H.B. 236

1

DRIVER LICENSE HEARING PROCESS
2 1999 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Nora B. Stephens
5 AN ACT RELATING TO MOTOR VEHICLES; AMENDING CERTAIN DRIVER LICENSE
6 SUSPENSION PROVISIONS; AMENDING CERTAIN HEARING PROVISIONS; AND
7 MAKING TECHNICAL CHANGES.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 41-6-44, as last amended by Chapters 13, 94 and 168, Laws of Utah 1998
11 41-6-44.6, as last amended by Chapter 68, Laws of Utah 1997
12 41-6-44.10, as last amended by Chapter 213, Laws of Utah 1998
13 53-3-223, as last amended by Chapter 180, Laws of Utah 1994
14 53-3-224, as renumbered and amended by Chapter 234, Laws of Utah 1993
15 53-3-231, as last amended by Chapter 98, Laws of Utah 1998
16 53-3-418, as last amended by Chapter 7, Laws of Utah 1994
17 Be it enacted by the Legislature of the state of Utah:
18 Section 1. Section 41-6-44 is amended to read:
19 41-6-44. Driving under the influence of alcohol, drugs, or with specified or unsafe
20 blood alcohol concentration -- Measurement of blood or breath alcohol -- Criminal
21 punishment -- Arrest without warrant -- Penalties -- Suspension or revocation of license.
22 (1) As used in this section:
23 (a) "prior conviction" means any conviction for a violation of:
24 (i) this section;
25 (ii) alcohol-related reckless driving under Subsections (9) and (10);
26 (iii) local ordinances similar to this section or alcohol-related reckless driving adopted in
27 compliance with Section 41-6-43 ;

28 (iv) automobile homicide under Section 76-5-207 ; or
29 (v) statutes or ordinances in effect in any other state, the United States, or any district,
30 possession, or territory of the United States which would constitute a violation of this section or
31 alcohol-related reckless driving if committed in this state, including punishments administered
32 under 10 U.S.C. Sec. 815;
33 (b) "serious bodily injury" means bodily injury that creates or causes serious permanent
34 disfigurement, protracted loss or impairment of the function of any bodily member or organ, or
35 creates a substantial risk of death;
36 (c) a violation of this section includes a violation under a local ordinance similar to this
37 section adopted in compliance with Section 41-6-43 ; and
38 (d) the standard of negligence is that of simple negligence, the failure to exercise that
39 degree of care that an ordinarily reasonable and prudent person exercises under like or similar
40 circumstances.
41 (2) (a) A person may not operate or be in actual physical control of a vehicle within this
42 state if the person:
43 (i) has a blood or breath alcohol concentration of .08 grams or greater as shown by a
44 chemical test given within two hours after the alleged operation or physical control; or
45 (ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and
46 any drug to a degree that renders the person incapable of safely operating a vehicle.
47 (b) The fact that a person charged with violating this section is or has been legally entitled
48 to use alcohol or a drug is not a defense against any charge of violating this section.
49 (c) Alcohol concentration in the blood shall be based upon grams of alcohol per 100
50 milliliters of blood, and alcohol concentration in the breath shall be based upon grams of alcohol
51 per 210 liters of breath.
52 (3) (a) A person convicted the first or second time of a violation of Subsection (2) is guilty
53 of a:
54 (i) class B misdemeanor; or
55 (ii) class A misdemeanor if the person:
56 (A) has also inflicted bodily injury upon another as a proximate result of having operated
57 the vehicle in a negligent manner; or
58 (B) had a passenger under 16 years of age in the vehicle at the time of the offense.

59 (b) A person convicted of a violation of Subsection (2) is guilty of a third degree felony
60 if the person has also inflicted serious bodily injury upon another as a proximate result of having
61 operated the vehicle in a negligent manner.
62 (4) (a) As part of any sentence imposed the court shall, upon a first conviction, impose a
63 mandatory jail sentence of not less than 48 consecutive hours.
64 (b) The court may, as an alternative to all or part of a jail sentence, require the person to
65 work in a compensatory-service work program for not less than 24 hours.
66 (c) In addition to the jail sentence or compensatory-service work program, the court shall:
67 (i) order the person to participate in an assessment and educational series at a licensed
68 alcohol or drug dependency rehabilitation facility, as appropriate; and
69 (ii) impose a fine of not less than $700.
70 (d) For a violation committed after July 1, 1993, the court may order the person to obtain
71 treatment at an alcohol or drug dependency rehabilitation facility if the licensed alcohol or drug
72 dependency rehabilitation facility determines that the person has a problem condition involving
73 alcohol or drugs.
74 (5) (a) If a person is convicted under Subsection (2) within six years of a prior conviction
75 under this section, the court shall as part of any sentence impose a mandatory jail sentence of not
76 less than 240 consecutive hours.
77 (b) The court may, as an alternative to all or part of a jail sentence, require the person to
78 work in a compensatory-service work program for not less than 80 hours.
79 (c) In addition to the jail sentence or compensatory-service work program, the court shall:
80 (i) order the person to participate in an assessment and educational series at a licensed
81 alcohol or drug dependency rehabilitation facility, as appropriate; and
82 (ii) impose a fine of not less than $800.
83 (d) The court may order the person to obtain treatment at an alcohol or drug dependency
84 rehabilitation facility.
85 (6) (a) A third or subsequent conviction for a violation committed within six years of two
86 or more prior convictions under this section is a[: (i) class A misdemeanor except as provided in
87 Subsection (6)(a)(ii); and (ii)] third degree felony [if at least:].
88 [(A) three prior convictions are for violations committed after April 23, 1990; or]
89 [(B) two prior convictions are for violations committed after July 1, 1996.]

