STATE v. NELSON, 85 Wn.2d 879 (1975)

540 P.2d 418

THE STATE OF WASHINGTON, on the Relation of JACK E. MILLER, Respondent, v. JACK G. NELSON et al, Appellants.

No. 43288.The Supreme Court of Washington. En Banc.
October 2, 1975.

[1] Criminal Law — Appeal — Deferred Sentence — Effect. Appeal from a deferred sentence is permitted in the same manner as from any other conviction and sentence when the sentence results from a contested trial. [2] Intoxicating Liquors — Automobiles — Operator’s License — Suspension — Deferred Sentence. Suspension of a driver’s license upon conviction of operating a motor vehicle while under the influence of intoxicants is mandatory (RCW 46.16.515(4) and RCW 46.20.270(3)) regardless of a deferral of sentence.

Appeal from a judgment of the Superior Court for King County, No. 777149, Donald J. Horowitz, J., entered May 10, 1974 Reversed.

Action to prohibit the suspension of a driver’s license. The State appeals from a judgment in favor of the plaintiff.

Slade Gorton, Attorney General, and James R. Silva, Assistant, for appellants.

Alva C. Long, for respondent.

FINLEY, J.

This case involves a challenge to the constitutionality of certain provisions in RCW 46.61 and RCW 46.20, which require revocation of a driver’s license under certain conditions. The Superior Court ruled that these provisions, as applied to respondent, denied him due process and equal protection of the law. Accordingly, a writ of prohibition was issued directing the Department of Motor Vehicles not to suspend the respondent’s driver’s license. We reverse.

The pertinent facts are as follows: Respondent was charged with driving while under the influence of intoxicating liquor. Respondent pleaded not guilty but, nevertheless, was found guilty by the Renton District Court. However, the court deferred imposition of sentence for 1 year.

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The order of deferral is not in the record, but it apparently was not conditioned upon the respondent either paying a fine or serving any jail time.

The District Court thereupon sent the abstract of record to the Department of Motor Vehicles. RCW 46.61.515(4)[1] provides that anyone convicted of driving a motor vehicle while under the influence of intoxicating liquor shall have his or her license suspended for not less than 30 days. RCW 46.20.270[2] defines a conviction to include any finding of guilt on a traffic charge, regardless of whether imposition of sentence is deferred. In accordance with these statutory provisions, the Department of Motor Vehicles automatically ordered respondent’s driver’s license suspended for 30 days.

Another statutory provision — RCW 46.61.515(5)[3]
provides

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that in the event that an appeal is taken from any conviction for which a driver’s license is to be revoked or suspended, the license suspension shall be stayed until after the determination of such appeal. However, respondent concluded — apparently on the basis of State v. Proctor, 68 Wn.2d 817, 415 P.2d 634 (1966) — that he could not appeal his deferred sentence because it was not a final judgment. Therefore, respondent filed this action in Superior Court, alleging that he was denied due process and equal protection of the law and secured the above-mentioned writ of prohibition.

The basic issue in this case is whether respondent was denied due process or equal protection of the law. Respondent argues that defendants such as himself who receive deferred sentences that are not conditioned upon payment of a fine or serving jail time may not appeal their conviction because there is no final judgment from which to appeal, State v. Proctor, supra.
Pursuant to RCW 46.61.515(4), such defendants automatically have their licenses suspended. In contrast, all other defendants who are convicted of driving while under the influence of an intoxicating liquor are granted the right to appeal — including those whose sentence is suspended, State v. Liliopoulos, 165 Wn. 197, 5 P.2d 319 (1931), and those whose deferred sentence is conditioned upon payment of a fine or serving jail time State v. Proctor, supra. Pursuant to RCW 46.61.515(5), this latter group of defendants will have their license suspension automatically stayed during the appeal. Respondent contends that the disparity between the rights accorded to defendants who receive a deferred sentence, not conditioned upon payment of a fine or serving jail time, and the rights accorded to all other defendants is violative of equal protection and due process.

[1] The vice of this argument, however, is respondent’s premise that he had no right to appeal the deferred sentence.

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Respondent has apparently overlooked our decision in State v. McDonald, 74 Wn.2d 563, 445 P.2d 635 (1968), which was rendered subsequent to State v. Proctor, supra. In State v. McDonald, supra, an appeal of a deferred sentence imposed after contested trial was allowed even though the sentence was not conditioned upon serving jail time or paying a fine. The only requirement articulated in State v. McDonald, supra, for a defendant to take an appeal was that he be found guilty after contested trial. The circumstances of the instant case meet this requirement previously enunciated in State v. McDonald, supra, and respondent accordingly could have appealed.

[2] Since respondent could have appealed, it is obvious that he is treated precisely the same as all other defendants convicted of driving while under the influence of intoxicating liquor. Therefore, respondent was not denied due process or equal protection of the law, and the writ of prohibition should not have issued.

For the foregoing reasons, the judgment of the trial court should be reversed. It is so ordered.

STAFFORD, C.J., and ROSELLINI, HUNTER, HAMILTON, WRIGHT, UTTER, BRACHTENBACH, and HOROWITZ, JJ., concur.

Petition for rehearing denied November 26, 1975.

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