BILL ANALYSIS
AB 670
Page 1
Date of Hearing: March 27, 2007
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 670 (Spitzer) - As Introduced: February 21, 2007
As Proposed to be Amended in Committee
SUMMARY : Requires that a person who owns or has custody or
control of an animal and knows or has reason to know that the
animal bit another person to provide specified personal
identifying information to that other person. Specifically,
this bill :
1)Requires the person who owns or has custody or control of the
animal to immediately provide the other person with his or her
name, address, telephone number and the name, breed, and
license tag number of the animal who bit the other person.
2)States that if the animal is required by law to be vaccinated
against rabies, the person owning or having custody or control
of the animal shall, within 48 hours of the bite, provide the
other person with information regarding the status of the
animal's vaccinations.
3)Provides that a violation of this section is a misdemeanor
punishable by imprisonment in the county jail not exceeding
six months.
4)States that, for the purposes of this section, it is necessary
for the skin of the person to be broken or punctured by the
animal for the contact to be classified as a "bite".
EXISTING LAW :
1)Provides that every dog owner, after his or her dog reaches
the age of four months, shall, no less than once every two
years, secure a license for the dog as provided for by the
ordinance of the responsible city, county, city and county, or
county. [Health and Safety Code (HSC) Section 121690(a).]
2)Provides that every dog owner, after his or her dog reaches
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the age of four months, shall, at intervals not more often
than once per year as prescribed by the Department [of Public
Health], procure its vaccination by a licensed veterinarian
with a canine anti-rabies vaccine approved by, and in a
manner, prescribed by the Department. [HSC Section
121690(b).]
3)Provides that nothing shall authorize the bringing of an
action pursuant to this law based on a bite or bites inflicted
upon a trespasser, upon a person who has provoked the dog or
contributed to his or her own injuries, or by a dog used in
military or police work if the bites occurred while the dog
was actually performing in that capacity. Defines
"provocation" as including, but not limited to, situations
where a dog is held on a leash by its owner or custodian
reacts in a protective manner to a person or persons who
approach the owner or custodian in a threatening manner.
[Penal Code Section 399.5(c).]
4)States that if any person owning or having custody and control
of a mischievous animal, knowing its propensities, willfully
suffers the animal to go at large, or keeps the animal without
ordinary care, and the animal, while at large or while not
kept with ordinary care, kills any human being who has taken
all precautions that the circumstances permitted or which a
reasonable person would ordinarily take in a similar
situation, is guilty of a felony. [Penal Code Section
399(a).]
5)Provides that if any person owning or having custody of a
mischievous animal, knowing its propensities, willfully
suffers it to go at large, or keeps the animal without
ordinary care, and the animal, while at large or while not
kept with ordinary care, causes serious bodily injury to any
human being who has taken all the precautions that
circumstances permitted, or which a reasonable person would
ordinarily take in the same situation, is guilty of a
misdemeanor or a felony. [Penal Code Section 399(b).]
6)Provides that any person owning or having custody or control
of a dog trained to fight, attack, or kill is guilty of an
alternate misdemeanor/felony, punishable by imprisonment in
the state prison for two, three or four years; in the county
jail not to exceed one year; by a fine not exceeding $10,000;
or by both such fine and imprisonment if, as a result of the
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person's failure to exercise ordinary care, the dog bites a
human being on two separate occasions or on one occasion
causing substantial physical injury. States that no person
shall be criminally liable under this section unless he or she
knew or reasonably should have known of the vicious and
dangerous nature of the dog, or if the victim failed to take
all the precautions that a reasonable person would ordinarily
take in the same situation. [Penal Code Section 399.5(a).]
7)States that following a conviction under this section, a court
shall hold a hearing to determine whether conditions of the
treatment or confinement of the dog or other circumstances
existing at the time of the bite or bites have changed so as
to remove the danger to other persons presented by the animal.
Provides that the court, after the hearing, may make any
order it deems appropriate to prevent the recurrence of such
an incident including, but not limited to, the removal of the
animal from the area or destruction if necessary. [Penal Code
Section 399.5(b).]
8)States that nothing in this section shall be construed to
affect the liability of the owner of a dog under Penal Code
Section 399 or any other provision of law. [Penal Code
Section 399.5(d).]
9)States that this section shall not apply to a veterinarian or
an on-duty animal control officer while in the performance of
his or her duties or to a peace officer, as defined, if he or
she is assigned to a canine unit. [Penal Code Section
399.5(e).]
