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Bob Ferguson

AGLO 1971 No. 10 -
Attorney General Slade Gorton

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                                                                 January 26, 1971
Honorable B. E. Kohls
Prosecuting Attorney
Okanogan County
P.O. Box 1130
Okanogan, Washington 98840
                                                                                            Cite as:  AGLO 1971 No. 10 (not official)
Dear Sir:
            By letter previously acknowledged your predecessor in office requested our opinion as to whether a deferred sentence can be granted upon a second conviction for drunk driving in view of the provisions of RCW 46.61.515.1/  Thereafter, upon your assumption of office, we wrote to you inquiring as to whether you were desirous of receiving our opinion on this question.  By letter dated January 21, 1971, your responded in the affirmative.
            In our judgment, for the reasons set forth below, the question posed must be answered in the negative ‑ essentially on the basis of our state supreme court's decision in Mercer Island v. Walker, 76 Wn.2d 607, 458 P.2d 274 (1969).
            As you know, the statutes of this state provide for two different procedures by which a person convicted of a crime and subject to a jail sentence may avoid having to serve the sentence in confinement.  These two methods, and the differences between them, are described in great detail in State v. Davis, 56 Wn.2d 729, 355 P.2d 344 (1960).
             [[Orig. Op. Page 2]]
            The first of these methods, commonly referred to as "suspended sentencing," is covered by the provisions of RCW 9.92.060.  This statute contemplates that following a conviction, a judgment imposing sentence has been entered, after which the execution of the sentence has been suspended.  In other words, while the sentence is imposed in a case which has been processed under this statute, the execution of the sentence is stayed and suspended.
            The other statutory method whereby a person convicted of a crime which is subject to a jail sentence may avoid serving the sentence is commonly referred to as "deferred sentencing," and is authorized by RCW 9.95.200 ‑ 9.95.250.  Under these statutes, the court, upon conviction, not only suspends the execution of the sentence but it also suspends its initial imposition ‑ thereby allowing the defendant, upon completion of a probationary period under court or administrative supervision, to move for and obtain a dismissal of the charges initially brought against him.  Accord, State v. Davis, supra.

            In Mercer Island v. Walker, supra, the precise argument which was being made by the defendant, having been convicted for a second time within five years of a drunk driving charge to which RCW 46.61.515 was applicable, was that
            ". . .  RCW 9.95.200 allows any sentence to be suspended regardless of the restriction in RCW 46.61.515.  . . ." (76 Wn.2d at 614)
            In other words, it is clear from a reading of the court's decision that the issue raised involved the precise statutory interrelationship which your present question has raised; namely, the relationship between the "deferral of sentencing" provisions of RCW 9.95.200, et seq., and the restrictions contained in RCW 46.61.515.  In response to the appellant's contention regarding the nature of this relationship, the court responded as follows:
            ". . .  We find no merit in this contention.
            "As they relate to the granting of probation and suspension of sentences, the foregoing RCW Title 9 statutes are general statutes.  When the legislature enacted RCW 46.61.515, they were in existence.  As we have noted,  [[Orig. Op. Page 3]] where a special statute is subsequently enacted relating to the same subject matter as the general statute, the special statute will control.  RCW 46.61.515 is a special statute requiring mandatory punishment without suspension for two or more violations of RCW 46.61.505 and RCW 46.61.510 within a 5-year period.
            "Therefore, the trial court did not commit error when it determined that it could not suspend appellant's sentence and grant probation.  This is strictly forbidden in certain cases enumerated in RCW 46.61.515.  As a result thereof, the trial court did not err in entering the judgment of guilty on the verdict and sentence of $250 fine and 30 days in the King County Jail.  Both the fine and jail sentence were required by the statutory dictates of RCW 46.61.515."
            We trust that the foregoing will be of some assistance to you.
Very truly yours,
Richard A. Mattsen
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/RCW 46.61.515 reads, in material part, as follows:
            ". . .
            "On a second or subsequent conviction of either offense [i.e., driving under the influence of intoxicating liquor or driving under the influence of a narcotic drug] within a five year period he shall be punished by imprisonment for not less than thirty days nor more than one year and by a fine of not less than one hundred dollars nor more than one thousand dollars, and neither the jail sentence nor the fine shall be suspended.  . . ."  (Emphasis supplied.)