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AGO 1968 No. 2 - January 17, 1968
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS - DEPARTMENT OF MOTOR VEHICLES - LICENSES - OCCUPATIONAL DRIVERS' LICENSES.

(1) The judge with whom an application for an occupational driver's license is filed, rather than the director of the department of motor vehicles, has the initial responsibility to determine the eligibility of an applicant to be issued an occupational driver's license.

(2) The director of the department of motor vehicles may review a court order for the issuance of an occupational driver's license in light of the department's own records to see if there has been compliance with both the procedural and substantive requirements of RCW 46.20.380 and 46.20.390.

(3) Proof of the financial responsibility of an applicant for an occupational driver's license must be filed before a judge can issue an order for the issuance of an occupational driver's license.

(4) A person who has been convicted for the first time of a particular offense relating to motor vehicles which requires the mandatory suspension or revocation of his driver's license, other than negligent homicide or manslaughter, is eligible for issuance of an occupational driver's license even though he has previously been convicted of other offenses relating to motor vehicles, also requiring the mandatory suspension or revocation of a driver's license, so long as at least one year has elapsed since his last previous conviction of such an offense; conversely, if the immediate conviction does not constitute the applicant's first conviction of the particular offense, he is not eligible for such a driver's license.

                                                              - - - - - - - - - - - - -

                                                                 January 17, 1968

Honorable Douglas Toms
Director
Department of Motor Vehicles
Highways-Licenses Building
Olympia, Washington 98501

                                                                                                                   Cite as:  AGO 1968 No. 2

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a number of questions relating to the issuance of occupational drivers' licenses to persons who have been convicted of an offense relating to motor vehicles which requires the mandatory suspension or revocation of their drivers' licenses.  We paraphrase your questions as follows:

             [[Orig. Op. Page 2]]

            (1) Does the director of the department of motor vehicles have the initial responsibility to determine the eligibility of such an individual for an occupational driver's license?

            (2) If question (1) is answered in the negative, may the director nevertheless review a court order for the issuance of an occupational license in light of the department's own records to see if there has been compliance with both the procedural and substantive requirements of RCW 46.20.380 and 46.20.390?

            (3) Must proof of financial responsibility be filed before a judge can issue an order for an occupational driver's license?

            (4) Is a person who has been convicted for the first time of a particular offense relating to motor vehicles which requires the mandatory suspension or revocation of his driver's license eligible for issuance of an occupational driver's license even though he has previously been convicted of other offenses relating to motor vehicles, also requiring the mandatory suspension or revocation of a driver's license, so long as at least one year has elapsed since his last previous conviction of such an offense?

            We answer question (1) in the negative, questions (2) and (3) in the affirmative, and question (4) in the affirmative as explained in our analysis.

                                                                     ANALYSIS

            The motor vehicle laws of the state of Washington require the suspension or revocation of the motor vehicle driver's license held by any person who is convicted of any one of several specifically enumerated offenses relating to motor vehicles.  The term "revocation" means that the licensee is deprived of his driving privileges for one calendar year and until his license is subsequently reissued.  See, RCW 46.04.480.  By way of contrast, the term "suspension" means the invalidation of a driver's license for a period of less than one calendar year.  See, RCW 46.04.580.

            The offenses which require the mandatory revocation of a driver's license are set forth in RCW 46.20.285, and include (1) manslaughter or negligent homicide resulting from the operation of a motor vehicle; (2) a third conviction of driving a motor vehicle under the influence of liquor or narcotic drugs within a five year period; (3) any felony in the commission of which a motor vehicle is used; (4) failure to stop or give information or render aid when a motor vehicle accident results in the death or permanent injury of another person; (5) perjury or making false affidavit to the department  [[Orig. Op. Page 3]] of motor vehicles under Title 46 RCW or any other law relating to the ownership or operation of motor vehicles; and (6) a third conviction of reckless driving within a two-year period.  The offenses for which the mandatory suspension of a regular driver's license applies are: (1) reckless driving (see, RCW 46.61.500, providing for a mandatory thirty-day suspension); and (2) driving while under the influence of intoxicating liquor or a narcotic drug.1/

             It is obvious that the loss of a driver's license for a person who is engaged in an occupation or trade in which he needs to operate a motor vehicle constitutes a more severe penalty than does the same loss of driving privileges for a person who is not engaged in such an occupation or trade.  The legislature has, therefore, provided for the issuance of occupational drivers' licenses to such persons, under certain circumstances, to allow them to drive to the extent necessary for their particular jobs during the period that their regular driver's license is revoked or suspended.  The statutes providing for these occupational operator's licenses were originally enacted as §§ 1 and 2, chapter 268, Laws of 1957.  They have been codified, respectively, as RCW 46.20.380 and 46.20.390.  As last amended by §§ 31 and 32, chapter 32, Laws of 1967, the two sections provide as follows:

            RCW 46.20.380:

            "No person shall file a petition for an occupational operator's license as provided in RCW 46.20.390 unless he shall first pay to the director or other person authorized to accept applications and fees for driver's licenses a fee of ten dollars.  The applicant shall receive upon payment an official receipt for the payment of such fee.  All such fees shall be forwarded to the director who shall transmit such fees to the state treasurer in the same manner as other driver's license fees."

