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State v. Bash

November 7, 1996


Appeal from Superior Court of Yakima County. Docket No: 95-1-01840-3. Date filed: 02/20/96. Judge signing: Hon. Robert N. Hackett JR.

Authored by Barbara A. Madsen. Concurring: Richard P. Guy, Gerry L. Alexander, Richard B. Sanders, Barbara Durham, Charles W. Johnson, Philip A. Talmadge. Dissenting: James M. Dolliver, Charles Z. Smith.

The opinion of the court was delivered by: Madsen


MADSEN, J.-- Respondents Lawrence E. Delzer and Edward D. Bash were charged by information with violating RCW 16.08.100(3), which provides that the owner of a dog which aggressively attacks and causes severe injury or death of a human being is guilty of a class C felony. The trial court concluded that the statute sets forth a strict liability offense but that a defendant may assert as an affirmative defense that he or she neither knew nor should have known that the dog was a potentially dangerous or dangerous dog. We granted discretionary review and reverse, holding that the statute does not define a strict liability crime, but instead requires that the dog's owner either knew or should have known that the dog was a potentially dangerous or dangerous dog.


The State says that it will produce evidence at trial that two pit bulls owned by respondents attacked and killed Mr. Walt Freser, a seventy-five-year-old man, who was sitting in a wheel chair in his back yard, and that the dogs also seriously injured a neighbor, Mr. Herman Miller, when he tried to rescue Mr. Freser.

Respondents' cases were consolidated for trial. Respondents moved for dismissal of the charges because the State failed to allege any mental element of the crime and it appeared the prosecution would proceed on the basis that RCW 16.08.100(3) defines a strict liability crime. Respondents maintained that RCW 16.08.100(3) does not set forth a strict liability offense, and, if it does, it is unconstitutional. The trial court denied the motion to dismiss. The court ruled that the statute sets forth a strict liability offense. The court was troubled by what it perceived to be due process problems attendant with the strict liability nature of the offense, however, and therefore further ruled that the statute would be unconstitutional unless a judicially imposed defense was available to a defendant charged under the statute. Accordingly, the court, drawing by analogy from the "unwitting possession" defense against the strict liability crime of possession of a controlled substance, concluded that respondents would be entitled to assert the defense that they did not know or reasonably should not have known of the potential dangerousness or dangerousness of either or both of the dogs. Clerk's Papers at 4-6. The court reasoned the burden of proving the defense by a preponderance of the evidence would be on the defendant. The court fashioned a jury instruction to this effect.

The State sought discretionary review by this court of that part of the trial court's order creating a defense. The State's motion was granted. Trial court proceedings are stayed pending this court's decision in the case.


In 1987, the Legislature enacted a number of statutes concerning the ownership of dogs. Laws of 1987, ch. 94. RCW 16.08.100 is one of those statutes. To place the statute in context, an overview of the 1987 legislation is helpful. In general, the 1987 statutes define potentially dangerous and dangerous dogs, set forth requirements regarding ownership of dangerous dogs, and establish criminal liability under several circumstances.

RCW 16.08.070(1) defines "Potentially dangerous dog" [as] any dog that when unprovoked:

(a) Inflicts bites on a human or a domestic animal either on public or private property, or (b) chases or approaches a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, or any dog with a known propensity, tendency, or Disposition to attack unprovoked, to cause injury, or otherwise to threaten the safety of humans or domestic animals.

RCW 16.08.070(2) defines "Dangerous dog" [as] any dog that according to the records of the appropriate authority, (a) has inflicted severe injury on a human being without provocation on public or private property, (b) has killed a domestic animal without provocation while off the owner's property, or (c) has been previously found to be potentially dangerous, the owner having received notice of such and the dog again aggressively bites, attacks, or endangers the safety of humans or domestic animals. "'Severe injury' means any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery." RCW 16.08.070(3).

Under RCW 16.08.080, it is unlawful to have an unregistered dangerous dog (with an exception for police dogs). A certificate of registration will be issued upon sufficient evidence of a proper enclosure for the dog and $50,000 in liability insurance covering injuries caused by the dog. RCW 16.08.080. A dangerous dog must be properly restrained and muzzled in accordance with RCW 16.08.090(1) when outside its enclosure. Potentially dangerous dogs are not regulated under RCW 16.08, but instead are to be regulated by local, municipal, and county ordinances. RCW 16.08.090(2). Dogs are not to be declared dangerous if the threat, injury, or damage was sustained by a person who either committed a willful trespass or other tort or crime on the owner's premises, or had tormented, abused, or assaulted the dog. RCW 16.08.090(3).

Finally, in addition to providing for criminal liability under RCW 16.08.100(3), RCW 16.08.100 provides for confiscation of a dangerous dog if it is not registered, the owner has failed to secure liability insurance, the dog is not maintained in a proper enclosure, or the dog is not properly restrained while outside the owner's dwelling or the dog's proper enclosure. In these instances, the owner is guilty of a gross misdemeanor. RCW 16.06.100(1). If a dangerous dog of an owner who has a prior conviction under RCW 16.08 attacks or bites a person or domestic animal, the owner is guilty of a class C felony ...

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