MOTOR VEHICLES ‑- DRIVER EDUCATION ACT ‑- DEPOSIT OF BAIL ‑- PENALTY ASSESSMENT ‑- CONFINEMENT PRIOR TO TRIAL ‑- REFUND WHERE FORFEITURE IS VACATED AND NO FINE IS IMPOSED ‑- ALLOCATION OF MONEY WHERE

MOTOR VEHICLES ‑- DRIVER EDUCATION ACT ‑- DEPOSIT OF BAIL ‑- PENALTY ASSESSMENT ‑- CONFINEMENT PRIOR TO TRIAL ‑- REFUND WHERE FORFEITURE IS VACATED AND NO FINE IS IMPOSED ‑- ALLOCATION OF MONEY WHERE INSUFFICIENT AMOUNT IS PAID TO COVER FINE, COSTS AND PENALTY ASSESSMENT.

(1) Under § 5, chapter 39, Laws of 1963 (RCW 46.81.040), when any deposit of bail is made for an offense covered by the driver education act, the person making the deposit is required to deposit a sufficient amount to include the penalty assessment but he cannot be confined pending trial for failure to deposit the penalty assessment if he has deposited the required bail set by the court.           

(2) If the penalty assessment is collected as a result of a bail forfeiture and funds are remitted to the state treasurer and thereafter the forfeiture is set aside and the matter is set for trial, the court may provide for the recovery of the penalty assessment previously deposited if no fine is imposed as a result of trial by following the procedure prescribed by RCW 43.88.170.

(3) If less than the total of (a) fines and cost and (b) penalty assessment is tendered, the funds first should be allocated to the payment of the penalty assessment.

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                                                                   May 13, 1964

Honorable Donald H. Webster
Director, Bureau of Governmental
Research and Services
University of Washington
3935 University Way N.E.
Seattle 5, Washington

                                                                                                              Cite as:  AGO 63-64 No. 102

Dear Sir:

            This is written in response to your previously acknowledged request for our opinion on several questions pertaining to the penalty assessment which is provided for in chapter 39, Laws of 1963, for the purpose of financing a public school driver education program.  We paraphrase your questions as follows:

            (1) If a person posts bail for an offense requiring trial, but refuses to deposit the penalty assessment at such time, can he be held in jail until such time as he serves out the penalty  [[Orig. Op. Page 2]] assessment in advance of his trial and the entry of judgment against him?

            (2) If the penalty assessment is collected as a result of a bail forfeiture and the funds are remitted to the state treasurer, and thereafter the forfeiture is set aside and the matter is set for trial, how does the court recover the penalty assessment if no fine is imposed as a result of the trial?

            (3) If less than the total amount of (a) fine and costs, and (b) penalty assessment is tendered, should the funds collected be allocated first to fine and costs or to the penalty assessment?

            We answer your first question in the negative and your remaining questions as set forth in our analysis.

                                                                     ANALYSIS

            By chapter 39, Laws of 1963, the legislature enacted a driver training education law.  The purpose of this act is set forth in § 1 thereof as follows:

            "It is the purpose of this act to provide the financial assistance necessary to enable each high school district to offer a course in driver education and by that means to develop in the youth of this state a knowledge of the motor vehicle laws, an acceptance of personal responsibility on the public highways, and an understanding of the causes and consequences of traffic accidents. The course in driver education shall further provide to the youthful drivers of this state training in the skills necessary for the safe operation of motor vehicles."

            The means of financing the program are contained in § 4 of the act, which reads:

            "There shall be levied and paid into the driver education account of the general fund of the state treasury a 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  [[Orig. Op. Page 3]] 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."

            Question (1):

            Your first question involves § 5 of the same act, which 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.)

            You have asked whether a person who posts bail but refuses to also deposit "a sufficient amount to include the penalty assessment for forfeited bail" can be held in jail as you put it, "until such time as he serves out the penalty assessment."  Accordingly, we believe it desirable for purposes of clarity to repeat here a point made by inference in AGO 63-64 No. 95 [[to Prosecuting Attorney, King County on March 31, 1964]]to repeat here a point made by inference in AGO 63-64 No. 95 and expressly in our recent letter to you, dated April 1, 1964; it is that § 5,supra, does not provide for the levy of the penalty assessed at the time bail is posted.  It merely provides that when a deposit of bail is made (for an offense to which § 4 applies), the person making the deposit shall also deposit a sufficient sum to include the penalty assessment for  [[Orig. Op. Page 4]] forfeited bail.1/

             Thus, your question in reality is simply whether a person who posts bail but refuses to make the penalty assessment deposit is nevertheless entitled to be released from custody until the time of trial.  In our opinion, the question thus stated is answerable in the affirmative.