            RCW 46.20.390:

            "Any person who has had or may have his driver's license suspended or revoked because he has been convicted of or has forfeited bail for any first  [[Orig. Op. Page 4]] offense relating to motor vehicles, other than negligent homicide or manslaughter, and, if such person is engaged in an occupation or trade making it essential that he operate a motor vehicle, such person may file with any judge of a court of record, justice court, or municipal court having criminal jurisdiction in the county of such person's residence a verified petition, together with the receipt for the fee paid, setting forth in detail his need for operating a motor vehicle.  Thereupon, if the petitioner has not been convicted of or has not forfeited bail for any such offense within one year immediately preceding the present conviction or bail forfeiture, which offense in the opinion of the judge is not of such a nature as to preclude the granting of the petition, the judge may order the director to issue an occupational driver's license to such person.  A certified copy of the petition together with the order for the license shall be mailed to the director.  When the order is issued by such judge, a certified copy thereof shall be given to the petitioner which copy shall serve as a temporary occupational driver's license until the petitioner receives the license issued by the director.

            "An occupational driver's license shall permit the operation of a motor vehicle not to exceed twelve hours per day and then only when such operation is an essential part of the licensee's occupation or trade.  Such license shall be issued for a period of not more than one year.

            "The order for issuance of an occupational driver's license shall contain definite restrictions as to hours of the day, type of occupation, areas or routes of travel to be permitted under such license and such other conditions as the judge granting the same deems appropriate and that satisfactory proof of financial responsibility has been filed as provided in chapter 46.29.

            "If such licensee is convicted for operating a motor vehicle in violation of his restrictions, or of a traffic violation which in the opinion of the director is such as would warrant suspension or revocation of such license, or if the  [[Orig. Op. Page 5]] judge does not, upon the facts, see fit to permit such person to retain his license, the director shall, upon receipt of notice thereof, revoke such license.  Such revocation shall be effective as of the date of such violation, conviction or withdrawal order, and it shall continue with the same force and effect as other revocations under this title."

            Because of the length and complexity of these two statutes, we believe it would be helpful to set forth their essential provisions in a capsulized form covering (1) the substantive provisions relating to an applicant's eligibility for an occupational operator's license, and (2) the procedural steps to be followed in order to obtain such a license.

            (1) An applicant's eligibility:

            A. The offense for which he has been deprived of his driving privileges was a "first offense";2/

             B. He has not been convicted of "such offense" within the preceding year;

            C. It is essential occupationally that he drive.

            (2) Procedurally, the steps are:

            A. Pay a ten dollar fee to the director of motor vehicles or other person authorized to accept such fees;

            B. File a verified petition with the court;

            C. File satisfactory proof of financial responsibility under chapter 46.29 RCW;

            D. The court issues an order for an occupation license, which serves as a temporary occupational license.

            With this somewhat lengthy, but necessary, introduction to the statutes in question, we may now turn to the specific questions which you have asked.

            Questions (1) and (2):

            Repeated for ease of reference, your first two questions, as paraphrased, are as follows:

            (1) Does the director of the department of motor vehicles have the initial responsibility to determine the eligibility of such an individual for an occupational driver's license?

             [[Orig. Op. Page 6]]

            (2) If question (1) is answered in the negative, may the director nevertheless review a court order for the issuance of an occupational license in light of the department's own records to see if there has been compliance with both the procedural and substantive requirements of RCW 46.20.380 and 46.20.390?

            As we have seen, the procedure provided for by RCW 46.20.390, with respect to making an application for an occupational operator's license, requires the applicant for such a license to file a "verified petition" with ". . . any judge of a court of record, justice court, or municipal court having criminal jurisdiction in the county of such person's residence . . ."  There is no requirement in the statute that the petition be directed first to the department of motor vehicles.

            The judge with whom the petition is filed, after receiving the petition and determining that the applicant is in fact eligible for an occupational driver's license, may then issue an order directed to the director of motor vehicles requiring him to issue such a license.  RCW 46.20.390 then provides that:

            ". . . A certified copy of the petition together with the order for the license shall be mailed to the director. . . ."

