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: 

  

    

 
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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