10)Requires each city, county, and city and county to provide
dog vaccination clinics, or to arrange for dog vaccination at
clinics operated by veterinary groups or associations, held at
strategic locations throughout each city, county, and city and
county. Specifies that no charge in excess of the actual cost
shall be made for any one vaccination at a clinic. [HSC
Section 121690(f).]
11)Provides that it is a misdemeanor for any person to willfully
conceal information about the location or ownership of an
animal . . . that has bitten or otherwise exposed a person to
rabies. (HSC Section 121705.)
12)States that notwithstanding any other provisions, a guide dog
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serving a blind master shall not be quarantined in the absence
of evidence that he or she has been exposed to rabies, except
as specified. (HSC Section 121680.)
13)Provides that notwithstanding any other provision, a dog used
by any specified law enforcement agency shall not be
quarantined after biting a person if the bite occurred while
the dog was being used for any law enforcement purpose. (HSC
Section 121685.)
14)Allows cities and counties to enact an ordinance that
provides for the issuance of a license for a period not to
exceed three years for dogs who are 12 months of age or older
and have been vaccinated against rabies. States that a
license shall not extend beyond the period of the validity of
the current rabies vaccination. [HSC Section 121690(g).]
15)Specifies that all information obtained from a dog owner is
confidential to the dog owner and proprietary to the
veterinarian. This information shall not be used or
distributed for any purpose except to ensure compliance with
existing federal, state, county, or city laws or regulations.
[HSC Section 121690(h).]
16)Allows cities and counties to enact more stringent
requirements in the exercise of their police power. [HSC
Section 121695.]
17)States that any person who willfully conceals information
about the location or ownership of an animal subject to rabies
that has bitten or otherwise exposed a person to rabies, with
the intent to prevent the quarantine or isolation of that
animal by the local health officer, is guilty of a
misdemeanor. (HSC Section 121705.)
18)Provides that except as otherwise provided, every person who
possesses an animal in violation of the [rabies control]
provisions of this chapter is guilty of an infraction,
punishable by a fine not exceeding $1,000. (HSC Section
121630.)
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, this bill "will
require that pet owners exchange information with any person
who has been bitten by his or her animal. Current law
requires that a person involved in an auto accident provide
his or her name, address, and registration number of the
vehicle to all parties involved in the accident and to any
traffic or police officer at the scene. Likewise, when a
person owns a pet, he or she has certain responsibilities,
such as keeping the animal on a leash or keeping children and
the elderly a safe distance from the pet. In the event of a
biting incident, parties involved should have the right to
know who the owner is, any critical health issues, and the
vaccination history of the animal. This bill will require the
owner of a domesticated animal (such as a dog or cat) to share
his or her name, address, and phone number and the animal's
name, breed, and license number with the victim of the bite,
and to provide a history of the animal's rabies vaccinations
within 48 hours."
2)Background : According to background information provided by
the author, a resident of the 71st Assembly District was
bitten by a dog while walking on the beach. The owner
immediately left the scene with his dog and "when Animal
Control personnel arrived, the victim of the bite was informed
that though the dog owner's actions were irresponsible, they
were not unlawful. This bill will require the owner of an
animal that bites a person to share his or her name, address,
and phone number, along with the animal's name, breed, and
license tag number with the victim. The owner must also
provide information on the animal's rabies vaccinations within
48 hours. Failure to comply would constitute a misdemeanor.
When two drivers are involved in a car accident, they are
required to share information and provide necessary
assistance. Likewise, when a person is bitten by a
domesticated animal, it is that person's right to know the
health status of the animal and the owner's responsibility to
provide that information."
3)Overview : As detailed below, this bill presents a number of
troubling issues, including: (a) serious and improper impacts
on the constitutional rights guaranteed under the due process
clause and the Fifth Amendment's privilege against
self-incrimination; (b) discriminatory and arbitrary
enforcement due to the bill's vagueness; (c) increasing the
scope of the jail overcrowding problem and causing the early
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release of potentially violent criminals; and, (d) endangering
the safety of children by requiring child dog custodians to
provide their personal, identifying information to adult
strangers, generally in an unsupervised and potentially
isolated setting.
There is arguably no need to confront these serious problems as
all recent reports of rabies transmission to humans have
occurred from contact with bats, not dogs; existing law
already makes it a misdemeanor to conceal information about
the location or ownership of an animal that has bitten another
person. This bill expands the existing misdemeanor by
specifying a sentence of up to six months in the county jail,
with no associated fine, and no discretion given to the
sentencing judge. Finally, there is no rational basis for
this bill as existing law already strictly regulates dogs and
their vaccinations.
