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AGO 1976 No. 19 - October 07, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

FINES ‑- MOTOR VEHICLES ‑- VIOLATIONS OF MOTOR VEHICLE CODE ‑- COURT COSTS ‑- IMPRISONMENT

(1) All traffic offenses covered by RCW 46.61.010, as amended by § 1, chapter 95, Laws of 1975-76, 2nd Ex. Sess., including those for which no term of confinement may be imposed, nevertheless constitute crimes (misdemeanors) for which an individual may be arrested and prosecuted in the normal manner provided for by law.

(2) Where a person has been charged with and convicted of a traffic offense for which, under RCW 46.61.010, as amended, no sentence of confinement may be imposed, and that person has been ordered to pay costs as provided for under chapter 96, Laws of 1975-76, 2nd Ex. Sess., he may then be committed to jail for contempt of court for a willful failure to comply with that order in accordance with the provisions of § 3(2) of chapter 96, supra.

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                                                                 October 7, 1976

Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County Court House
Everett, Washington 98201

                                                                                                                 Cite as:  AGO 1976 No. 19

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on certain questions which we have paraphrased as follows:

            (1) Do those traffic offenses covered by RCW 46.61.010, as amended by § 1, chapter 95, Laws of 1975-76, 2nd Ex. Sess., for which no term of confinement in a jail or other correctional institution may be imposed, nevertheless constitute crimes for which an individual may be arrested and prosecuted in the normal manner provided for by law?

            (2) Where a person has been charged with and convicted of a traffic offense for which, under RCW 46.61.010, as amended, no sentence of confinement may be imposed, and that person has then been ordered to pay costs as provided for under chapter 96, Laws of 1975-76, 2nd Ex. Sess., may  [[Orig. Op. Page 2]] he then be committed to jail for contempt of court for a willful failure to comply with that order in accordance with the provisions of § 3(2) of chapter 96, supra?

            We answer both of the foregoing questions in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            As amended by § 1, chapter 95, Laws of 1975-76, 2nd Ex. Sess., RCW 46.61.010 reads as follows:

            ((It is unlawful and, unless otherwise declared in this chapter with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or fail))Failure to perform any act required in this chapteror performance of any act forbidden by this chapter or violation of any local ordinance relating to traffic, parking, standing, stopping, and pedestrian offenses is a misdemeanor.  A misdemeanor under this chapter shall be punishable by imposition of a fine not to exceed two hundred fifty dollars, and shall not be punishable by confinement in any jail or correctional institution:  PROVIDED, That offenses described in the following sections of RCW shall be classified and punishable as prescribed by this Title and where the offense is classified as a misdemeanor and no specific penalty is prescribed shall be punishable by imprisonment in the county jail for a maximum term of not more than 90 days or by a fine of not more than five hundred dollars or by both such imprisonment and fine:

            "RCW 46.20.342 Relating to driving while license suspended or revoked;

            "RCW 46.52.010 Relating to duty on striking unattended car or other property;

            "RCW 46.52.020 Relating to duty in case of injury to or death of person or damage to attended vehicle;

             [[Orig. Op. Page 3]]

            "RCW 46.61.500 Relating to reckless driving;

            "RCW 46.61.506 Relating to persons under influence of intoxicating liquor or drugs;

            "RCW 46.61.520 Relating to negligent homicide by motor vehicle‑-Penalty;

            "RCW 46.61.530 Relating to racing of vehicles on highways‑-Reckless driving;

            "RCW 46.61.535 Relating to advertising of unlawful speed attained‑-Reckless driving."

            Conversely, within the general provisions of this state's new criminal code, RCW 9A.04.040 states that:

            "(1) An offense defined by this title or by any other statute of this state,for which a sentence of imprisonment is authorized, constitutes a crime.  Crimes are classified as felonies, gross misdemeanors, or misdemeanors."  (Emphasis supplied.)

            Apparently the expressed preclusion of imprisonment for certain traffic offenses under the first of these two statutes ‑ together with the definitional language of the second ‑ has given rise to a question regarding the proper characterization of such offenses.  In resolving that question, however, we first note that irrespective of the scope of a "crime" as defined by RCW 9A.04.040(1), the applicability of that definition is dictated by RCW 9A.04.090 which says that:

            "The provisions of chapters 9A.04 through 9A.28 of this title are applicable to offenses defined by this title or another statute, unless this title or such other statute specifically provides otherwise."  (Emphasis supplied.)

