AGO Opinion 1949-1950 No. 314

1. DOES FAILURE TO APPEAR IN COURT ON TRAFFIC MISDEMEANOR AFTER SIGNING PROMISE TO DO SO, CONSTITUTE A MISDEMEANOR?

2. IS REVOCATION OF OPERATOR'S LICENSE STAYED DURING APPEAL TO SUPERIOR COURT FROM CONVICTION IN JUSTICE COURT OF DRUNKEN DRIVING?

1. The present law is not sufficiently definite to describe the crime of failure to appear pursuant to notice and agreement.

2. Revocation of operator's license is not stayed during appeal to Superior Court from conviction of drunken driving in justice court.

                                                                  - - - - - - - - - - - - -

                                                                  August 3, 1950

Honorable Hugh H. Evans
Prosecuting Attorney
Spokane County
Spokane, Washington                                                                                                 Cite as:  AGO 49-51 No. 314

Dear Sir:

            We are in receipt of your letter of May 11, 1950, wherein you have asked the following questions:

            1.  Where a person who is arrested for violation of a traffic misdemeanor signs a promise to appear in court and then fails to so appear, is it legal to issue a warrant and complaint charging him with a misdemeanor of failing to comply with his written promise to appear in court?

             [[Orig. Op. Page 2]]

            2.  Where a person is convicted in a justice court of the offense of drunken driving is fined and his operator's license revoked by that court, and he then gives notice of appeal to the Superior Court; pending such appeal is it mandatory that the judge secure the individual's drivers license, or is he permitted to keep it and operate a vehicle pending the outcome of his appeal?

            The conclusions reached may be summarized as follows:

            1. Section 145, chapter 189, Laws of 1937 (Rem. Rev. Stat. 6360-145) as amended by section 16, chapter 196, Laws of 1949 (§ 6360-145 Rem. Supp. 1949), does not sufficiently define the offense of "Failure to appear pursuant to notice and agreement" which by the provisions of Rem. Rev. Stat. 6360-146 is declared a misdemeanor and hence there is no legal basis for the issuance of a complaint and warrant charging such crime.

            2. After conviction in a justice court of the offense of drunken driving, and revocation by the justice of the defendant's motor vehicle operator's license, notice of appeal to the Superior Court does not operate to stay such revocation.

                                                                     ANALYSIS

            Section 145, chapter 189, Laws of 1937 (Rem. Rev. Stat. 6330-145) provided as follows:

            "Whenever any person is arrested for any violation of this act which is punishable as a misdemeanor, the arresting or apprehending officer may prepare in duplicate written notice to appear in court containing the name and address of such person, the license number of his vehicle, if any, the vehicle operator's license number of such person, if any, the offense charged, and the time and place when and where such person shall appear in court.  The place specified in said notice to appear must be before a judge or court  [[Orig. Op. Page 3]] of competent jurisdiction within the county in which the offense charged is alleged to have been committed.  The arrested person, in order to secure release, as provided in this section, and when permitted by the arresting officer, must give his written promise so to appear in court by signing in duplicate the written notice prepared by the arresting or apprehending officer.  Upon the arrested person's failing or refusing to sign such written promise, he shall be placed and remain in the custody of such arresting or apprehending officer or placed in public confinement."

            Section 146, chapter 189, Laws of 1937 (Rem. Rev. Stat. 6360-146) provides that:

            "Any person wilfully violating his written and signed promise to appear in court, as provided in this act, shall be guilty of a misdemeanor regardless of the disposition of the charge upon which he was originally arrested:  Provided, A written promise to appear in court may be complied with by an appearance by counsel."

            While Rem. Rev. Stat. 6360-146 was left unmodified Rem. Rev. Stat. 6360-145 was substantially changed by the amendment thereto contained in section 16, chapter 196, Laws of 1949 (§ 6360-145 Rem. Supp. 1949), the pertinent portion of which we quote herewith:

            "Every traffic enforcement agency in this state shall provide in appropriate form traffic citations containing notices to appear which shall be issued in books with citations in quadruplicate and meeting the requirements of this section."

