In State v. Johnson, a 5-4 majority of the State Supreme Court upheld Lewis County resident Stephen Johnson’s third-degree driving while license suspended (DWLS) charge for failing to pay a $260 traffic ticket because he arguably had the financial means to do so.


After Johnson’s driver’s license expired in 2001 he did not renew it.  In 2007, police stopped Johnson and cited him for driving without a valid license.  Following his appearance at a hearing to contest the infraction, the district court imposed a $260 fine, which Johnson did not pay, and his license was suspended as a result.  Lewis County deputies stopped Johnson again in 2008, this time arresting Johnson for third-degree DWLS.  At trial on the DWLS charge, the Lewis County District Court found Johnson guilty and imposed a fine and suspended jail sentence.

In a hearing to determine whether he could afford counsel, Johnson testified that he had no income, had not worked in 30 years, and received food stamps and energy assistance from the State.  He further testified, however, to owning a $300,000 home free of liens and obtaining a $3 million judgment in a tort suit (though Johnson stated that the defendant appeared judgment proof).  The district court determined that Johnson was not “indigent” for purposes of obtaining court-appointed counsel.

Johnson appealed his DWLS  conviction to Lewis County Superior Court.  The Superior Court affirmed Johnson’s convictions.  After the Court of Appeals rejected his petition for discretionary review, the Washington Supreme Court granted review.

At the Supreme Court, Johnson argued that:

(1) his DWLS conviction was invalid because failing to pay a fine is not one of the bases on which the State may support a DWLS charge;

(2) the underlying license suspension was invalid under the Fourteenth Amendment; and

(3) the district court improperly determined that Johnson was not entitled to appointed counsel.

Majority Opinion

Justice Fairhurst authored the opinion of the five-member majority.  The court held that:

(1) in failing to pay the initial $260 fine imposed after the district court rejected Johnson’s challenge to the infraction, Johnson failed to comply with the terms of notice of infraction.  The majority held that failing to comply with the notice of infraction is conduct that Washington’s former DWLS statute (RCW 46.20.342(1)(c)(iv)) expressly and unambiguously states gives rise to a DWLS conviction;

(2) Johnson was not “constitutionally indigent” because he had substantial assets in comparison to the $260 fine he faced, such as his $300,000 home.  Thus, he lacked standing to challenge the underlying license suspension on Fourteenth Amendment grounds; and

(3) contrary to the district court’s determination, Johnson was “statutorily indigent” under RCW 10.101.010(3) because he received food stamps and earned less than 125 percent of the federal poverty level—either situation sufficient to require the district court to find him indigent.  The majority remanded this last question to the district court to determine whether Johnson is “indigent” or “indigent but able to contribute.”


Justice Wiggins wrote a dissent, signed by three others, that agreed with the majority that (1) Johnson is “statutorily indigent;” (2) Johnson is not “constitutionally indigent;” and (3) the case should be remanded to decide whether Johnson can contribute to his legal costs.  The dissent disagreed with the majority in its determination that Johnson violated the law by failing “to comply with the terms of a notice of traffic infraction or citation.”

The dissent reasoned that there is no term on the infraction notice itself that required Johnson to pay the fine imposed by the judge.  According to the dissent, the only term on the notice that refers to fine payment is the option to simply pay the citation fine and avoid any court appearances.  Instead, Johnson chose the option of appearing and contesting the infraction.  Accordingly, the infraction payment option did not apply.


Starting with the dissent, it seems implausible that our legislature would have intended to create a circumstance in which a defendant who opted to pay the infraction up front but then failed to pay it would receive a license suspension, while a defendant who unsuccessfully contested an infraction and then failed to pay it would not face a license suspension.  As the majority notes, this theory encourages defendants to contest infractions and expend judicial resources with contest hearings, and at the same time precludes the defendants from facing a license suspension.

But the additional controversy in this case was centered on the notion that Johnson was penalized for “driving while poor.”  The facts revealed that while Johnson may have been “poor enough” for a court-appointed attorney, he was not so poor that he may avoid the levied $260 fine.  It is unfortunate that Johnson, with his $300,000 home and comparatively microscopic fine, would be the test case to illuminate the different shades of poverty that exist in our communities.

There are indeed situations where a person relies on his or her vehicle to travel to a job to put food on the family table, and a traffic ticket becomes an unexpected expense that would cripple the family if paid, yet deprive the family of a source of income if left unpaid.  It is this Catch-22 that should have been resolved with Johnson, yet will remain unaddressed until a defendant is deemed “poor enough” to result in a different legal outcome.  The scary question is whether such a defendant will have the resources to make this challenge in the first place.