February 28, 1997 New Castle County - Civil Division Mr. Ronald J. Torgerson Executive Director Delaware Criminal Justice Information System Board of Managers 801 Silverlake Boulevard P.O. Box 370 Dover, DE 19903 Re: Access to Delaware Criminal Justice Information System Dear Mr. Torgerson: The Secretary of the Board of Managers of the Delaware Criminal Justice Information System ("DELJIS") has asked for an opinion of the Attorney General on two questions: (1) whether the Town of Elsmere ("Town") may have access to information in DELJIS to utilize a voluntary assessment system to collect mail-in fines for motor vehicle offenses; and (2) whether the Town has the authority to establish a mail-in center for payment of fines for motor vehicle offenses. The Secretary provided us with a copy of the Town's "Request for DELJIS Services" and a letter from the Town's attorney enclosing a copy of the Town Charter and Chapter 13 of the Elsmere Code. In the event we were to answer the second question no, you also asked us to determine whether the Town could impose, collect and/or retain court costs in addition to the fines levied for the violations. As to whether the Town is authorized by statute to receive criminal history information from DELJIS, we conclude that it is not. As to whether the Town has authority under State law to establish and operate a mail-in center (as opposed to a Mayor's Court) for payment of fines for certain motor vehicle offenses, we conclude that it does not. We also conclude that if the Town does not operate a court, it may not impose, collect or retain court costs of any similar administrative fee. OPINION DELJIS is a computer database supervised by a Board of Managers pursuant to Chapter 86, Title 11 of the Delaware Code. The central repository for the criminal history information in that database is the State Bureau of Identification. See 11 Del. C. Section 8503(a). State law prohibits the dissemination of criminal history information from DELJIS except as specifically authorized by statute. Section 8513 of Title 11 authorizes disclosure of such information to (1) criminal justice agencies, courts, any person (or attorney) who requests a copy of his or her own criminal history record, and the State Public Defender. The "Request for DELJIS Services" was made by the Town of Elsmere to help operate its voluntary assessment program. Although Chapter 13 of the Elsmere Code establishes a "Mayor's Court," it is our understanding that no such court actually exists. Indeed, in his letter dated July 1, 1996, the Town's attorney stated that "Elsmere is not purporting to operate a court in the sense of holding any trials or otherwise performing a judicial function."
Since the criminal history information requested is not intended for the use of the "courts of the State or of any political subdivision thereof," as required by 11 Del. C. Section 8513(a)(1), the question remains whether the Town is a criminal justice agency authorized to receive information from DELJIS. Section 8502(3) of Title 11 defines a "criminal justice agency" as:
a. Every court of this State and of every political subdivision thereof:
b. A government agency or any sub-unit thereof which performs the administration of criminal justice pursuant to statute or executive order, and which allocates a substantial part of its annual budget to the administration of criminal justice. Such agencies shall include, but not be limited to, the following:
1. The Delaware State Police; 2. All law enforcement agencies and police departments of any subdivision of this State; 3. The State Department of Justice;
4. The Office of the Solicitor of the City of Wilmington;
5. The Delaware Criminal Justice Information System, Office of the Director;
6. The Department of Correction; and
7. The Division of Youth Rehabilitative Services.
In its "Request for DELJIS Services," the Town checked "NO" in response to the question whether it is a "Criminal Justice Agency." Since, by its own admission, the Town is not a criminal justice agency -- nor any one of the other entities authorized by statute to receive criminal history information -- it may not have access to DELJIS. This office has previously decided that only those entities specifically authorized by statute can receive DELJIS criminal history information. See Att'y Gen. Op. No. 90-I008 (May 23, 1990) (Kent County Department of Inspections and Enforcement is not a criminal justice agency); Att'y. Gen. Op. No. 87-I038 (Dec. 31, 1987) (Office of Auditor of Accounts is not a criminal justice agency authorized to receive DELJIS criminal history information). We next address the issue of the Town's mail-in fine center. The authority to use a voluntary assessment system for motor vehicle offenses is set forth in Section 709 of Title 21 of the Delaware Code:Any duly constituted peace officer in the State who charges any person with any of the offenses hereinafter designated "motor vehicle offenses subject to voluntary assessment" may, in addition to issuing a summons for such offenses, provide the offending operator with a voluntary assessment form which, when properly executed by the officer and the offender, allows the offender to dispose of the charge without the necessity of personally appearing in the court to which the summons is returnable. The court to which the summons is returnable shall be determined by § 703 of this title; provided, however, that the Courts of the Justices of the Peace may establish a mail-in fine center for each county within the State, in which case the summons may be made returnable to the applicable mail-in fine center.
