Olinyk v. People, s. 81SC64

• Decision Date: 08 February 1982
• Docket Number: 81SC170 and 81SC224,Nos. 81SC64,s. 81SC64
• Citation: 642 P.2d 490
• Parties: Gregory John OLINYK, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. Harvey John KOSIK, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. Levi MARTINEZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 490

642 P.2d 490

Gregory John OLINYK, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Harvey John KOSIK, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Levi MARTINEZ, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

Nos. 81SC64, 81SC170 and 81SC224.

Supreme Court of Colorado, En Banc.

Feb. 8, 1982.

Tague & Beem, P. C., P. Arthur Tague, Anne Vitek, Denver, for petitioner, in No. 81SC64.

Malman & Malman, Jerome S. Malman, Ruth C. Malman, Denver, for petitioner, in No. 81SC170.

Hernandez, Schiferl & Martinez Hernandez, Michael A. Schiferl, Robert L. Hernandez, Pueblo, for petitioner in No. 81SC224.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for respondent.

DUBOFSKY, Justice.

We granted certiorari to review the decisions of the district courts of Moffat, Adams and Pueblo counties upholding the 55 mile-per-hour speed limit contained in section 42-4-1001(7)(b), C.R.S.1973 (1981 Supp.). The defendant in each case challenged his conviction on the basis that the 55 mile-per-hour speed limit is unenforceable because no penalty for violating the speed limit is provided in the statute. The three cases have been consolidated in this Court, and we affirm the district court judgment in each case.

The defendants, Gregory John Olinyk, Harvey John Kosik, and Levi Martinez, were each charged by complaint and summons with exceeding a posted 55 mile-per-hour speed limit. Defendant Olinyk allegedly was travelling 68 miles per hour, Kosik, 85 miles per hour, and Martinez, 70 miles per hour. In each case, the county court dismissed the complaint based on the defendant's argument that section 42-4-1001(7)(b) is unenforceable, and the district court reversed and reinstated the complaint. Because we determine that the penalty for violation of the maximum lawful speed is ascertainable, we affirm the rulings of the district courts that the defendants could be prosecuted for driving in excess of 55 miles per hour.

Prior to January 24, 1974, Colorado had no maximum lawful speed limit. Section 42-4-1001, C.R.S.1973 prohibited any person from driving "at a speed greater than is reasonable and prudent under the conditions then existing." Section 42-4-1001(2) provided: "Where no special hazard exists, the following speeds shall be lawful, but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful." Sections 42-4-1001(2)(a) through (e) then listed the prima facie speed limits, the highest of which was 70 miles per hour. In November 1973, Congress enacted the Emergency Highway Energy Conservation Act, P.L. 93-239, 87 Stat. 1046 which limited the disbursement of federal highway funds to those states which enforce a maximum speed limit of 55 miles per hour. ¹ Consequently, the Colorado General Assembly amended the traffic laws to include the maximum speed limit. See Colo.Sess.Laws 1974, ch. 36, 13-5-33 at 217; People v. Driver, 189 Colo. 276, 539 P.2d 1248 (1975). The current statutory provision establishing the limit is section 42-4-1001(7)(b), C.R.S.1973 (1981 Supp.) which provides:

"Notwithstanding any other provisions of this section, no person shall drive a vehicle on a highway ... in excess of a maximum lawful speed of fifty-five miles per hour. Prima facie speed limits in excess of fifty-five miles per hour which were in existence prior to January 24, 1974, are hereby lowered to a maximum speed limit of fifty-five miles per hour. No speed limit shall be authorized above fifty-five miles per hour and all fifty-five-mile speed limits shall be considered maximum lawful speed limits and not prima facie speed limits."

The penalties for all traffic violations are contained in section 42-4-1501, C.R.S.1973 (1981 Supp.). Section 42-4-1501(3)(a)(I) provides a schedule of fines for misdemeanor traffic offenses, including a fine of $25.00 for violation of the 55 mile-per-hour speed limit in section 42-4-1001, when the arresting officer issues a traffic offender a penalty assessment notice. ² The arresting officer need not issue a penalty assessment notice to a traffic violator, but instead may issue a complaint and summons. Under section 42-4-1501(4)(c)(I), a complaint and summons must be issued when it appears that the violator exceeded the posted speed limit by more than 19 miles per hour; the violation caused or contributed to the cause of an accident resulting in property damage, injury, or death; or the driver committed two or more violations "in the course of the same transaction."

