No. 43173 (Amendment): Rule R708-14. Adjudicative Proceedings For Driver License Actions Involving Alcohol and Drugs

(Amendment)

DAR File No.: 43173
Filed: 08/29/2018 07:44:57 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being changed in response to the passage of S.B. 84 passed during the 2018 General Session, which reauthorized all administrative rules except Section R708-14-9. At the recommendation of the Administrative Rules Review Committee, changes have been made to Section R708-14-9, which have been inserted into this rule. In addition, some other minor changes have been made in an effort to maintain consistency throughout this rule.

Summary of the rule or change:

The definition of "Adjudicative proceeding" has been removed, and a reference to definitions found in Section 63G-4-103 is included in this rule. In addition, Section R708-14-3 has been renumbered. A new Section R708-14-9 was added at the recommendation of the Administrative Rules Review Committee. Other minor changes were made to this rule in an effort to ensure that the rule accurately reflects current procedures and complies with statutory provisions. The terms "hearing officer" and "presiding officer" have been modified in some areas of this rule in the interest of clarity.

Statutory or constitutional authorization for this rule:

• Section 53-3-104
• Subsection 63G-4-203(1)

Anticipated cost or savings to:

the state budget:

The Driver License Division (Division) does not anticipate a cost or a savings to the state budget as a result of these rule changes because the changes reflected in this rule will not result in a change in current procedures for conducting an administrative alcohol or drug proceeding.

local governments:

The Division does not anticipate a cost or savings to local governments because this rule does not have any impact on local governments. This rule only addresses the manner in which administrative alcohol and drug proceedings will be conducted by the Division.

small businesses:

The Division does not anticipate a cost or savings to small businesses because this rule does not have any impact on small businesses. This rule only addresses the manner in which administrative alcohol and drug proceedings will be conducted by the Division.

persons other than small businesses, businesses, or local governmental entities:

The Division does not anticipate a cost or savings to persons other than small businesses or local government entities because this rule does not have any impact on persons other than small businesses or local government entities. This rule only addresses the manner in which administrative alcohol and drug proceedings will be conducted by the Division. It is anticipated that the changes made in this rule will result in drivers who request and participate in an administrative alcohol or drug proceeding receiving their final notice of agency action in a more timely manner. This may result in a person who is authorized to maintain their driving privilege following the proceeding receiving their driver license back from the Division in a more timely manner. As a result, this could have a positive fiscal impact due to their ability to drive for employment purposes.

Compliance costs for affected persons:

The Division does not anticipate any compliance costs for affected persons because these rule changes only address the manner in which administrative alcohol and drug proceedings will be conducted.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Division does not anticipate a cost or savings to businesses because this rule does not have any impact on businesses. This rule only addresses the manner in which administrative alcohol and drug proceedings will be conducted by the Division.

Keith D. Squires, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Public Safety
Driver License
CALVIN L RAMPTON COMPLEX
4501 S 2700 W 3RD FL
SALT LAKE CITY, UT 84119-5595

Direct questions regarding this rule to:

• Kim Gibb at the above address, by phone at 801-556-8198, by FAX at 801-964-4482, or by Internet E-mail at [e-mail]
• Tara Zamora at the above address, by phone at 801-964-4483, by FAX at 801-964-4482, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/15/2018

This rule may become effective on:

10/22/2018

Authorized by:

Chris Caras, Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Person

$0

$0

$0

Total Fiscal Costs:

$0

$0

$0

Fiscal Benefits

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Benefits:

$0

$0

$0

Net Fiscal Benefits:

$0

$0

$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

There are no non-small businesses in the industry in question in Utah. This rule only addresses the manner in which administrative alcohol and drug proceedings will be conducted by the Driver License Division.

 

This rule change is not expected to have any fiscal impacts on non-small businesses revenues or expenditures, because this rule only addresses the manner in which administrative alcohol and drug proceedings will be conducted by the Driver License Division.

 

The head of department of Public Safety, Commissioner Keith D Squires, has reviewed and approved this fiscal analysis.

 

 

R708. Public Safety, Driver License.

R708-14. Adjudicative Proceedings For Driver License Actions Involving Alcohol and Drugs.

R708-14-1. Purpose.

The purpose of this rule is to establish procedures to be used by the Utah Driver License Division for [alcohol/drug]alcohol and drug adjudicative proceedings.

 

R708-14-2. Authority.

This rule is authorized by Section 53-3-104 and Subsection 63G-4-203(1).

 

R708-14-3. Definitions.

[(1) "Adjudicative proceeding" means any meeting, conference, session or hearing, in person or otherwise, between a person and a presiding officer or designee of the division, that is intended to resolve a dispute.](1) Terms used in this rule are defined in Section 63G-4-103.

(2) In addition;

(a) "[D]division" means the Driver License Division of the Utah Department of Public Safety[.];

[(3)](b) "[D]division record" means the entire division file, including written reports received or generated by the division. It also includes, but is not limited to, minutes, written comments, presiding officer's written statements and summaries, testimony, evidence, findings of fact, conclusions of law, recommendations, and orders[.];

[(4)](c) "[H]hearing" means an [alcohol/drug]alcohol or drug adjudicative proceeding where evidence is considered to determine an issue of fact ; [and to adjudicate a legal right or privilege.]

[(5)](d) "hearing officer"["Presiding officer"] means a division employee with authority to conduct [alcohol/drug adjudicative proceedings]a hearing[.]; and

[(6)](e) "[R]recording" means documenting, by electronic or other means, the testimony or information presented at an [alcohol/drug]alcohol or drug adjudicative proceeding.