4)Creation of a New Crime with Imprisonment as the Only
Potential Sentence : According to a September 2006 report by
the California State Sheriff's Association, there are 20
counties with court-imposed population caps on their jails and
other correctional facilities. [California State Sheriff's
Association, June 2006, "Do The Crime, Do The Time? Maybe
Not, In California", citing Correction Standards Authority,
Jail Profile Survey, "Court Imposed Caps/Early Releases,"
September 2005.] The report states, "In California's local
adult system, jail facilities are bursting at the seams.
[S]imply put, California does not have enough local detention
capacity or adequate program space to meet public safety
demands.
"The consequence is that in 2005, statewide 9,148 offenders per
month were given pretrial releases and an additional 9,323
inmates a month were released early from their jail sentences
due solely to lack of jail space. What a cap means is that
when the jail is full, for every new inmate admitted, someone
already in custody has to be released. (Id. at p. 17.)
A Los Angeles Times article, "Releasing Inmates Early Has Costly
Human Toll" (May 14, 2006), stated "a shortage of beds puts
career criminals back on the street, where they commit new
offenses. [A named gang member] should still have been behind
bars the night he climbed into the passenger seat of a stolen
car with two fellow gang members, and [the 18-year old
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released inmate] shot and killed . . . a grandfather who had
just bought a lottery ticket. If not for chronic shortage of
jail beds in Los Angeles County, [this] killer would have been
in jail four more months. . . . He joined more than 150,000
county inmates who have been released during the last four
years after serving fractions of their sentences." (Id.)
According to a recent report by the Little Hoover Commission
("Solving California's Correction Crisis: Time is Running
Out", Report #185, January 2007), "California's correctional
system is in a tailspin that threatens public safety and
raises the risk of fiscal disaster. The failing correctional
system is the largest and most immediate crisis facing
policy-makers . . . thousands of local jail inmates are let
out early every week as a result of overcrowding and
court-ordered population caps."
In view of such serious overcrowding of the State's jails and
prisons leading to the early release of some violent inmates
convicted of serious offenses, should the Legislature cause
the release of additional violent criminals in order to punish
dog owners who fail to provide all of the information required
by this bill, which is arguably vague and overly broad?
For each dog owner who is sentenced to a term in jail under this
bill, a serious criminal may be compelled to be released due
to the population caps. Given a choice of jailing the gang
member who, when released, shot a grandfather as reported in
the Los Angeles Times or jailing a dog owner who failed to
provide a person claiming to have been bitten with the name
breed and license tag number of his or her dog, the interests
of public safety appear to be better served by keeping the
gang member incarcerated and letting the dog owner remain
free.
5)Rabies Facts : According to a 2005 report issued by the
California Department of Health Services (DHS), there were no
reported cases of rabies in dogs in California during that
year (the last year for which statistics were published on the
DHS Web site. See
http://www.dhs.ca.gov/ps/dcdc/disb/pdf/2005%20Rabies%20Final.pd
f ).
According to DHS, "In the United States today, wildlife accounts
for more than 90% of the reported cases of animal rabies. In
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California, rabies is well established in the skunk and bat
populations. DHS has developed a Rabies Fact Sheet which is
available on the DHS web site.
[ http://www.dhs.ca.gov/ohb/HESIS/rabies.htm#Who%20is%20
at%20Risk? ]
According to the DHS rabies fact sheet, "Most wild mammals can
get infected with rabies. The most susceptible animals
include bats, raccoons, skunks, coyotes, foxes, and wolves.
Rabies in domestic animals can be prevented by a vaccine.
However, dogs, cats, and livestock can be infected if they are
not vaccinated. Cats currently make up most of the reported
cases among domestic animals in the United States."
[(Emphasis added.) Id.]
6)Nexus between This Bill's Requirements and the Protection of
the Public from Rabies : This bill requires the owner or
custodian of an animal to provide personal and private
identifying information to any person alleging to have been
bitten by the owner's animal. There appears to be little
nexus between much of the information required and any
legitimate government interest.
It should be noted that the person having custody and control of
the animal may be a minor child taking the dog for a walk. Is
it good public policy to require a minor child in control of
an animal to provide his or her name, address, and telephone
number to a person who may be a complete stranger to the
child? The person claiming to have been bitten may be a
well-intentioned victim; on the other hand, he or she may be a
person with criminal intent, targeting a child who is walking
the streets alone with his or her dog. Is it the bill's
intention to require a young child disclose his or her name,
address and telephone number to a complete stranger in what
may well be an unsupervised or remote setting? With
information about a young child's name, address, and phone
number in hand, a potential sexual predator has easy future
access to the child, creating the potential for a crime far
more serious than failure to disclose information about a dog.
