MOTOR VEHICLE CODE ‑- VENUE IN JUSTICE COURT ‑- PRIOR CONVICTIONS IN CHARGES UNDER DRIVING UNDER INFLUENCE STATUTE ‑- CONCURRENT JURISDICTION WITH SUPERIOR COURT IN VIOLATIONS UNDER ACT ‑- DUTY OF...

MOTOR VEHICLE CODE ‑- VENUE IN JUSTICE COURT ‑- PRIOR CONVICTIONS IN CHARGES UNDER DRIVING UNDER INFLUENCE STATUTE ‑- CONCURRENT JURISDICTION WITH SUPERIOR COURT IN VIOLATIONS UNDER ACT ‑- DUTY OF PROSECUTING OFFICIAL RELATIVE TO ACCUSED'S RECORD ‑- DRIVING WHILE LICENSE REVOKED OR SUSPENDED PRIOR TO REINSTATEMENT OF LICENSE

JUSTICES OF THE PEACE ‑- VENUE IN VIOLATIONS UNDER MOTOR VEHICLE CODE ‑- CONCURRENT JURISDICTION WITH SUPERIOR COURT IN VIOLATIONS OF MOTOR VEHICLE CODE

PROSECUTING ATTORNEY ‑- MOTOR VEHICLE CODE ‑- DUTY TO OBTAIN ABSTRACT OF RECORD IN CASES INVOLVING DRIVING UNDER INFLUENCE

1. Venue in justice courts for all violations under the motor vehicle code (Title 46 RCW) shall be in one of the two nearest justice courts in incorporated cities and towns nearest to the point the violation allegedly occurred.

2, 3 & 4. Prior convictions in the state of Washington within a period of five years for driving under the influence, whether under the present act or the former act, must be alleged in the complaint or information where the increased penalties provided by the new act are to be invoked.

5, 6 & 8. Chapter 393, Laws of 1955, giving the justice court concurrent jurisdiction with the superior court in imposing penalties for the violation of the motor vehicle code, applies to violations of the state law, and is not a grant of increased jurisdiction to police judges in cities of the second, third, and fourth class to impose penalties for violation of city ordinance in excess of the specific authority provided by statute for violations of ordinance.

7. It is a violation of the provisions of the statute for driving after license is suspended or revoked (RCW 46.20.350) for a person to operate a motor vehicle at any time after his license has been suspended or revoked and before it has been reinstated.

9. The duty imposed upon the prosecuting official to immediately request from the director of licenses an abstract of the record of a person involved in any case charging driving under the influence does not require that he actually have in his possession such abstract before filing charges [[Orig. Op. Page 2]]alleging prior convictions.

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

                                                                    July 20, 1955

Honorable John Panesko
Prosecuting Attorney
Lewis CountyCourthouse
Chehalis, Washington                                                                                                              Cite as:  AGO 55-57 No. 118

Dear Sir:

            In your letter of June 16, 1955, you have submitted the following questions relative to chapter 393, Laws of 1955, on which you have requested the opinion of this office (section number references are to chapter 393):

            1. Does that portion of section 2 fixing venue in justice court to one of the two nearest justices of the peace in incorporated cities and towns nearest to the point the violation allegedly occurs apply to all violations under Title 46 RCW, the motor vehicle code?  Yes.

            2. Is it necessary to allege previous convictions in the complaint or information under the provisions of section 3 increasing the penalties for subsequent convictions?  Yes.

            3. May convictions prior to the effective date of this act be considered as former convictions increasing the penalties under section 3?  Yes.

            4. Are such prior convictions limited to convictions in the state of Washington?  Yes.

            5. Does § 4 of chapter 393, giving police courts jurisdiction over violations of the motor vehicle code, authorize cities of the second, third and fourth classes to impose by ordinance penalties equal to those provided by the motor vehicle code?  No.

             [[Orig. Op. Page 3]]

            6. If the answer to the preceding question is "yes", could a police judge sentence a defendant convicted under such an ordinance to the county jail? Since our answer to your fifth inquiry is in the negative, we need not consider this question.