90 [(b) (i) Under Subsection (6)(a)(i) the court shall as part of any sentence impose a fine of
91 not less than $2,000 and impose a mandatory jail sentence of not less than 720 hours.]
92 [(ii) The court may, as an alternative to all or part of a jail sentence, require the person to
93 work in a compensatory-service work program for not less than 240 hours, but only if the court
94 enters in writing on the record the reason it finds the defendant should not serve the jail sentence.
95 Enrollment in and completion of an alcohol or drug dependency rehabilitation program approved
96 by the court may be a sentencing alternative to incarceration or compensatory service if the
97 program provides intensive care or inpatient treatment and long-term closely supervised
98 follow-through after the treatment.]
99 [(iii) In addition to the jail sentence or compensatory-service work program, the court shall
100 order the person to obtain treatment at an alcohol or drug dependency rehabilitation facility.]
101 [(c)] (b) Under Subsection (3)(b) or (6)(a)[(ii)], if the court suspends the execution of a
102 prison sentence and places the defendant on probation the court shall impose:
103 (i) a fine of not less than $1,500;
104 (ii) a mandatory jail sentence of not less than 1,000 hours; and
105 (iii) an order requiring the person to obtain treatment at an alcohol or drug dependency
106 rehabilitation program providing intensive care or inpatient treatment and long-term closely
107 supervised follow-through after treatment.
108 (7) (a) The mandatory portion of any sentence required under this section may not be
109 suspended and the convicted person is not eligible for parole or probation until any sentence
110 imposed under this section has been served. Probation or parole resulting from a conviction for
111 a violation under this section may not be terminated.
112 (b) The department may not reinstate any license suspended or revoked as a result of the
113 conviction under this section, until the convicted person has furnished evidence satisfactory to the
114 department that:
115 (i) all required alcohol or drug dependency assessment, education, treatment, and
116 rehabilitation ordered for a violation committed after July 1, 1993, have been completed;
117 (ii) all fines and fees including fees for restitution and rehabilitation costs assessed against
118 the person have been paid, if the conviction is a second or subsequent conviction for a violation
119 committed within six years of a prior violation; and
120 (iii) the person does not use drugs in any abusive or illegal manner as certified by a

121 licensed alcohol or drug dependency rehabilitation facility, if the conviction is for a third or
122 subsequent conviction for a violation committed within six years of two prior violations committed
123 after July 1, 1993.
124 (8) (a) (i) The provisions in Subsections (4), (5), and (6) that require a sentencing court to
125 order a convicted person to: participate in an assessment and educational series at a licensed
126 alcohol or drug dependency rehabilitation facility; obtain, in the discretion of the court, treatment
127 at an alcohol or drug dependency rehabilitation facility; obtain, mandatorily, treatment at an
128 alcohol or drug dependency rehabilitation facility; or do a combination of those things, apply to
129 a conviction for a violation of Section 41-6-44.6 or 41-6-45 under Subsection (9).
130 (ii) The court shall render the same order regarding education or treatment at an alcohol
131 or drug dependency rehabilitation facility, or both, in connection with a first, second, or subsequent
132 conviction under Section 41-6-44.6 or 41-6-45 under Subsection (9), as the court would render in
133 connection with applying respectively, the first, second, or subsequent conviction requirements of
134 Subsections (4), (5), and (6).
135 (b) Any alcohol or drug dependency rehabilitation program and any community-based or
136 other education program provided for in this section shall be approved by the Department of
137 Human Services.
138 (9) (a) (i) When the prosecution agrees to a plea of guilty or no contest to a charge of a
139 violation of Section 41-6-45 , of an ordinance enacted under Section 41-6-43 , or of Section
140 41-6-44.6 in satisfaction of, or as a substitute for, an original charge of a violation of this section,
141 the prosecution shall state for the record a factual basis for the plea, including whether or not there
142 had been consumption of alcohol, drugs, or a combination of both, by the defendant in connection
143 with the violation.
144 (ii) The statement is an offer of proof of the facts that shows whether there was
145 consumption of alcohol, drugs, or a combination of both, by the defendant, in connection with the
146 violation.
147 (b) The court shall advise the defendant before accepting the plea offered under this
148 subsection of the consequences of a violation of Section 41-6-44.6 or of Section 41-6-45 .
149 (c) The court shall notify the department of each conviction of Section 41-6-44.6 or
150 41-6-45 entered under this Subsection (9).
151 (10) A peace officer may, without a warrant, arrest a person for a violation of this section

