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Bob Ferguson

AGO 1960 No. 122 -
Attorney General John J. O'Connell


The additional fine for excess weight under RCW 46.44.045 (2) may not be suspended by a justice of the peace where a defendant charged with violating some statute for which such fines are applicable posts bail in an amount equivalent to the basic fine required to be imposed upon conviction but fails to appear for trial.

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                                                                    June 8, 1960

Honorable Lee J. Reynolds
Prosecuting Attorney
Clallam County
Port Angeles, Washington                                                                                          Cite as:  AGO 59-60 No. 122

Dear Sir:

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

            May the additional fines for excess weight under RCW 46.44.045 (2) be suspended by a justice court where a defendant (charged with violating some statute for which such fines are applicable) posts bail in an amount equivalent to the basic fine required to be imposed upon conviction but fails to appear for trial at the appointed time?

            We answer this question in the negative.


            By § 1, chapter 136, Laws of 1959, the legislature amended RCW 46.44.045 to read in pertinent part as follows:

            "(1) Any person violating any of the provisions of RCW 46.44.040 through 46.44.044 shall be guilty of a misdemeanor and upon first conviction thereof  [[Orig. Op. Page 2]] shall be fined a basic fine of not less than twenty-five dollars nor more than fifty dollars; upon second conviction thereof shall be fined a basic fine of not less than fifty dollars nor more than one hundred dollars; and upon a third or subsequent conviction shall be fined a basic fine of not less than one hundred dollars.

            "(2) In addition to, but not in lieu of, the above basic fines, such person shall be fined two cents per pound for each pound of excess weight up to five thousand pounds; if such excess weight is five thousand pounds and not in excess of ten thousand pounds, the additional fine shall be three cents per pound for each pound of excess weight; and if the excess weight is ten thousand pounds or over, the additional fine shall be four cents per pound for each pound of excess weight:  Provided, That where the excess weight is less than five thousand pounds, the court, in its discretion, may suspend the additional fine for excess poundage upon first conviction, but in no case shall the basic fine be suspended.

            " . . .

            "(5) Any other provision of law to the contrary notwithstanding, justice courts having venue shall have concurrent jurisdiction with the superior courts for the imposition of any penalties authorized under this section.

            "(6) For the purpose of determining additional fines as provided by subsection (2) of this amendatory act of 1959, 'excess weight' shall mean the poundage in excess of the maximum gross weight prescribed by RCW 46.44.040 through 46.44.044 plus the weights allowed by RCW 46.44.046, 46.44.047, and 46.44.095."

            It is to be noted that in RCW 46.44.045, as amended in 1959, two prior code sections are incorporated, viz.; RCW 46.44.045 (§ 2, chapter 254, Laws of 1953) and 46.44.048 (§ 11, chapter 254, Laws of 1953).  In so far as presently pertinent, subsection (1) of RCW 46.44.045 was evolved from the former, whereas subsection (2) and (6) originated in the latter. RCW 46.44.045 (5) was entirely new when enacted in 1959, and did not originate from either of the two prior statutes combined in RCW 46.44.045.

             [[Orig. Op. Page 3]]

            One may inquire as to the purpose of our legislature in consolidating the two prior statutes.  We think that this was intended by the legislature to clarify certain problems which had been attendant upon the enforcement of the two separate statutes and to facilitate collection of the excess weight penalties imposed by RCW 46.44.048.

            In an opinion to the prosecuting attorney of Cowlitz county, AGO 55-57 No. 161, dated November 15, 1955, this office construed RCW 46.44.048, concluding that the additional penalties imposed therein were in fact civil, as distinguished from criminal in nature and were not, therefore, properly collectible in a criminal proceeding but were enforceable only in a separate civil action.

            It is significant that in combining RCW 46.44.045 and 46.44.048 the 1959 legislature amended the first sentence of the latter (see RCW 46.44.045 (2), above quoted) so as to clearly indicate that the excess weight penalties were, in fact, fines to be imposed upon criminal conviction rather than upon civil judgment.  Moreover, the legislature also eliminated the vehicle owner as being subject to the excess weight penalties, as had otherwise been previously provided in RCW 46.44.048.  Also indicative of the intention of the legislature to change these penalties from civil to criminal is the insertion of the phrase "a basic fine of" throughout RCW 46.44.045 (1) as amended.

