of not less than $50,000, or for a higher amount if the court finds a higher amount appropriate to cover the medical and/or veterinary costs resulting from potential future actions of the dog; (11) The dog be humanely destroyed; or (12) Any other condition the court deems necessary to restrain or control the dog. (c) For the purposes of this section, an "escape-proof kennel" means a kennel which allows the dog to stand normally and without restriction, which is at least two and one-half times the length of the dog,.and which protects the dog from the elements. Fencing or wall materials required under this section shall not have openings with a diameter of more than two inches, and in the case of wooden fences, the gaps • therein shall not be more than two inches. Any gates within such kennel or structure shall be lockable and of such design as to prevent the entry of children or the escape of the dog, and when the dog is confined to such kennel or area and unattended, such locks shall be kept locked. The kennel may be required to have double exterior walls to prevent the insertion of fingers, hands, or other objects. (d) Upon probable cause, an enforcement officer may either arrest or issue a summons and citation to the owner for violation of subsection (a). (2022, ord 22-36, sec 13.) Section 4-4-36. Civil action not precluded. Nothing contained in this article shall preclude any person injured by a dog from • bringing a civil action against the owner of such dog pursuant to the applicable provisions of state law. (2002, ord 02-138, sec 3; am 2022, ord 22-36, secs 6 and 12.) Section 4-4-37. Exemption. The provisions of this article shall not apply to dogs owned by any law enforcement agency and used in the performance of law enforcement work. • (2002, ord 02-138, sec 3; am 2022, ord 22-36, secs 6 and 8.) 4-15 SUPP. 12 (7-2022) • .C‘" !/_ OFFICE OF THE PROSECUTING ATTORNEY LEGISLATIVE INITIATIVES SURVEY o '-k2t,;').-''.19. E;. A.,„ , 9 Doyou support legislation for harsherpenalties for the criminal • e* 711.C;.• 4 PP 9 liability of dog owners in dog attacks resulting in substantial bodily injury, serious bodily injury, or death? ,,„,,,.2a,d.1,411 frUtpisr' 51 NO PREFERENCE 9.28%(131) \ -NO9.64%(136) },i5 '7 t , 5 ("4 it,e,... YES 81.08%(1144) ANSWER CHOICES RESPONSES YES 81,08% 1.144 NO 9.64 0 136 NO PREFERENCE 9.28% 131 TOTAL 1,411 BACKGROUND Currently,regardless of the seriousness of the injury,most dog attack cases on Hawaii Island are investigated and prosecuted as a violation of Hawai'i County Code Section 4-31.If convicted a person shall be subject to a fine between$200 and$2,000,up to thirty(30)days in jail,and/or six(6) months probation.HRS provides the following relevant definitions: "Serious bodily injury"means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement,or protracted loss or impairment of the function of any bodily member or organ. "Substantial bodily injury"means bodily injury which causes a major avulsion,laceration,or penetration of the skin,a bone fracture,a serious concussion,or a tearing,rupture,or corrosive damage to the esophagus,viscera,or other internal organs. ,e PROSECUTORS PROPOSAL The Office of the Prosecuting Attorney proposes assessing felony level penalties where a dog attack results in substantial or serious bodily injury,or death. EXHIBIT "B"