            Consequently and quite simply, all of the offenses covered by RCW 46.61.010, as amended, are "crimes" (misdemeanors), regardless of the punishment prescribed, because the legislature has specifically so provided therein.  The legislature's use of the above quoted language in amending RCW  [[Orig. Op. Page 4]] 46.61.010 following its earlier enactment of the new criminal code indicates an understanding on its part that traffic offenses, whether punishable by imprisonment or not, are and remain misdemeanors and that persons thus may still be arrested and prosecuted in the normal manner for their commission.

            In addition, although the above amendment to RCW 46.61.010 actually took effect prior to the effective date of the new criminal code1/ it was enacted later in time.2   Therefore, to the extent that RCW 9A.04.040(1), supra, and RCW 46.61.010, as amended, may conflict on the question of characterizing traffic offenses not punishable by imprisonment, the latter statute prevails.  See, e.g.,In re Chi-Dooh Li, 79 Wn.2d 561, 488 P.2d 259 (1971), at pp. 563-564.

            Thirdly, it also seems appropriate to characterize RCW 46.61.010, as amended, as a "special" law dealing with the status of particular offenses so as to cause it to prevail over "general" law contained in RCW 9A.04.040(1) even if the order of enactment of the two statutes had been the reverse.  See, AGLO 1976 No. 47 at p. 3 [[to Mary Ellen McCaffree, Dir. of Revenue & Jack C. Hood, Chairman, Liquor Board, on July 28, 1976, an Informal Opinion, AIR-76547]], where we quoted fromPeople v. Breyer, 139 Cal.App. 547, 34 P.2d 1065 (1934), as follows:

            "'It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.  Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to  [[Orig. Op. Page 5]] its terms unless it is repealed in general words or by necessary implication. . . .'"

            Accordingly we answer your first question, as above paraphrased, in the affirmative.  All traffic offenses covered by RCW 46.61.010, supra, as amended, including those for which no term of confinement may be imposed, nevertheless do constitute crimes (misdemeanors) for which an individual may be arrested and prosecuted in the normal manner provided for by law.

            Question (2):

            We also believe that an affirmative answer to your second question is called for.  Chapter 96, Laws of 1975-76, 2nd Ex. Sess., to which that question refers, provides in § 1 that:

            ". . .

            "(1) The court may require a convicted defendant to pay costs.

            "(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant.  They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.

            ". . ."3/

            Section 3 of this act then provides that:

            "(1) When a defendant sentenced to pay a fine or costs defaults in the payment thereof or of any installment, the court on motion of the prosecuting attorney or upon its own motion may require him to show cause why his default should not be treated as contempt of court, and may issue a show cause citation or a warrant of arrest for his appearance.

            "(2) Unless the defendant shows that his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment, the court may find that his default constitutes contemptand may order him committed until the fine or costs, or a specified part thereof, is paid.

            ". . ."  (Emphasis supplied.)

            Our response to question (1) above, clearly means that this contempt procedure may be utilized even in the case of an individual convicted of a traffic offense (misdemeanor) for which no term of confinement in a penal institution may be imposed.  In other words, because such an offense constitutes a crime, chapter 96 itself is applicable.

            Having said that the rest flows as a matter of course.  A convicted defendant who is committed under § 3, supra, is not being sent to jail because of his commission of the traffic offense of which he was initially convicted but, instead, is being "committed" for a later, independent offense; i.e., contempt of a lawfully authorized court order to pay a fine and/or costs of prosecution.

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

Very truly yours,


SLADE GORTON
Attorney General


GARRY E. WEGNER
Assistant Attorney General

                                                       ***   FOOTNOTES   ***

1/March 13, 1976, when signed by the governor ‑ as opposed to July 1, 1976, when the criminal code became operative under the terms of RCW 9A.04.010.

2/I.e., during the 1975-76 second extraordinary session whereas the new criminal code was enacted a year earlier, during the 1975 first extraordinary session of the legislature.

3/For an interpretation of this portion of chapter 96, supra, see AGO 1976 No. 14 [[to Paul Klasen, Prosecuting Attorney, Grant County on July 29, 1976]], copy enclosed.

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