MOTOR VEHICLES ‑- DRIVER EDUCATION ACT ‑- BAIL DEPOSIT OF PENALTY ASSESSMENT ‑- NOTICE TO ACCUSED ‑- DISMISSAL OF CASE ‑- PENALTY REFUNDABLE

MOTOR VEHICLES ‑- DRIVER EDUCATION ACT ‑- BAIL DEPOSIT OF PENALTY ASSESSMENT ‑- NOTICE TO ACCUSED ‑- DISMISSAL OF CASE ‑- PENALTY REFUNDABLE.

(1) Chapter 39, Laws of 1963 (chapter 46 RCW) [[chapter 46.81 RCW and others]], requires a court to collect a penalty assessment deposit of two dollars for each twenty dollars of bail or fraction thereof which is deposited.

(2) Same:  The deposit of the penalty assessment should be designated in the bail receipt to advise the depositor of the reason for its collection.

(3) Same:  In case of a nonforfeitable offense, the penalty assessment must be collected at the time bail is posted but it is refundable if the accused appears and is acquitted or the case is otherwise dismissed.

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                                                                  March 31, 1964

Honorable Charles O. Carroll
Prosecuting Attorney
King County
County City Building
Seattle 4, Washington

                                                                                                                Cite as:  AGO 63-64 No. 95

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on several questions pertaining to the penalty assessment provided for in chapter 39, Laws of 1963 (establishing a driver education program).  Your questions may be paraphrased as follows:

            (1) Does chapter 39, Laws of 1963, require a court to collect a penalty assessment deposit of two dollars for each twenty dollars of bail or fraction thereof which is deposited?

            (2) If the answer to question (1) is in the affirmative, should the deposit be designated on the bail receipt to advise the depositor of the reason for its collection?

            (3) In the case of a nonforfeitable offense, is the penalty assessment deposit for forfeited bail to be collected at the time bail is posted?

            (4) If the answer to question (1) is in the negative, would the  [[Orig. Op. Page 2]] penalty assessment be included as a court cost and, therefore, not be assessed in addition to the fine.

            We answer question 1 through 3 in the affirmative.  In light of our answer to question 1, it becomes unnecessary to answer question 4.

                                                                     ANALYSIS

            Question (1):

            We believe this question is answered by §§ 4, 5 and 6 of chapter 39, Laws of 1963, which provide as follows:

            "There shall be levied and paid into the driver education account of the general fund of the state treasurya penalty assessment in addition to the fine or bail forfeiture on all offenses involving a violation of a state statute or city or county ordinance relating to the operation or use of motor vehicles or the licensing of vehicle operators, except offenses relating to parking of vehicles, in the following amounts:

            "(1) Where a fine is imposed, two dollars for each twenty dollars of fine, or fraction thereof.

            "(2) If bail is forfeited, two dollars for each twenty dollars of bail, or fraction thereof.

            "(3) Where multiple offenses are involved, the penalty assessment shall be based on the total fine or bail forfeited for all offenses.

            "Where a fine is suspended, in whole or in part, the penalty assessment shall be levied in accordance with fine actually imposed."  (Emphasis supplied.) (Section 4.)

            "When any deposit ofbail is made for an offense to which section 4 applies,the person making the deposit shall also deposit a sufficient amount to include the penalty assessment for forfeited bail."  (Emphasis supplied.) (Section 5.)

             [[Orig. Op. Page 3]]

            "The gross proceeds of the penalty assessments provided for in section 4 shall be transmitted to the city or county treasurer, as the case may be, bythe court collecting the same, in the manner and at the times that fines and bail forfeitures are transmitted to such treasurers.  The city and county treasurers shall transmit to the state treasurer monthly and without deduction the amount of such penalty assessments received, which shall be credited to the driver education account in the general fund."  (Emphasis supplied.)  (Section 6.)

            Neither § 4 nor § 5 specifies which agency should collect the penalty assessment therebyrequired to be levied and paid.  However we believe that these sections when read in conjunction with § 6, referring to "the court collecting the same, . . ." (i.e., the penalty assessment) clearly establish a legislative intent that the penalty assessment and/or deposit therefor be collected by the court imposing the fine or receiving the deposit of bail.

            Question (2):

            Chapter 39, Laws of 1963, does not specifically require that a person posting bail be informed of the reason for collection of the additional deposit to cover the penalty assessment for forfeited bail, as provided in § 5, supra.

            However, we believe that the individual should be given a receipt showing that he has deposited this payment.  This could be accomplished by either issuing a separate receipt for the penalty assessment deposit, or by altering the receipt required to be given for bail deposited.1/   Regardless of the method used, there should be reference to chapter 39, Laws of 1963, as authority for collection of the penalty assessment deposit.

            Question (3):

            We assume that by the term "nonforfeitable offense" reference is made to those offenses not included in the justice court order  [[Orig. Op. Page 4]] authorizing, at the option of the accused, forfeiture of bail for specified offenses.  See, RCW 3.30.090.

            Section 5,supra, restated for ease of reference provides:

            "When any deposit of bail is made for an offense to which section 4 applies, the person making the deposit shall also deposit a sufficient amount to include the penalty assessment for forfeited bail."  (Emphasis supplied.)

            The required deposit is not qualified in any way by the fact that a court may classify certain offenses as nonforfeitable.  The terms of the statute clearly provide that the deposit must be assessed and deposited along with bail whenever "any deposit of bail is made for an offense to which section 4 applies."  Of course, if bail is not forfeited and the accused appears and is acquitted or otherwise obtains a dismissal of the charge against him so that no fine is imposed, the amount of the penalty assessment deposit is refundable.  Accord,Sawyer v. Barbour, 142 Cal.App.2d 827, 300 P.2d 187 (1956), a case involving a substantially similar California statute after which chapter 39, Laws of 1963, supra, was patterned; cf. AGO 63-64 No. 90 [[to Prosecuting Attorney, Pierce County on March 9, 1964]].

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

M. H. HEMMEN
Assistant Attorney General