TRAFFIC INFRACTION PENALTY ASSESSMENTS

MOTOR VEHICLES ‑- COURTS ‑- JUSTICE COURTS ‑- TRAFFIC INFRACTION PENALTY ASSESSMENTS

The $25 penalty imposed by § 5(3), chapter 19, Laws of 1981, for failure to respond to a notice of traffic infraction is not subject to the assessments imposed by RCW 43.101.210 or § 7(6), chapter 330, Laws of 1981, but it is subject to the traffic education assessment imposed by RCW 46.81.030. 

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                                                                   April 12, 1982 

Honorable Robert V. Graham
State Auditor
Legislative Building
Olympia, Washington 98504

Cite as:  AGO 1982 No. 5                                                                                                                  

Dear Sir:

             By recent letter you requested our opinion on the following question:

             Is the $25 penalty imposed by § 5(3), chapter 19, Laws of 1981 for failure to respond to a notice of traffic infraction subject to the assessments imposed by RCW 43.101.210, RCW 46.81.030 and chapter 330, Laws of 1981?

             We answer your question in the manner set forth in our analysis.

                                                                      ANALYSIS

             Section 5(3), chapter 19, Laws of 1981 is an amendment to RCW 46.63.110 and reads as follows:

             "(3) There shall be a penalty of twenty-five dollars for failure to respond to a notice of traffic infraction except where the infraction relates to overtime parking as defined by local law, ordinance, regulation, or resolution or failure to pay a monetary penalty imposed pursuant to this chapter.  The monetary penalty for failure to respond to a notice of a traffic infraction relating to overtime parking as defined by local law, ordinance, regulation, or resolution shall be set by the  [[Orig. Op. Page 2]] local legislative body which originally enacted the local law, ordinance, regulation, or resolution creating the parking offense.  The local court, whether a municipal, police, or district court may impose the monetary penalty set by the local legislative body.  Such locally set monetary penalty is not subject to the assessments required by RCW 46.81.030 and RCW 43.101.210 and related court rules."

             At the outset it is important to distinguish between the monetary penalty thus set bystate law for failure to respond to a notice of traffic infraction and the comparable monetary penalty imposed by local, municipal, legislative bodies ". . . for failure to respond to a notice of a traffic infraction relating to overtime parking as defined by local law, . . ."  In the words of the last sentence of RCW 46.63.110, supra, as amended, ". . .[s]uch locally set monetary penalty is not subject to the assessments required by RCW 46.81.030 and RCW 43.101.210 and related court rules."

             But what about the penalty set by the state statute itself?  Is that penalty (or, more properly, the conduct resulting in its imposition) subject to ". . . the assessments imposed by RCW 43.101.210, RCW 46.81.030 and chapter 330, Laws of 1981?"

             We will consider the cited statutes in the order thus set forth in your question.

             (1)RCW 43.101.210:

             Is the $25 penalty imposed by § 5(3), chapter 19, Laws of 1981,supra, for failure to respond to a notice of traffic infraction, subject to the assessment imposed by RCW 43.101.210?  We answer this part of your question in the negative.

             The relevant language of RCW 43.101.210 appears in subsection (2) of that statute as follows:

             "(2) In each instance of bail forfeiture or monetary penalty paid in lieu of a court appearance attendant to any violation of a law of this state or an ordinance of a city or county except an ordinance relating to vehicles unlawfully left or parked, an assessment which shall be in addition to such bail forfeited or penalty paid shall be collected and forwarded within thirty days of receipt of such assessment by the clerk of the court, or the county treasurer, to the state treasurer to be deposited  [[Orig. Op. Page 3]] in an account within the state general fund to be known as the criminal justice training account, hereby created, funds from which shall be appropriated by law to the Washington state criminal justice training commission as established by chapter 43.101 RCW . . ."

             There are, it will be noted, two types of conduct which give rise to the imposition of this assessment.  They are (1) a bail forfeiture or (2) the payment of a monetary penalty in lieu of a court appearance.  Both of those events, however, assume the earlier occurrence of an initial response to the charge of a state law or municipal ordinance violation.  In other words, in each instance, the defendant has, in fact, responded to the charge and has either posted bail (which is then later forfeited) or, in the alternative, paid a prescribed monetary penalty in lieu of an actual court appearance.

             Here, on the other hand, the penalty imposed by RCW 46.63.110(3),supra, is not paid in connection with a bail forfeiture or in lieu of a court appearance.  Rather, it is required to be paid when a person receiving a notice of a traffic infraction simply fails to respond, at all, to the notice.