The requirement that the animal's breed be identified raises a
number of issues, including unconstitutional vagueness and
over-breadth. This requirement also poses the question as to
whether this is an attempt to open the door to breed profiling
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or banning or restricting certain breeds of dog suspected of
being most prone to being vicious or aggressive.
7)Is This Bill Unconstitutionally Vague and/or Overly Broad ? "A
statute is void for vagueness (and thus unconstitutional under
the due process clause of the United States Constitution) if
the statute: (a) does not define the conduct it prohibits
with sufficient definiteness and (b) does not establish
minimal guidelines to govern law enforcement. A criminal
statute cannot be so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its
application." [ U.S. v. Wyatt , 2005 U.S. App. LEXIS 9635 (May
26, 2005).] It is a basic principle of due process that an
enactment is void for vagueness if its prohibitions are not
clearly defined. [ U.S. v. Purdy , 264 F. 3d 809 (9th Circuit
2001); Mason v. Office of Administrative Hearings, (2001) 89
Cal. App. 4th 1119 (emphasis added.).]
The United States Supreme Court has stated, "An ordinance is
unconstitutionally vague 'if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits', or 'if it authorizes or even
encourages arbitrary and discriminatory enforcement'." [ Hill
v. Colorado , 530 U.S. 703, 732 (2000); Gospel Missions of
America v. City of Los Angeles , 419 F.3d 1042 (9th Cir.
2005).] If arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who
apply them. A vague law impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an
ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application. ( Mason , supra at p.
1126.)
The requirements of this bill are not clearly defined, and the
bill fails to provide explicit standards for law enforcement
and triers of fact to determine precisely what conduct
constitutes a misdemeanor under the bill. Although the bill
states, "Violation of this section is a misdemeanor punishable
by imprisonment in the county jail not exceeding six months,"
it is unclear at what point the misdemeanor occurs. Does it
occur when the animal owner or custodian fails to immediately
provide the other person with his or her name, address,
telephone number and the name, breed and license tag number of
the animal? Or does the conduct become a misdemeanor when the
owner or custodian fails to provide the other person, within
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48 hours, information regarding the status of the animal's
vaccinations? Or is the failure to perform either (or both)
of these acts a separate misdemeanor?
The bill presents other issues of vagueness and/or over-breadth,
including:
a) The requirement that the animal owner or custodian
reveal his or her address, telephone number and the name,
breed and license tag number of the animal is both vague
and overly broad. As discussed below, a person's home
address and telephone number appear to be irrelevant to any
legitimate public policy purpose, and constitute the kind
of identifying information that most people legitimately
attempt to keep confidential, to protect themselves from
identity theft, stalking, and other criminal conduct.
b) Only dogs are required by law to be licensed and
vaccinated against rabies. If the animal in question is a
cat, the animal is unlikely to have a license tag number or
to be identifiable by breed. A cat is also unlikely to
have a history of vaccinations, as cats are not required by
law to be vaccinated. Since most of the requirements of
this bill are inapplicable to cats, should the bill be more
narrowly-tailored to apply only to dogs?
c) Many dogs are quite adept at disengaging themselves from
their collars, on which the dog's license tag is generally
attached. Is a dog owner guilty of a misdemeanor and
subject to six months in the county jail if he or she is
unable to provide the license tag number because the dog's
collar and attached tag have been misplaced? A similar
question exists as to situations in which the actual
license tag has fallen off the collar and been lost.
d) The name and breed of the animal constitute information
that has no nexus with the bite, and that the other person
has no need to know. Owners of expensive, purebred,
AKC-certified dogs may be reluctant to provide the dog's
name to a stranger; persons who are visually or
hearing-impaired, whose dogs are highly-trained guide or
signal dogs, may be similarly reluctant as such dogs often
cost upwards of $20,000 to fully train. Moreover, as
discussed below, the custodian of an animal may not possess
sufficient information about the animal to correctly
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identify it by name and breed. Further, many, if not most,
dogs are not certified to be a specified "breed" and are,
in fact, of mixed parentage.
e) If the animal is in the custody of a person other than
the owner (such as a professional dog walker), the
custodian may not have access to the status of the animal's
vaccinations and may be unable to obtain such information
within 48 hours. For example, the custodian may be caring
for the animal's essential needs while the owners are on an
extended vacation. It is unclear from the provisions of
this bill how such custodians would be treated by lawn
enforcement or animal control officials.