 

R708-14-4. Designations.

(1) In compliance with Section 63G-4-202, all division [alcohol/drug]alcohol and drug adjudicative proceedings are designated as informal proceedings, unless converted to formal proceedings by a presiding officer or division supervisor.

(2) An informal proceeding may be converted to a formal proceeding only if approved by a division supervisor and only if the conversion will promote efficiency, public safety, and not unreasonably increase cost.

(3) The driver may represent [him/herself]himself or be represented by a State Licensed attorney in the adjudicative proceeding.

 

R708-14-5. Authority for Conducting Adjudicative Proceedings.

[Alcohol/drug]Alcohol and drug adjudicative proceedings will be conducted in accordance with Sections 41-6a-521, 53-3-223, 53-3-231, 53-3-418, 63G-4-203, and this rule.

 

R708-14-6. Commencement of Adjudicative Proceedings.

(1) In accordance with Subsection 63G-4-201, [alcohol/drug]alcohol and drug adjudicative proceedings may be commenced by:

(a) a notice of division action, if the proceedings are commenced by the division; or

(b) a request for division action, if the proceedings are commenced by a person other than the division.

(2) A notice of division action and request for division action shall include the information set forth in Subsections 63G-4-201(2)(a) and (3)(a) respectively. In addition, a request for division action shall include the petitioner's full name, date of birth, and the date of arrest or occurrence which prompted the request for division action.[A request for division action that is not made timely, in accordance with Subsections 53-3-223(6)(a), 53-3-231(7)(a)(ii), and 53-3-418(9)(b), will not be granted except for good cause as determined by the division.]

 

R708-14-7. [ Alcohol/Drug ] Alcohol and Drug Adjudicative Proceedings.

The [alcohol/drug]alcohol and drug adjudicative proceedings deal with the following types of hearings:

(a) driving under the influence of [alcohol/drugs]alcohol or drugs (per-se), Section 53-3-223;

(b) implied consent (refusal), Section 41-6a-520;

(c) measurable metabolite in body, Section 41-6a-517;

(d) consumption by a minor (not a drop), Section 53-3-231; and

(e) CDL (.04), Section 53-3-418.

 

R708-14-8. Hearing Procedures.

(1) [Time and place. Alcohol/drug]Alcohol and drug adjudicative proceedings will be held in the county of arrest or a county which is adjacent to the county in which the offense occurred, at a time and place designated by the division, or agreed upon by the parties.

(2) [Notice. ]Notice shall be given as provided in Subsection 53-3-216(4) unless otherwise agreed upon by the parties. Notice shall be given on a form approved by the division and is deemed to be signed by the presiding officer. The notice need only inform the parties as to the date, time, place, and basic purpose of the proceeding. The parties are deemed to have knowledge of the law.

(3) [Default. ]If the driver fails to respond timely to a division request or notice, a default may be entered in accordance with Section 63G-4-209.

(4) [Evidence. ]The parties and witnesses may testify under oath, present evidence, and comment on pertinent issues. The hearing[presiding] officer may exclude irrelevant, repetitious, immaterial, or privileged information or evidence. The [presiding]hearing officer may consider hearsay evidence and receive documentary evidence, including copies or excerpts.

(5) [Information. ]The driver shall have access to information in the division file to the extent permitted by law.

(6) [Subpoenas. ]Discovery is prohibited, but the division may issue subpoenas or other orders to compel production of necessary evidence. Subpoenas may be issued by the division at the request of the driver if the costs of the subpoenas are paid by the driver and will not delay the proceeding.

(7) [Administrative notice. ]The [presiding]hearing officer has discretion to take administrative notice of records, procedures, rules, policies, technical scientific facts within the [presiding]hearing officer's specialized knowledge or experience, or of any other facts that could be judicially noticed.

(8) [Presiding officer. ]The [presiding]hearing officer may:

(a) administer oaths;

(b) issue subpoenas;

(c) conduct prehearing conferences by telephone or in person to clarify issues, dispose of procedural questions, and expedite the hearing;

(d) [tape]audio record or take notes of the hearing at his[/her] discretion; and

(e) take appropriate measures to preserve the integrity of the hearing[; and].

[(f) conduct hearings in accordance with division policy III-A-3, III-A-4, and III-A-5.]

(9) The hearing officer shall make a recommendation to the presiding officer regarding action to be taken following the hearing.

 

R708-14-9. Findings, Conclusions, Recommendations and Orders.

(1) Statements reflecting findings of fact, conclusions of law, and recommendation may be written on forms that utilize a system of check boxes and fill in blanks.

(2) Within a reasonable period of time after the close of the hearing, the completed recommendation form will be transmitted to the presiding officer for the preparation of an order that complies with Subsection 63G-4-203(1)(i).

 

R708-14-10. Reconsideration.

In accordance with Section 63G-4-302 a driver may file a request for reconsideration of the order within 20 days after receiving it. If the division does not issue an amended order within 20 days after receiving the request for reconsideration, the request for reconsideration shall be considered denied, and the driver may seek judicial review in accordance with Section 63G-4-402.

 

KEY: adjudicative proceedings

Date of Enactment or Last Substantive Amendment: [May 26, 2015]2018

Notice of Continuation: January 8, 2017

Authorizing, and Implemented or Interpreted Law: 53-3-104; 63G-4-203(1)

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