Is the city ordinance scheme, dealing with driving while intoxicated, and which deals with the same subject matter as state law, valid as a matter of state law? What action should be taken by the Office of Driver Services when it receives a record of a driver's violation of these city ordinances.

STATE OF ARKANSAS OFFICE OF THE ATTORNEY GENERAL neal 201 EAST MARKHAM STREET STEVE CLARK HERITAGE WEST BUILDING ATTORNEY GENERAL LITTLE ROCK, ARKANSAS 72201 January 22, 1987 OPINION NO. 86-086 Mr. Mahlon A. Martin, Director Department of Finance and Administration P. 0. Box 3278 Little Rock, AR 72203 Dear Mr. Martin: This is in response to your request for an opinion on the Following questions: lL, Is a city ordinance scheme as described in your letter, which deals with the same subject matter as a state statute, valid as a matter of Law? 2. What action should be taken by the OfEice of Driver's Service when it receives a record of a driver's violation of city ordinances as described? As yeu noted in your letter, Arkansas law provides that a municipal ordinance is invalid to the extent that it is in conflict with state law governing the same subject. An ordinance is in conflict with a state statute if€ it prescribes less penalties than those prescribed by state laws for similar offenses. Ark. Stat. Ann. § 19-2411 (Repl. 198). When state law provides for the imposition of both a fine and imprisonment as penalties upon conviction, a city ordinance prescribes a substantially less penalty than that Fixed by state law when it only provides for the imposition of af ine. Wright v. Burton, 279 Ark. 1, 648 S.W.2d 794 1983). It appears, therefore, that the city ordinance described by you is in direct conflict with Ark. Stat. Ann. § 75-2503, et seq. (1985 Cum. Supp.), because the ordinance provides only for the imposition of a fine and the statute provides for imposition of a Fine and imprisonment. (501} 371-2007 Mr. Mahlon Martin January 22, 1987 Page 2 As for your second question, the provisions of Ark. Stat. Ann. § 75-1057 are mandatory and if the Office of Driver's Services receives a record of such conviction, it should enter it into its files. Section 75-1057.3 provides a procedure whereby a driver may challenge an entry in his record and the validity of such entries is a matter ultimately for the courts to determine. No action should be taken by the Office of Driver's Services under Sections 75-2507 and 75-2511, unless directed by the Court. The foregoing opinion, which I approve, was prepared by Assistant Attorney General Sandra Johnson-Buchanan. Sincg#rely, (ut T CLARK Attofney General SJB/JISC/dwv