If an Arkansas DWI offender already paid the statutory fee for an alcohol treatment program, can the state make them pay it again for an alcohol education program?

Plain-English summary

Representative Greg Leding asked whether the Division of Behavioral Health Services (DBHS) could require a person whose driving privileges were suspended for DWI, and who had already completed and paid for an alcohol treatment program, to also pay the statutory program fee a second time for an alcohol education program in order to get a Drug and Alcohol Safety and Education Program (DASEP) certificate accepted by the Office of Driver Services (ODS).

AG Dustin McDaniel said no on both ends. Question 1 (double fee): the statute imposes the fee to offset program costs. A person who is not enrolled in a particular program has occasioned no cost for that program, so there is no basis to charge them the fee for it. Treatment and education programs are separate alternatives under A.C.A. § 5-65-115(a)(1); the statute requires the person to complete "one or the other," not both, and the fee follows the program actually attended.

Question 3 (DBHS dictating certificates to ODS): also no. The reinstatement statute (A.C.A. § 5-65-115(b)(1), (2)) makes proof of completion go to ODS, which implies ODS, not DBHS, decides whether the proof is adequate. DBHS may, however, use its licensing and contracting authority over education and treatment providers (A.C.A. § 5-65-115(a)(1)) to specify the terms on which those providers issue completion certificates.

Question 2 was conditional on a yes to question 1; with a no there, the AG said its premise was not met.

The opinion includes a footnote indicating the AG's understanding that no one was actually being required to pay the fee twice in practice, but the legal analysis assumes the scenario as posed.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did this opinion bind DBHS or ODS to a particular course of action?
AG opinions are advisory; they are persuasive authority, not binding precedent. State agencies often follow them, but DBHS and ODS were free to disagree (and to seek a court ruling if the question recurred).

What were the two program fees the opinion was talking about?
A program fee of up to $125 and a reporting fee of up to $25. The opinion lumps both as "the fee" or "the statutory fee," and analyzes them as a single unit charged when a person actually attends a covered program.

Why does the AG say the analysis turns on cost-offset purpose?
Because the statute itself says the fee is "to offset … costs." That is a stated legislative purpose. A person not enrolled in a program causes no cost in that program, so the AG read the statute to permit the fee only for the program the person actually attends.

Could DBHS still impose conditions on what counts as a valid completion certificate?
Yes. DBHS licenses and contracts with treatment and education providers under A.C.A. § 5-65-115(a)(1). The AG acknowledged DBHS could use that authority to specify the terms providers must follow when issuing certificates. What it could not do is tell ODS which certificates to accept.

Background and statutory framework

A.C.A. § 5-65-115 governs court-ordered alcohol education and alcohol treatment for persons whose driving privileges are suspended or revoked for DWI. Subsection (a)(1) requires completion of one or the other. Subsections (a)(2)(A) and (a)(2)(B)(i) authorize the program fee and the reporting fee. Subsection (b)(1) requires proof of attendance and completion before a license is reinstated; subsection (b)(2) makes application for reinstatement to ODS.

The opinion proceeds from a structural read of the statute: education and treatment are alternatives, the fee follows the program actually attended, and reinstatement decisions belong to ODS. DBHS's authority is upstream of the certificate, not downstream: it can shape what providers must do, but cannot bind ODS to a particular type of certificate.

The opinion cites earlier AG opinions on the same statutory scheme: Op. Att'y Gen. 2006-031, 2002-121, and 2000-016.

Citations

• A.C.A. § 5-65-115(a)(1) (Supp. 2013) (alternative requirement of education or treatment; DBHS licensing/contracting authority)
• A.C.A. § 5-65-115(a)(2)(A) (program fee, up to $125)
• A.C.A. § 5-65-115(a)(2)(B)(i) (reporting fee, up to $25)
• A.C.A. § 5-65-115(b)(1) (proof of attendance and completion required for reinstatement)
• A.C.A. § 5-65-115(b)(2) (application to ODS)
• Op. Att'y Gen. 2006-031, 2002-121, 2000-016 (prior opinions on same scheme)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-066

November 7, 2014

The Honorable Greg Leding
State Representative

Post Office Box 1445
Fayetteville, Arkansas 72702

Dear Representative Leding:

This is my opinion on your questions about a fee imposed on those whose driving privileges are suspended or revoked for driving while intoxicated.

