Opinion
No. 31764-8-II
Filed: December 21, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 03-2-00874-6. Judgment or order under review. Date filed: 03/31/2004. Judge signing: Hon. Stephen M Warning.
Counsel for Petitioner(s), Stephen Gregory Smith, Smith Brown Sterling PS, 4318 Preston Fall City Rd, PO Box 940, Fall City, WA 98024-0940.
Counsel for Respondent(s), Mike Khoa Anh Nguyen, Prosecuting Attorney Office, 312 SW 1st Ave, Kelso, WA 98626.
Eugene Muddari, appeals a district court's speeding infraction citation arising from the State's negligent driving charge. The State concedes error. Accepting the State's concession, we reverse.
Facts
Washington State Patrol radar captured Eugene Muddari driving 102 miles per hour in a 70 mile per hour zone. The officer cited Muddari for negligent driving.
Muddari requested a hearing in the Kelso district court. Neither the State prosecutor nor the citing officer attended the hearing. Muddari, appearing with counsel, argued that the negligent driving infraction could not stand because an element of negligence was not in evidence danger to others. Agreeing, the trial court found that the facts did not support the negligent driving infraction.
The trial court also found that Muddari had been speeding and that the evidence necessarily supported that charge. It cited Muddari for speeding and fined him $247. Muddari filed a motion for reconsideration, which the court denied. He then filed a RALJ appeal with the Cowlitz County Superior Court. After the superior court denied Muddari's appeal, he filed a motion for discretionary review with this court, which we granted.
Analysis
Muddari argues that (1) the district court lacked power to charge and to cite him for speeding; (2) because speeding is not a lesser included offense of negligent driving, only the State has the power to file new charges against him; (3) because the State did not file the speeding charge, it cannot stand. The State concedes this error.
No statute or court rule grants charging powers to the court. RCW 46.63.090, for example, governs traffic infraction hearings. It provides:
(1) A hearing held for the purpose of contesting the determination that an infraction has been committed shall be without a jury.
(2) The court may consider the notice of traffic infraction and any other written report made under oath submitted by the officer who issued the notice or whose written statement was the basis for the issuance of the notice in lieu of the officer's personal appearance at the hearing.
(3) The burden of proof is upon the state to establish the commission of the infraction by a preponderance of the evidence.
(4) After consideration of the evidence and argument[,] the court shall determine whether the infraction was committed. Where it has not been established that the infraction was committed an order dismissing the notice shall be entered in the court's records.
In addition, the infraction rules for courts of limited jurisdiction (IRLJ) provide: `The court may permit a notice of infraction to be amended at any time before judgment if no additional or different infraction is charged, and if substantial rights of the defendant are not thereby prejudiced.' IRLJ 3.1(c) (emphasis added). This rule does not, however, allow the court to amend the notice of infraction on its own initiative.
RCW 46.63.090 and IRLJ 3.3 expressly provide that the burden of proof rests with the State and, if the court finds the defendant has not committed the infraction, it must dismiss the infraction. Here, when the district court found insufficient evidence of negligent driving, it properly dismissed the charge. But with the prosecutor not present to amend the charge, the district court had no power to substitute a speeding infraction, even though supported by the evidence. Instead, its dismissal of the negligent driving infraction should have ended the State's case against Muddari.
Because the State failed to provide sufficient evidence of negligent driving, we reverse and dismiss with prejudice.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., concur.