152 when the officer has probable cause to believe the violation has occurred, although not in his
153 presence, and if the officer has probable cause to believe that the violation was committed by the
154 person.
155 (11) (a) The Department of Public Safety shall:
156 (i) suspend for 90 days the operator's license of a person convicted for the first time under
157 Subsection (2);
158 (ii) revoke for one year the license of a person convicted of any subsequent offense under
159 Subsection (2) if the violation is committed within a period of six years from the date of the prior
160 violation; and
161 (iii) suspend or revoke the license of a person as ordered by the court under Subsection
162 (12).
163 (b) The department shall subtract from any suspension or revocation period the number
164 of days for which a license was previously suspended under Section 53-3-223 or 53-3-231 , if the
165 previous suspension was based on the same occurrence upon which the record of conviction is
166 based.
167 (12) (a) In addition to any other penalties provided in this section, a court may order the
168 operator's license of a person who is convicted of a violation of Subsection (2) to be suspended
169 or revoked for an additional period of 90 days, 180 days, or one year to remove from the highways
170 those persons who have shown they are safety hazards.
171 (b) If the court suspends or revokes the person's license under this subsection, the court
172 shall prepare and send to the Driver License Division of the Department of Public Safety an order
173 to suspend or revoke that person's driving privileges for a specified period of time.
174 Section 2. Section 41-6-44.6 is amended to read:
175 41-6-44.6. Definitions -- Driving with any measurable controlled substance in the
176 body -- Penalties -- Arrest without warrant.
177 (1) As used in this section:
178 (a) "Controlled substance" means any substance scheduled under Section 58-37-4 .
179 (b) "Practitioner" has the same meaning as provided in Section 58-37-2 .
180 (c) "Prescribe" has the same meaning as provided in Section 58-37-2 .
181 (d) "Prescription" has the same meaning as provided in Section 58-37-2 .
182 (2) In cases not amounting to a violation of Section 41-6-44 , a person may not operate or

183 be in actual physical control of a motor vehicle within this state if the person has any measurable
184 controlled substance or metabolite of a controlled substance in the person's body.
185 (3) It is an affirmative defense to prosecution under this section that the controlled
186 substance was involuntarily ingested by the accused or prescribed by a practitioner for use by the
187 accused.
188 (4) A person convicted of a violation of Subsection (2) is guilty of a class B misdemeanor.
189 (5) A peace officer may, without a warrant, arrest a person for a violation of this section
190 when the officer has probable cause to believe the violation has occurred, although not in the
191 officer's presence, and if the officer has probable cause to believe that the violation was committed
192 by the person.
193 (6) The Driver License Division shall:
194 (a) suspend, for 90 days, the driver license of a person convicted under Subsection (2);
195 [and]
196 (b) revoke, for one year, the driver license of a person convicted of a second or subsequent
197 offense under Subsection (2) if the violation is committed within a period of six years after the date
198 of the prior violation[.]; and
199 (c) subtract from any suspension or revocation period the number of days for which a
200 license was previously suspended under Section 53-3-223 or 53-3-231 , if the previous suspension
201 was based on the same occurrence upon which the record of conviction is based.
202 (7) The Driver License Division may not reinstate any license suspended or revoked as a
203 result of a conviction under this section, until the convicted person has complied with the
204 requirements of Subsection 41-6-44 (7)(b).
205 Section 3. Section 41-6-44.10 is amended to read:
206 41-6-44.10. Implied consent to chemical tests for alcohol or drug -- Number of tests
207 -- Refusal -- Warning, report -- Hearing, revocation of license -- Appeal -- Person incapable
208 of refusal -- Results of test available -- Who may give test -- Evidence.
209 (1) (a) A person operating a motor vehicle in this state is considered to have given his
210 consent to a chemical test or tests of his breath, blood, or urine for the purpose of determining
211 whether he was operating or in actual physical control of a motor vehicle while having a blood or
212 breath alcohol content statutorily prohibited under Section 41-6-44 , 53-3-231 , or 53-3-232 , while
213 under the influence of alcohol, any drug, or combination of alcohol and any drug under Section

214 41-6-44 , or while having any measurable controlled substance or metabolite of a controlled
215 substance in the person's body in violation of Section 41-6-44.6 , if the test is or tests are
216 administered at the direction of a peace officer having grounds to believe that person to have been
217 operating or in actual physical control of a motor vehicle while having a blood or breath alcohol
218 content statutorily prohibited under Section 41-6-44 , 53-3-231 , or 53-3-232 , or while under the
219 influence of alcohol, any drug, or combination of alcohol and any drug under Section 41-6-44 , or
220 while having any measurable controlled substance or metabolite of a controlled substance in the
221 person's body in violation of Section 41-6-44.6 .
222 (b) (i) The peace officer determines which of the tests are administered and how many of
223 them are administered.
224 (ii) If an officer requests more than one test, refusal by a person to take one or more
225 requested tests, even though he does submit to any other requested test or tests, is a refusal under
226 this section.
227 (c) (i) A person who has been requested under this section to submit to a chemical test or
228 tests of his breath, blood, or urine, may not select the test or tests to be administered.
229 (ii) The failure or inability of a peace officer to arrange for any specific chemical test is
230 not a defense to taking a test requested by a peace officer, and it is not a defense in any criminal,
231 civil, or administrative proceeding resulting from a person's refusal to submit to the requested test
232 or tests.
233 (2) (a) If the person has been placed under arrest, has then been requested by a peace
234 officer to submit to any one or more of the chemical tests under Subsection (1), and refuses to
235 submit to any chemical test requested, the person shall be warned by the peace officer requesting
236 the test or tests that a refusal to submit to the test or tests can result in revocation of the person's
237 license to operate a motor vehicle.
238 (b) Following the warning under Subsection (a), if the person does not immediately request
239 that the chemical test or tests as offered by a peace officer be administered a peace officer shall
240 serve on the person, on behalf of the Driver License Division, immediate notice of the Driver
241 License Division's intention to revoke the person's privilege or license to operate a motor vehicle.
242 When the officer serves the immediate notice on behalf of the Driver License Division, he shall:
243 (i) take the Utah license certificate or permit, if any, of the operator;
244 (ii) issue a temporary license effective for only 29 days; and