The law requires "[a]ny person whose driving privileges are suspended or revoked for violating [specified DWI laws] . . . to complete an alcohol education program . . . or an alcoholism treatment program. . . ." It provides that the person may be required to pay a program fee of up to $125 and a reporting fee of up to $25.

Your questions are:

1. In your opinion does the language of A.C.A. § 5-65-115 or other applicable statute allow someone who has successfully completed an alcohol treatment program from a licensed provider and paid the fee under A.C.A. § 5-65-115 to be required by [the Division of Behavioral Health Services of the Arkansas Department of Human Services] to file his treatment certificate with an alcohol education program and pay the A.C.A. § 5-65-115 fee again in order to get a [Drug and Alcohol Safety and Education Program] certificate, which must then be provided to the Office of Driver Services [of the Arkansas Department of Finance and Administration]?

2. If the answer to Question 1 is yes, what statutes or other legal authority empower DBHS or the Office of Driver Services to adopt this policy?

3. Does DBHS have any statutory or other legal authority to dictate to the Office of Driver Services what type of certificate the Office of Driver Services will accept from an alcohol education program or an alcoholism treatment program?

RESPONSE

In my opinion, the answer to your first and third questions is "no," although with respect to your third question it should be noted that DBHS may specify the terms on which education and treatment providers issue completion certificates. The premise of your second question is not met.

Question 1 — In your opinion does the language of A.C.A. § 5-65-115 or other applicable statute allow someone who has successfully completed an alcohol treatment program from a licensed provider and paid the fee under A.C.A. § 5-65-115 to be required by [the Division of Behavioral Health Services of the Arkansas Department of Human Services] to file his treatment certificate with an alcohol education program and pay the A.C.A. § 5-65-115 fee again in order to get a [Drug and Alcohol Safety and Education Program] certificate, which must then be provided to the Office of Driver Services [of the Arkansas Department of Finance and Administration]?

In my opinion, the answer is "no." A person ordered to complete a treatment program, and who has paid the statutory fee with respect to the treatment program, may not, in my opinion, be required to pay the fee a second time with respect to an education program.

It is my understanding, contrary to this fundamental premise of your question, that no one was required to pay the statutory fee twice, once with respect to treatment and once with respect to education. Rather, it is my understanding that, before May 2014 and after September 2014, those ordered to undergo treatment did not and do not pay the statutory fee at all, and that from May to September, they paid the statutory fee, but only once.

The programs — education and treatment — are separate. The law says that a person subject to its requirements must complete one or the other. The fee is imposed "to offset . . . costs . . . ." A person not enrolled in a program will have occasioned no cost to that program. Thus there is no basis to charge such a person the statutory fee.

Question 2 — If the answer to Question 1 is yes, what statutes or other legal authority empower DBHS or the Office of Driver Services to adopt this policy?

Because I answer your first question "no," the premise of this question is not met.

Question 3 — Does DBHS have any statutory or other legal authority to dictate to the Office of Driver Services what type of certificate the Office of Driver Services will accept from an alcohol education program or an alcoholism treatment program?

In my opinion, the answer is "no," but DBHS may specify the terms on which education and treatment providers issue completion certificates.

The law requires a person desiring license reinstatement to "furnish proof of attendance at and completion of" an education or treatment program and to pay any required reinstatement fee. Application is made to the Office of Driver Services. In my opinion, the law implies that the Office of Driver Services is to determine whether the proof submitted is adequate.

It should be noted, however, that the law requires the treatment or education to be provided by a person or entity licensed by or under contract with DBHS, which obviously may use its licensing and contracting authority to specify the terms on which education and treatment providers issue completion certificates.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/JMB:cyh