BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
6
7
0
AB 670 (Spitzer)
As Amended April 30, 2007
Hearing date: June 19, 2007
Penal Code
MK:br
ANIMALS: BITES: OWNER INFORMATION
HISTORY
Source: Constituent
Prior Legislation: None
Support: Orange County Medical Association; City of Yucaipa
Opposition:Taxpayers for Improving Public Safety
Assembly Floor Vote: Ayes 76- Noes 0
KEY ISSUE
SHOULD AN ANIMAL OWNER WHO KNOWS OR HAS REASON TO KNOW THEIR ANIMAL
BIT ANOTHER PERSON BE SUBJECT TO AN INFRACTION IF HE OR SHE DOES
NOT:
1. IMMEDIATELY PROVIDE THE OTHER PERSON WITH THE NAME, ADDRESS,
TELEPHONE NUMBER AND THE NAME AND LICENSE NUMBER OF THE ANIMAL.
2. IF THE PERSON HAVING CUSTODY OR CONTROL OF THE DOG IS UNDER 18
IMMEDIATELY PROVIDE THE PERSON WTH THE INFORMATION ON AN ADULT
OWNER.
3. IF THE ANIMAL MUST BE VACCINATED AGAINST RABIES, WITHIN 48 HOURS
PROVIDE THE OTHER PERSON WITH INFORMATION REGARDING THE STATUS OF
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THE ANIMAL'S VACCINATIONS?
PURPOSE
The purpose of this bill is to require an animal owner who knows
or should have known that their animal bit another person to
immediately give identifying information to the person bit and
within 48 hours provide the other person with information on the
animal's rabies vaccinations if required.
Existing law 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, or city and county.
(Health & Safety Code 121690 (a).)
Existing law provides that every dog owner, after his or her
dog reaches 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. (Health &
Safety Code 121690 (b).)
Existing law 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 399.5 (c).)
Existing law 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
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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 399 (a).)
Existing law 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 399 (b).)
Existing law 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 2, 3 or 4 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 human being on
two separate occasions or on one occasion causing substantial
physical injury. Existing law 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 399.5 (a).)
Existing law 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. Existing law also 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 399.5 (b).)
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Existing law 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 399.5 (d).)
Existing law 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
399.5 (e).)
Existing law 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. Existing law specifies that no
charge in excess of the actual cost shall be made for any one
vaccination at a clinic. (Health & Safety Code 121690 (f).)
Existing law 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. (Health & Safety Code 121705.)
Existing law states that notwithstanding any other provisions, a
guide dog 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. (Health & Safety Code 121680.)
Existing law 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. (Health &
Safety Code 121685.)
Existing law 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. Existing law
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also states that a license shall not extend beyond the period
of the validity of the current rabies vaccination. (Health &
Safety Code 121690 (g).)
Existing law 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. (Health &
Safety Code 121690 (h).)
Existing law allows cities and counties to enact more stringent
requirements in the exercise of their police power. (Health &
Safety Code 121695.)
Existing law 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. (Health & Safety Code 121705.)
Existing law 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 $1000. (Health & Safety Code
121630.)
This bill would provide that whenever a person owning or having
custody or control of an animal, knows, or has reason to know,
that the animal bit another person, he or she shall immediately
provide the other person with his or her name, address,
telephone number, and the name and license tag number of the
animal who bit the other person.
This bill would provide that if the person with custody or
control of the animal at the time the bite occurs is a minor, he
or she shall instead provide identification or contact
information of an adult owner or responsible party.
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This bill would provide 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.
This bill would provide that it is necessary for the skin of the
person be broken or punctured by the animal for the contact to
be classified as a bite.
This bill would provide that a violation of this section is an
infraction punishable by a fine of not more than $100.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
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mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
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<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill will not aggravate the prison and jail overcrowding
crisis outlined above.
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
<5> Primer, supra, fn. 4.
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COMMENTS
1. Need for This Bill
According to the author:
This bill requires a person who owns or has custody of
an animal, and knows the animal bit another person, to
immediately provide the other person with the name,
address, telephone number, and the name, license tag
number of the animal who bit the other person. 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. Failure to do so
would result in a $100 infraction.
The idea for this bill came to me from a constituent
who, while walking on the beach, was bitten by a dog on
a leash. The owner of the dog left the scene without
providing any assistance or information. In the same
way that those who are involved in auto accidents are
required to exchange information, people whose animals
bite others have responsibility to assist the victim
and to provide information regarding their identity,
and the identity and health status of the animal.
2. Infraction for Failing to Identify Oneself after a Dog Bite
Under this bill, it will be an infraction with a fine of $100
plus penalty assessments if a person owning or having custody or
control of an animal, knows, or has reason to know, that the
animal bit another person doesn't do the following:
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Immediately provide the other person with his or her name,
address, telephone number, and the name and license tag number
of the animal who bit the person.
If the person having custody and control of the animal at the
time the bite occurs is a minor, he or she shall instead
provide identification or contact information of an adult
owner or responsible party.
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.
A bite under this bill requires that the skin be broken or
punctured by the animal.
3. When is the Statute Violated
This bill requires a person to "immediately" provide information
to a person they know, or should have known, was bitten by an
animal in his or her possession and then within 48 hours give
information on the vaccination status. It is not clear what
would be considered immediately. If a person brought the dog
back home and then returned with the information would that be
"immediately" within the statute? If a child was in possession
of the animal and went home to tell the parent who then returned
with the information is that "immediately?" What if the person
gives some of the information but does not have the license
number available "immediately," is that a violation? What if
the person gives all the information including the license
number but does not call within 48 hours with the vaccination
information, is that a violation?
Generally, "[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
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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.)
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.)
WOULD THE REQUIREMENTS IN THIS NEW INFRACTION BE CONSIDERED
VAGUE AND THEREFORE UNCONSTITUTIONAL?
4. Fifth Amendment Concerns
Existing law makes it an infraction with a fine of $1000 to
violate any of the provisions requiring vaccinations for rabies.
Existing law makes it a misdemeanor to violate specified
provisions related to rabies control including vaccinating and
licensing a dog as required. (See generally Health & Safety
Code 121690 et seq.) This bill would require a person to
state whether or not their animal has been vaccinated for rabies
if it bites a person. Failure to do so will subject the owner
to an infraction under this bill; however, if the vaccinations
are not up to date, the owner may be admitting to the violation
of a misdemeanor. A person has a basic Fifth Amendment right
not to incriminate himself/herself, by requiring a person to
state their dog has not been vaccinated and thus make the owner
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subject to a misdemeanor, could conflict with this right.
DOES REQUIRING A PERSON TO DISCLOSE WHETHER THEIR ANIMAL HAS
BEEN VACCINATED RAISE FIFTH AMENDMENT CONCERNS?
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