Section 703(d) of Title 21 of the Delaware Code provides that "in those incorporated municipalities which provide duly constituted alderman's courts or mayor's courts, the alderman and mayor shall continue to hear and adjudicate those cases in which a person is arrested without a warrant and where the alderman's court or the mayor's court is the court of original jurisdiction." Construing Sections 709 and 703(d) together, a peace officer can issue a traffic summons returnable to the alderman's or mayor's court in the municipality where the traffic offense occurred, and the traffic violator can dispose of the charge by paying a voluntary assessment to that court, without having to personally appear in court. Chapter 13 of the Elsmere Code establishes a "Mayor's Court" with jurisdiction "limited to the offenses hereinafter designated 'motor vehicle offenses subject to voluntary assessment' which are committed within the limits of the Town of Elsmere." Section 13-1.B. The designated motor vehicle offenses are violations of Title 21, Sections 2701 (driving without a license), 2756 (driving during suspension), 4103 (failure to obey police officer), 4175 (reckless driving), 4177 (driving under the influence), 4201 (failure to stop at scene of property damage accident), 4202 (failure to stop at scene of accident involving physical injury or death), and any violation of Title 21, Chapter 67. Those are the same motor vehicle offenses subject to voluntary assessment under State law. Compare 21 Del. C. Section 709(e). Section 13-3. of the Elsmere Code provides that "[a]ny duly constituted police officer of the state who charges any of the offenses hereinafter designated 'motor vehicle offenses subject to voluntary assessment' committed within the Town of Elsmere may, in addition to issuing a summons for any such offenses, provide the offending operator with a voluntary assessment form which, when properly executed by the officer and the offender, allows the offender to dispose of the charge without the necessity of personally appearing in the Mayor's Court of the Town of Elsmere." Section 13.4. further provides that: "A. Payments made pursuant to this chapter shall be remitted to the Mayor's Court of the Town of Elsmere. B. The payment must be received by the court within ten (10) days from the date of the arrest (excluding Saturday and Sunday) and shall be paid by check or money order." Again, these Town ordinances comport with the State voluntary assessment law. Compare 21 Del. C. Sections 709(a), (c). Under State law, for the Town to operate a voluntary assessment
system, summonses issued by the Town police must be returnable to the Mayor's Court. Only the "Courts of the Justices of the Peace may establish a mail-in fine center, . . . in which case the summons may be made returnable to the applicable mail-in fine center." 21 Del. C. Section 709(a) The statute does not authorize a municipality to establish a mail-in fine center for payment of fines for motor vehicle offenses which occur within the town. Nor can a town avail itself of the voluntary assessment procedure unless it has an Alderman's or Mayor's Court that is "duly established." 21 Del. C. Section 703(d). Stated differently, there must be an actual court, to which payments for motor vehicle offenses can be remitted "to dispose of the charge without the necessity of personally appearing in the court to which the summons is returnable." Id. Section 709(a). Section 706(a) of Title 21 provides that "[a]ll costs collected for the violation of any of the provisions of [Title 21 of the Delaware Code] shall be paid to the jurisdiction whose court imposed said costs." The Superior Court has held that "the word 'costs' as it appears in 21 Del. C. § 706(a) must of necessity refer only to those costs routinely incurred." State v. Cephas, Del. Super., 265 A.2d 49, 53 (1970) (Quillen, J.). The statute was intended to preserve to the municipalities the income for costs actually "incurred" by their courts. Id. In contrast, Section 706(a) requires that traffic fines (as distinct from costs) shall be payable to the municipality where the motor vehicle offense occurred. See Cephas, supra. Court costs are chargeable for the purpose of recouping the costs of administration for the court system having jurisdiction over the cause of action or offense giving rise to the charge. In this case, the Town does not operate a court and apparently uses the imposition of court costs as a general revenue source for the Town. In fact, it is our understanding that the Town recently raised the court costs for traffic offenses from fifteen dollars to twenty dollars. The imposition of any costs by the Town is inappropriate and must cease. In conclusion, the Town of Elsmere is not an entity designated by statute to receive criminal history information from DELJIS. It may only operate a voluntary assessment system through a duly established Alderman's or Mayor's Court. In the absence of such a court, it may not charge, impose or collect "court costs" or any similar fee from persons charged with motor vehicle violations within its boundaries. Very truly yours, W. Michael Tupman Deputy Attorney General Allison E. Hare Deputy Attorney General APPROVED: ______________________ Michael J. Rich State Solicitor cc: The Honorable M. Jane Brady Attorney General Keith R. Brady Chief Deputy Attorney General Michael E. McLaughlin Secretary, DELJIS Board of Managers Edward M. McNally, Esquire Elizabeth Bacon, Opinion Administrator
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