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AGLO 1973 No. 94 - September 17, 1973
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Slade Gorton | 1969-1980 | Attorney General of Washington
COURTS ‑- JUSTICE ‑- FINES ‑- PENALTIES ‑- CRIMINAL AND TRAFFIC CASES ‑- TRAFFIC SAFETY EDUCATION
 
(1) Where, pursuant to RCW 3.62.070, no filing fee is to be assessed or collected other than as a part of the fine or penalty imposed upon conviction, no such filing fee is to be assessed if no fine or penalty is imposed.
 
(2) Where a fine or penalty is imposed in such a case, $4.00 of that fine or penalty represents "costs" which may not be suspended.
 
(3) The portion of the fine or penalty in such a case which represents a nonsuspendible filing fee is to be deemed a part of the fine or penalty for purposes of determining the traffic safety education penalty assessment under RCW 46.81.030.
 
                                                              - - - - - - - - - - - - -
 
                                                              September 17, 1973
 
Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504
                                                                                                               Cite as:  AGLO 1973 No. 94
 
Dear Sir:
 
            By recent letter you have requested our opinion on two questions pertaining to the assessment of penalties and court costs by district court judges operating under the 1961 justice court act (chapter 299, Laws of 1961, as amended) in certain criminal and traffic cases.  Specifically, you have asked:
 
            "Does the court have a right to assess and collect four dollars in each criminal action even though a fine or penalty has not been levied or has been fully suspended?
 
            "If the above question is answered in the affirmative, another question then arises which we present as follows:
 
            "Would the four dollars thus assessed and collected by subject to the provisions of RCW 46.81.030 requiring an additional five dollars, as a penalty assessment, to be levied and paid into the state traffic safety education account, where the offenses relate to the operation or use of motor vehicles?"
 
            We answer these questions as set forth below.
 
                                                                     ANALYSIS
 
            RCW 3.62.010 codifies § 105, chapter 299, Laws of 1961, commonly known as the 1961 justice court act, and provides as follows with respect to criminal cases tried before district justice courts operating thereunder:
 
             [[Orig. Op. Page 2]]
            "The court may at the time of sentencing or at any time thereafter suspend a portion or all of a fine or penalty except that costs of the action shall not be suspended:  Provided, That the court may suspend costs in the case of juvenile or indigent defendants.  'Costs' for the purpose of this section, does not include jury fees, witness fees or sheriff's fees."
 
            RCW 3.62.070, codifying § 111 of this same 1961 act, then provides that:
 
            "Except in traffic cases wherein bail is forfeited to a violations bureau, and except in cases filed in municipal departments established pursuant to chapter 3.46, in every criminal action filed by a city for an ordinance violation the city shall be charged a four dollar filing fee.  In all other criminal actions, no filing fee shall be assessed or collected:  Provided, That in such cases, for the purposes of RCW 3.62.010, four dollars of each fine or penalty shall be deemed filing costs."
 
            Finally to be noted in connection with your questions is RCW 46.81.030, relating to penalty assessments for the support of traffic safety education and reading as follows:
 
            "There shall be levied and paid into the traffic safety education account of the general fund of the state treasury a penalty assessment in addition to the fine or bail forfeiture on all offenses involving a violation of a state statute or city or county ordinance relating to the operation or use of motor vehicles or the licensing of vehicle operators, except offenses relating to parking of vehicles, in the following amounts:
 
            "(1) Where a fine is imposed, five dollars for each twenty dollars of fine, or fraction thereof.
 
            "(2) If bail is forfeited, five dollars for each twenty dollars of bail, or fraction thereof.
 
            "(3) Where multiple offenses are involved, the penalty assessment shall be based on the total  [[Orig. Op. Page 3]] fine or bail forfeited for all offenses.
 
            ". . .
 
            "Where a fine is suspended, in whole or in part, the penalty assessment shall be levied in accordance with the fine actually imposed."
 
            In AGO 63-64 No. 14 [[to John J. Lally, Prosecuting Attorney, Spokane County on February 28, 1963]], copy enclosed, we reviewed and discussed the relationship between the first two of these three statutes and advised that:
 
            ". . .  In those criminal actions wherein, under §§ 111 and 105, supra, the single $4.00 filing fee is chargeable against the convicted defendant as a nonsuspendible part of the fine or penalty imposed upon conviction, it is clear to us that the $4.00 filing fee is not to be charged in addition to the ordinary fine or penalty but rather merely as a part thereof.  Again, the key language of § 111, supra, is
 
            "'. . .  That in such cases, for the purposes of section 105, [i.e., nonsuspension of costs] four dollars of each fine or penalty shall be deemed filing costs.'  (Emphasis supplied.)
 
            "From this conclusion that, in the class of criminal action with which we are presently concerned, the $4.00 filing fee is simply a nonsuspendible part of the fine or penalty imposed (rather than a charge made in addition to the ordinary fine or penalty), it follows that under the express language of § 105, supra, the court may suspend only that part of the fine or penalty imposed which is in excess of the nonsuspendible $4.00 filing fee.  . . ."
 
            Thereafter, in AGO 63-64 No. 90 [[to John G. McCutchon, Prosecuting Attorney, Pierce County on March 9, 1964]], a copy of which is also enclosed, we were asked to construe the last sentence of the third statute above quoted (RCW 46.81.030) ‑ with particular reference to the phrase "fine actually imposed" ‑ and we concluded that where a fine imposed for a traffic violation is suspended in whole or in part, the penalty assessment provided for by that statute is to be based upon the amount actually ordered paid into the court.
 
            In accordance with these two prior opinions, which we regard as being essentially determinative of your present questions, we answer those questions as follows:
 
             [[Orig. Op. Page 4]]
            (1) Where, pursuant to RCW 3.62.070, supra, no filing fee is to be assessed or collected other than as a part of the fine or penalty imposed upon conviction of the defendant, no such filing fee is to be assessed if no fine or penalty is, in fact, thus imposed.1/
 
             (2) Where a fine or penalty is imposed in such a case, $4.00 of that fine or penalty represents "costs" within the meaning of RCW 3.62.010, supra, and, hence, may not be suspended.
 
            (3) The portion of the fine or penalty imposed in such a case which represents this nonsuspendible filing fee is to be deemed a part of that fine or penalty for purposes of determining the traffic safety education penalty assessment under RCW 46.81.030, supra; therefore, even where all but that amount is suspended by the court, this penalty assessment is nevertheless to be collected on the basis of the "actual imposition" of a fine or penalty in the amount of $4.00 ‑ meaning that in such a case the total amount to be paid by the convicted defendant will be $9.00.
 
            It is hoped that the foregoing explanation of these matters will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
Philip H. Austin
Deputy Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/A fortiori, where a person charged with a traffic offense elects, under JTR T2.06 (b) (3), to forfeit bail, no filing fee is to be assessed in such cases because, in the words of that rule,
 
            ". . . forfeiture of bail shall terminate the case and may be considered by the Director of Motor Vehicles only, and for no other purpose, as having the same effect as conviction of the offense charged; . . ."  (Emphasis supplied.)
 
            Cf., Orting v. Rucshner, 66 Wn.2d 732, 404 P.2d 983 (1965).
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