No. 39236 (Amendment): Rule R708-14. Adjudicative Proceedings For Driver License Actions Involving Alcohol and Drugs

(Amendment)

DAR File No.: 39236
Filed: 03/23/2015 01:37:11 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This change was recommended by the Utah State Bar and Attorney General's Office to maintain the integrity of the process.

Summary of the rule or change:

The change being made is to add wording stating the the driver may represent him/herself or be represented by a state-licensed attorney at a hearing.

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

This change will neither cost, or save, any money because the proposed change does not affect the state budget; the change simply provides an option for representation to the driver.

local governments:

This change will neither cost, or save, any money because the proposed change does not affect local government; the change simply provides an option for representation to the driver.

small businesses:

This change will neither cost, or save, any money because the proposed change does not affect small businesses; the change simply provides an option for representation to the driver.

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

If the individual chooses to retain counsel for a hearing, there may be a cost incurred to the person.

Compliance costs for affected persons:

If the individual chooses to retain counsel for a hearing, there may be a cost incurred to the person.

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

There will be no fiscal impact on businesses with this administrative rule amendment.

Keith Squires, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division 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:

• Marge Dalton at the above address, by phone at 801-965-4456, by FAX at 801-957-8502, 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:

05/15/2015

This rule may become effective on:

05/26/2015

Authorized by:

Nannette Rolfe, Director

RULE TEXT

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 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.

(2) "Division" means the Driver License Division of the Utah Department of Public Safety.

(3) "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) "Hearing" means an alcohol/drug adjudicative proceeding where evidence is considered to determine an issue of fact and to adjudicate a legal right or privilege.

(5) "Presiding officer" means a division employee with authority to conduct alcohol/drug adjudicative proceedings.

(6) "Recording" means documenting, by electronic or other means, the testimony or information presented at an alcohol/drug adjudicative proceeding.

 

R708-14-4. Designations.

(1) In compliance with Section 63G-4-202, all division alcohol/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 or be represented by a State Licensed attorney in the adjudicative proceeding.

 

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

Alcohol/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 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 Adjudicative Proceedings.

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

(a) driving under the influence of alcohol/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 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 presiding officer may exclude irrelevant, repetitious, immaterial, or privileged information or evidence. The presiding 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 officer has discretion to take administrative notice of records, procedures, rules, policies, technical scientific facts within the presiding officer's specialized knowledge or experience, or of any other facts that could be judicially noticed.

(8) Presiding officer. The presiding 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 record or take notes of the hearing at his/her discretion;

(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.

 

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

(1) Within a reasonable period of time after the close of the hearing, the presiding officer will issue a written decision that may include findings of fact, conclusions of law, and a recommendation.

(2) 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. The completed form will be transmitted to the presiding officer's supervisor as soon as possible for the preparation of an order that complies with Subsection 63G-4-203(1)(i).

(3) As provided in Subsection 53-3-216(4), the order will be mailed to the last known address of the driver.

(4) The order shall advise the driver of his/her right to seek a copy of written findings, conclusions, and recommendation of the presiding officer, and these will be made available to the driver only upon written request.

 

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: [July 6, 2009]2015

Notice of Continuation: January 9, 2012

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

 

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