            Thus, it is to be seen that the director of motor vehicles receives the petition only after the judge has determined that the applicant is eligible for an occupational driver's license and has issued an order for the issuance of such a license.  In the light of this statutory time sequence, and in view of the absence of any provision in the statute for departmental review of the petition and supporting evidenceprior to issuance of the order it appears clear that the legislature intended the initial responsibility for determining the eligibility of an applicant for an occupational driver's license to rest with the judge with whom the petition is filed and not with the director of motor vehicles.

            It is equally clear, however, that an applicant for an occupational driver's license has the burden of proving his eligibility therefor.  That is to say, the applicant must carry the burden of establishing each of the three requisite substantive requirements outlined above and, further, that he has performed the procedural conditions precedent to issuance of his occupational license.  On the other hand, the legislature has apparently contemplated that the petitions may be heard and determined on an ex parte basis, for it has made no provision for an appearance by the director of motor vehicles or any other party to contest the eligibility of the applicant.

             [[Orig. Op. Page 7]]

            Under these circumstances, we believe it appropriate to point out, for the benefit of the various judges to whom these petitions are directed, that there are two relatively simple ways for them to require an applicant to meet his burden of proving eligibility.

            First:  The judge can require that the verified petition, which is a statement made by the petitioner under oath, specifically indicate that (a) the ten dollar fee provided for by RCW 46.20.380, has been paid; (b) satisfactory proof of financial responsibility has been filed (as more fully discussed in response to your question (3), below); and (c) that the applicant is qualified for issuance of the occupational driver's license by virtue of his past driving record and his present occupational need.

            Second:  In the alternative, the judge may require that the petitioner supply proof extrinsic to his petition that he has met all of these procedural and substantive requirements.3/

             We turn now to your second question, which concerns the authority of the director of the department of motor vehicles to review an order received from the court for the issuance of an occupational driver's license.  We believe that it is entirely appropriate and legally proper for the director to review this order against the department records to determine the eligibility of the applicant for the occupational license.

            As we have noted, the initial hearing on the petition for an occupational driver's license, before the judge to whom the petition is submitted, is conducted on an ex parte basis.  While we have said that it would be proper (and probably advisable) for the judge to contact the department of motor vehicles in order to verify, to the extent possible, the contentions made by the applicant as to his eligibility, it must be understood that the judge is under no legal requirement to do so.

            Basically, of course, the department of motor vehicles is charged with the responsibility, under RCW 46.01.030, for the administration of the laws relating to driver examinations, licensing and financial responsibility.  RCW 46.20.380 specifically requires that an applicant for an occupational driver's  [[Orig. Op. Page 8]] license must first pay "the director or other person authorized to accept applications and fees" a fee of ten dollars.  RCW 46.20.390 in turn requires that the verified petition for an occupational driver's license must be accompanied, at the time it is submitted to the judge, with a receipt for payment of this ten dollar fee.

            In the light of these statutes, it certainly would appear that the department has some authority to check the eligibility of persons seeking occupational drivers' licenses.  The particular procedure which we believe to be appropriate, and legally proper, upon receipt by the director of motor vehicles of a verified petition and order to issue an occupational driver's license is for the director, at that time, if he has any reason to doubt the eligibility of the applicant (either in terms of failure to comply with the procedural requirements or with respect to driving record) to review the petition and order against the department's own records and to advise the judge who entered the order of any discrepancies as expeditiously as possible.

            In direct answer to your second question, then, we believe that the director of the department of motor vehicles does have authority, upon receipt of a petition and order for issuance of an occupational driver's license, to review the order against the department's own records in order to see if there has been compliance with both the procedural and substantive requirements of RCW 46.20.380 and 46.20.390.

            Question (3):

            As paraphrased, your third question is as follows:

            (3) Must proof of financial responsibility be filed before a judge can issue an order for an occupational driver's license?

            The portion of RCW 46.20.390, as amended by § 32, chapter 32, Laws of 1967, which relates to the necessity of proving financial responsibility in order to obtain an occupational driver's license, reads as follows:

            "The order for issuance of an occupational driver's license shall contain definite restrictions as to hours of the day, type of occupation, areas or routes of travel to be permitted under such license and such other conditions as the judge granting the same deems appropriate and that satisfactory proof of financial responsibilityhas been filed as provided in chapter 46.29 [[chapter 46.29 RCW]]."  (Emphasis supplied)

            The use of the past tense phrase "has been filed" makes it clear that proof of financial responsibility must be filed before the judge issues an order for an occupational driver's license.  Thus, a judge should refrain from issuing such an order until he has been satisfied that the requirements of the financial responsibility statute (chapter 46.29 RCW), have been met by the applicant.