f) Is it a misdemeanor if the owner or custodian provides
his or her name only or his or her name and the name of his
or her insurance company, but fails to provide evidence of
the animal's breed and vaccination status? Must each piece
of information listed in the bill be provided in order to
avoid criminal charges?
g) The bill is silent as to the interpretation of its
provisions if the animal owner or custodian is not present
at the time of the alleged bite - for example, a dog
usually contained in a back yard fenced area may escape and
bite a person while running down the street. If that
person later encounters the person he or she believes to be
the owner of the animal and alleges that the animal bit him
or her, is the owner required to accept that person's word
and immediately provide identifying information about him
or herself, the name, breed and license tag number of the
animal owned, and that animal's vaccination status? A
reasonable dog owner may be skeptical in such a situation,
particularly in cases in which the dog has no prior history
of biting conduct.
h) Is the term "information regarding the status of the
animal's vaccinations" sufficiently specific as to its
requirements as to withstand a challenge on grounds of
vagueness? This phrase does not provide those charged
with enforcing it explicit standards regarding the type of
information to be provided. Is verbal assurance that the
animal has been vaccinated sufficient or does the bill
contemplate that veterinary records or other written
documentation must be provided? How far back in time does
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the bill contemplate the status of the animal's
vaccinations must be provided? Is it sufficient to provide
evidence of the last rabies vaccination but omit all other
vaccinations and any prior rabies vaccinations? Again, the
vagueness of these provisions fails to provide explicit
instruction to those charged with enforcing this law, and
that failure can lead to arbitrary and discriminatory
enforcement. ( Hill v. Colorado , supra.)
i) Since rabies is the only vaccination required by law for
dogs, should this bill be more narrowly tailored to allow
inquiry only as to the dog's last rabies vaccination if
such exists? This bill is unclear as to whether it
requires the owner to furnish the status of vaccinations
other than rabies that may have been administered to the
dog, and is unclear how an owner who has not vaccinated his
or her dog can comply with this bill without waiving his or
her privilege against self-incrimination.
8)Information on the Breed of the Animal : This bill requires,
among other things, that the owner of the animal alleged to
have bitten another person provide that other person with the
breed of the animal. Precisely what constitutes a "breed" is
subject to varying interpretations and is, therefore, an
impermissibly vague requirement. The American Kennel Club
(AKC) for example, lists numerous certified breeds
"Miscellaneous Class" intended as an interim stage prior to a
breed becoming certified. The following are listed as
miscellaneous breeds: Beauceron; Dogue de Bordeaux; Norwegian
Buhund; Pyrenean Shepherd; Redbone Coonhound; Swedish
Vallhund. (See, e.g.,
http://www.akc.org/breeds/fss_breeds.cfm .) A literal reading
of this information indicates that such dogs are in being
considered by the AKC to determine if dog merits inclusion in
the term "breed."
Under the provisions of this bill, if the owner of, e.g, a
Redbone Coonhound identifies his or her dog's breed as such,
has he or she provided misleading information as Redbone
Coonhounds are not yet certified as a breed?
The AKC Breed list begins (alphabetically) with the breed
"Affenpinscher", a member of the toy group. The AKC Breed
list ends (alphabetically) with the breed "Xoloitzcuintli",
described as a Standard Foundation Stock.
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Of course, not all dogs are "purebred" breeds, in the parlance
of the AKC. Does the requirement that the animal's breed be
identified provide a person of reasonable intelligence with
the information necessary to know what is required as to breed
identification? If the dog appears to be a purebred Golden
Retriever, for example, but lacks AKC certification papers,
can that dog's breed be identified as a "Golden Retriever"
under the terms of this bill? If the dog appears to be a
Golden Retriever, but several generations back in the dog's
heritage there was, for example, a Collie Sire (and this fact
is known to the owner), what is required in terms of breed
identification under this bill?
An AKC-registered purebred dog is generally expensive, and the
owner of such a dog who has paid significant sums of money to
acquire the dog may be reluctant to provide the dog's name out
of fear that the information could be used to steal that very
valuable animal. Moreover, an AKC-registered dog generally
has a lengthy name unique to the individual breeder and dog
which are used for AKC registration purposes. However, the
owner may call the dog by a shorter "nickname." Which name
must be provided under this bill or is the dog owner required
to provide both names?
Finally, many people adopt dogs of uncertain heritage from
animal rescue organizations. It is often difficult to make an
educated guess as to the breed(s) which participated in the
parenting of such a dog. In order to comply with the
provisions of this bill, how is the owner or custodian of such
a dog to identify the dog's breed?
