This is what we are actually charged with:
18-9-202
Statute text
(1) (a) A person commits cruelty to animals if he or she knowingly, recklessly, or with criminal negligence overdrives, overloads, overworks, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, allows to be housed in a manner that results in chronic or repeated serious physical harm, carries or confines in or upon any vehicles in a cruel or reckless manner, engages in a sexual act with an animal, or otherwise mistreats or neglects any animal, or causes or procures it to be done, or, having the charge or custody of any animal, fails to provide it with proper food, drink, or protection from the weather consistent with the species, breed, and type of animal involved, or abandons an animal.
(b) Any person who intentionally abandons a dog or cat commits the offense of cruelty to animals.
(1.5) (a) A person commits cruelty to animals if he or she recklessly or with criminal negligence tortures, needlessly mutilates, or needlessly kills an animal.
(b) A person commits aggravated cruelty to animals if he or she knowingly tortures, needlessly mutilates, or needlessly kills an animal.
(1.6) As used in this section, unless the context otherwise requires:
(a) "Serious physical harm" means any of the following:
(I) Any physical harm that carries a substantial risk of death;
(II) Any physical harm that causes permanent maiming or that involves some temporary, substantial maiming; or
(III) Any physical harm that causes acute pain of a duration that results in substantial suffering.
(1.8) A peace officer having authority to act under this section may take possession of and impound an animal that the peace officer has probable cause to believe is a victim of a violation of subsection (1) or (1.5) of this section or is a victim of a violation of section 18-9-204 and as a result of the violation is endangered if it remains with the owner or custodian. If, in the opinion of a licensed veterinarian, an animal impounded pursuant to this subsection (1.8) is experiencing extreme pain or suffering, or is severely injured past recovery, severely disabled past recovery, or severely diseased past recovery, the animal may be euthanized without a court order.
(2) (a) Except as otherwise provided in paragraph (b) of this subsection (2), cruelty to animals is a class 1 misdemeanor.
(a.5) (I) Repealed.
(II) In addition to any other sentence imposed for a violation of this section, the court may order an offender to complete an anger management treatment program or any other appropriate treatment program.
(III) The court shall order an evaluation to be conducted prior to sentencing to assist the court in determining an appropriate sentence. The person ordered to undergo an evaluation shall be required to pay the cost of the evaluation, unless the person qualifies for a public defender, then the cost will be paid by the judicial district. If the evaluation results in a recommendation of treatment and if the court so finds, the person shall be ordered to complete an anger management treatment program or any other treatment program that the court may deem appropriate.
(IV) Upon successful completion of an anger management treatment program or any other treatment program deemed appropriate by the court, the court may suspend any fine imposed, except for a five hundred dollar mandatory minimum fine which shall be imposed at the time of sentencing.
(V) In addition to any other sentence imposed upon a person for a violation of any criminal law under this title, any person convicted of a second or subsequent conviction for any crime, the underlying factual basis of which has been found by the court to include an act of cruelty to animals, shall be required to pay a mandatory minimum fine of one thousand dollars and shall be required to complete an anger management treatment program or any other appropriate treatment program.
(VI) Nothing in this paragraph (a.5) shall preclude the court from ordering treatment in any appropriate case.
(VII) This paragraph (a.5) does not apply to the treatment of pack or draft animals by negligently overdriving, overloading, or overworking them, or the treatment of livestock and other animals used in the farm or ranch production of food, fiber, or other agricultural products when such treatment is in accordance with accepted agricultural animal husbandry practices, the treatment of animals involved in activities regulated pursuant to article 60 of title 12, C.R.S., the treatment of animals involved in research if such research facility is operating under rules set forth by the state or federal government, the treatment of animals involved in rodeos, the treatment of dogs used for legal hunting activities, wildlife nuisances, or to statutes regulating activities concerning wildlife and predator control in the state, including trapping.
(b) (I) A second or subsequent conviction under the provisions of paragraph (a) of subsection (1) of this section is a class 6 felony. A plea of nolo contendere accepted by the court shall be considered a conviction for the purposes of this section.
(II) In any case where the court sentences a person convicted of a class 6 felony under the provisions of this paragraph (b) to probation, the court shall, in addition to any other condition of probation imposed, order that:
(A) The offender, pursuant to section 18-1.3-202 (1), be committed to the county jail for ninety days; or
(B) The offender, pursuant to section 18-1.3-105 (3), be subject to home detention for no fewer than ninety days.
(III) In any case where an offender is committed to the county jail or placed in home detention pursuant to subparagraph (II) of this paragraph (b), the court shall enter judgment against the offender for all costs assessed pursuant to section 18-1.3-701, including, but not limited to, the cost of care.
(c) Aggravated cruelty to animals is a class 6 felony; except that a second or subsequent conviction for the offense of aggravated cruelty to animals is a class 5 felony. A plea of nolo contendere accepted by the court shall be considered a conviction for purposes of this section.
(2.5) It shall be an affirmative defense to a charge brought under this section involving injury or death to a dog that the dog was found running, worrying, or injuring sheep, cattle, or other livestock.
(3) Nothing in this part 2 shall be construed to amend or in any manner change the authority of the wildlife commission, as established in title 33, C.R.S., or to prohibit any conduct therein authorized or permitted.