            7. Does the tenth paragraph of section 2 apply to driving during the period after the calendar period of suspension or revocation and before the reissuance of a valid license?  Yes.

            8. Does section 4 enlarge the jurisdiction of justice courts in all classes of counties to impose both fines and jail sentences for violation under the motor vehicle code?  Yes.

            9. Is the prosecuting officer required to have the abstract of convictions prescribed in paragraph 8 of section 2 before filing charges?  No.

                                                                     ANALYSIS

            Because of the number of questions involved, we have endeavored to condense our answer to each as much as possible.

            1. What is section 2 of chapter 393, Laws of 1955, had its inception in 1937.  The venue provision as it now exists was added in 1949, and the last three paragraphs of the present section were added in 1955.

            The motor vehicle code (Title 46 RCW) has been an integrated act since its inception and the amendment of specific sections, especially of the original act, does not cause the amended section to lose its original application to the entire act.  Consequently, the provisions of section 2 of the 1955 act, like the similar provisions of the act of 1949 which it amends, apply to all violations under the motor vehicle code.

            It is susceptible of no other interpretation, because an analysis of the section will disclose that no violations are defined by the section, except the matter of reports and increased penalties in certain specific instances.  To hold otherwise would mean that a special venue applies where a particular punishment is to be made applicable in only two types of violations.  This would be a construction which we feel cannot logically be applied to the provision in question.

             [[Orig. Op. Page 4]]

            2. The procedure for alleging prior convictions in cases of this kind is approved inState v. Stump, 16 Wn. (2d) 140, where the court, interpreting similar provisions for increasing penalties for subsequent violations in liquor cases under Rem. Rev. Stat., § 7306-93 (RCW 66.44.180), said:

            "* * * unless the statute designates a different mode of procedure, if the prosecution desires to invoke the serious punishment provided as to second and subsequent offenders, the indictment or information must allege the fact of prior conviction, and the allegation of such conviction must be proved in the trial to the jury."

            3. There is no limitation as to the time of the previous conviction except that it must be "within a period of five years."  Again, referring to the interpretation of the liquor statutes for precedence, we find, in the case ofState v. Buttignoni, 118 Wash. 110, the following:

            "* * * It is plain that the legislature, using the expression 'this act,' did not refer to the act of 1917 as a separate and independent measure, but thereby referred to initiative measure No. 3, as amended by that act.  With this construction, the provision calling for a heavier penalty upon a second conviction would include a prior conviction under initiative measure No. 3."

            Consequently, we conclude that any prior conviction under section 3 or the prior acts of which it is amendatory should be considered prior convictions for the purpose of making the increased penalties applicable as long as they occurred within five years.

            4. Prior convictions for the purpose of involving the increased penalties of the act are limited to convictions under the laws of this state.

            An analysis of paragraph 8 of section 3 discloses that it provides that

             [[Orig. Op. Page 5]]

            "* * * Upon second conviction for a violation of the provisions ofthis section within a period of five years, * * *

            and

            "* * * Upon any subsequent conviction for a violation of the provisions ofthis section * * * the court shall impose (the penalty prescribed) * * *" (Emphasis supplied.)

            It seems clear from this wording that the legislative intent was to limit the increased penalties to prior convictions under the particular section of the act in this state.

            5. Section 4 of the act gives the justice court and police court concurrent jurisdiction with the superior court in imposing punishment under the motor vehicle title.

            Since the justice court derives its power and authority from legislative enactment, and is charged with the handling of violations prescribed by the legislature for the violation of state law, this section is a specific grant of jurisdiction for violations of this title under state law.

            On the other hand, the police court has power to enforce the penalties prescribed by city ordinance.  These are limited by specific statutes in different classes of cities and towns.  RCW 35.23.600; RCW 35.24.460; and RCW 35.27.530.