Most importantly, perhaps, is the question of nexus. What
possible relevance is the animal's breed in terms of requiring
the dog's owner to identify him or herself or to the issue of
the bite? A bite by a dog of mixed parentage is likely to
have similar characteristics to the bite of a similarly sized
Labrador.
The breed issue is more complicated if a cat is the biting
animal as most cats seen in the local neighborhood are clearly
of mixed breeding, commonly referred to as "alley cats" or
"domestic short-haired" cats (unless, of course, they have
long hair; in which case, they are referred to as "domestic
long hairs".) It does not appear that domestic short- or
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long-haired cats are recognized breeds by the Cat Fancier's
Association (CFA), the feline equivalent of the AKC. However,
the CFA does recognize a breed called "American Shorthair,"
which is distinguished in a lengthy description on the CFA Web
site from "domestic short hairs." (See, e.g.,
http://www.cfa.org/breeds/profiles/american-sh.html .)
If the owner of a "domestic short hair" mistakenly identifies
the cat's breed as an "American shorthair," that owner has not
provided accurate information under this bill. Again, this
bill is vague in that it fails to specify whether any
information can be omitted, or be erroneously provided,
without incurring criminal liability.
The American Society for the Prevention of Cruelty to Animals
(ASPCA) "opposes laws that ban specific breeds of dogs or that
discriminate against particular breeds. These laws unfairly
discriminate against responsible dog guardians based solely on
their choice of breed. Such laws also fail to achieve the
desired goal of stopping illegal activities such as dog
fighting, and breeding and/or training dogs to be aggressive.
The ASPCA believes that strict enforcement of laws that ban
animal fighting, and breeding and/or training animals to
fight, is the proper means to address the problem. Breed bans
and the increasingly widespread practice by insurance
companies to deny homeowners' coverage for certain dog breeds
virtually guarantee euthanasia of otherwise adoptable dogs by
shelters and humane societies. Laws that deny insurance
coverage also force responsible home owners/pet guardians to
choose between a beloved family pet and insurance for their
home - a choice no one should be compelled to make."
[ www.aspca.org/ssite/PageServer?
pagename=pp_breedban]
The above issues cause the bill to be overly broad, vague and
lacking a rational basis.
9)Arbitrary and Discriminatory Enforcement : This bill does not
provide explicit standards for those charged with applying its
provisions as required by applicable case law. (See, e.g.,
Mason, supra at p. 1126.) A vague law impermissibly delegates
basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application.
How would the provisions of this bill be applied to a
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homeless person who owns an animal, but has no address or
telephone number to provide to the person alleging a bite, to
non-English speaking dog owners, or to minor children?
For example, with respect to providing "information regarding
the status of the animal's vaccinations" is verbal assurance
that the animal has been vaccinated sufficient or does the
bill require that veterinary records or other written
documentation must be provided? The homeless lack an address
or telephone number and presumably lack the space in which to
maintain vaccination records. Are homeless animal owners
subject to six months in the county jail for the crime of
belonging to a class that is virtually incapable of complying
with this proposed law?
Is a person in compliance if he or she exchanges identifying
information but fails to follow through with the animal's
vaccination history? Is a person in compliance if he or she
both provides his or her identifying information and also
provides information that the animal has never been
vaccinated? Since the existing law imposes a misdemeanor
penalty of $1,000 upon persons who fail to vaccinate their
animals, does the required admission of non-vaccination
violate the Fifth Amendment's privilege against
self-incrimination?
10)Vaccination Status : Since the latest statistics compiled for
the State of California indicate that the few cases of animal
to human transmission of rabies occurred from contact with
bats and that there were no cases of human death from rabies
due to dog bites, are any of the requirements of this bill so
essential as to warrant the creation of a new misdemeanor?
11)Rabies Vaccination May Not Be The Most Effective Method of
Immunizing Dogs and Has Inherent Dangers : Many veterinarians
who practice homeopathic veterinary medicine recommend against
the traditional scheme of annual vaccinations and other
wellness shots.
"[T]here is a great deal of evidence implicating vaccination as
the cause of many serious chronic health problems. For this
reason, I do not recommend vaccinations for dogs or cats."
Jeffrey Levy, DVM PCH, "Classical Veterinary Homeopathy"
[www.homeovet.net/content/
lifestyle/section2.html.]
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One of the leading experts in canine vaccination issues has
started a study, "The Concurrent Challenge." The concurrent
challenge studies will determine the duration of immunity
conveyed by the canine rabies vaccine, with the goal of
extending the state-mandated interval for boosters to five,
and then, to seven years. According to the lead researcher,
"This is one of the most important projects in veterinary
medicine. It will benefit all dogs by providing evidence that
protection from rabies vaccination lasts at least 5 years,
thereby avoiding unnecessary revaccination with its attendant
risk of debilitating adverse reactions.
