I. PC 399.5: Owning Attack or Fighting Dog

 

 

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Legal Definition: Any person owning or having custody or control of a dog trained to fight, attack, or kill is guilty of a felony or a misdemeanor.

For a person to be convicted of a violation of PC 399.5, the prosecution must prove the following:

1. You owned/had custody or control of a dog trained to fight, attack, or kill;

2. You knew or reasonably should have known that the dog was vicious or dangerous;

3. You failed to use ordinary care in owning/controlling the dog;

AND

4. As a result of your failure to use ordinary care, the dog bit someone on two separate occasions/caused substantial physical injury to another person.

Related Crimes to Owning Attack Dogs:

• PC 399(a) Allowing Vicious Animal At large Causing Death
• PC 399(b) Allowing Vicious Animal At Large Causing Injury
• PC 597.5(a) Training Attack Dog / Attending a Dog Fight
• PC 597.5(b) Knowingly Attending a Dog Fight

II. What does this mean?

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PC 399.5(a) does not apply to people who trespass on your property, to people who provoked the dog to attack, or contributed to his or her own injuries, or to dogs acting in military or law enforcement capacity. It also does not apply to veterinarians or animal control officers who are working in the capacity of their own job.

Provocation includes situations where a dog held on a leash by its owner or custodian reacts in a protective manner to a person or person who approaches the owner or custodian in a threatening or aggressive manner. 

Using ordinary care means using reasonable care to prevent reasonably foreseeable harm to someone else. A person fails to use ordinary care if they do something that a reasonably careful person would not do in the same situation/fails to do something that a reasonably careful person would do in the same situation.

Keep in mind, that a simple bite is not sufficient for a conviction under this section. It must be two or more bites or one of the bites results in a substantial physical injury to another person. 

III. Penalties

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The crime of owning an attack dog under PC 399.5 is a wobbler offense, meaning it is to be charged as a misdemeanor or as a felony offense. Whether it is charged as a misdemeanor or a felony is based on your criminal history, as well as the injury sustained by the victim. If you are to be found guilty under this section as a misdemeanor, you could be sentenced to up to one year in County Jail. If you are convicted of PC 399.5 as a felony, you could be sentenced to upwards of 2, 3, or 4 years in a State Prison. You would be required to serve 50% of that sentence.

In some PC 399.5(a) cases, you may be able to avoid jail entirely and instead serve an alternative sentence. Alternative sentences include work release, which is commonly known as Community Service, or electronic monitoring, also known as House Arrest.

The crime of owning an attack dog is not considered a “strike” under California Three Strikes Law. It is also not considered a crime of moral turpitude. However, given the nature of this offense, you are generally subjected to heavy fines and fees in the form of restitution to the injured victim. This can include medical expenses, as well as fines of upwards of $10,000.

IV. Common Defenses

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1. Statute of Limitations
2. Insufficient Evidence
3. Mistake of Fact

There is no one defense that best fits a violation of PC 399.5(a) as every case is different and unique. Commonly, the defense of insufficient evidence to prove guilt is used. Insufficient evidence would mean that the district attorney is not able to prove beyond a reasonable doubt that you knew the evidence was going to be used in a trial, or that the thing that is considered evidence was not clear evidence to you.

This can be shown by the element of provocation explaining the reaction of your dog. A friend could play a game by coming up behind you in order to scare you and in essence, scaring and provoke the dog to attack. This would be a defense against the attack on your friend.

V. Call Today

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