Bob Ferguson
Other LanguagesAGO 1967 No. 36 -
Attorney General John J. O'Connell
MOTOR VEHICLES - PENALTY FOR VIOLATION OF RCW 46.61.505 (1).
The penalty provided for in RCW 46.61.515 in the case of a person who is convicted of driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug does not apply to the case of a person who is convicted of being in actual physical control of a nonmoving vehicle upon the public highways while under the influence of or affected by the use of any intoxicating liquor or drugs; in the case of such a person the applicable penalty provisions are contained in RCW 46.64.050.
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October 30, 1967
Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County Court House
Everett, Washington 98201
Cite as: AGO 1967 No. 36
Dear Sir:
By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:
Does the penalty provided for in RCW 46.61.515 apply to the case of a person who is convicted of being in actual physical control of a nonmoving vehicle upon the public highways while under the influence of or affected by the use of intoxicating liquor or narcotic drugs?
In our opinion, the penalty provided for in RCW 46.61.515 does not apply to the case described; rather, we believe the proper penalty to be applied is that prescribed by RCW 46.64.050. Our reasoning in support of this conclusion is set forth in the following analysis.
ANALYSIS
There are three separate statutes which must be examined in order to answer your question. The first of these is RCW 46.61.505 (1), which provides:
"It is unlawful for any person who is under the influence of or affected by the use of [[Orig. Op. Page 2]] intoxicating liquor or of any narcotic drug to drive or be in actual physical control of any vehicle upon the public highways."
The second statute to be noted is RCW 46.61.515, which provides as follows:
"(1) Every person who is convicted of a violation of (a) driving a motor vehicle while under the influence of intoxicating liquor or (b) driving a motor vehicle while under the influence of a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle shall be punished by imprisonment for not less than five days nor more than one year, and by a fine of not less than fifty dollars nor more than five hundred dollars.
"On a second or subsequent conviction of either offense within a five year period he shall be punished by imprisonment for not less than thirty days nor more than one year and by a fine of not less than one hundred dollars nor more than one thousand dollars, and neither the jail sentence nor the fine shall be suspended. If such person at the time of a second or subsequent conviction is without a license or permit because of a previous suspension or revocation, the minimum mandatory sentence shall be ninety days in jail and a two hundred dollar fine. The penalty so imposed shall not be suspended.
"(2) The license or permit to drive or any nonresident privilege of any person convicted of either of the offenses named in subsection (1) above shall:
"(a) Be suspended by the department of licenses for not less than thirty days;
"(b) On a second conviction under either [[Orig. Op. Page 3]] such offense within a five year period, be suspended by the department for not less than sixty days after the termination of such person's jail sentence;
"(c) On a third or subsequent conviction under either such offense within a five year period, be revoked by the department.
(3) In any case provided for in this section, where a driver's license is to be revoked or suspended, such revocation or suspension shall be stayed and shall not take effect until after the determination of any appeal from the conviction which may lawfully be taken, but in case such conviction is sustained on appeal such revocation or suspension shall take effect as of the date that the conviction becomes effective for other purposes."
Lastly, RCW 46.64.050 reads as follows:
"It shall be a misdemeanor for any person to violate any of the provisions of this title unless violation is by this title or other law of this state declared to be a felony or a gross misdemeanor.
"Unless another penalty is in this title provided, every person convicted of a misdemeanor for violation of any provisions of this title shall be punished accordingly."
Close analysis of RCW 46.61.505 (1), supra, reveals that it declares unlawful a total of four separate types of misconduct; namely, (1) to drive a vehicle upon the public highways while under the influence of liquor; (2) to drive a vehicle upon the public highways while under the influence of a narcotic drug; (3) to be in actual physical control of any vehicle upon the public highways while under the influence of intoxicating liquor; and (4) to be in actual physical control of any vehicle upon the public highways while under the influence of any narcotic drug.
It is clear that the penalty provisions of RCW 46.61.515 are applicable to the first two of these prescribed acts of misconduct. Your question, as we understand it, is whether [[Orig. Op. Page 4]] these penalty provisions are likewise applicable to the case of a person who is convicted of being in actual physical control of anonmoving vehicle upon the public highways while under the influence of or affected by either intoxicating liquor or any narcotic drug.