Section 1501(4)(c)(II) specifically states that in those cases where paragraph (c)(I) prohibits issuance of a penalty assessment notice, the schedule of fines contained in subsection (3), which mandates a $25.00 fine for violation of section 42-4-1001, is inapplicable. Instead, the provisions of section 42-4-1501(2) apply. Section 42-4-1501(2)(a) provides:

"Except as provided in subsections (3) and (4) of this section, misdemeanor traffic offenses are divided into four classes which are distinguished from one another by the following penalties which are authorized upon conviction:

Minimum Maximum

Class Sentence Sentence

1 Ten days One year

imprisonment, imprisonment,

or $100 or $1000

fine, or fine, or

both. both.

2 Ten days Ninety days

imprisonment, imprisonment,

or or

$10 fine, $300 fine,

or both. or both.

3 $5 fine $100 fine.

4 $5 fine. $100 fine."

To determine what class of misdemeanor a speeding violation would be, reference must be made to section 42-4-1001(7)(i), which classifies speeding offenses by the number of miles per hour by which the violator exceeds a prima facie speed limit. It provides:

"An offense of speeding one to nine miles per hour over the prima facie speed applicable is a class 3 traffic offense; an offense of speeding ten to nineteen miles per hour over the prima facie speed applicable is a class 3 traffic offense; an offense of speeding twenty miles per hour over the prima facie speed applicable is a class 2 traffic offense; and an offense under subsection (3) of this section is a class 3 traffic offense."

The defendants argue that since the classifications of section 42-4-1001(7)(i) apply by their terms to speeds exceeding "prima facie speed" limits, and since section 42-4-1001(7)(b) specifically states: "All fifty-five-mile speed limits shall be considered maximum lawful speed limits and not prima facie limits" (emphasis added), the classifications of subsection (7)(i) do not apply to violations of the 55 mile-per-hour speed limits. In other words, when a police officer issues a complaint and summons to a speeding offender, the fine schedule of section 42-4-1501(3)(a)(I) is inapplicable and the penalties provided in section 42-4-1501(2)(a) for various classes of offense govern. But, argue the defendants, since section 42-4-1001(7)(i) does not classify violations of section 42-4-1001(7)(b) because the 55 mile-per-hour speed limit is a maximum lawful limit and not a prima facie limit, it is not clear which, if any, of the penalties in section 42-4-1501(2)(a) is applicable. The defendants contend that the General Assembly's failure to provide a clear penalty for violation of the 55 mile-per-hour speed limit renders it unenforceable. We do not agree.

I.

A criminal statute must include a penalty for committing the acts proscribed, and a criminal prohibition without a penalty is unenforceable. Airy v. People, 21 Colo. 144, 40 P. 362 (1895); State v. Ching, Hawaii, 619 P.2d 93 (1980); People v. Graf, 93 Ill.App.2d 43, 235 N.E.2d 886 (1968); State v. Fairlawn Service Center, 20 N.J. 468, 120 A.2d 233 (1956). W. LaFave & A. Scott, Handbook on Criminal Law § 2, at 8 (1972). The requirement of a statutory penalty is based in part on the necessity of knowing that the legislature indeed intended to impose criminal sanctions for commission of an act. See State v. Fairlawn Service Center, supra. See also People v. Boyd and Winkeller, Colo., 642 P.2d 1 (1982) (S.Ct. No. 80SA267, announced February 8, 1982). It is also based on the separation of powers doctrine: for the judiciary to imply a penalty where the legislature did not expressly include one amounts to legislation by the courts. United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948).

The General Assembly clearly intended to enact an enforceable 55 mile-per-hour maximum speed limit because maintenance of federal highway funding was contingent upon enactment of such a statute. Section 42-4-1001, C.R.S.1973 (1981 Supp.) expressly provides:

"(7)(a) It is declared to be the purpose of the General Assembly that the state of Colorado place itself in a position to receive its full share of funds to be apportioned by the Congress of the United States for expenditures on federal-aid highways in this state and to secure to all persons in this state the demonstrated benefits of the increased traffic safety and fuel conservation which may be inherent in any national uniform maximum speed limit."

In People v. Driver, 189 Colo. 276, 539 P.2d 1248 (1975), we recognized that a major legislative purpose in enacting the 55 mile-per-hour maximum speed limit was to prevent the forfeiture of federal highway funds which would have occurred in the absence of such a legislative enactment.

The conclusion that the General Assembly intended to enforce the 55 mile-per-hour speed limit through penal sanctions is reinforced by the background to the present penalty scheme. The 1974 legislation which enacted the 55 mile-per-hour speed limit provided:

"(7)(i) Every person convicted of driving a vehicle in excess of the maximum speed limit specified in this subsection (7) is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 13-5-130."

Colo.Sess.Laws 1974, ch. 36, 13-5-33 at 217, 218. C.R.S.1963, 13-5-130(3)(...