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 AB 670 Page 2 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 AB 670 Page 3 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 AB 670 Page 4 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 : AB 670 Page 5 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 AB 670 Page 6 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 AB 670 Page 7 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 AB 670 Page 8 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 AB 670 Page 9 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 AB 670 Page 10 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 AB 670 Page 11 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 AB 670 Page 12 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. AB 670 Page 13 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 AB 670 Page 14 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 AB 670 Page 15 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.] AB 670 Page 16 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).] AB 670 Page 17 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 AB 670 Page 18 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 AB 670 Page 19 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? AB 670 Page 20 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 AB 670 Page 21 Taxpayers for Improving Public Safety Analysis Prepared by : Kathleen Ragan / PUB. S. / (916) 319-3744