            In view of the consolidation of the two earlier penalty provisions and the modifications of language above noted, we conclude that all penalties imposed by RCW 46.44.045, as amended, are criminal in nature and are enforceable upon the conviction of an operator for violating any of the provisions of RCW 46.44.040 through 46.44.044.  Jurisdiction of a justice court to impose such penalties has been conferred in RCW 46.08.190.

            With this background in mind, we turn to your question.  This contemplates a situation in which a person charged with having violated one of the statutory provisions for which the basic and additional poundage fines are applicable (RCW 46.44.045) has posted cash bail as authorized in RCW 10.04.040, which reads as follows:

            "Justices of the peace or committing magistrates may accept money as bail from persons charged with bailable offenses, and for the appearance of witnesses in all cases provided by law for the recognizance of witnesses.  The amount of such bail or recognizance in each case shall be determined by the court in its discretion, and may from time to time be increased or decreased as circumstances may justify.  The money to be received  [[Orig. Op. Page 4]] and accounted for in the same manner as provided by law for the superior courts."

            Of course, as stated in the statute, the amount of bail is a matter resting within the sound discretion of the justice (cf. RCW 10.19.010, 10.19.050) and should be sufficient to accomplish the objects and purposes for which it is authorized.  6 Am. Jur. Bail and Recognizance 61, § 6, states these to be as follows:

            ". . . The primary purpose of bail in a criminal case is not to increase the revenue of the state, or to punish the sureties, but to combine the administration of criminal justice with the convenience of a person accused but not proved to be guilty.  Its object is to relieve the accused of imprisonment, and the state of the burden of keeping him, pending the trial, and at the same time, to put the accused as much under the power of the court as if he were in custody of the proper officer, and to secure the appearance of the accused so as to answer the call of the court and do what the law may require of him.  The purpose of a recognizance, like that of a bail bond, is merely to insure the presence for trial of a person accused of a bailable offense.  The object of bail in civil cases, on the other hand, is either directly or indirectly to secure payment of a debt of fulfillment of other civil duty."  (cf. 8 C.J.S., Bail, § 30.)

            Generally, if the defendant without sufficient excuse should neglect to appear when required, the money deposited as bail is forfeited in the manner provided in RCW 10.19.080 and a bench warrant for the arrest of the defendant may be issued as provided in RCW 10.64.035.

            It is to be noted, however, that RCW 10.01.050 provides as follows:

            "No person charged with any offense against the law shall be punished for such offense, unless he shall have been duly and legally convicted thereof in a court having competent jurisdiction of the case and of the person."

            Since it is fundamental that forfeiture of bail is not, and cannot be considered as a conviction for criminal purposes, it seems plain that punishment -either by fine or imprisonment -cannot be imposed therefor.  Recognizing that a justice court is empowered to suspend a  [[Orig. Op. Page 5]] sentence lawfully imposed (cf. RCW 9.92.060; State ex rel. Graham v. Willey, 168 Wash. 340, 12 P. (2d) 393 (1932)), still it appears equally apparent that a justice court cannot lawfully suspend that which it cannot lawfully impose, absent conviction.

            We therefore conclude that a justice court is without authority to suspend a fine or any portion thereof unless there has first been a conviction.

            It is to be noted that the excess weight fines required by RCW 46.44.045 to be imposed upon conviction for violating the statutes referred to therein vary upward depending upon the amount of overload.  It would, therefore, seem apparent that this factor should be considered by a court in determining the amount of cash bail necessary to insure the appearance of the accused to answer for the crime charged.  Other factors also to be considered in this regard may be found in 6 Am. Jur., Bail and Recognizance, §§ 84 through 92.

            We trust the foregoing will be of assistance to you.

Very truly yours,

Attorney General

Assistant Attorney General