"Scientific data indicate that vaccinating dogs against rabies
every three years, as most states require, is unnecessary.
Studies have shown the duration of protective immunity as
measured by serum antibody titers against rabies virus to
persist for seven years post-vaccination. . . . Researchers
believe the rabies vaccine causes the most and worst adverse
reactions in animals and concur that it should not be given
more often than is necessary to maintain immunity."
[ http://www.itsfortheanimals.com/RABIES-CHALLENGE-FUND.HTM.]
In fact, some experts argue that the blood titer test is
actually the most accurate method of assuring that a dog is
immune from rabies. (See, e.g., Jan Rasmusen, "All About the
Rabies Vaccine",
http://www.dogs4dogs.com/JR_Articles/Rabies.html .) "If your
dog is at high risk for rabies, know that the only way to
guarantee that your dog is immune to the rabies virus is to
have his or her antibody titers tested. An animal may be
repeatedly vaccinated and yet never develop immunity if
his/her immune system is malfunctioning." (Id.)
Is evidence of titer testing sufficient to satisfy this bill's
requirement of provision of information as to the animal's
vaccination status?
It should be noted that existing law already addresses the
confidentiality of information provided by a dog owner to his
or her veterinarian. As stated above, "all information
obtained from a dog owner is confidential to the dog owner and
proprietary to the veterinarian. This information shall not
be used or distributed for any purpose except to ensure
compliance with existing federal, state, county, or city laws
or regulations." [HSC Section 121690(h).]
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12)How Can the Animal's Owner Provide Identifying Information if
the Bite Occurred Out of the Owner's Presence ? If the
animal's owner or custodian is not present at the time of the
alleged bite, how is the owner expected to know, or have
reason to know, of the claimed bite? In the absence of
physical presence or direct observation of the bite, what
facts constitute evidence that the owner knew or had reason to
know that his or her animal bit another person? Does this
language provide sufficient direction to the persons charged
with enforcement of the law in order to avoid a successful
challenge on the grounds that it is unconstitutionally vague?
It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly
defined. [ U.S. v. Purdy , 264 F. 3d 809 (9th Circuit 2001);
Mason v. Office of Administrative Hearings , (2001) 89 Cal.
App. 4th 1119, 1126 (emphasis added).]
Most prudent persons would be hesitant to provide personal
identifying information to a total stranger alleging a dog
bite when the dog owner did not observe the bite. Another
possible scenario, of even greater concern, involves minor
children who may have sole custody of a dog at the time of the
bite accusation. A plethora of legislation has been
introduced for the stated purpose of protecting children from
sexual predators; yet, this bill requires those same children
to provide their names, addresses and telephone numbers to
adult strangers alleging that the child's dog bit them. Such
personal, identifying information gives an adult stranger easy
access to the child providing that person, identifying
information pursuant to this bill's requirements.
13)Are Fleeing Dog Owners of Biting Dogs A Problem So Extensive
As To Warrant the Creation of a New Crime ? It is of note that
this bill does not provide the sentencing court with any
discretion as to the imposition of a fine or community service
in lieu of jail time. In this regard, this bill is at odds
with the punishment provisions of most other misdemeanors,
which provide for a specified fine, a specified term of
imprisonment, or both.
In view of the current, well-publicized and critical crisis
facing the State of California in terms of prison overcrowding
(which also involves county jail overcrowding), is it good
public policy to create a new misdemeanor punishable by jail
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time only? There appears to be no countermanding public
crisis related to fleeing owners of biting dogs that justifies
the creation of this new crime.
14)Is This Bill Intended to Assist Plaintiffs in Civil Dog Bite
Cases ? The specific purpose of this bill is not apparent from
the language of the bill itself. However, a criminal
conviction of the owner of a dog who has bitten another person
would have the potential of providing significant assistance
to a plaintiff in civil litigation under California's "strict
liability" dog-bite law. Civil Code Section 3342(a) provides
in part that "the owner of any dog is liable for the damages
suffered by any person who is bitten by the dog while in a
public place or lawfully in a private place, including the
property of the owner of the dog, regardless of the former
viciousness of the dog or the owner's knowledge of such
viciousness . . . . "
"Civil Code Section 3342(a) has been recognized as imposing a
duty of care on every dog owner to prevent his or her dog from
biting persons in a public place or lawfully in a private
place. The statute is designed to prevent dogs from becoming
a hazard to the community by holding dog owners to such a
standard of care, and assigning strict liability for its
breach." [ Priebe v. Nelson , 39 Cal. 4th 1112, 1120 (2006).]