245 (iii) supply to the operator, on a form approved by the Driver License Division, basic
246 information regarding how to obtain a hearing before the Driver License Division.
247 (c) A citation issued by a peace officer may, if approved as to form by the Driver License
248 Division, serve also as the temporary license.
249 (d) [The] As a matter of procedure, the peace officer shall submit a signed report, within
250 [five] ten days after the date of the arrest, that he had grounds to believe the arrested person had
251 been operating or was in actual physical control of a motor vehicle while having a blood or breath
252 alcohol content statutorily prohibited under Section 41-6-44 , 53-3-231 , or 53-3-232 , or while under
253 the influence of alcohol, any drug, or combination of alcohol and any drug under Section 41-6-44 ,
254 or while having any measurable controlled substance or metabolite of a controlled substance in the
255 person's body in violation of Section 41-6-44.6 , and that the person had refused to submit to a
256 chemical test or tests under Subsection (1).
257 (e) (i) A person who has been notified of the Driver License Division's intention to revoke
258 his license under this section is entitled to a hearing.
259 (ii) A request for the hearing shall be made in writing within ten days after the date of the
260 arrest.
261 (iii) Upon written request, the division shall grant to the person an opportunity to be heard
262 within 29 days after the date of arrest.
263 (iv) If the person does not make a timely written request for a hearing before the division,
264 his privilege to operate a motor vehicle in the state is revoked beginning on the 30th day after the
265 date of arrest for a period of:
266 (A) one year unless Subsection (2)(e)(iv)(B) applies; or
267 (B) 18 months if the person has had a previous license sanction after July 1, 1993, under
268 this section, Section 41-6-44.6 , 53-3-223 , 53-3-231 , 53-3-232 , or a conviction after July 1, 1993,
269 under Section 41-6-44 .
270 (f) If a hearing is requested by the person [and], the hearing shall be conducted by the
271 Driver License Division[, the] in the county in which the offense occurred, unless the division and
272 the person both agree that the hearing may be held in some other county.
273 (g) The hearing shall be documented and shall cover the issues of:
274 (i) whether a peace officer had reasonable grounds to believe that a person was operating
275 a motor vehicle in violation of Section 41-6-44 , 41-6-44.6 , or 53-3-231 ; and

276 (ii) whether the person refused to submit to the test.
277 [(g)] (h) (i) In connection with the hearing, the division or its authorized agent:
278 (A) may administer oaths and may issue subpoenas for the attendance of witnesses and the
279 production of relevant books and papers; and
280 (B) shall issue subpoenas for the attendance of necessary peace officers.
281 (ii) The division shall pay witness fees and mileage from the Transportation Fund in
282 accordance with the rates established in Section 21-5-4 .
283 [(h)] (i) If after a hearing, the Driver License Division determines that the person was
284 requested to submit to a chemical test or tests and refused to submit to the test or tests, or if the
285 person fails to appear before the Driver License Division as required in the notice, the Driver
286 License Division shall revoke his license or permit to operate a motor vehicle in Utah beginning
287 on the date the hearing is held for a period of:
288 (i) (A) one year unless Subsection (2)(i)(i)(B) applies; or
289 (B) 18 months if the person has had a previous license sanction after July 1, 1993, under
290 this section, Section 41-6-44.6 , 53-3-223 , 53-3-231 , 53-3-232 , or a conviction after July 1, 1993,
291 under Section 41-6-44 .
292 (ii) The Driver License Division shall also assess against the person, in addition to any fee
293 imposed under Subsection 53-3-205 (14), a fee under Section 53-3-105 , which shall be paid before
294 the person's driving privilege is reinstated, to cover administrative costs.
295 (iii) The fee shall be cancelled if the person obtains an unappealed court decision
296 following a proceeding allowed under this Subsection (2) that the revocation was improper.
297 [(i)] (j) (i) Any person whose license has been revoked by the Driver License Division
298 under this section may seek judicial review.
299 (ii) Judicial review of an informal adjudicative proceeding is a trial. Venue is in the
300 district court in the county in which the [person resides] offense occurred.
301 (3) Any person who is dead, unconscious, or in any other condition rendering him
302 incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the
303 consent provided for in Subsection (1), and the test or tests may be administered whether the
304 person has been arrested or not.
305 (4) Upon the request of the person who was tested, the results of the test or tests shall be
306 made available to him.