             [[Orig. Op. Page 4]]

            The remainder of the amending section deals with the issuance of such books, provides for a system for accounting for all copies of such notice and makes a misdemeanor the cancellation or solicitation thereof of citations in a manner other than provided for in that section.  The amending section contains no language concerning release from the custody of an arresting officer nor concerning the arrested party's promise to appear in court.

            Section 16, chapter 196, Laws of 1949, stating that "Section 145, chapter 189, Laws of 1937 (6330-145 Rem. Rev. Stat.), is amended to read as follows:"  (Emphasis supplied) is clearly an amendatory act, and the section as amended supersedes the original section and becomes a part of the statute to all intents and purposes as if the amendment had always been there; and any matter which was in the original section, but not in the amendatory section is repealed by the omission.  State ex rel. Gebhardt v. Superior Court, 15 Wn. (2d) 673, 131 P. (2d) 943.  This construction logically follows as an effect of the operation of Article II, § 37 of our Constitution which requires that:

            "No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length."

            In discussing this proposition, the Gebhardt case, supra, at page 689, quotes as follows fromState ex rel. Brady v. Lightner, 77 Ore. 587, 157 Pac. 232:

            "'They prescribe contradictory times for the performance of the acts, and one leaves with the county commissioners a discretion which the other takes away.  To add anything to the prevailing act by construction would be a flagrant violation of the constitutional provision that the amendatory act shall set out the section amended "at length."  If it can be made larger by a proviso which the court selects for itself out of a previous amendment on the same subject, it  [[Orig. Op. Page 5]] is not set forth at length, and the constitutional provision would be violated.  If the constitution is given any effect, Section 6313 as last amended is all of Section 6313 as it now stands.  There can be but one Section 6313 of Lord's Oregon Laws.'  (Italics Ours)"

            And, again on page 688, of 15 Wn. (2d):

            "'* * * Amendment of an act or section by setting it out in full "so as to read as follows" operates as an entire obliteration of the former act after the new one goes into effect.  (Citing cases) The omitted provisions cannot be revived by judicial construction * * *'"

            Viewing Rem. Rev. Stat. 6360-146 in the light of these principles, the net result is that that section declares one guilty of a misdemeanor who "* * * wilfully violates his written and signed promise to appear in court,as provided in this act * * *" while "this act," as amended, now contains no mandate nor authority for the signing of a promise to appear as a condition precedent to release from custody, but merely enjoins traffic enforcement agencies to provide in appropriate form traffic citations containing notices to appear.

            The rule has long been established that criminal statutes are to be strictly construed.  Upon the subject of requisites of criminal statutes, it is stated in 14 Am.Jur. 773 that:

            "The legislature, in the exercise of its power to declare what shall constitute a crime or punishable offense, must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid.  If the meaning of a criminal statute cannot be judicially ascertained or if, in defining a criminal offense, it omits certain necessary and essential provisions which go to impress  [[Orig. Op. Page 6]] the acts committed as being wrongful and criminal, the courts are not at liberty to supply the deficiency or undertake to make the statute definite and certain.  * * *"

            It is our conclusion regarding your first question that section 6360-145 as amended does not, with sufficient certainty, describe the acts, failure to perform which are in section 6360-146 constituted a misdemeanor.  Of course, should the defendant fail to appear, a warrant based upon the original offense for which the arrest was made, may properly be issued.

            Coming now to a discussion of your second inquiry, we enclose herewith a copy of an opinion of this office dated June 29, 1949, and addressed to the prosecuting attorney of Klickitat County wherein we have concluded that the taking of an appeal by a defendant who has been convicted in a justice court on a charge of driving while under the influence of intoxicating liquor does not stay the revocation of the defendant's operator's license in such case.

Very truly yours,

SMITH TROY
Attorney General

RICHARD OTIS WHITE
Assistant Attorney General