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AGO 1964 No. 94 - March 31, 1964
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John J. O'Connell | 1957-1968 | Attorney General of Washington


MOTOR VEHICLES ‑- DRIVER EDUCATION ACT ‑- PENALTY ASSESSMENT ‑- NONPAYMENT ‑- CONFINEMENT.

The penalty assessment imposed by § 4, chapter 39, Laws of 1963 (RCW 46.81.030) upon persons convicted of certain offenses involving the use of motor vehicles or the licensing of vehicle operators is in the nature of a fine, not a tax; therefore, such persons may be confined for nonpayment of the fine.

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                                                                  March 31, 1964

Honorable Norman B. Ackley
State Representative, 31st District
16923 A Maplewild
Seattle 66, Washington

                                                                                                                Cite as:  AGO 63-64 No. 94

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            May the "penalty assessment" imposed by § 4, chapter 39, Laws of 1963, upon persons convicted of certain offenses involving the use of motor vehicles or the licensing of vehicle operators be enforced through jail confinement in the event it is not paid?

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

                                                                     ANALYSIS

            By chapter 39, Laws of 1963, the legislature enacted a driver training education law.  The purpose of this act is set forth in § 1 thereof as follows:

            "It is the purpose of this act to provide the financial assistance necessary to enable each high school district to offer a course in driver education and by that means to develop in the youth of this state a knowledge of the motor vehicle laws, an acceptance of personal responsibility on the public highways, and an understanding of the causes and consequences of traffic accidents.  The course in driver education shall further provide to the youthful drivers of this state training in the skills necessary for the safe operation of motor vehicles."

             [[Orig. Op. Page 2]]

            The means of financing the program are contained in § 4 of the act, to which your question refers as follows:

            "There shall be levied and paid into the driver 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, two dollars for each twenty dollars of fine, or fraction thereof.

            "(2) If bail is forfeited, two 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 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 fine actually imposed."

            Your question first assumes that a person has been convicted of an offense involving the 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 (other than an offense relating to parking vehicles).  Secondly, it assumes that the "penalty assessment" has been appropriately levied as provided in the section last quoted.  And finally, your question assumes a refusal or failure by the person against whom the "penalty assessment" has been levied to make payment of same.

            The point that is to be determined in answering your question is simply whether the "penalty assessment" imposed pursuant to § 4, chapter 39, Laws of 1963,supra, is itself a form of "fine"‑-i.e., a pecuniary punishment.  If it is, then ample authority exists for a court levying the penalty assessment to impose jail confinement in the event of nonpayment.  See, RCW 10.04.110, RCW 10.82.030, and RCW 3.50.300.

             [[Orig. Op. Page 3]]

            In considering this question we deem it pertinent to note that chapter 39, Laws of 1963,supra, establishing the driver education program and providing for the financing thereof was patterned closely after § 773 of the vehicle code of California.  For comparative purposes, we set forth the pertinent portion of the California statute as follows:

            "To reimburse the General Fund for amounts appropriated therefrom for driver training pursuant to Section 5153.6 of the Education Code, on and after January 1, 1954, there shall be levied a penalty assessment on all offenses involving a violation of a section of this code or of a city or county ordinance, relating to the operation of motor vehicles, except offenses relating to parking or registration, . . ."

            Particularly is it to be noted that the term "penalty assessment" as used in § 4, chapter 39, Laws of 1963, supra, is precisely the same term as used in the California statute.  We deem this fact to be highly significant because of the well-established rule of construction, most recently enunciated by our court in Jackson v. Colagrossi, 50 Wn.2d 572, 313 P.2d 697 (1957),

            ". . . that the adoption of a statute of another state likewise carries with it the construction placed upon such statute by the courts of that state. . . ."

            InSawyer v. Barbour, 142 Cal.App.2d 827, 300 P.2d 187 (1956), the question arose as to the proper characterization to be given to the "penalty assessment" for driver training as provided for in § 773 of the vehicle code of California,supra.  The plaintiff, a person against whom the penalty assessment had been imposed, sued to recover the amount thereof under the theory that the "penalty assessment" was a tax rather than a fine.  He based certain constitutional objections upon this characterization.

            In the course of its opinion the California court responded as follows:

            "Plaintiff asserts the penalty assessment is a tax; defendants, that it is a fine.  We have concluded it is a fine.  A fine is a pecuniary punishment imposed on a person convicted of a criminal offense.  [Citations omitted.]  A penalty is, at times, a punishment for the performance of an unlawful act.   [[Orig. Op. Page 4]] [Citation omitted.]  Legislatures frequently use the term 'fine' and the term 'penalty' synonymously.  [Citations omitted.]  The term 'penalty' in its broadest sense includes all punishment of whatever kind, and in the broad sense it is a generic term which includes fines as well as all other kinds of punishments.

            ". . .

            "The penalty assessment is an exaction imposed as punishment for an unlawful act.  It is laid on conviction, or on forfeiture of bail which is equivalent to a conviction.  Vehicle Code, §§ 294, 744.  In the event of acquittal it is returned.  'No mere exercise of the art of lexicography can alter the essential nature of an act or a thing; and if an exaction be clearly a penalty it cannot be converted into a tax by the simple expedient of calling it such.'  United States v. La Franca, 282 U.S. 568, 51 S.Ct. 278, 280, 75 L.Ed. 551, 555.

            "The fact that the penalty assessment is imposed by the Legislature itself does not differentiate it from a fine.  The amount of a fine may be fixed by law or left in the court's discretion.  [Citations omitted.] . . ."

            Under the rule ofJackson v. Colagrossi, supra, the Washington legislature, having used in § 4, chapter 39, Laws of 1963, supra, precisely the same language as was thus judicially construed by the California court in a case involving the California statute after which the Washington act was patterned, should be regarded as having adopted the California construction.  In any event, we are persuaded that the California court's characterization of the "penalty assessment" as a form of "fine" was correct.

            From this it follows that through application of RCW 10.04.110, RCW 10.82.030 and RCW 3.50.300,supra, failure of a defendant against whom the penalty assessment has been imposed to pay same may result in confinement in jail.  Thus, we answer your question, above stated, in the affirmative.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General

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