307 (5) (a) Only a physician, registered nurse, practical nurse, or person authorized under
308 Section 26-1-30 , acting at the request of a peace officer, may withdraw blood to determine the
309 alcoholic or drug content. This limitation does not apply to taking a urine or breath specimen.
310 (b) Any physician, registered nurse, practical nurse, or person authorized under Section
311 26-1-30 who, at the direction of a peace officer, draws a sample of blood from any person whom
312 a peace officer has reason to believe is driving in violation of this chapter, or hospital or medical
313 facility at which the sample is drawn, is immune from any civil or criminal liability arising from
314 drawing the sample, if the test is administered according to standard medical practice.
315 (6) (a) The person to be tested may, at his own expense, have a physician of his own
316 choice administer a chemical test in addition to the test or tests administered at the direction of a
317 peace officer.
318 (b) The failure or inability to obtain the additional test does not affect admissibility of the
319 results of the test or tests taken at the direction of a peace officer, or preclude or delay the test or
320 tests to be taken at the direction of a peace officer.
321 (c) The additional test shall be subsequent to the test or tests administered at the direction
322 of a peace officer.
323 (7) For the purpose of determining whether to submit to a chemical test or tests, the person
324 to be tested does not have the right to consult an attorney or have an attorney, physician, or other
325 person present as a condition for the taking of any test.
326 (8) If a person under arrest refuses to submit to a chemical test or tests or any additional
327 test under this section, evidence of any refusal is admissible in any civil or criminal action or
328 proceeding arising out of acts alleged to have been committed while the person was operating or
329 in actual physical control of a motor vehicle while under the influence of alcohol, any drug,
330 combination of alcohol and any drug, or while having any measurable controlled substance or
331 metabolite of a controlled substance in the person's body.
332 Section 4. Section 53-3-223 is amended to read:
333 53-3-223. Chemical test for driving under the influence -- Temporary license --
334 Hearing and decision -- Suspension and fee -- Judicial review.
335 (1) (a) If a peace officer has reasonable grounds to believe that a person may be violating
336 or has violated Section 41-6-44 , prohibiting the operation of a vehicle with a certain blood or
337 breath alcohol concentration and driving under the influence of any drug, alcohol, or combination

338 of a drug and alcohol or while having any measurable controlled substance or metabolite of a
339 controlled substance in the person's body in violation of Section 41-6-44.6 , the peace officer may,
340 in connection with arresting the person, request that the person submit to a chemical test or tests
341 to be administered in compliance with the standards under Section 41-6-44.10 .
342 (b) In this section, a reference to Section 41-6-44 includes any similar local ordinance
343 adopted in compliance with Subsection 41-6-43 (1).
344 (2) The peace officer shall advise a person prior to the person's submission to a chemical
345 test that a test result indicating a violation of Section 41-6-44 or 41-6-44.6 shall, and the existence
346 of a blood alcohol content sufficient to render the person incapable of safely driving a motor
347 vehicle may, result in suspension or revocation of the person's license to drive a motor vehicle.
348 (3) If the person submits to a chemical test and the test results indicate a blood or breath
349 alcohol content in violation of Section 41-6-44 or 41-6-44.6 , or if the officer makes a
350 determination, based on reasonable grounds, that the person is otherwise in violation of Section
351 41-6-44 , the officer directing administration of the test or making the determination shall serve on
352 the person, on behalf of the division, immediate notice of the division's intention to suspend the
353 person's license to drive a motor vehicle.
354 (4) (a) When the officer serves immediate notice on behalf of the division he shall:
355 (i) take the Utah license certificate or permit, if any, of the driver;
356 (ii) issue a temporary license certificate effective for only 29 days; and
357 (iii) supply to the driver, on a form to be approved by the division, basic information
358 regarding how to obtain a prompt hearing before the division.
359 (b) A citation issued by the officer may, if approved as to form by the division, serve also
360 as the temporary license certificate.
361 (5) [The] As a matter of procedure, the peace officer serving the notice shall send to the
362 division within [five] ten days after the date of arrest and service of the notice:
363 (a) the person's license certificate;
364 (b) a copy of the citation issued for the offense;
365 (c) a signed report on a form approved by the division indicating the chemical test results,
366 if any; and
367 (d) any other basis for the officer's determination that the person has violated Section
368 41-6-44 or 41-6-44.6 .