Few exceptions have been recognized to application of strict
liability to dog owners for bites by their dogs.
It is clear that persons bitten by dogs are already provided an
avenue for recovery of damages sustained and shielded from any
defenses that might otherwise be asserted such as assumption
of risk and contributory negligence. [See, e.g., Davis v.
Gaschler , (1992), 11 Cal. App. 4th 1392.] Dog owners are
subject to laws requiring registration and licensure, and
immunity from rabies is a pre-requisite to obtaining a
license. Given the protections and remedies that already
exist, together with the current crisis with respect to jail
over-crowding, is the creation of a new misdemeanor warranted,
particularly when that new misdemeanor is punishable only by
imprisonment in the county jail?
The Appellate Court has recognized that not every dog bite
creates an emergency situation, even in view of the deadly
nature of rabies. [ In Re Quackenbush , 41 Cal. App. 4th 1301
(1996).] In the Quackenbush case, the court rejected the
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argument of the Prosecution that every dog bite creates an
emergency due to the deadly nature of rabies, citing the State
Department of Health Services regulations allowing for
isolation of a biting animal at the discretion of the local
health officer. [17 C.C.R.2606(b)(2).] The court stated, "It
is only when the animal exhibits the clinical symptoms of
rabies that isolation in a pound, veterinary hospital or other
adequate facility is required," citing 17 C.C.R. 2606(b)(1).
(Id. at p. 1307.)
The reasoning of the Quackenbush Court is applicable to the
issue of the need for the new misdemeanor created by this
bill. This bill's rather extraordinary requirement that an
accused dog owner divulge personal identifying information to
a stranger and provide his or her dog's vaccination records
within 48 hours appears to be based on the assumption that
every dog bite creates an emergency situation that warrants
the criminalizing of a person's legitimate attempt to protect
his or her own personal identifying information or that of his
or her child. Moreover, although the author's background
information refers to an exchange of information similar to
that which occurs at the scene of an automobile accident, this
bill does not require an exchange of information. No
information is required to be provided by the person bitten to
the animal's owner, notwithstanding the potential or even
likelihood, of an insurance claim or civil litigation that may
be initiated due to the dog bite.
15)Is This Bill Necessary ? Given the strict liability imposed
on dog owners under the Civil Code and the extensive
regulatory scheme already in place with respect to dog
licensing and rabies control, is there a need for a six-month
misdemeanor to coerce dog owners into providing otherwise
private information unrelated to any legitimate government
interest?
It is already a misdemeanor to conceal information about the
location and ownership of a dog that has bitten another person
with the intent to prevent the dog's quarantine or isolation
by the local health officer. [HSC Section 121705.] Is there
a demonstrated need for another misdemeanor, punishable only
by imprisonment, for essentially the same conduct prohibited
by HSC Section 121705? Why is HSC Section 121705 insufficient
to accomplish the purposes of this bill?
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16)Arguments in Support : The Orange County Medical Association
(OCMA) states, "As physicians, we are aware that dog bites are
a fairly common occurrence in Orange County emergency rooms.
These injuries are unnecessary and are often the fault of an
owner who failed to control their pet. As a result, the added
unnecessary costs to the healthcare system, the burden on
already strained emergency departments and the pain and
suffering of the victims is something that should be
addressed.
"AB 670 helps to hold pet owners responsible for the actions of
their pets. Since many pet owners personally choose dog
breeds or other pets known to be more aggressive, it is very
important that we hold them accountable should their pet harm
someone else. Hopefully, your legislation will help to reduce
these injuries and the related healthcare consequences.
"[A]lso, please be advised that the support of OCMA is a
position that is taken separate from our parent organization,
the California Medical Association (CMA). It is our
understanding that the CMA has not taken a position on AB
670."
17)Argument in Opposition : The Taxpayers for Improving Public
Safety states, "This measure seeks to undermine the 5th
Amendment. One of the basic premises of criminal
jurisprudence is the right to assert the privilege of not
offering evidence which is self-incriminating. This
legislation purports to compel an individual to confess to the
commission of a crime, and by failing to make that penal
admission, commits another crime. This bill should be
rejected unless the individual who comes forward with the
information is provided immunity from prosecution on the
underlying offense. . . . It should be clear that any step
towards violating the absolute constitutional prohibition
against being compelled to provide evidence which is
self-incriminating must be rejected."
REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Medical Association
Opposition
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Taxpayers for Improving Public Safety
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744