In answering this question, it is notable that chapter 155, Laws of 1965, Ex. Sess., of which both RCW 46.61.505 and 46.61.515, supra, are a part, was largely patterned after chapter 11 of the Uniform Vehicle Code of 1962, revised edition. It is further to be noted that chapter 155, with certain minor modifications designed to fit the development of local traffic law, is for the most part a verbatim enactment of this uniform code provision. That is to say, it is until we reach the sections here under consideration.
The counterpart sections of the uniform code are §§ 11-902 and 11-902.2. Section 11-902 provides in material part as follows:
"(a) It is unlawfuland punishable as provided in section 11-902.2 for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this State." (Emphasis supplied.)
Section 11-902.2 of the uniform code, in turn, provides for a single penalty for any violation of § 11-902 of the code; i.e., for both types of misconduct described in that section.1/ Thus, had the Washington legislature followed this part of the code -as it did other portions -your question would not have arisen. However, by way of contrast to the uniform code provision, our legislature deleted any reference to punishment from the section (RCW 46.61.505 (1),supra) defining the offense, and, instead, set forth a penalty provision in RCW 46.61.515 relating only to
"(1) Every person who is convicted of a violation of (a) driving a motor vehicle while under the influence of intoxicating [[Orig. Op. Page 5]] liquor or (b) driving a motor vehicle while under the influence of a narcotic drug, . . ."2/
The rule of statutory construction which we deem to be applicable to this situation is well stated in 2 Sutherland, Statutory Construction, § 3303 as follows:
"When the law imposes a punishment which acts upon the offender alone, and it is not a reparation to the party injured, and the punishment is entirely within the discretion of the law giver, it will not be presumed that the legislature intended the punishment to extend farther then it is expressly stated."
Likewise, seeMarble v. Clein, 55 Wn.2d 315, 347 P.2d 830 (1959); andState v. Eberhart, 106 Wash. 222, 179 Pac. 853 (1919), both of which enunciate and apply this rule and the well-established corollary that penal statutes are to be strictly construed against the state and in favor of the convicted criminal.
In view of this rule, and of the foregoing facts, we are compelled to conclude that the penalty provision of RCW 46.61.515, supra, must be restricted to cases of persons who are convicted of driving a vehicle on the public highways of this state while [[Orig. Op. Page 6]] under the influence of or affected by the use of intoxicating liquor or any narcotic drug. With respect to persons who are convicted of being in actual physical control of a nonmoving vehicle while so under the influence or affected, the applicable penalty provisions are contained in RCW 46.64.050,supra.3/
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
Attorney General
RICHARD F. WRENN
Assistant Attorney General
*** FOOTNOTES ***
1/Since only the influence of liquor, and not narcotics, is specified in § 11-902, the result is that this section covers only two, rather than four, types of misconduct, contra RCW 46.61.505(1), supra.
2/A review of this history of the bill, House Bill No. 234, which became chapter 155, Laws of 1965, Ex. Sess., as that bill proceeded through the legislature in 1965, makes it possible for us to pinpoint the instant of deletion of this penalty reference from the section defining the offense. As originally introduced in the House of Representatives and as initially passed by the house the pertinent section (§ 60) of the bill contained the phrase "and punishable as provided in Section 62 of this amendatory act." However, when it reached the senate, § 60 was deleted in its entirety and a new § 60, which did not contain this reference phrase, was substituted. See, Senate Journal, 1965, p. 1051. Thereafter, upon return to the house, the senate change was adopted and the bill was enacted into law in that form.
3/In concluding as we do that this statute rather than RCW 46.61.515 sets forth the penalty to be imposed upon a person convicted of being in actual physical control of a nonmoving vehicle while under the influence of liquor or narcotics, we do not mean to imply that the fact of actual physical control cannot be used, along with other evidence, to prove that the person charged had actually been driving the vehicle while under the influence so as to be subject to the more severe penalty under RCW 46.61.515.