             [[Orig. Op. Page 9]]

            Question (4):

            Finally, your fourth question, as paraphrased, is as follows:

            (4) Is a person who has been convicted for the first time of a particular offense relating to motor vehicles, requiring the mandatory suspension or revocation of his driver's license, eligible for issuance of an occupational driver's license even though he has previously been convicted of other offenses relating to motor vehicles, also requiring the mandatory suspension or revocation of an operator's license, so long as at least one year has elapsed since his last previous conviction of such an offense?

            This question, as we have paraphrased it, raises three distinct legal issues, with respect to the meaning of certain key terminology appearing in RCW 46.20.390.  These issues are as follows:

            (a) Does the phrase "first offense" in RCW 46.20.390 refer to the particular offense for which the petitioner lost his regular driver's license making it necessary for him to apply for an occupational license?

            (b) Does the term "any such offense" appearing in the statute refer to any prior offense relating to motor vehicles for which the suspension or revocation of a driver's license is required?

            (c) Must at least one year elapse between convictions for different offenses relating to motor vehicles in order that a person who has lost his driver's license for any such offense may be eligible for an occupational driver's license?

            As we have seen earlier, in terms of his prior record of motor vehicle offenses an applicant for an occupational driver's license is eligible therefor only if (1) the offense for which he has just been deprived of his regular driver's license was a "first offense"; and (2) he has not been convicted of "any such offense" within the preceding year.  In answering your question, and thereby passing on the three issues which it raises, we must interpret these statutory provisions in light of the well-established principle of statutory construction that every enactment of our legislature should be construed so that effect is given to all its provisions and no part is rendered inoperative or superfluous.  Group Health Etc. v. King Co. Med. Soc. 39 Wn.2d 586, 237 P.2d 737 (1951);State v. Lundquist 60 Wn.2d 397, 374 P.2d 246 (1962).

             [[Orig. Op. Page 10]]

            With this rule in mind, it is to be seen that in order to give any meaning to the term "any such offense," this term must be taken to mean something different than what is referred to as a "first offense."  If this were not so, then there would be an irreconcilable conflict between the two terms; i.e., if "any such offense" meant the same offense as precipitated the immediate loss of the applicant's regular driver's license, his current offense simply could not be a "first offense."  Thus, to give meaning to the entire statute, "any such offense" must be taken to refer to any violation of the entire class of motor vehicle offenses which call for the mandatory suspension or revocation of a regular driver's license.

            As for the term "first offense," Webster's Third International Dictionary defines the word "first" in terms of "preceding all others," "for the first time."  Applying this commonly accepted definition of the word "first," it is to be seen that the phrase "first offense," as used in RCW 46.20.390, must be taken to refer to the applicant's first conviction of the particular offense giving rise to his immediate loss of his driver's license.

            For example, there can be but one "first" driving while intoxicated conviction in a person's lifetime, or one "first" hit and run conviction, etc.  However, while a person may only have one "first" conviction of a particular offense, he can have more than one conviction each a "first" of the several motor vehicle violations for which mandatory revocation or suspension of a driver's license is provided.  Thus, a person who has been previously convicted of driving while intoxicated cannot, upon losing his driver's license for a second conviction of this specific offense, qualify for an occupational driver's license.  If, however, the person who had a prior conviction of driving while intoxicated, and had lost his license therefor, was later convicted, for the first time, of a different offense necessitating the suspension or revocation of his driver's license, he would be qualified to seek an occupational license for the period of that revocation or suspension, provided that the conviction of the immediate offense precipitating the occupational driver's license occurred more than one year after his most recent conviction of any other offense of the same type.

            With this explanation in mind, it follows that your fourth question, as paraphrased, may be answered in the affirmative; i.e., a person who has been convicted for the first time of a particular offense relating to motor vehicles which requires the mandatory suspension or revocation of his driver's license is eligible for issuance of an occupational driver's license  [[Orig. Op. Page 11]] even though he has previously been convicted of other offenses relating to motor vehicles, also requiring the mandatory suspension or revocation of a driver's license, so long as at least one year has elapsed since his last previous conviction of such an offense.4/   Conversely, of course, if the immediate conviction does not constitute the applicant's first conviction of the particular offense, he is not eligible for such a driver's license.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

EDWARD B. MACKIE
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/See, RCW 46.61.515, which provides that upon the first such conviction within a five year period there shall be thirty-day suspension, and upon the second such conviction within a five year period, a sixty-day suspension.

2/Other than negligent homicide or manslaughter.

3/Furthermore, we see nothing in the pertinent statutes which would preclude the judge to whom such a petition is directed from directly contacting the department of motor vehicles in Olympia in order to check the validity of the applicant's claims as to eligibility.

4/Of course, since, as we have previously noted, no occupational driver's license can be issued even in the case of a first conviction of negligent homicide or manslaughter, it must be understood that the offense precipitating revocation or suspension of the applicant's regular driver's license is an offense other than negligent homicide or manslaughter.

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