MOTOR VEHICLES ‑- OPERATING UNDER THE INFLUENCE ‑- INCREASED PENALTIES ‑- CONVICTIONS and/or FORFEITURES

MOTOR VEHICLES ‑- OPERATING UNDER THE INFLUENCE ‑- INCREASED PENALTIES ‑- CONVICTIONS and/or FORFEITURES

The court shall impose the increased minimum penalties upon a conviction of operating a motor vehicle under the influence under chapter 393, Laws of 1955, upon subsequent convictions as provided by § 3, and where an operator has a record of two or more convictions or forfeiture of bail under § 2.

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                                                              September 29, 1955

Honorable Arnold R. Zempel
Prosecuting Attorney
Snohomish County
Everett, Washington                                                                                                              Cite as:  AGO 55-57 No. 139

Attention: Mr. Leo J. Gese, Deputy

Dear Sir:

            We acknowledge receipt of your letter of August 29, 1955, in which you ask our opinion on the following question referring to § 3, chapter 393, Laws of 1955:

            "When a bail is forfeited on a charge of driving an automobile while under the influence of intoxicating liquor within five years last past, does the penalty for a first conviction for such a violation apply or does the second conviction for such a penalty apply when the person who forfeited the bail is convicted of driving an automobile while under the influence of intoxicating liquor within five years.  In other words, must there be two actual convictions or is a forfeiture and conviction sufficient to bring into action the penalties provided by this section for a second conviction?"  (Emphasis supplied.)

             [[Orig. Op. Page 2]]

            Your question regarding § 3, as underscored above, is answered in the negative.  However, previous forfeitures of bail will affect the minimum penalties for the same offense under § 2.

                                                                     ANALYSIS

            The pertinent provision of RCW 46.56.010 (as amended by § 3, chapter 393, Laws of 1955) provides as follows:

            "Upon the first conviction for the violation of the provisions of this section the court shall impose a fine of not less than fifty dollars or more than five hundred dollars and not less than five days or more than one year in jail, and shall, in addition thereto, suspend the operator's license of such person for not less than thirty days.  Upon second conviction for a violation of the provisions of this section within a period of five years, the court shall impose a fine of not less than one hundred dollars or more than one thousand dollars and not less than thirty days or more than one year in the county jail, and neither the fine not the jail sentence so imposed shall be suspended, and shall, in addition thereto, suspend the operator's license of such person for not less than sixty days after the termination of such jail sentence.  Upon any subsequent conviction for a violation of the provisions of this section within a period of five years, the court shall impose a fine of not less than one hundred dollars or more than one thousand dollars and not less than thirty days or more than one year in the county jail, and neither the fine nor the jail sentence so imposed shall be suspended, and shall, in addition thereto, revoke the operator's license.  * * *"

            Analyzing this section, it is to be noted that the increased minimum penalties apply only to "convictions".  For ready reference we have tabulated the penalties provided as follows:

             [[Orig. Op. Page 3]]

                        Conviction        Fine                              Jail                   License Suspended

                        1st                    $50 ‑ $500       and 5 days ‑ 1 yr.
                                                                                    and Not less than 30 days.

                        2nd                  $100 ‑ $1000   and 30 day ‑ 1 yr.                                and Not less than 60 days - after jail term

                        3rd *    $100 ‑ $1000  and 30 day ‑ 1 yr.        and Revoked.

            * Neither fine nor jail sentence shall be suspended.

            InMartin v. State, 30 Okla. Crim. 49, 234 Pac. 795, the court, having under consideration a question involving a prior conviction in a liquor case, made the following statement:

            "'In its ordinary sense the term "conviction" is used to designate the particular stage of a criminal prosecution, when a plea of guilty is entered in open court, or a verdict of guilty is returned by a jury.  But in a strict, legal sense it denotes the final judgment of the court,' and 'imports the final consummation of the prosecution, from the complaint to the judgment of the court by sentence.'"

            See, also,State v. Burnett, 144 Wash. 598.

            Consequently, it follows that under § 3 of the act, only convictions importing a judgment and sentence for a particular offense may be considered in imposing the increased penalties provided.

            However, in answering the question submitted, consideration must be given to § 2 of the act which provides that:

            "If an operator has a record of two or more convictions or forfeitures of the offense of operating a vehicle under the influence * * * he shall, upon conviction, be fined not less than one hundred dollars and not more than one thousand dollars, and shall be sentenced to not less than thirty days and not more than one year in the county jail and neither fine nor sentence shall be suspended; and the court shall revoke the operator's license."  (Emphasis supplied)

             [[Orig. Op. Page 4]]

            Consequently, it will be seen from the foregoing two sections that minimum penalties are provided, in two types of situations involving the offense of driving under the influence.  Minimum penalties must be imposed under § 3 of the act where prior convictions exist.  On the other hand, minimum penalties are also provided under § 2 where the violator has a record of two or more convictions or forfeitures of the offense.

            In other words, a violator with only a previous bail forfeiture, would be sentenced, after conviction on a later charge, to the penalty provided for a first conviction.  However, if he has a record of two or more forfeitures and/or convictions, he would, upon a subsequent conviction, be sentenced to the penalty provided therefor under § 2.  The penalty imposable under § 2 is the same as the penalty provided for a third or subsequent conviction under § 3.  The convictions or forfeitures requiring the increased minimum penalties must all be within a five‑year period.

            This conclusion is further strengthened by the fact that in § 1 of this same act, the legislature specifically enumerated "conviction or forfeiture of bail" under both subparagraphs (4) and (6), indicating an intention to provide for mandatory revocation of operator's license by the court upon the occurrence of "conviction or forfeiture of bail upon three charges of reckless driving" or operating while under the influence.

            We therefore conclude that the court, upon a conviction of operating a vehicle under the influence, (§ 3, chapter 393, Laws of 1955, amending RCW 46.56.010) should impose the increased minimum penalties in the following instances:

            (1) Under § 3 upon subsequent convictions; and
            (2) under § 2 where the operator has a record of two or more convictions or forfeitures.

            We trust that the foregoing analysis will be helpful to you in an interpretation of the above mentioned provisions of chapter 393, Laws of 1955.

Very truly yours,

DON EASTVOLD
Attorney General

MITCHELL DOUMIT
Assistant Attorney General