             RCW 46.63.070 describes the options available to a person who receives a notice of traffic infraction.  One of those options, set forth in subsection (2) of that statute, is not to contest the notice of infraction, and, accordingly, to remit payment of the appropriate monetary penalty to the Court.  That monetary penalty, however, is one imposed for the traffic infraction itself‑-in accordance with subsections (1) and (2) of RCW 46.63.110‑-and not, as in the case of the penalty imposed by subsection (3) of the statute, for the separate act of failing to respond, at all, to a notice of traffic infraction.

             In our opinion, therefore, the penalty imposed by § 5(3), chapter 19, Laws of 1981,supra, is not subject to the assessment imposed by RCW 43.101.210(2),supra‑-because the particular conduct for which that penalty is imposed is not, in addition, conduct which calls for an RCW 43.101.210 assessment.

             (2)RCW 46.81.030:

             This part of your question asks whether the $25 penalty imposed by § 5(3), chapter 19,supra, is subject to the assessment imposed by RCW 46.81.030.  And, in this case, we answer in the affirmative.

                          [[Orig. Op. Page 4]]

The relevant language of RCW 46.81.030 reads as follows:

             "There shall be levied and paid into the traffic safety education account of the general fund of the state treasury a penalty assessment in addition to the penalty, 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 . . ."

             The issue thus raised is whether a monetary penalty for failure to respond to a notice of a traffic infraction is a ". . . penalty . . . involving a violation of a state statute . . . relating to the operation or use of motor vehicles . . ."

             It is true, as above indicated in our response to the first part of your question, that the penalty imposed by RCW 46.63.110(3), supra, is for the separate act of failing to respond to a notice of a traffic infraction and not for the actual commission of the infraction itself.  Nevertheless, in our view, the act of failing to respond to a notice of a traffic infraction is so closely tied to the original infraction as to be, practically speaking, a part of the same transaction.  Moreover, we would also look upon RCW 46.63.110(3) as ". . . a state statute relating to the operation or use of motor vehicles" because, in addition to penalizing action directly relating to a traffic offense, it is a part of the general law enforcement scheme devised by the legislature to deal with traffic offenses.

             In our opinion, therefore, the $25 penalty thereby imposed for failure to respond to a notice of traffic infraction is subject to the additional penalty assessment imposed by RCW 46.81.030,supra, for the benefit of the traffic safety education account of the general fund of the state treasury.  Furthermore, since the "offense" of failing to respond to a notice of a traffic infraction is in addition to the underlying offense of committing the traffic infraction itself, it would appear that the $25 penalty assessed by RCW 46.63.110(3),supra, should be added to the penalty for the infraction itself for the purpose of determining the amount to be assessed for the traffic safety education account.  See, RCW 46.81.030(3) which provides that:

             "(3) Where multiple offenses are involved, the penalty assessment shall be based on the total penalty, fine, or bail forfeited for all offenses."1/ 

              [[Orig. Op. Page 5]]

            (3)Chapter 330, Laws of 1981:

             As we understand it, the third part of your question relates, specifically, to § 7(6) of chapter 330, Laws of 1981 pursuant to which the legislature further amended RCW 46.63.110, supra,2/ by adding the following additional subsection:

             "(6) There shall be levied and paid into the general fund of the state treasury, a five‑dollar fee in addition to the monetary penalty imposed for a traffic infraction other than a parking, standing, stopping, or pedestrian infraction.  The five‑dollar fee shall not be suspended by the court."

             We answer this part of your question in the negative.

             Once again, it is important to note that the monetary penalty imposed by RCW 46.63.110(3),supra, as amended, is for a separate act or omission; namely, a failure to respond to a notice of traffic infraction.  Conversely, although it also involves a violation of a state statute relating to the operation or use of motor vehicles,3/ this monetary penalty is not, itself, a ". . . monetary penalty imposed for a traffic infraction."

             Notably, although new subsection (6) of RCW 46.63.110, supra, was added by the same session of the legislature as amended subsection (3) of the statute relating to the monetary penalty for failure to respond to a notice of a traffic infraction, the two acts (chapter 19 and chapter 330) contained no internal references to each other.  Instead, they appear to have been enacted,  [[Orig. Op. Page 6]] independently, with two separate objectives in mind.4/   It therefore seems particularly logical to conclude, as we do, that in adopting subsection (6), the legislature was thinking only of the monetary penalty imposed pursuant to subsection (1) of RCW 46.63.110, supra, for commission of a traffic infraction, per se.