369 (6) (a) Upon written request, the division shall grant to the person an opportunity to be
370 heard within 29 days after the date of arrest. The request to be heard shall be made within ten days
371 of the date of the arrest.
372 (b) A hearing, if held, shall be before the division in the county in which the arrest
373 occurred, unless the division and the person agree that the hearing may be held in some other
374 county.
375 (c) The hearing shall be documented and shall cover the issues of:
376 (i) whether a peace officer had reasonable grounds to believe the person was driving a
377 motor vehicle in violation of Section 41-6-44 or 41-6-44.6 ;
378 (ii) whether the person refused to submit to the test; and
379 (iii) the test results, if any.
380 (d) (i) In connection with a hearing the division or its authorized agent:
381 (A) may administer oaths and may issue subpoenas for the attendance of witnesses and the
382 production of relevant books and papers; or
383 (B) may issue subpoenas for the attendance of necessary peace officers.
384 (ii) The division shall pay witness fees and mileage from the Transportation Fund in
385 accordance with the rates established in Section 21-5-4 .
386 (e) [One or more members of the] The division may designate one or more employees to
387 conduct the hearing.
388 (f) Any decision made after a hearing before any [number of the members of the division]
389 designated employee is as valid as if made [after a hearing before the full membership of] by the
390 division.
391 (g) After the hearing, the division shall order whether the person's license to drive a motor
392 vehicle is suspended or not.
393 (h) If the person for whom the hearing is held fails to appear before the division as
394 required in the notice, the division shall order whether the person's license to drive a motor vehicle
395 is suspended or not.
396 (7) (a) A first suspension, whether ordered or not challenged under this Subsection (7), is
397 for a period of 90 days, beginning on the 30th day after the date of the arrest.
398 (b) A second or subsequent suspension under this subsection is for a period of one year,
399 beginning on the 30th day after the date of arrest.

400 (8) (a) The division shall assess against a person, in addition to any fee imposed under
401 Subsection 53-3-205 (14) for driving under the influence, a fee under Section 53-3-105 to cover
402 administrative costs, which shall be paid before the person's driving privilege is reinstated. This
403 fee shall be cancelled if the person obtains an unappealed division hearing or court decision that
404 the suspension was not proper.
405 (b) A person whose license has been suspended by the division under this subsection may
406 file a petition within 30 days after the suspension for a hearing on the matter which, if held, is
407 governed by Section 53-3-224 .
408 Section 5. Section 53-3-224 is amended to read:
409 53-3-224. Filing a petition for hearing -- Judicial review of license cancellation,
410 revocation, or suspension -- Scope of review.
411 (1) A person denied a license or whose license has been cancelled, suspended, or revoked
412 by the division may seek judicial review of the division's order.
413 (2) (a) Venue for judicial review of informal adjudicative proceedings is in the district
414 court in the county where the [person resides] offense occurred, which resulted in the cancellation,
415 suspension, or revocation.
416 (b) Persons not residing in the state shall file in Salt Lake County or the county where the
417 offense occurred, which resulted in the cancellation, suspension, or revocation.
418 Section 6. Section 53-3-231 is amended to read:
419 53-3-231. Person under 21 may not operate vehicle with detectable alcohol in body
420 -- Chemical test procedures -- Temporary license -- Hearing and decision -- Suspension of
421 license or operating privilege -- Fees -- Judicial review -- Referral to local substance abuse
422 authority or program.
423 (1) (a) As used in this section:
424 (i) "Local substance abuse authority" has the same meaning as provided in Section
425 62A-8-101 .
426 (ii) "Substance abuse program" means any substance abuse program licensed by the
427 Department of Human Services or the Department of Health and approved by the local substance
428 abuse authority.
429 (b) Calculations of blood, breath, or urine alcohol concentration under this section shall
430 be made in accordance with the procedures in Subsection 41-6-44 (2).

431 (2) (a) A person younger than 21 years of age may not operate or be in actual physical
432 control of a vehicle with any measurable blood, breath, or urine alcohol concentration in his body
433 as shown by a chemical test.
434 (b) (i) A person with a valid operator license who violates Subsection (2)(a), in addition
435 to any other applicable penalties arising out of the incident, shall have his operator license denied
436 or suspended as provided in Subsection (2)(b)(ii).
437 (ii) (A) For a first offense under Subsection (2)(a), the Driver License Division of the
438 Department of Public Safety shall deny the person's operator license if ordered or not challenged
439 under this section for a period of 90 days beginning on the 30th day after the date of the arrest
440 under Section 32A-12-209 .
441 (B) For a second or subsequent offense under Subsection (2)(a), within three years of a
442 prior denial or suspension, the Driver License Division shall suspend the person's operator license
443 for a period of one year beginning on the 30th day after the date of arrest.
444 (c) (i) A person who has not been issued an operator license who violates Subsection
445 (2)(a), in addition to any other penalties arising out of the incident, shall be punished as provided
446 in Subsection (2)(c)(ii).
447 (ii) For one year or until he is 17, whichever is longer, a person may not operate a vehicle
448 and the Driver License Division may not issue the person an operator license or learner's permit.
449 (3) (a) When a peace officer has reasonable grounds to believe that a person may be
450 violating or has violated Subsection (2), the peace officer may, in connection with arresting the
451 person for a violation of Section 32A-12-209 , request that the person submit to a chemical test or
452 tests to be administered in compliance with the standards under Section 41-6-44.10 .
453 (b) The peace officer shall advise a person prior to the person's submission to a chemical
454 test that a test result indicating a violation of Subsection (2)(a) will result in denial or suspension
455 of the person's license to operate a motor vehicle or a refusal to issue a license.
456 (c) If the person submits to a chemical test and the test results indicate a blood, breath, or
457 urine alcohol content in violation of Subsection (2)(a), or if the officer makes a determination,
458 based on reasonable grounds, that the person is otherwise in violation of Subsection (2)(a), the
459 officer directing administration of the test or making the determination shall serve on the person,
460 on behalf of the Driver License Division, immediate notice of the Driver License Division's
461 intention to deny or suspend the person's license to operate a vehicle or refusal to issue a license

