Felony or misdemeanor for using dog as deadly weapon

A dog can be used as a deadly weapon, and such a use therefore can be prosecuted as assault with a deadly weapon.

For example, California courts have held that a dog can be a deadly weapon. In People v. Nealis (1991) 232 Cal.App.3d Supp. 1, the dog was commanded to attack. The court held that the dog was a deadly weapon. In People v. Henderson (1999) 76 Cal.App.4th 453, pit bulls were used to threaten police. The owner was charged with a violation of Penal Code section 417.8 (brandishing a deadly weapon). There was testimony from a dog expert that pit bulls as a breed are capable of inflicting great bodily injury. Under the circumstances of that case, the court held that the dogs were deadly weapons, not necessarily because of their breed, but because the defendant was using them as deadly weapons.

Where the dog is a pit bull or is proved to be vicioius, it is possible to be convicted of assult with a deadly weapon. A woman named Edlyn Joy Hauser, whose pit bull, Benjamin, attacked an animal control officer, was charged with three felony counts of assault with a deadly weapon and intentionally inflicting great bodily harm.

A dog attack can constitute malicious wounding, a felony in some states. See, i.e., Long v. Commonwealth, 379 S.E.2d 473, 8 Va. App. 194 (Va.App. 1989). In the Long case, it also was held that the prosecution is not required to prove that the dog was vicious or trained to attack if the defendant intended to command the dog to attack.

State v. Garnier, 171 Or.App. 564, 16 P.3d 1175 (Or.App. 2000) involved charges of causing physical injury to a certain person by means of a dog bite and creating a substantial risk of serious physical injury to a certain person by failing to control a dog.

The crime of assault generally consists of putting a person in fear of a battery (i.e., an unlawful touching). Therefore this crime can occur even without the dog biting a person. The necessary element is the action or threat that creates the fear.

Assault with a dealy weapon is serious crime. For example, California Penal Code section 245 provides that any person who commits an assault with a deadly weapon or instrument other than a firearm, or by means of force likely to produce great bodily injury, may be punished by imprisonment in state prison for two, three, or four years; or county jail not exceeding one year; or by a fine not exceeding $10,000; or by both the fine and imprisonment.