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AGO 1993 No. 9 - April 27, 1993
AGO Opinion Header Image
Christine Gregoire | 1993-2004 | Attorney General of Washington

CITIES AND TOWNS--COUNTIES--COURTS--TRAFFIC INFRACTIONS--MOTOR VEHICLES--DEPARTMENT OF LICENSING--Ability of district courts to require attendance at a traffic school.

1.  RCW 46.83.050 provides when a court finds that a person has committed a traffic infraction, the person may be required to attend a traffic school as part of the sentence imposed or as a condition for suspension or deferral of the sentence.  However, the court does not have the authority to defer making a finding that a traffic infraction has been committed and then order the person to attend traffic school as a condition of dismissing the charge.

2.  RCW 46.63.151 provides no costs may be awarded to either party in a traffic infraction case, except for certain costs related to failure to provide proof of financial responsibility pursuant to RCW 46.30.020(2).  A court cannot require the payment of costs as a condition of dismissing a traffic infraction charge.

3.  If a court enters a finding that a person has committed a traffic infraction, RCW 46.20.270(2) requires the court to forward an abstract of that finding to the Department of Licensing.  RCW 46.52.120(1) requires the Department to keep this record, and RCW 46.52.130 authorizes the Department to furnish this record to certain insurance carriers.  If the court does not enter a finding that a traffic infraction has been committed, there is no requirement to furnish any information to the Department.

                                                                   * * * * * * * * * *

                                                                   April 27, 1993

The Honorable Mike Padden
State Representative, District 4
425 John L. O'Brien Building, MS 0608
Olympia, Washington  98504‑0608

                                                                                                                   Cite as:  AGO 1993 No. 9

Dear Representative Padden:

            By letter previously acknowledged you requested our opinion on the following questions:

            1.         May a court defer or hold a traffic infraction upon the condition that the offender attend a court-approved traffic safety school?

            2.         May the court require, as a condition of a deferral, that the offender return to the court proof of satisfactory completion of court-approved traffic safety school?

            3.         May the court also require the payment of costs or fees as a condition of a dismissal?

            4.         May the Department of Licensing track such dismissals or deferrals and mask them from parties other than other courts?

            5.         May the court select among traffic safety schools to insure that the curriculum, instructors, and availability are appropriate to achieve the intended results of a dismissal or deferral?

            We answer your questions in the manner set forth in the analysis below.

                                                                    ANALYSIS

            Questions 1 and 2:

            May a court defer or hold a traffic infraction upon the condition that the offender attend a court-approved traffic safety school?

            May the court require, as a condition of a deferral, that the offender return to the court proof of satisfactory completion of court-approved traffic safety school?

            Your first two questions ask whether a court may "defer" or "hold" a traffic infraction upon the condition that the offender attend a court‑approved traffic safety school and return to the court proof of satisfactory completion.  In addressing these questions, it is necessary to define what is meant by "deferral".  As we understand it, your inquiry is whether a court in a traffic infraction case may (1) decline to enter any finding that a person committed a traffic infraction, (2) require the person to attend a court‑approved traffic safety school, and (3) ultimately dismiss the charges against the individual if he or she submits proof of satisfactorily completion of the traffic school.

            In other words, the court in the scenario described would not first enter a finding that an infraction was committed, and then defer sentence (e.g., defer imposition of a monetary penalty or fine) on condition that the offender successfully complete a court‑approved traffic school.  Rather, the court would never enter any finding of infraction at all, notwithstanding the fact that the person would be required to attend the traffic school.

             Cities, towns, and counties are authorized to establish traffic schools whose purpose is "to instruct, educate, and inform all persons appearing for training in the proper, lawful, and safe operation of motor vehicles".  RCW 46.83.040.  RCW 46.83.050 further provides:

                        Every municipal court, district court, juvenile court, superior court, and every other court handling traffic cases within the limits of a county wherein a traffic school has been established may, as a part of any sentence imposed following a conviction for any traffic law violation, or as a condition on the suspension of sentence or deferral of any imposition of sentence, order any person so convicted, whether that person be a juvenile, a minor, or an adult, to attend the traffic school for a number of days to be determined by the court, but not to exceed the maximum number of days which the violator could be required to serve in the city or county jail as a result of his or her conviction.

(Emphasis added.)  This statute was first enacted in 1959 and has not been substantively changed since that date.  There is no legislative history or case law construing this provision.

            The statute, however, plainly limits the power to order attendance at a traffic school to those cases where a person has been "convicted" of a traffic law violation.[1]  The court may require attendance at a traffic school as part of the sentence imposed on a convicted defender or "as a condition on the suspension of sentence or deferral of any imposition of sentence" on a convicted defender.  RCW 46.83.050.  But whether a sentence is imposed, suspended, or deferred, a conviction (i.e., a finding that the person committed a traffic infraction) is nevertheless, by definition, a necessary prerequisite.  InState v. Carlyle, 19 Wn. App. 450, 454, 576 P.2d 408 (1978), the court noted:

            When a sentence has been "suspended," the court has adjudged the accused guilty of the crime and has passed sentence upon him but has arrested the execution or operation of the sentence upon specified conditions.  A sentence is "deferred"when the court adjudges the defendant guilty but stays or defers imposition of the sentence and places the person on probation.

(Emphasis added.)  In State v. Harper, 50 Wn. App. 578, 579‑80, 749 P.2d 722 (1988), it was again noted:

            One does not "serve" a conviction.  One serves a sentence.  However, some sentences are either not imposed, i.e., deferred, while others are imposed but execution thereof suspended.  Nevertheless, in either case the defendant has been adjudged guilty.

(Emphasis added.)

            In other words, RCW 46.83.050 does not state that a court may "defer" making any finding of a traffic violation at all, order the individual to attend traffic school, and then dismiss the charges.  Nor have we located any other statute or court rule authorizing such action by the court.  Moreover, we do not believe such authority may reasonably be implied, since the express mention of one thing in a statute excludes those things not mentioned. Kreidler v. Eikenberry, 111 Wn.2d 828, 766 P.2d 438 (1989).  RCW 46.83.050 sets forth the circumstances in which a court may order attendance at traffic school, and those circumstances all include a "conviction" or equivalent finding that a traffic infraction was committed.

            We appreciate the significance of this conclusion.  Where the court enters a finding that a traffic infraction was committed, this finding must be reported to the Department of Licensing for inclusion in the individual's driving record.  RCW 46.20.270(2), (5).  (See also discussion of Question 3, infra.)  Furthermore, once the finding has been properly entered (or once a conviction of a criminal traffic violation has been properly entered), the Department does not have the authority to eliminate this finding from the individual's driving record. SeeKeyes v. Department of Motor Vehicles, 11 Wn. App. 957, 528 P.2d 283 (1974).

            On the other hand, where the court does not enter such a finding, there is nothing to be forwarded to the Department, and consequently nothing is entered on the individual's driving record.  See RCW 46.52.120(1).  Perhaps more significantly, there is no finding of an infraction that the Department would be required to furnish to the individual's automobile insurer.  See RCW 46.52.130.  Your opinion request suggests that "[i]n the past, some courts have determined that drivers with clean records would benefit more from remediation than from conviction of a driving infraction".  From a policy standpoint, it may or may not be desirable to require an offender to attend traffic school while entering no finding of a traffic infraction on his or her driving record.[2]  But we are not free to amend legislation,Vannoy v. Pacific Power & Light Co., 59 Wn.2d 623, 629, 369 P.2d 848 (1962), and the only statute pertaining to this matter does not authorize this practice.[3]

            In answer to your first and second questions, therefore, we must conclude that a court may defer entry of sentence (e.g., payment of a fine or penalty) upon entering a finding that an individual has committed a traffic infraction, on condition that the individual attend a court‑approved traffic safety school and return to the court proof of satisfactory completion thereof.  However, a court presently does not have the authority, under RCW 46.83.050, to defer entry of a finding that an infraction was committed, on condition that the individual attend a traffic school.  The Legislature may provide such authority by subsequent enactment, if it so chooses.

            Question 3:

            May the court also require the payment of costs or fees as a condition of a dismissal?

            As was the case in answer to your first question, we cannot find any authority, express or implied, for such action, and therefore answer your third question in the negative.

            We turn first toState v. Friend, 59 Wn. App. 365, 797 P.2d 539 (1990), which considered a very similar question.  InFriend, the district court had imposed costs on a criminal defendant who successfully petitioned for deferred prosecution under chapter 10.05 RCW.  The Court of Appeals reversed the imposition of costs.  The court noted that nothing in the deferred prosecution statute authorized such costs, and that the general statute pertaining to costs, former RCW 10.01.160, provided only that "[t]he court may require a convicted defendant to pay costs".  Id. at 367 (emphasis added).  Since "[b]y definition, deferred prosecution defendants have not even been prosecuted, much less convicted", no costs of any kind could be imposed on such defendants.  Id.

            In the case of traffic infractions, both the statutes and the Infraction Rules for Courts of Limited Jurisdiction (IRLJ) allow for the imposition of "monetary penalties" (sometimes referred to as "fines"), but not "costs".  Monetary penalties may be imposed when a court makes a finding that a traffic infraction has been committed.  IRLJ 2.4(b)(1), 3.3(e), 3.4(c), 3.5(c); RCW 46.63.070(2), .110(1), (2).  The amounts of these penalties are established by the State Supreme Court and are codified by court rule.  IRLJ 6.2; RCW 46.63.110(2).  Moreover, the imposition of a monetary penalty is treated as the equivalent of a finding that the individual has committed a traffic infraction in that a court must report both to the Department of Licensing for inclusion in the individual's driving record.  RCW 46.20.270(2).

            "Costs", on the other hand, are not authorized by any statute or court rule pertaining to traffic infractions.  To the contrary, RCW 46.63.151 states:

                        Each party to a traffic infraction case is responsible for costs incurred by that party.  No costs or attorney fees may be awarded to either party in a traffic infraction case, except as provided for in RCW 46.30.020(2).

RCW 46.30.020(2) authorizes only "administrative costs of twenty‑five dollars" in certain cases involving failure to provide proof of financial responsibility to operate a motor vehicle.

            Furthermore, RCW 10.01.160, the general costs statute previously set forth, authorizes costs only for "convicted" defendants or those subject to deferred prosecution under chapter 10.05 RCW.  It provides no authority to impose costs as a condition of dismissal, where no conviction (or finding that a traffic infraction was committed) is entered.  SeeState v. Friend,supra.

            We therefore answer your third question in the negative.

            Question 4:

            May the Department of Licensing track such dismissals or deferrals and mask them from parties other than other courts?

            Your fourth question is whether the Department of Licensing may track dismissals or deferrals involving traffic infractions and "mask" them from parties other than other courts‑‑including, presumably, automobile insurers.

            To answer your question, one must first determine what is required to be reported to the Department of Licensing.  RCW 46.20.270(2) states in part:

                        Every court having jurisdiction over offenses committed under this chapter . . . shall forward to the department within ten days[[4]] of a forfeiture of bail or collateral deposited to secure the defendant's appearance in court, a payment of a fine or penalty, a plea of guilty or a finding of guilt, or a finding that any person has committed a traffic infraction an abstract of the court record in the form prescribed by rule of the supreme court, showing the conviction of any person or the finding that any person has committed a traffic infraction in said court for a violation of any said laws other than regulations governing standing, stopping, parking, and pedestrian offenses.

(Emphasis added.)  RCW 46.20.270(5) defines "finding that a traffic infraction has been committed" to mean "a failure to respond to a notice of infraction or a determination made by a court pursuant to this chapter.  Payment of a monetary penalty made pursuant to RCW 46.63.070(2) [where an individual does not contest the traffic infraction] is deemed equivalent to such a finding."

            Thus, the court is required to notify the Department of Licensing when a fine or penalty is paid, or when it has entered a finding that a person has committed a traffic infraction.  RCW 46.52.120(1), in turn, states in part:

                        The director [of the Department of Licensing] shall keep a case record on every motor vehicle driver licensed under the laws of this state, together with information on each driver,showing all the convictions and findings of traffic infractions certified by the courts[.]

(Emphasis added.)  RCW 46.52.130 further provides in part:

                        A certified abstract of the driving record shall be furnished only to the individual named in the abstract, an employer, the insurance carrier that has insurance in effect covering the employer or a prospective employer, the insurance carrier that has insurance in effect covering the named individual, the insurance carrier to which the named individual has applied, or an alcohol/drug assessment or treatment agency approved by the department of social and health services, to which the named individual has applied or been assigned for evaluation or treatment. . . . The director [of the Department of Licensing], upon proper request, shall furnish a certified abstract covering the period of not more than the last three years to insurance companies, and covering a period of not more than the last five years to state approved alcohol/drug assessment or treatment agencies.  A certified abstract of the full driving record maintained by the department shall be furnished to individuals and employers or prospective employers.  The abstract, whenever possible, shall include. . . any reported convictions, forfeitures of bail,or findings that an infraction was committed based upon a violation of any motor vehicle law; and the status of the person's driving privilege in this state.  The enumeration shall also include any reports of failure to appear in response to a traffic citation or failure to respond to a notice of infraction served upon the named individual by an arresting officer.

(Emphasis added.)

            Taken together, these statutes establish that findings of traffic infractions are to be reported to the Department of Licensing.  These findings are required to be kept by the Department on the individual's driving record, and are to be furnished to the individual, employers, insurance carriers and alcohol/drug assessment and treatment agencies under the conditions specified in the statute.

            By contrast, we have found no statutes or court rules requiring the courts to report dismissals of traffic infractions to the Department of Licensing.  Nor have we found any statutes or court rules authorizing the Department to "track" such dismissals.  Agencies are limited to those powers which are expressly granted or necessarily implied from statutory grants of authority. Municipality of Metropolitan Seattle v. Public Employment Relations Comm'n, 118 Wn.2d 621, 633, ___ P.2d ___ (1992).  Thus, we conclude that the Department does not have the authority to track dismissals of traffic infractions, and by extension, has no obligation or authority to provide this information to others.

            Likewise, if a court defers entry of a finding that a traffic infraction was committed, there is no finding made and nothing to report to the Department of Licensing.  However, if a court enters a finding that an infraction was committed and then defers (or perhaps, more properly stated, "suspends") part or all of the monetary penalty that would otherwise be payable, see IRLJ 3.3(e), 3.4(c), the finding of an infraction must be reported to the Department notwithstanding the deferral of the monetary penalty.  Similarly, any monetary penalty assessed by the court must be reported to the Department.[5]  The Department, in turn, is required to keep a record of these penalties and infractions and make them available to other specified parties, including insurers, as provided in RCW 46.52.120 and .130.

            Question 5:

            May the court select among traffic safety schools to insure that the curriculum, instructors, and availability are appropriate to achieve the intended results of a dismissal or deferral?

            In Question 1 we concluded that the Legislature has provided no authority for courts to defer entry of a finding that a traffic infraction was committed, order the individual to attend a traffic school, and then dismiss the charges upon completion of the school.  RCW 46.83.050 only authorizes the court to order attendance at traffic school following a "conviction" for any traffic law violation, or as part of a suspended or deferred sentence for a "convicted" defendant.[6]  We therefore do not reach your fifth question.

            We trust this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        GREGORY J. TRAUTMAN
                                                                        Assistant Attorney General

:aj


    [1]In the case of traffic infractions, it is no longer proper, strictly speaking, to speak of "convictions".  The Legislature in 1979 decriminalized several traffic violations and established a new classification of "traffic infractions".  Laws of 1979, 1st Ex. Sess., ch. 136, §§ 1-2, p. 1418 (codified with additional amendments at RCW 46.63.010-.020).  In a traffic infraction case, a court does not enter a "conviction", but rather enters a "finding that a traffic infraction has been committed".  See RCW 46.20.270(5).  RCW 46.83.050 has not been amended to reflect this classification change.  However, the continuing reference in that statute to "convicted" individuals indicates that court-ordered attendance at a traffic school is still predicated on the court entering a finding that a traffic infraction or violation of some sort has been committed.

    [2]We note that legislation has been introduced in the 53rd Legislature that would authorize this practice.  Substitute House Bill 1369 would add new sections to chapter 46.63 RCW that would allow, under certain circumstances, the deferral of a judicial determination that a traffic infraction had been committed.  One condition is the satisfactory completion of an approved course in traffic safety.  House Bill 1368, § 1(6), 53rd Legislature (1993).

    [3]We further note that the deferred prosecution statute, chapter 10.05 RCW, does not provide authority for imposing attendance at a traffic school as a condition of deferring entry of a traffic infraction by dismissal of the charges.  The chapter specifically excludes persons "charged with a traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW" except for those "caused by alcoholism, drug addition, or mental problems for which the person is in need of treatment".  See RCW 10.05.010, .020.  The condition of deferred prosecution for the latter class of persons relates to a plan of treatment for the disabling condition, not to attendance at a traffic school.

    [4]Under new court rules promulgated September 1, 1992, the courts now have 30 days to report traffic infractions to the Department.  IRLJ 4.1(a) states in part:

     Within 30 days of entry of judgment that a traffic infraction was committed the court shall forward to the Department of Licensing a copy of the notice of traffic infraction and an abstract of the court's order.

(Emphasis added.)  This 30-day period applies since the IRLJ rules supersede any conflicting statutes.  IRLJ 1.1(c).  The 10-day period still applies for reporting the failure to pay a monetary penalty assessed by the court.  IRLJ 4.2(a).

    [5]We reiterate here, as in our answer to Question 3, that we have found no authority for a court to "defer" entry of a finding that an infraction was committed (in the sense of never entering a finding at all) and then assess "costs" against the defendant.

    [6]A "convicted" defendant would include, in our view, an individual for whom the court has entered a finding that a traffic infraction was committed, even though, technically speaking, findings of traffic infractions no longer are criminal offenses.  See RCW 46.63.020; footnote 1 of this opinion.

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