[No. 81746-4. En Banc.]
Argued September 22, 2009. Decided December 3, 2009.
Andrew L. Magee, for petitioner.
Mark E. Lindquist, Prosecuting Attorney, and Kathleen Proctor and Michelle Hyer, Deputies, for respondent.
En Banc
[1] ¶1 CHAMBERS, J. -- Andrew Magee challenges his traffic infraction for second degree negligent driving. RCW 46.63.030 controls when a law enforcement officer may issue a notice of traffic infraction, including when the offense does not occur in the officer's presence. FACTS ¶2 On April 9, 2005, the state patrol dispatched a trooper to State Route (SR) 512 after receiving reports from other drivers that a vehicle was traveling the wrong direction on the highway. When the trooper arrived, she found Magee parked facing the wrong direction on the shoulder of the SR 512 on-ramp, nose to nose with another vehicle. Magee explained that he had been called by a friend whose car had broken down and that he was there to help jump-start the car. In order to more easily facilitate the jump-start, Magee told the trooper that he had turned his car around and pulled in front of his friend's car on the shoulder. There is some dispute, and the record is unclear, as to exactly how Magee maneuvered his car and whether he backed it down the on-ramp or turned it around on the shoulder. But Magee contends he never traveled the wrong direction on the traveled portion of the road. Although the trooper never actually saw Magee driving, she concluded that Magee must have driven against traffic in order to reach his position and issued him a notice of infraction for negligent driving in the second degree. RCW 46.61.525. ¶3 Magee contested the infraction in district court. At the hearing, the trooper admitted she had not witnessed Magee's driving. The district court judge nevertheless found that Magee committed negligent driving in the second degree. The trial judge observed that unless Magee's vehicle was airlifted into position, he must have committed the offense. The judgment was affirmed by the superior court on RALJ appeal. The Court of Appeals also affirmed. ANALYSIS ¶4 Magee argues that the trooper did not have authority under RCW 46.63.030 to issue the notice of infraction because the alleged offense did not occur in the trooper's presence. (a) When the infraction is committed in the officer's presence; (b) When the officer is acting upon the request of a law enforcement officer in whose presence the traffic infraction was committed; (c) If an officer investigating at the scene of a motor vehicle accident has reasonable cause to believe that the driver of a motor vehicle involved in the accident committed a traffic infraction; (d) When the infraction is detected through the use of a photo enforcement system under RCW 46.63.160; or (e) When the infraction is detected through the use of an automated traffic safety camera under RCW 46.63.170. RCW 46.63.030. [2, 3] ¶5 RCW 46.63.030 plainly requires us to conclude that an officer must either be present when the infraction occurs or meet one of the other statutory circumstances before issuing a ticket. There is no contention subsections (b) through (e) apply in this case. Instead, the State argues that the trooper actually witnessed the citable offense because the negligent behavior was "ongoing." CONCLUSION ¶6 We reverse the Court of Appeals and vacate the district court judgment. ALEXANDER, C.J., and C. JOHNSON, SANDERS, OWENS, FAIRHURST, J.M. JOHNSON, and STEPHENS, JJ, concur. ¶7 MADSEN, J. (concurring) -- I agree with the majority that the authority of a law enforcement officer to initiate an infraction case under IRLJ 2.2(b)(1) is limited by RCW 46.63.030, thus compelling the result in this case. I write separately to point out that an infraction may also be initiated by the prosecuting authority, which is not subject to the limitations of RCW 46.63.030.