History
Source: L. 71: R&RE, p. 472, § 1. C.R.S. 1963: § 40-9-202. L. 73: p. 381, § 5. L. 77: (1) amended, p. 969, § 58, effective July 1. L. 90: (1) amended, p. 1612, § 5, effective July 1. L. 92: (1) amended, p. 412, § 1, effective April 29. L. 97: (2)(a.5) added, p. 1569, § 2, effective July 1. L. 2000: (2) amended, p. 1509, § 1, effective September 1; (2)(a.5)(I) amended, p. 1375, § 2, effective September 1. L. 2002: (1.5) and (2)(c) added and (2)(a), (2)(a.5)(I)(A), (2)(a.5)(II), and (2)(b) amended, pp. 1589, 1588, 1587, §§ 26, 25, 22, effective July 1; (2)(b) amended, p. 1517, § 204, effective October 1. L. 2003: (2)(b)(I) amended, p. 974, § 9, effective April 17; (1)(a) amended and (1.6) and (1.8) added, p. 2093, § 2, effective July 1; (1)(a), (1.5), (2)(a.5)(I)(A), (2)(a.5)(II), (2)(b)(II), and (2)(b)(III) amended, p. 1434, § 30, effective July 1. L. 2004: (2.5) added, p. 509, § 2, effective April 21. L. 2007: (1)(a) and (1.8) amended, p. 725, § 5, effective July 1.
Annotations
Editor's note: (1) Amendments to subsection (2)(a.5)(I) by House Bill 00-1330 and House Bill 00-1422 were harmonized. Amendments to subsection (2)(b) by House Bill 02-1237 and House Bill 02-1046 were harmonized. Amendments to subsection (1)(a) by House Bill 03-1236 and Senate Bill 03-065 were harmonized.
(2) Subsection (2)(a.5)(I)(B) provided for the repeal of subsection (2)(a.5)(I), effective July 1, 2005. (See L. 2000, p. 1375.)
(3) Section 11 of chapter 197, Session Laws of Colorado 2007, provides that the act amending subsections (1)(a) and (1.8) applies to offenses committed on or after July 1, 2007.
Annotations
Cross references: For the legislative declaration contained in the 2002 act amending subsection (2)(b), see section 1 of chapter 318, Session Laws of Colorado 2002.
Annotations
ANNOTATION
Annotations
Am. Jur.2d. See 4 Am. Jur.2d, Animals, §§ 28, 31.
C.J.S. See 3B C.J.S., Animals, §§ 194-197, 201-210.
Annotator's note. Since § 18-9-202 is similar to former § CSA, C. 48, § 404, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Object of section is protection of animals and conservation of public morals. The aim of this section is not only to protect these animals, but to conserve public morals, both of which are undoubtedly proper subjects of legislation. Waters v. People, 23 Colo. 33, 46 P. 112 (1896).
This section and preceding similar legislation was enacted to prevent cruelty to animals. It was not the legislative intent that the prohibition in this section against needlessly killing animals should apply where the undisputed facts show authorization. Failing v. People, 105 Colo. 399, 98 P.2d 865 (1940).
It changes the common law. At common law the acts prohibited in this section would not be a crime or misdemeanor. Waters v. People, 23 Colo. 33, 46 P. 112 (1896).
Section comes within police power. In the exercise of the police power, the general assembly may enact laws for the prevention of cruelty to animals and designate officers charged with the execution thereof. Jenks v. Stump, 41 Colo. 281, 93 P. 17 (1907).
This section is not unconstitutionally vague. People v. Allen, 657 P.2d 447 (Colo. 1983).
Nor unconstitutional on equal protection grounds. People v. Wilhelm, 676 P.2d 702 (Colo. 1984).
Not every act that causes pain and suffering to animals is prohibited by this section. Where the end or object is reasonable and adequate, the act resulting in pain is, in the sense of the statute, necessary or justifiable, as where a surgical operation is performed to save life, or where the act is done to protect life or property, or to minister to some of the necessities of man. Waters v. People, 23 Colo. 33, 46 P. 112 (1896).
It applies to killing doves released from traps and shot for sport. The killing of doves as they are released from a trap merely to improve skill in marksmanship or for sport and amusement, though without specific intent to inflict pain or torture, is within the inhibition of this section and punishable. Waters v. People, 23 Colo. 33, 46 P. 112 (1896).
But the shooting of wild animals in the forest and fishing in the streams do not come within this section. Waters v. People, 23 Colo. 33, 46 P. 112 (1896).
Malice is not an essential ingredient. This section embraces separate and distinct offenses. The offense denounced was not a crime or misdemeanor at common law, and therefore malice is not a necessary ingredient since not expressly made so by statute. McCausland v. People, 58 Colo. 303, 145 P. 685 (1914).
Test was whether acts done intentionally. It was immaterial where the poisoning took place or what other means were used, in addition to the poison, to bring about the injurious result. Neither invitation nor trespass was essential. The important test was that the acts were done intentionally, and that the cattle were killed or injured as a result thereof. Holt v. Mundell, 107 Colo. 373, 112 P.2d 1039 (1941).
Maliciously, as used in former provision, means a wrongful act done intentionally, without just cause or excuse. Richards v. Sanderson, 39 Colo. 270, 89 P. 769 (1907); Holt v. Mundell, 107 Colo. 373, 112 P.2d 1039 (1941).
Sufficiency of information. An information charging that the accused did "unnecessarily and cruelly beat and needlessly mutilate an animal" is sufficient under this section. McCausland v. People, 58 Colo. 303, 145 P. 685 (1914).
Admissibility of evidence. In an action under this section for the poisoning of cattle, it was held that no error was committed in the refusal to admit in evidence an unsigned form used by the government in the distribution of grasshopper poison. By signing the form the recipient of poison assumed all responsibility for any damage resulting from its use. It had no evidentiary value in the determination of the issues involved. Holt v. Mundell, 107 Colo. 373, 112 P.2d 1039 (1941).
Sufficiency of evidence of required criminal intent to warrant its submission to the jury. Holt v. Mundell, 107 Colo. 373, 112 P.2d 1039 (1941). |
