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Bob Ferguson

AGO 1951 No. 438 -
Attorney General Smith Troy


The sentence of a person convicted of driving while his license has been revoked, suspended or cancelled may be suspended if he has no previous conviction of felony or gross misdemeanor.

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                                                                 January 25, 1951

Honorable Arthur S. Cory
State Representative
House of Representatives
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 438

Dear Mr. Cory:

            You have requested our opinion whether upon a conviction of violating § 69, chapter 188, Laws of 1937 (driving while license has been revoked, suspended or cancelled), the sentence may be suspended.

            We conclude:

            The sentence may be suspended provided the convicted person has not been before convicted of a felony or gross misdemeanor.


            Rem. Rev. Stat. Supp. § 6312-69 (P.P.C. § 289-53; § 69, Ch. 188, Laws of 1937) provides:

            "Any person whose vehicle operator's license has been suspended, revoked or cancelled, and who shall operate any motor vehicle upon the public highways of this state while such license is suspended, revoked or cancelled, shall be guilty of a gross misdemeanor, and upon conviction shall be punished by imprisonment in the  [[Orig. Op. Page 2]] county jail for not less than ten (10) days nor more than one (1) year and by a fine of not more than one thousand dollars ($1000.00)."

            With certain exceptions, courts are permitted to suspend sentences pursuant to § 1, chapter 76, Laws of 1949 (amending Rem. Rev. Stat. § 2280, P.P.C. § 112-59):

            "Whenever any person never before convicted of a felony or gross misdemeanor shall be convicted ofany crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the Court may in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by such Court, and that the sentenced person be placed under the charge of a parole or peace officer during the term of such suspension, upon such terms as the Court may determine: * * *.  In no case shall a sentence be suspended under the provisions of this section unless the prisoner if sentenced to confinement in a penal institution be placed under the charge of a parole officer, who is a duly appointed and acting officer of the institution to which the person is sentenced."  (Emphasis supplied).

            Subject to constitutional limitations, the legislature may fix the punishment of crime, classify crimes, and authorize courts to suspend sentences.  24 C.J.S. 1180, § 1975.  As there is no inherent judicial right of suspension, a court may not do so without statutory authority.  Ex Parte United States, 242 U.S. 27, 37 Sup. Ct. 72, 61 Law Ed. 129 (1916);State ex rel. Lundin v. Superior Court, 102 Wash. 600, 174 Pac. 473 (1918);State ex rel. Zbinden v. Superior Court, 135 Wash. 458, 238 Pac. 9, 240 Pac. 565 (1925).

            Rem. Rev. Stat. § 2280, above, by its terms ("any crime except") legislatively permits the suspension of sentences in all crimes but those more heinous specifically excepted.  Persons previously convicted of felonies or gross misdemeanors are not eligible for suspension.

            The doubt regarding suspension with relation to Rem. Rev. Stat. § 6312-69 arises from the following language:

             [[Orig. Op. Page 3]]

            "* * * shall be punished by imprisonment in the county jail for not less than ten (10) days * * *."

            This language but indicates the minimum sentence required upon conviction.  However, after a valid sentence is imposed, the court is not then prohibited from exercising the discretionary authority granted it by Rem. Rev. Stat. § 2280 ‑ a discretion permitted in much more serious crimes.

            (Note, however, that when a sentence is imposed then suspended, it is necessary that the defendant be "placed under charge of a parole or peace officer during the term of such suspension."  This provision as a practical matter would be useful only when something more than a ten day minimum was involved.  If this is not done the sentence is void, and it may and should properly be reimposed.  State v. Rappaport, 125 Wash. 173, 215 Pac. 325 (1923); State ex rel. Comer v. Hall, 173 Wash. 188, 22 P. (2d) 295 (1933);State ex rel. Tingstad v. Starwich, 119 Wash. 561, 206 Pac. 29, 26 A.L.R. 393 (1922) deals with this provision as applicable to county jail sentences)

            We have found no Washington cases specifically answering your question.  However, in several cases the action of a trial court in suspending sentences under statutes with similar ("not less than") language has been approved.  SeeState v. Powell, 153 Wash. 110, 279 Pac. 573 (1929).  InWard v. Sup't., 127 Wash. 572, 221 Pac. 323 (1923), the bootlegging statute provided "not less than one nor more than five years" in the penitentiary.  Rem. Comp. Stat. § 7328 (1921).  There, the court did not specifically consider the action of the trial court suspending the sentence, but indicated it was valid.

            It must be remembered that many of the criminal statutes of this nation set forth both the maximum and minimum terms of imprisonment in much the same language as th statute to which you refer ‑ Rem. Rev. Stat. § 6312-69.  This language was never considered to be a bar to suspension.

            Criminal statutes are strictly construed in favor of the defendant or the convicted person.  SeeState ex rel. Scaggs v. Superior Court, 169 Wash. 292, 297, 13 P. (2d), 1086, 1088 (1932), where the court said:

            "Statutes prescribing punishment are strictly construed, and must be construed together.  They never are construed against an accused or a convicted person beyond their literal and obvious meaning.  If a statute creating or increasing a  [[Orig. Op. Page 4]] penalty is capable of two constructions it should be construed so as to operate in favor of life and liberty."

            We have found nothing in the applicable statutes to indicate highway law violations are to be treated differently than other crimes.

            It should be brought to your attention that the majority of highway code violations, conviction of which require revocation of licenses, are either felonies or gross misdemeanors.  (See Rem. Rev. Stat. § 6312-65 P.P.C. § 289-45, and Rem. Rev. Stat. § 6317-66, P.P.C. § 289-77).  Persons so convicted are no longer eligible for suspended sentences upon conviction of later crimes.

Very truly yours,

Attorney General

Assistant Attorney General