Letter Opinion 1971 No. 079

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                                                                   June 16, 1971
 
 
 
Honorable James P. McNally
Prosecuting Attorney
Pend Oreille County
Newport, Washington 99156                                                                     Cite as:  AGLO 1971 No. 79 (not official)
 
 
Dear Sir:
 
            This is written in response to your letter dated June 14, 1971, requesting our opinion regarding the proper statute under which to charge a person who is driving a moving automobile on a public highway, or who is in actual physical control of a vehicle found parked by the side of the roadway, while intoxicated.
 
            In your letter, you have made reference to RCW 66.44.110, a part of our state liquor code, which provides as follows:
 
            "No person who is intoxicated shall be or remain in any public place, and every person who violates any provision of this section shall be liable, on conviction for a first offense to a penalty of not more than ten dollars; for a second offense to a penalty of not more than twenty-five dollars; and for a third or subsequent offense to imprisonment for not more than thirty days, with or without hard labor, without the option of a fine."
 
                                                                     ANALYSIS
 
            However, while this statute could, conceivably, have some applicability were the vehicle in question to be a "public conveyance,"1/ we believe that the proper statute to  [[Orig. Op. Page 2]] be invoked in a situation such as you have described is RCW 46.61.506, which provides, in material part, as follows:
 
            "(1) It is unlawful for any person who is under the influence of or affected by the use of intoxicating liquor or of any narcotic drug to drive or be in actual physical control of a vehicle within this state."
 
            See, also, AGO 1967 No. 36 [[to Prosecuting Attorney, Snohomish County on October 30, 1967]], which deals in some detail with the penalties which attach in a case of violation of this statute, as provided for under RCW 46.61.515.  In addition, see AGO 49-51-363 [[to Washington State Patrol on October 6, 1950]], to the effect that

 
            "There is no statutory crime in merely being an intoxicated passenger in a private car which is parked or operated on a public highway.  . . ."
 
            Copies of both of these previous opinions are enclosed.
 
             [[Orig. Op. Page 3]]
            It is hoped that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Deputy Attorney General
 
 
                                                         ***   FOOTNOTES   ***
 
1/See, RCW 66.04.010 (24), defining the term "public place" as follows:
 
            "'Public place' includes streets and alleys of incorporated cities and towns; state or county or township highways or roads; buildings and grounds used for school purposes; public dance buildings and grounds adjacent thereto; those parts of establishments where beer may be sold under this title, soft drink establishments, public buildings, public meeting halls, lobbies, halls and dining rooms of hotels, restaurants, theatres, stores, garages and filling stations which are open to and are generally used by the public and to which the public is permitted to have unrestricted access; railroad trains, stages, and other public conveyances of all kinds and character, and the depots and waiting rooms used in conjunction therewith which are open to unrestricted use and access by the public; publicly owned bathing beaches, parks, and/or playgrounds; and all other places of like or similar nature to which the general public has unrestricted right of access, and which are generally used by the public."  (Emphasis supplied.)