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AGO 1990 No. 10 - October 16, 1990
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

COUNSEL AND RELEASE--MINORS--JUVENILE COURT--DEPARTMENT OF LICENSING--REVOCATION DRIVERS LICENSES--CRIMES--PUNISHMENT

RCW 13.40.265(2)(a) provides that if a juvenile enters into a diversion agreement with a diversion unit concerning certain offenses, the Department of Licensing shall be notified.  Once notified RCW 46.20.265 requires the Department to revoke the driver's license of the juvenile.  These provisions do not apply when the diversion unit employs the counsel and release procedure authorized by RCW 13.40.080(11) instead of entering into a diversion agreement.

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                                                                October 16, 1990

The Honorable Dennis DeFelice
Franklin County Prosecutor
618 West Clark Street
Post Office Box 1160                                                                                                                Cite as:
Pasco, Washington  99301-1160                                                                            AGO 1990 No. 10 

Dear Mr. DeFelice:

By letter previously acknowledged, you have asked a question of this office which we paraphrase as follows:

Where no adjudication occurs and no diversion agreement is entered, is the juvenile court required to advise the Department of Licensing and does a license revocation occur in a "counsel and release" situation under the provisions of RCW 13.40.080(11)?

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

                                                                     ANALYSIS

Diversion agreements are contracts between juveniles accused of an offense and a diversionary unit establishing conditions which the juvenile must meet in lieu of prosecution.  Diversion agreements are described in RCW 13.40.080 which establishes the permissible penalties to be contained in such agreements, rights of the juveniles and procedures for entering into and termination of diversion agreements.  RCW 13.40.080 also provides for counsel and release of a juvenile without entering into a diversion agreement.  RCW 13.40.080(11) provides as follows:

A diversionary unit may, in instances where it determines that the act or omission of an act for which a juvenile has been referred to it involved no victim, or where it determines that the juvenile referred to it has no prior criminal history and is alleged to have committed an illegal act involving no threat of or instance of actual physical harm and involving not more than fifty dollars in property loss or damage and that there is no loss outstanding to the person or firm suffering such damage or loss, counsel and release or release such a juvenile without entering into a diversion agreement. . . .

Thus, RCW 13.40.080(11) establishes the boundaries under which a diversionary unit may counsel and release or release a juvenile rather than entering into a diversion agreement.

Under certain circumstances, the State Department of Licensing is required to revoke the driving privileges of a juvenile.  RCW 13.40.265(2)(a) provides:

If a juvenile enters into a diversion agreement with a diversion unit pursuant to RCW 13.40.080 concerning an offense that is a violation of chapter 66.44, 69.41, 69.50, or 69.52 RCW,[1] the diversion unit shall notify the department of licensing within twenty-four hours after the diversion agreement is signed.
Once the Department of Licensing is notified pursuant to this staute, "the department shall revoke all driving privileges of a juvenile . . . ."  RCW 46.20.265.

Under the provisions of RCW 13.40.265(2)(a) the diversion unit is required to notify the Department of Licensing once a diversion agreement is signed.  Under RCW 13.40.080(11), in a counsel and release situation, the juvenile and the diversionary unit do not enter into a diversion agreement.  There is no parallel statute either requiring notification to the Department of Licensing or authorizing the Department to revoke the driver's license in a counsel and release situation.

Where statutory language is plain, the statute is not open to construction or interpretation.  Green River Community College Dist. No. 10 v. Higher Ed. Personnel Bd., 95 Wn.2d 108, 113, 622 P.2d 826 (1980).  RCW 13.40.265(2)(a) clearly requires notification of the Department of Licensing (and subsequent license revocation by the department) only in situations where there is a signed diversionary agreement and where such agreement is as a result of a violation of the alcohol or drug laws.

Accordingly, we conclude that where the diversionary unit elects to use the counsel and release provisions of RCW 13.40.080(11), the law does not require notification to the Department of Licensing.  We, therefore, answer your question in the negative.

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

Very truly yours,

KENNETH O. EIKENBERRY     
Attorney General

MEREDITH WRIGHT MORTON
Assistant Attorney General
MWM:ajp


[1]Chapter 66.44 RCW is part of Title 66 RCW, the alcoholic beverage control law and provides for reporting to the Department of Licensing for juveniles who are found to be in violation of these statutes through purchase of liquor by a minor, illegal possession of liquor with intent to sell, use of false identification to purchase liquor in a tavern or cocktail lounge, or other act prohibited by this title.  RCW 66.44.365(1).  Chapter 69.41 RCW deals with the delivery and dispensing of prescription drugs and prohibits fraudulently attempting to obtain prescription medications and also provides for reporting juvenile offenses to the Department of Licensing.  RCW 69.41.065(1).  Chapter 69.50 RCW is the Uniform Controlled Substances Act and provides penalties for being in possession of or delivery of controlled substances.  It also provides for reporting of juvenile violators to the Department of Licensing.  RCW 69.50.420(1).  Chapter 69.52 RCW deals with imitation controlled substances and their manufacture, possession and distribution and for reporting any violation by a juvenile to the Department of Licensing.  RCW 69.52.070(1).

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