            Article I, § 20, of the Washington State Constitution provides:

            "All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great."

            This means, of course, that in the case of a bailable offense the accused, upon posting the bail required by the court, is entitled to be released from custody until the time of his trial.  In addition, see Rule 2.03 (e), Traffic Rules for Courts of Limited Jurisdiction, which provides:

            "Upon the depositing of bail under this rule, the person shall be discharged from custody subject to his appearance at the time and place indicated in the citation or warrant."

            It is obvious, therefore, that retention of an accused person in custody pending trial for failure to make the penalty assessment deposit (in addition to posting bail) can only be justified if the penalty assessment deposit can somehow be characterized as simply an additional element of bail.  We are unable to accept this characterization.

            As was pointed out in AGO 63-64 No. 94 [[to Norman Ackley, State Representative on March 31, 1964]], a copy of which is enclosed, the provisions of chapter 39, Laws of 1963,supra, including §§ 4 and 5, supra, were patterned closely after § 733  [[Orig. Op. Page 5]] of the Vehicle Code of California.  Therefore, we there decided that the penalty assessment is a fine rather than a tax largely on the basis of a decision of the California court inSawyer v. Barbour, 142 Cal.App. (2d) 827, 300 P. (2d) 187 (1956), a case construing the California statute.

            In that same opinion, the California court additionally held that the penalty assessment deposit made at the time of posting bail is not itself a part of the bail, stating:

            "It is first asserted in support of the constitutionality of section 773 that the penalty assessment constitutes bail.  We think not.  The sole purpose of bail in criminal cases is to ensure the personal attendance of the defendant on the court at all times when his attendance may be lawfully required.  (Ex parte Duncan, 54 Cal. 75, 77; Black's Law Dict., 2d ed.)  There should be no suggestion of revenue to the government, nor punishment to the surety.  (People v. Calvert, 129 Cal.App.2d 693, 698 [277 P.2d 834];County of Los Angeles v. Maga, 97 Cal.App. 688, 692 [276 P. 352] [[276 Pac. 352]]; General Casualty Co. v. Justice's Court, 41 Cal.App.2d 784, 788 [107 P.2d 663].)

            "Various connotations have been accorded the term 'bail.'  Strictly speaking, bail is the person in whose custody the defendant is placed when released from jail and who acts as surety for the defendant's later appearance in court.  The term is also used to refer to the undertaking by the surety into whose custody the defendant is placed that he will produce the defendant in court at a stated time and place.  (Pen. Code, § 1269; 7 Cal.Jur. 2d 541, § 2.) The popular meaning of 'bail' is simply that it is '[t]he security given for the due appearance of a prisoner in order to obtain his release from imprisonment.'  (Webster's New Inter. Dict., 2d ed.)  When used in this sense, bail can mean either cash or bond.  The courts of this state recognize that bail may have this broad meaning.  (In re McDonough, 27 Cal.App.2d  [[Orig. Op. Page 6]] 155, 162 [80 P.2d 485]; 7 Cal.Jur.2d 542, § 2; Pen. Code, §§ 1295-1298, 1458; Veh. Code, §§ 737.1, 739.  SeeRodman v. Superior Court, 13 Cal.2d 262, 267 [89 P.2d 109].)

            "Sections 737.5, 738, and 739 of the Vehicle Code state the law pertaining to admitting to bail a defendant who has violated that code.  The first two sections merely say that the defendant shall be released on bail.  Section 739, subdivision e, states that when a person is arrested for a misdemeanor violation of the Vehicle Code or for a violation of local ordinances relating to traffic offenses, the magistrate, on the filing of a duplicate copy of a notice to appear, '[i]f bail has not been previously fixed and approved by the judges of the court in accordance with a schedule of bail, . . . shall fix the amount of bail which in his judgment . . . will be reasonable and sufficient for the appearance of the defendant. . . . The defendant may prior to the date upon which he promised to appear, deposit with the magistrate or the person authorized to receive a deposit of bail the amount of bail thus set.'  (See Pen. Code, § 1295.)

            "Section 737.2 of the Vehicle Code authorizes preparation by the magistrates in each county of a schedule of the amount of bail to be set for the release of prisoners charged with misdemeanor violations of the Vehicle Code when taken before clerks of magistrates and jail custodians.  Section 737.1 says that the clerks of magistrates and jail custodians 'shall admit him [a defendant] to bail in accordance with a schedule, fixed as provided in Section 737.2.'  No mention is made in these two sections that the schedule of bail is to include a penalty assessment.  The procedure followed is to determine from the schedule how much bail the arrested person must post and then to add the penalty assessment.  The statute says the person making  [[Orig. Op. Page 7]] a deposit of bail 'shall also deposit' the penalty assessment.  The total sum deposited includes the bail and the penalty assessment, but the bail does not include the penalty assessment.  The penalty assessment is in addition to the bail; it does not constitute, and is not included in, the deposit of bail."

