En Banc. Guy, J. Callow, C.j., and Utter, Brachtenbach, Dolliver, Dore, Andersen, Durham, and Smith, JJ., concur.
Respondent was charged with aiding and abetting the crime of driving while under the influence of alcohol pursuant to RCW 46.64.048. She moved to dismiss, alleging that RCW 46.61.675 defines the same offense as the statute under which she was charged, but provides for a less harsh penalty. Thus, because the prosecutor allegedly has
the unbridled discretion to choose between the two, and had chosen the one with the harsher penalty, respondent contends her right to equal protection was violated. Both the District and Superior Courts agreed and dismissed the charge. This court accepted direct review and reverses.
On July 14, 1988, Kennewick police stopped respondent Fountain's car. She was a passenger in the car and had directed the driver, who was a friend she met at a bar, to take her car and drive her home. Both she and the driver were intoxicated. The driver was charged with driving while under the influence of alcohol. Subsequently, Fountain was charged with aiding and abetting the crime of driving while under the influence of alcohol pursuant to RCW 46.64.048.
On August 12, 1988, the Benton County District Court dismissed the charge as a violation of Fountain's right to equal protection. The Superior Court affirmed and remanded her case back for trial as a traffic infraction. It reasoned that former RCW 46.64.048*fn1 and RCW 46.61.675*fn2 appear to substantially define the same offense but provide different punishment for the same conduct of an individual. A violation of the former establishes accomplice liability as a crime, while a violation of the latter establishes accomplice liability as a traffic infraction (civil). Because the prosecutor could proceed under either, Fountain maintains her right to equal protection was violated.
Both statutes at issue appear to have been originally enacted to deal with different circumstances. RCW 46.61.675 was primarily intended to establish owner accomplice liability for the unlawful operation of a motor vehicle. Former RCW 46.64.048 was enacted to establish individual and joint liability for assisting in the commission of crimes in general. Under certain circumstances, such as those arising in Fountain's case, an individual conceivably could be charged under either statute. Prior to July 1, 1980, this would have resulted in the same punishment and, therefore, no unequal application of the law. Thus, there could be no equal protection violation.
However, in an effort to decriminalize certain traffic offenses, the Legislature enacted RCW 46.63.010 and RCW 46.63.020, both effective as of July 1, 1980. See Laws of 1979, 1st Ex. Sess., ch. 136, § 111, p. 1478. The former establishes the Legislature's intent to decriminalize certain traffic offenses. The latter provides a list of all those statutory offenses excepted from decriminalization. Former RCW 46.64.048 is contained in this list; RCW 46.61.675 is not.
This provides the basis for Fountain's challenge. She argues that former RCW 46.64.048 and RCW 46.61.675 define the same offense except that the former provides for a harsher penalty. She maintains the prosecutor had the unfettered discretion to charge her under either statute, with no rational basis for doing so, and chose the one with the harsher penalty. This, she argues, violates her right to equal protection.
We disagree. Fountain relies upon State v. Zornes, 78 Wash. 2d 9, 475 P.2d 109 (1970) to support her position. Zornes holds that under the Fourteenth Amendment and Const. art. 1, § 12, acts defining the same offense for the same conduct but prescribing different ...