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AGLO 1973 No. 13 - January 19, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington

CRIMES ‑- MISDEMEANORS ‑- PISTOLS ‑- SALE OR DELIVERY TO PERSON UNDER 21 YEARS OF AGE

It remains a misdemeanor to deliver a pistol to a person who is under 21 years of age regardless of chapter 292, Laws of 1971, Ex. Sess.

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                                                                 January 19, 1973

Honorable E. R. Whitmore, Jr.
Prosecuting Attorney
Chelan County Court House
Wenatchee, Washington 98801                                                                                                               Cite as:  AGLO 1973 No. 13

Dear Sir:

            This is written in response to your recent letter requesting our opinion as to whether, in view of the enactment of chapter 292, Laws of 1971, Ex. Sess., it remains a misdemeanor to deliver a pistol to a person who is under 21 years of age.

            We answer this question in the affirmative.

                                                                    ANALYSIS

            RCW 9.41.080, codifying § 8, chapter 172, Laws of 1935, provides that:

            "No person shall deliver a pistol to any person under the age of twenty-one or to one who he has reasonable cause to believe has been convicted of a crime of violence, or is a drug addict, an habitual drunkard, or of unsound mind."  (Emphasis supplied.)

            A violation of this statute constitutes a misdemeanor under the following provisions of RCW 9.41.160:

            "Any violation of any provision of RCW 9.41.010 through 9.41.150, as amended, other than those violations specified in RCW 9.41.020 and 9.41.040, shall be a misdemeanor and punishable accordingly."

            Although the 1971 legislature, by its enactment of chapter 292, Laws of 1971, Ex. Sess., reduced the age of majority in this state from 21 to 18 years for most purposes, it did not alter this particular set of  [[Orig. Op. Page 2]] statutes.1/   In § 37 of this act it did, however, amend the provisions of RCW 26.28.080 to read, in material part, as follows:

            "Every person who:

            ". . .

            "(5) Shall sell, or give, or permit to be sold or given to any person under the age of eighteen years, any revolver((,))or pistol ((, or toy pistol));

            "Shall be guilty of a gross misdemeanor."

            Notably, this amendment did not change the preexisting age restriction but rather, merely eliminated the statute's previous reference to toy pistol.  Accordingly, in actuality the law governing your precise question has not been affected at all by this 1971 amendment which you have cited.

            Reading RCW 9.41.080 and RCW 26.28.080 together, as statutes inparimateria, the significant point to be noted in reconciling the "first blush" appearance of conflict between them is that it is, and remains, merely anordinary misdemeanor to deliver a pistol to a person who is under 21 years of age.  On the other hand, it is agross misdemeanor for a pistol (other than a toy pistol) to be sold, given, or permitted to be sold or given to any person under the age of 18 years.

            As you know, the maximum penalty for a gross misdemeanor when not otherwise fixed by the statute defining the crime is somewhat more severe than is the maximum penalty for an ordinary misdemeanor.  Under RCW 9.92.020 it is provided that:

            "Every person convicted of a gross misdemeanor for which no punishment is prescribed in any statute in force at the time  [[Orig. Op. Page 3]] of conviction and sentence, shall be punished by imprisonment in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both."

            By way of comparison, RCW 9.92.030 provides that:

            "Every person convicted of a misdemeanor for which no punishment is prescribed by any statute in force at the time of conviction and sentence, shall be punished by imprisonment in the county jail for not more than ninety days, or by a fine of not more than two hundred and fifty dollars."

            Thus, the maximum penalty which may be imposed against a person who delivers a pistol to an individual who is between 18 and 21 years of age is that of imprisonment in the county jail for not more than ninety days, or a fine of not more than $250.  However, if the same pistol is sold or given and delivered to a person who is under 18 years of age, the person who does so may, instead, be imprisoned in the county jail for up to one year and/or be fined an amount not exceeding $1,000 upon conviction of this offense.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Similarly, as noted in AGO 1971 No. 38 [[to James A. McDermott, State Representative on November 30, 1971]], copy enclosed, it left unamended the preexisting provisions of RCW 66.44.310 relating to the admission of persons under 21 to taverns.

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