462 under Subsection (2).
463 (4) When the officer serves immediate notice on behalf of the Driver License Division,
464 he shall:
465 (a) take the Utah license certificate or permit, if any, of the operator;
466 (b) issue a temporary license certificate effective for only 29 days if the driver had a valid
467 operator's license; and
468 (c) supply to the operator, on a form to be approved by the Driver License Division, basic
469 information regarding how to obtain a prompt hearing before the Driver License Division.
470 (5) A citation issued by the officer may, if approved as to form by the Driver License
471 Division, serve also as the temporary license certificate under Subsection (4)(b).
472 (6) [The] As a matter of procedure, the peace officer serving the notice shall send to the
473 Driver License Division within [five] ten days after the date of arrest and service of the notice:
474 (a) the person's driver license certificate, if any;
475 (b) a copy of the citation issued for the offense;
476 (c) a signed report on a form approved by the Driver License Division indicating the
477 chemical test results, if any; and
478 (d) any other basis for the officer's determination that the person has violated Subsection
479 (2).
480 (7) (a) (i) Upon written request, the Driver License Division shall grant to the person an
481 opportunity to be heard within 29 days after the date of arrest under Section 32A-12-209 .
482 (ii) The request shall be made within ten days of the date of the arrest.
483 (b) A hearing, if held, shall be before the Driver License Division in the county in which
484 the arrest occurred, unless the Driver License Division and the person agree that the hearing may
485 be held in some other county.
486 (c) The hearing shall be documented and shall cover the issues of:
487 (i) whether a peace officer had reasonable grounds to believe the person was operating a
488 motor vehicle in violation of Subsection (2)(a);
489 (ii) whether the person refused to submit to the test; and
490 (iii) the test results, if any.
491 (d) In connection with a hearing the Driver License Division or its authorized agent may
492 administer oaths and may issue subpoenas for the attendance of witnesses and the production of

493 relevant books and papers.
494 (e) One or more members of the Driver License Division may conduct the hearing.
495 (f) Any decision made after a hearing before any number of the members of the Driver
496 License Division is as valid as if made after a hearing before the full membership of the Driver
497 License Division.
498 (g) After the hearing, the Driver License Division shall order whether the person:
499 (i) with a valid license to operate a motor vehicle will have his license denied or not or
500 suspended or not; or
501 (ii) without a valid operator license will be refused a license under Subsection (2)(c).
502 (h) If the person for whom the hearing is held fails to appear before the Driver License
503 Division as required in the notice, the division shall order whether the person shall have his license
504 denied, suspended, or not denied or suspended, or whether an operator license will be refused or
505 not refused.
506 (8) (a) Following denial or suspension the Driver License Division shall assess against a
507 person, in addition to any fee imposed under Subsection 53-3-205 (14), a fee under Section
508 53-3-105 , which shall be paid before the person's driving privilege is reinstated, to cover
509 administrative costs. This fee shall be canceled if the person obtains an unappealed Driver License
510 Division hearing or court decision that the suspension was not proper.
511 (b) A person whose operator license has been denied, suspended, or postponed by the
512 Driver License Division under this section may file a petition within 30 days after the suspension
513 for a hearing on the matter which, if held, is governed by Section 53-3-224 .
514 (9) After reinstatement of an operator license for a first offense under this section, a report
515 authorized under Section 53-3-104 may not contain evidence of the denial or suspension of the
516 person's operator license under this section if he has not been convicted of any other offense for
517 which the denial or suspension may be extended.
518 (10) (a) In addition to the penalties in Subsection (2), a person who violates Subsection
519 (2)(a) shall:
520 (i) obtain an assessment and recommendation for appropriate action from a substance
521 abuse program, but any associated costs shall be the person's responsibility; or
522 (ii) be referred by the Driver License Division to the local substance abuse authority for
523 an assessment and recommendation for appropriate action.

524 (b) (i) Reinstatement of the person's operator license or the right to obtain an operator
525 license is contingent upon successful completion of the action recommended by the local substance
526 abuse authority or the substance abuse program.
527 (ii) The local substance abuse authority's or the substance abuse program's recommended
528 action shall be determined by an assessment of the person's alcohol abuse and may include:
529 (A) a targeted education and prevention program;
530 (B) an early intervention program; or
531 (C) a substance abuse treatment program.
532 (iii) Successful completion of the recommended action shall be determined by standards
533 established by the Division of Substance Abuse.
534 (c) At the conclusion of the penalty period imposed under Subsection (2), the local
535 substance abuse authority or the substance abuse program shall notify the Driver License Division
536 of the person's status regarding completion of the recommended action.
537 (d) The local substance abuse authorities and the substance abuse programs shall cooperate
538 with the Driver License Division in:
539 (i) conducting the assessments;
540 (ii) making appropriate recommendations for action; and
541 (iii) notifying the Driver License Division about the person's status regarding completion
542 of the recommended action.
543 (e) (i) The local substance abuse authority is responsible for the cost of the assessment of
544 the person's alcohol abuse, if the assessment is conducted by the local substance abuse authority.
545 (ii) The local substance abuse authority or a substance abuse program selected by a person
546 is responsible for:
547 (A) conducting an assessment of the person's alcohol abuse; and
548 (B) for making a referral to an appropriate program on the basis of the findings of the
549 assessment.
550 (iii) (A) The person who violated Subsection (2)(a) is responsible for all costs and fees
551 associated with the recommended program to which the person selected or is referred.
552 (B) The costs and fees under Subsection (10)(e)(iii)(A) shall be based on a sliding scale
553 consistent with the local substance abuse authority's policies and practices regarding fees for
554 services or determined by the substance abuse program.

