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AGO 1958 No. 162 - February 21, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

MOTOR VEHICLES ‑- INCLUDED OFFENSES ‑- CONVICTION OF EITHER RECKLESS DRIVING OR NEGLIGENT OPERATION ON CHARGE OF DRIVING UNDER INFLUENCE.

Reckless driving and negligent operation are not included offenses in driving under the influence, and a person cannot be convicted of either under a charge of the latter.

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                                                                February 21, 1958

Honorable Roy A. Betlach
Chief, Washington State Patrol
General Administration Building
Olympia, Washington                                                                                 Cite as:  AGO 57-58 No. 162

Attention:   Captain Harold L. Boulac,Administrative Officer

Dear Sir:

            You have asked our opinion on the following question:

            Are reckless driving (RCW 46.56.020) and negligent driving (RCW 46.56.030) such violations that a defendant could be convicted thereof on a charge of driving under the influence under RCW 46.56.010?

            We answer your question in the negative.

                                                                     ANALYSIS

            In general, the question of whether a person may be convicted of a lesser crime when charged with a more serious one is whether or not the lesser offense is included within the greater.  In other words, the same evidence  [[Orig. Op. Page 2]] to prove the lesser is necessarily required as part of proving the greater.  Following this reasoning, your question seems to be answered both by decisions and statutes.

            InState ex rel. Foley v. Yuse, 191 Wash. 1, it was held that the trial and acquittal of a defendant on a charge of driving under the influence did not bar a second trial on a charge of reckless driving arising out of the same happening.  On the second trial, on a charge of reckless driving, a plea of former jeopardy was interposed.  The court held:

            ". . . To sustain the plea of former jeopardy, the offenses must be identical in both law and fact, and the test is whether the evidence required to support a conviction upon one of them would be sufficient to warrant a conviction upon the other.  If the evidence is not thus sufficient, there has been no former jeopardy. . . ."

            The court then went on to analyze the statutes governing driving under the influence and reckless driving, and concluded that they defined separate and substantive offenses, saying:

            "It thus appears that the evidence which would be sufficient to sustain the charge of driving while under the influence of intoxicating liquor would not be sufficient to sustain the charge of reckless driving, because reckless driving is not a necessary element of that offense.  To sustain the charge of reckless driving, being under the influence of intoxicating liquor is not a necessary element.  It follows that the evidence of one charge would not be sufficient in itself to support a conviction upon the other, and, this being true, the dismissal of the first complaint in the justice court did not operate as former jeopardy."

            From the foregoing it appears that the charges of driving under the influence and reckless driving are separate and substantive charges; that one is not included within the other; and that a conviction could not properly be had of one under a charge filed for the other.

            Pursuing your question further to include negligent operation, we find that the statute (RCW 46.56.030) specifically provides:

             [[Orig. Op. Page 3]]

            "The offense of operating a vehicle in a negligent manner shall be considered to be a lesser offense than, but included in, the offense of operating a vehicle in a reckless manner, and any person charged with operating a vehicle in a reckless manner may be convicted of the lesser offense of operating a vehicle in a negligent manner. . . ."

            The statute makes negligent operation an included offense, of a lesser degree, of reckless driving.  In other words, you necessarily prove negligent operation when you prove reckless driving.

            Under such circumstances, it is sufficient to constitute second jeopardy if one is necessarily included within the other, and in the prosecution for the greater offense, the defendant could have been convicted of the lesser offense.  In re Huffman v. Smith, 34 Wn. (2d) 914.

            It follows then that since reckless driving is a separate offense not included within the offense of driving under the influence of intoxicating liquor, negligent operation, which is an included offense of reckless driving, is likewise not included in driving under the influence.

            Consequently, a defendant charged only with driving under the influence cannot be convicted of either reckless driving or negligent operation, since neither is an included offense in that charge.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General

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