            Consequently, although this section is a specific grant of an increase in jurisdiction to justices of the peace in the disposal of violations of the title under state law, it does not have the effect of increasing the jurisdiction of the police judge under the city ordinance.  To so hold would have the effect of amending the specific sections above cited by implication.  We do not believe this to have been the legislative intent.  Rather, we believe it was the legislative intent to provide for the increased jurisdiction for all justice courts and all police courts in the disposition of violations under the state law.  (Cf. State ex rel. Fugita v. Milroy, 71 Wash. 592.)

             [[Orig. Op. Page 6]]

            6. The answer to question No. 5 answers this question.  The authority of the justice of the peace or police judge is derived from state law in the one case, and municipal ordinance in the other, and his sentencing is to the proper jail for confinement for violations of the particular act.

            This act applies to violations of state law, and the power and authority of the justice of the peace is to sentence violators under that law to the county jail.

            7. The penalty provision in section 2 of the act has changed the penalty provided in RCW 46.20.350 making it a violation for a person to operate a motor vehicle while his license is suspended, revoked, or canceled.

            The new section has not changed the definition of the violation, nor has it created or defined a violation not heretofore in existence.  It has merely increased the penalty from "not less than ten days nor more than one year and by a fine of not more than one thousand dollars" to "the minimum mandatory jail sentence and fine shall be ninety days in the county jail and a two hundred dollar fine," and restricted the power of the court to modify or suspend this penalty by providing that "the penalty so imposed shall not be suspended."

            Your question is directed to whether or not, in our opinion, it would be a violation of RCW 46.20.350 for a person to operate a motor vehicle in the period following the end of the calendar period for which his license was suspended or revoked, and before his license was reissued by furnishing proof of financial responsibility and the other requirements for reissuance.

            Referring to chapter 46.04 RCW, we find "revoke" defined as meaning "the invalidation for a period of one calendar year and thereafter until reapplication" (RCW 46.04.480), and "suspend" as meaning "the invalidation for any period less than one calendar year and thereafter until reinstatement" (RCW 46.04.580).

            From the foregoing definitions it would be our opinion that any person who has had his license suspended, revoked, or canceled would be violating RCW 46.20.350 for driving a motor vehicle during any time thereafter until reinstatement in the manner provided by the title.  We believe it  [[Orig. Op. Page 7]] to have been the intent of the legislature as indicated in the motor vehicle code to provide severe penalties for those persons who have had their licenses suspended or revoked for driving motor vehicles until they have had their licenses reinstated by compliance with those provisions of the code requiring proof of financial responsibility.

            8. In an opinion rendered by this office (AGO 1927-28, p. 160 [[to S. F. Rathbun, State Supervisor of Game and Game Fish on August 20, 1927]]) we held that a justice of the peace had jurisdiction under similar statutory provisions increasing penalties for violations under the game code beyond the limitations of Rem. Comp. Stat., 46 (RCW 3.20.040).  Our supreme court, inIn re Hulet, 159 Wash. 98, upheld the constitutionality of a similar statute giving justices of the peace increased jurisdiction in violations of the liquor act.

            We adhere to that opinion and hold that under section 4 of this act a justice of the peace has concurrent jurisdiction with the superior court in imposing penalties for violations of the motor vehicle code, except in so far as the imposition of the penalty is within the exclusive jurisdiction of the superior court,e.g., felonies (Cf. amendment 28 to the state constitution).

            9. The duty imposed upon the official by section 2 to ascertain the record of the person involved in driving under the influence of liquor or drugs merely indicates the procedure in such cases prior to the filing of formal charges.

            How he obtains the information from the director of licenses is within his discretion.  Law enforcement officials generally make use of FBI and other reports for the purpose of ascertaining the accused's records.  However, such records are not admissible as proof of the convictions shown; these must be shown by properly authenticated records of the conviction (State v. O'Dell, 146 Wash. Dec. 193 [[146 Wn. 2d 206]];State v. Beard, 148 Wash. 701).

             [[Orig. Op. Page 8]]

            We hope the foregoing analysis will prove to be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

MITCHELL DOUMIT
Assistant Attorney General