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AGO 1980 No. 17 - July 30, 1980
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Slade Gorton | 1969-1980 | Attorney General of Washington

CITIES AND TOWNS ‑- POLICE POWERS ‑- MOTOR VEHICLES ‑- INTOXICATING LIQUOR ‑- PENALITY FOR DRIVING WHILE INTOXICATED IN VIOLATION OF MUNICIPAL ORDINANCE 

While a city or a town which adopts an ordinance defining and establishing as a municipal offense the crime driving while intoxicated must do so in terms identical to the statutory provisions of RCW 46.61.502, it is not also required to fix the same penalties for a violation as are fixed by the provisions of RCW 46.61.515. 

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                                                                    July 30, 1980 

Honorable Rod Chandler
State Representative, 45th Dist.
6522 ‑ 20th N.E.
Redmond, Washington 98052

Cite as:  AGO 1980 No. 17                                                                                                                

 Dear Sir: 

            By letter previously acknowledged you requested our opinion on a question which we paraphrase as follows: 

            Where a city or town, in the exercise of its police power under Article XI, § 11 of the Washington Constitution, adopts an ordinance establishing and defining as a municipal offense the crime of driving while under the influence of intoxicating liquor or any drug in terms identical to the statutory provision of RCW 46.61.502, is that city or town then further required by RCW 46.08.020 to fix the same penalties for a violation as are fixed by RCW 46.61.515 with respect to any person who is convicted of a violation of RCW 46.61.502? 

            We answer this question in the negative for the reasons set forth in our analysis. 

                                                                     ANALYSIS 

            As amended by § 6, chapter 176, Laws of 1979, 1st Ex. Sess., RCW 46.61.515 provides that any person who is convicted of a violation of RCW 46.61.502 (driving while  [[Orig. Op. Page 2]] intoxicated) or RCW 46.61.504 (being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug) ". . . shall be punished by imprisonment for not less that one day nor more than one year, and by a fine of not more than five hundred dollars."  The statute then further provides that: 

            ". . . One day of the jail sentence shall not be suspended or deferred unless the judge finds that the imposition of the jail sentence will pose a risk to the defendant's physical or mental well-being. .  . " 

            The other statute which is pertinent to your question is RCW 46.08.020, a long-existing section of the state motor vehicle code which reads as follows; 

            "The provisions of this title relating to vehicles shall be applicable and uniform throughout this state and in all incorporated cities and towns and all political subdivisions therein and no local authority shall enact or enforce any law, ordinance, rule or regulation in conflict with the provisions of this title except and unless expressly authorized by law to do so and any laws, ordinances, rules or regulations in conflict with the provisions of this title are hereby declared to be invalid and of no effect.  Local authorities may, however, adopt additional vehicle and traffic regulations which are not in conflict with the provisions of this title." 

            In addition, note must be made of Article XI, § 11 of our state constitution which provides that: 

            "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." 

            Your inquiry assumes that a city or town, in the exercise of this constitutionally granted police power, has adopted an ordinance ". . . establishing and defining as a municipal offense the crime of driving while under the influence of intoxicating liquor or any drug in terms identical to the statutory provisions of RCW 46.61.502 . . . "  Quaere:  Is that city or town then further required by RCW 46.08.020, supra, to fix the same penalties for a violation  [[Orig. Op. Page 3]] as are fixed by RCW 46.61.515,supra‑-including, most importantly, a mandatory one day of imprisonment which may not be suspended or deferred?

             In order to sustain an affirmative answer to that question one would have to read the provisions of RCW 46.08.020 as requiring uniformity‑-as between the state code and any local ordinances‑-both from the standpoint of the substantive elements of an offense and that of the penalty or penalties to be imposed for a violation.  But under such a reading the statute at least arguably would have an effect of making it impossible for certain sections of the state code to be copied and adopted in the form of municipal ordinances at all‑-since many of the penalties set forth therein are in excess of those which a municipal court or city police court may lawfully impose.  For example, under RCW 46.61.515 the maximum penalty which may be imposed for DWI violation under RCW 46.61.502 is a $500 fine and one year in jail.  But under RCW 35.20.030, the maximum penalty which a municipal court in a city of more than 400,000 inhabitants may fix for a violation of a city ordinance is a fine of $500 and jail term of not more than six months.  And likewise, under RCW 3.50.410 (which relates to municipal courts established in cities of 20,000 or less) the maximum penalty which a court is authorized to impose is a fine of not more than $500 and imprisonment in the city jail for ". . . not to exceed ninety days . .  ."

