MOTOR VEHICLES ‑- LICENSES ‑- HABITUAL TRAFFIC OFFENDERS ACT
Where a person who has been adjudged an habitual traffic offender under the Washington habitual traffic offenders act (chapter 46.65 RCW) is thereafter charged with driving a motor vehicle while his license is suspended or revoked, or with driving without a license, the court in which the charge is filed is to transfer the case to the court of record which made that adjudication.
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September 5, 1973
Honorable Paul Klasen
Ephrata, Washington 98823
Cite as: AGLO 1973 No. 91
This is written in response to your recent letter requesting our opinion on a question which we paraphrase as follows:
When a person who has been adjudged an habitual offender under chapter 46.65 RCW, the Washington Habitual Traffic Offenders Act," is thereafter charged with driving a motor vehicle while his license is suspended or revoked, or with driving without a license, what action is required by RCW 46.65.090 when the charge is filed in a court other than the court of record which previously determined the accused person to be an habitual offender.
We answer this question in the manner set forth in our analysis.
Chapter 46.65 RCW codifies the "Washington Habitual Traffic Offenders Act" which was enacted as chapter 284, Laws of 1971, Ex. Sess. This act provides for a denial of the privilege of operating a motor vehicle on the highways of this state to those individuals who are found to be habitual traffic offenders as defined therein.1/ It further establishes certain statutory procedural steps which must be followed before a person legally can be declared to be an habitual traffic offender.2/ The act also specifically provides in RCW 46.65.060 that if the superior court in a proceeding to have a person declared to be an habitual offender
". . . finds that such person is the same person named in the aforesaid transcript or abstract and that such person is an habitual [[Orig. Op. Page 2]] offender, the court shall so find and by appropriate order direct such person not to operate a motor vehicle on the highways of the state of Washington and to surrender to the court all licenses or permits to operate a motor vehicle on the highways of this state for disposal. . . ."
A person who is declared to be an habitual offender under this act is not eligible to receive a license to operate a motor vehicle in this state for a period of five years.3/ There is a provision in RCW 46.65.080, however, which permits the department of motor vehicles to reinstate either wholly or conditionally a driver's license upon a showing of good cause after the expiration of two years. The section of this law which is particularly pertinent to your inquiry comes next; now codified as RCW 46.65.090, it provides as follows:
"It shall be unlawful for any person to operate a motor vehicle in this state while the order of revocation remains in effect. Any person found to be an habitual offender under the provisions of this chapter who is thereafter convicted of operating a motor vehicle in this state while the order of the court prohibiting such operation is in effect shall be guilty of a gross misdemeanor, the punishment for which shall be confinement in the county jail for not more than one year.
"For the purpose of enforcing this section, in any case in which the accused in charged with driving a motor vehicle while his license, permit, or privilege to drive is suspended or revoked or is charged with driving without a license, the court before hearing such charge shall determine whether such person has been adjudged an habitual offender and by reason of such judgment is barred from operating a motor vehicle on the highways of this state. If the court determines the accused has been so adjudged it shall transfer the case to the court of [[Orig. Op. Page 3]] record making such determination for trial." (Emphasis supplied.)
It appears to us that this statute is clear and unambiguous and thereafter must be read as meaning precisely what it says. Its last sentence plainly indicates that if the person involved has been charged with driving a motor vehicle while his license or privilege to drive is suspended or revoked or with driving without a license, then the court, if it determines that the defendant has previously been adjudged as an habitual offender, is to transfer the case to the court of record which made such an adjudication. Thus, for example, if a driver is found to be an habitual offender by the superior court of Spokane county, then any subsequent charges of driving while suspended or revoked, no matter where they occur, in the state of Washington, will have to be transferred to Spokane county for trial, if the court in which the later charge is filed determines that the driver has been declared an habitual offender. In order to avoid this consequence it will be necessary to amend the statute.
The Washington Habitual Traffic Offenders Act was patterned upon a similar act passed by the state of Virginia in 1968. See, Code of Virginia, § 46.1-387. Apparently, however, some of the differences in the approach to driver licensing in Washington and Virginia were not considered by our legislature when it adopted the language now incorporated in RCW 46.65.090, patterned after § 46.1-387 of the Virginia Code. In our state driver licenses are suspended by the state department of motor vehicles and not the courts, whereas in Virginia they can be suspended either by the administrative agency (comparable to our department of motor vehicles) or the courts. Virginia law makes it a crime to drive when a person has been "directed not to drive by any court." Virginia Code 46.1-350 (a). Furthermore there is a specific provision in the Virginia habitual offenders act to excuse or suspend the statutory consequences for drivers in certain "apparent extreme emergency situations." In contrast, in the state of Washington once the court enters the order declaring the individual involved to be an habitual offender, and that order is transmitted to the department of motor vehicles, the department itself revokes the driving privilege (RCW 46.65.060) and there are no provisions for extreme emergency situations.
[[Orig. Op. Page 4]]
On the basis of the foregoing and the specific language of our present RCW 46.65.090, supra, we have no alternative but to conclude that a license revocation under the habitual offenders acts as now written requires a different processing of subsequent charges for driving while suspended or revoked than any other type of driver's license revocation in this state. Only the legislature, by appropriate amendment, can change this, as you well understand.
We trust the foregoing will be of assistance to you and adequately answers your inquiry.
Very truly yours,
EDWARD B. MACKIE
Deputy Attorney General
*** FOOTNOTES ***
1/See, RCW 46.65.020.
2/See, RCW 46.65.030, 46.65.040 and 46.65.050.
3/See, RCW 46.65.070.