555 Section 7. Section 53-3-418 is amended to read:
556 53-3-418. Prohibited alcohol level for drivers -- Procedures, including hearing.
557 (1) A person who holds or is required to hold a CDL may not drive a commercial motor
558 vehicle in this state if the person:
559 (a) has a blood, breath, or urine alcohol concentration of .04 grams or greater as shown by
560 a chemical test given within two hours after the alleged driving of the commercial motor vehicle;
561 or
562 (b) is under the influence of alcohol, any drug, or the combined influence of alcohol and
563 any drug to any degree that renders the person incapable of safely driving a commercial motor
564 vehicle.
565 (2) A person who holds or is required to hold a CDL and who drives a commercial motor
566 vehicle in this state is considered to have given his consent to a test or tests of his blood, breath,
567 or urine to determine the concentration of alcohol or the presence of other drugs in his physical
568 system.
569 (3) If a peace officer or port-of-entry agent has reasonable cause to believe that a person
570 may be violating this section, the peace officer or port-of-entry agent may request the person to
571 submit to a chemical test to be administered in compliance with Section 41-6-44.3 .
572 (4) When a peace officer or port-of-entry agent requests a person to submit to a test under
573 this section, he shall advise the person that test results indicating .04 grams or greater alcohol
574 concentration or refusal to submit to any test requested will result in the person's disqualification
575 under Section 53-3-414 from driving a commercial motor vehicle.
576 (5) If test results under this section indicate .04 grams or greater of alcohol concentration
577 or the person refuses to submit to any test requested under this section, the peace officer or
578 port-of-entry agent shall on behalf of the division serve the person with immediate notice of the
579 division's intention to disqualify the person's privilege to drive a commercial motor vehicle.
580 (6) When the peace officer or port-of-entry agent serves notice under Subsection (5) he
581 shall:
582 (a) take any Utah license certificate or permit held by the driver;
583 (b) issue to the driver a temporary license certificate effective for 29 days;
584 (c) provide the driver, on a form approved by the division, basic information regarding
585 how to obtain a prompt hearing before the division; and

586 (d) issue a 24-hour out-of-service order.
587 (7) A notice of disqualification issued under Subsection (6) may serve also as the
588 temporary license certificate under that subsection, if the form is approved by the division.
589 (8) [The] As a matter of procedure, the peace officer or port-of-entry agent serving the
590 notice of disqualification shall, within [five] ten days after the date of service, send to the division
591 the person's license certificate, a copy of the served notice, and a report signed by the peace officer
592 or port-of-entry agent that indicates the results of any chemical test administered or that the person
593 refused a test.
594 (9) (a) The person has the right to a hearing regarding the disqualification.
595 (b) The request for the hearing shall be submitted to the division in writing and shall be
596 made within ten days of the date the notice was issued. If requested, the hearing shall be
597 conducted within 29 days after the notice was issued.
598 (10) (a) A hearing held under this section shall be held before the division and in the
599 county where the notice was issued, unless the division agrees to hold the hearing in another
600 county.
601 (b) The hearing shall be documented and shall determine:
602 (i) whether the peace officer or port-of-entry agent had reasonable grounds to believe the
603 person had been driving a motor vehicle in violation of this section;
604 (ii) whether the person refused to submit to any requested test; and
605 (iii) any test results obtained.
606 (c) In connection with a hearing the division or its authorized agent may administer oaths
607 and may issue subpoenas for the attendance of witnesses and the production of relevant books and
608 documents.
609 (d) One or more members of the division may conduct the hearing.
610 (e) A decision made after a hearing before any number of members of the division is as
611 valid as if the hearing were held before the full membership of the division.
612 (f) After a hearing under this section the division shall indicate by order if the person's
613 CDL is disqualified.
614 (g) If the person for whom the hearing is held fails to appear before the division as required
615 in the notice, the division shall indicate by order if the person's CDL is disqualified.
616 (11) If the division disqualifies a person under this section, the person may petition for a

617 hearing under Section 53-3-224 . The petition shall be filed within 30 days after the division issues
618 the disqualification.
619 (12) (a) A person who violates this section shall be punished in accordance with Section
620 53-3-414 .
621 (b) In accordance with Section 53-3-414 , the first disqualification under this section shall
622 be for one year, and a second disqualification shall be for life.
623 (13) (a) In addition to the fees imposed under Section 53-3-205 for reinstatement of a
624 CDL, a fee under Section 53-3-105 to cover administrative costs shall be paid before the driving
625 privilege is reinstated.
626 (b) The fees under Sections 53-3-105 and 53-3-205 shall be canceled if an unappealed
627 hearing at the division or court level determines the disqualification was not proper.




Legislative Review Note
as of 1-15-99 12:28 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel