Opinion No. 70-221 (1970) Ag

STATE WITNESS — MILEAGE FEE A witness for the state in a criminal action extending over a period of more than one day is entitled to be paid a mileage fee for each mile actually and necessarily traveled in going to and returning from the place of attendance. This includes a situation where a witness has to testify for more than one day and is required to make a new trip each day. 2) A witness for the state in a criminal action is entitled to be paid his mileage fee at the conclusion of each day in which his attendance is required. 3) A witness for the state in a criminal action can not receive mileage in more than one case covering the same period of time or the same travel. If such witness testifies in more than one case in the duration of one week and performs separate travel for each case he is entitled to be paid mileage for such trip. If such witness testifies in more than one case in the duration of one week but only makes one trip for the entire week, he is not entitled to be paid mileage for each case in which he testifies. The Attorney General has had under consideration your recent letter in which you inquire, in effect, as follows: 1. If a witness for the state in a criminal action has to drive from another city and county for more than one day to testify in the same case, is he entitled to be paid mileage for each trip? 2. If the answer to the first question is in the affirmative, is such witness paid mileage at the end of each day or is he paid only at the conclusion of the case? 3. If such witness testifies in more than one criminal case in the duration of one week, can he be paid mileage for each case for which he is in attendance? O.S.L. 1970, ch. 156, 1 (28 O.S. 82 [28-82] (197)), is pertinent to your inquiry and provides as follows: "All witnesses on behalf of the state who attend before the district or any other court, pursuant to an undertaking or in obedience to a subpoena, in any criminal case or proceeding, or attending a preliminary examination or any other examination pursuant to a subpoena before any magistrate, and in civil cases brought by the State of Oklahoma on relation of the District Attorney, or by the board of county commissioners on behalf of the county, shall be paid the fees and mileage provided for by law from the court fund of such county. In the event such fees and mileage are recovered from and paid by the defendant, the clerk or judge of such court shall pay the same into the court fund of such county from which said fees were paid." (Emphasis added) Title 28 O.S. 81 [28-81] (1969), authorizes the payment of witness fees and provides as follows: "Witnesses shall receive the following fees: For attending before any court, or before any judge, or commissioner, per day, Two Dollars ($2.00); for each mile actually and necessarily traveled in going to and returning from the place of attendance, five cents ($.05); provided, that no mileage shall be allowed where the distance is less than one mile. No witness shall receive per diem or mileage in more than one case covering the same period of time, or the same travel, and each witness shall be required to make oath that the fees claimed have not been claimed or received in any other case, and no juror shall receive pay as a witness while serving as such juror." O.S.L. 1970, ch 156, supra, provides that all witnesses on behalf of the state who attend before the district court or any other court shall be paid the fees and mileage provided for by law. Section 81, supra, specifies that a witness will be paid mileage for each mile actually and necessarily traveled in going to and returning from the place of attendance with the exception that no mileage will be allowed where the distance is less than one mile. Thus, each mile traveled by an individual acting in the capacity of a witness for the state, regardless of the number of days involved, would entitle such individual to a mileage fee for each mile actually and necessarily traveled in going to and returning from the place of attendance. It is, therefore, the opinion of the Attorney General that a witness for the state in a criminal action extending over a period of more than one day is entitled to be paid a mileage fee for each mile actually and necessarily traveled in going to and returning from the place of attendance. This includes a situation where a witness has to testify for more than one day and is required to make a new trip each day. Section 81, supra, does not specify when the mileage fee is due and payable to the witness. It does provide that witnesses shall receive the fee for mileage for each mile actually and necessarily traveled in going to and returning from the place of attendance. This indicates that a witness is entitled to be paid the mileage fee when he has completed his travel for a particular attendance, which would be on a day to day basis. It is, therefore, the opinion of the Attorney General that a witness for the state in a criminal action is entitled to be paid his mileage fee at the conclusion of each day in which his attendance is required. Section 81, supra, provides that no witness shall receive mileage in more than one case covering the same period of time, or the same travel. Thus, a witness can receive only one mileage fee even though he testifies in more than one case during the time in which he is in attendance at court. It is therefore the opinion of the Attorney General that a witness for the state in a criminal action can not receive mileage in more than .one case covering the same period of time or the same travel. If such witness testifies in more than one case in the duration of one week and performs separate travel for each case he is entitled to be paid mileage for each trip. If such witness testifies in more than one case in the duration of one week but only makes one trip for the entire week, he is not entitled to be paid mileage for each case in which he testifies. (Gary F. Glasgow)