            Reduced to its simplest form, we believe the California court (in the above excerpt) was saying this:

            (1) Bail is imposed for the sole purpose of ensuring the personal attendance of the defendant in court at the time of trial;

            (2) However, the purpose of the penalty assessment deposit is not to ensure the presence of the defendant at the time of trial; rather it is to facilitate collection of the penalty assessment for forfeited bail (see, subsection (2), § 4, chapter 39, Laws of 1963, supra) in the event the defendant fails to present himself for trial;

            (3) Additionally, the statutory framework calls for first fixing the amount of bail and then determining the amount of the penalty assessment deposit on the basis of the amount fixed as bail;

            (4) Therefore, the penalty assessment deposit is not part of the bail.

            Based upon this reasoning, and upon the rule of Jackson v. Colagrossi, 50 Wn. (2d) 572, 575, 313 P. (2d) 697 (1957)2/ we thus conclude that since a person posting bail as required by the court is entitled to be released from custody, and since the penalty assessment deposit is not a part of bail, a person who posts bail but refuses to make the penalty assessment  [[Orig. Op. Page 8]] deposit at such time cannot be held in jail pending trial3/ as a consequence of his refusal to post the penalty assessment deposit.4/

             Question (2):

            Restated for ease of reference, your second question (as paraphrased) is as follows:

            "If the penalty assessment is as a result of a bail forfeiture and the funds are remitted to the state treasurer, and thereafter the forfeiture is set aside and the matter is set for trial, how does the court recover the penalty assessment if no fine is imposed as a result of the trial?"

            Disposition of the proceeds of the penalty assessment as imposed and collected under § 4,supra, is covered by § 6, chapter 39, Laws of 1963, as follows:

            "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, by the 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."

             [[Orig. Op. Page 9]]

            The question you pose, of course, assumes that the penalty assessment is refundable as a matter of law whenever a defendant who has forfeited bail thereafter takes his case to trial (notwithstanding his previous forfeiture) and obtains acquittal or dismissal.  We do not regard this necessarily to be true.  Section 4, supra, provides for the assessment and collection of the penalty assessment as follows:

            ". . .

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

            ". . ."

            Thus, if bail is forfeited in the ordinary case, it would seem that the penalty assessment collected thereon, and thereafter remitted to the state treasurer under § 6,supra, is not to be regarded as refundable regardless of what may then transpire at the local level.

            However, we are aware that it is the practice for good cause shown to set aside previous bail forfeitures when a defendant who has forfeited later appears and requests trial.  This is done by order of the court declaring the bail forfeiture to be rescinded or otherwise cancelled.

            If such a thing should occur after the penalty assessment for forfeited bail has been remitted to the state treasurer, it is believed that authority for the treasurer to return the money (through channels) to the court can be found in RCW 43.88.170, which provides:

            "Whenever any law which provides for the collection of fees or other payment by an agency does not authorize the refund of erroneous or excessive payments thereof, refunds may be made or authorized by the agency which collected the fees or payments of all such amounts received by the agency in consequence of error, either of fact or of law.  The regulations issued by the governor pursuant to this chapter shall prescribe the procedure to be employed in making refunds."

             [[Orig. Op. Page 10]]

            Under this statute, the state treasurer, upon request of the court which imposed the penalty assessment, could make a refund.  This is the procedure we believe should be followed in the event that the circumstances described in your second question should arise.

            Question (3):

            Lastly, you have asked:

            "If less than the total amount of (a) fine and costs, and (b) penalty assessment is tendered, should the funds collected be allocated first to fine and costs or to the penalty assessment?"

            Section 4, chapter 39, Laws of 1963, supra, states:

            "There shall be levied and paid into the driver education account of the general fund of the state treasury a penalty assessment in addition to the fine or bail forfeiture . . . in the following amounts:

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

            In other words, the penalty assessment is to be levied and paid where a fine is imposed.  Of course, it is entirely possible that a fine may be imposed but not collected.  In such case, jail confinement may be invoked for such nonpayment.  See, RCW 10.04.110, RCW 10.82.030, and RCW 3.50.300.

            However, irrespective of whether the fine imposed is collected, the assessmentshall be levied and paid.  Therefore, we conclude that in the event the total amount tendered is less than the sum of the fine imposed plus the penalty assessment levied thereon, the funds collected should be allocated first to the driver education account of the general fund; i.e., as funds collected by way of the penalty assessment.

             [[Orig. Op. Page 11]]