            In fact, our state supreme court in Bellingham v. Schampera, 57 Wn.2d 106, 356 P.2d 292 (1960), did not come to quite so drastic a conclusion.  Nevertheless, the conclusion which the Court did reach is most interesting in relation to the question here at hand.  Under the provisions of RCW 35.22.470 (since repealed) the maximum penalty which a first class city could then lawfully impose for a violation of a city ordinance was, 

            ". . . a fine not to exceed three hundred dollars or imprisonment not to exceed ninety days, or both such fine and imprisonment . . ."

            However, in adopting its DWI ordinance the city of Bellingham disregarded this limitation‑-copying, instead, both the substantive elements and the penalty provisions of the state code as they then existed.  Accordingly, the ordinance provided that on a first conviction for DWI in violation thereof: 

            ". . . the court shall impose a fine of not less than fifty dollars or more than five  [[Orig. Op. Page 4]] hundred dollars and not less than five days or more than one year in jail, . . ." 

            In dealing with this situation the supreme court did not, however, invalidate the city ordinance.  Rather, it simply held that no penalties could be imposed thereunder in excess of those permitted by RCW 35.22.470 as above quoted, saying, at page 118:

            "There is a division of authority on this question, but we adopt the majority and, we believe, the preferable rule: that an ordinance which authorizes a penalty in excess of that permitted by statute is not void, and a sentence pronounced under such an ordinance may be enforced to the extent that it is within the statutory limitations, if the city's legislative body would have enacted the ordinance knowing that only the lesser penalties could be imposed.  SeeKist v. Butts (1942), 71 N.D. 436, 1 N.W. (2d) 612, 138 A.L.R. 1206." 

            But notably, RCW 46.08.020, supra, was also then in effect and, in fact, was quoted by the Court during the course of its opinion.1/   Therefore, had the uniformity requirement of that statute been regarded as meaning that both the substantive and the penalty aspects of a municipal ordinance must be identical to their state counterparts the Court, on that basis, would logically have upheld in full the penalty provisions of the ordinance as being necessary to conform to a specific state requirement‑-the general limitation in RCW 35.22.470, supra, to the contrary notwithstanding.  But, as above indicated, it did not do so.

             We next turn to an item of somewhat more recent history.  During the 1980 session of the legislature a proposal was made, in the form of House Bill 474, to amend RCW 46.61.515,supra, by adding the following new subsection: 

            "(6) The state hereby preempts the field of control of driving while intoxicated to the extent that no county or municipality may impose a lesser penalty than that imposed by this title." 

             [[Orig. Op. Page 5]]

            This proposal, however, did not pass.  Nor did it pass when earlier introduced during the 1979 session.2/   Instead what was then enacted was Substitute House Bill 665‑-including the provision which became § 6, chapter 176, Laws of 1979, 1st Ex. Sess.,supra, amending RCW 46.61.515.  In short, given the opportunity to preclude any local penalty variations by an express preemption, the legislature twice declined to do so. 

            There is, in addition, one further factor to be considered.  As evidenced by a concern expressed in your letter there are, in fact, a number of cities and towns that now have ordinances in effect which, while defining the crime of DWI for local purposes in terms identical to the state code definition, ". . . allow a conviction. . . to occur . . . without resulting in mandatory imprisonment."  As a matter of policy, therefore, it would be wrong for this office to issue an opinion purporting to declare those ordinances invalid because of a conflict with state law in the absence of a compelling reason for so doing‑-with no viable legal argument to the contrary.  Quite clearly, however, that is not the kind of situation we have here.

             For the foregoing reasons we therefore answer your question in the negative.  In the absence of passage of something along the lines of the thus far unsuccessful House Bill 474,supra, it is our opinion that while a city or town which adopts an ordinance defining and establishing as a municipal offense the crime of driving while intoxicated must do so in terms identical to the statutory provisions of RCW 46.61.502, supra, it is not then further required to fix the same penalties for a violation as are fixed by the provisions of RCW 46.61.515,supra.

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

Very truly yours,
SLADE GORTON
Attorney General 

PHILIP H. AUSTIN
Deputy Attorney General 

                                                         ***   FOOTNOTES   ***

1/See, 57 Wn.2d at 110. 

2/House Bill 474 actually was first introduced during the 1979 session and then, having failed to pass at that time, was reintroduced at the beginning of the 1980 session where it again failed to obtain legislative approval. 

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