| U.S
Department of Transportation
National Highway Traffic Safety Administration
Examining
the Effectiveness of Utah's Law Allowing for
Telephonic Testimony at ALR Hearings
The State of Utah is approximately 82,168 square miles in
size. The capital is Salt Lake City, located along the banks of the Great
Salt Lake, in the northern part of the State. Utah's main urban areas
are located along the Wasatch Mountain Range on the eastern edge of the
Salt Lake Valley. The majority of Utah's population is concentrated on
this strip of land, which is less than 100 miles long, stretching from
Ogden to Provo. The four counties in the Wasatch Front – Salt Lake, Davis,
Weber, and Utah – contain more than three-quarters of the State's population.
The U.S. Census Bureau reports a 29.6% population growth
rate in Utah from 1990-2000, with the largest increases occurring during
the latter part of the decade. The 1990 Census listed the population
of Utah at approximately 1,722,850 persons; the 2000 Census lists the
Utah population at 2,233,169. The 1996 per capita income for Utah citizens
was approximately $16,100.
The administrative driver license sanction, resulting from the
arrest of an individual for a DUI-related offense, “allows a peace officer
to confiscate your Utah driver license upon arrest for driving under the
influence and allows the Division to suspend your license for 90 days or
one year on the 30th day after the arrest.”
Section 53-3-222 of the Utah Public Safety Code (see Appendix
A) states the purpose of license suspension or revocation for driving
under the influence is to protect individuals on the highways by quickly
removing persons who have shown they are safety hazards. At the time
of arrest for DUI, the individual is provided with a copy of the DUI Summons
and Citation (see copy in Appendix B). This form includes a notice of
intent to deny, suspend, revoke or disqualify that individual's driving
privilege. The right to a hearing is printed on the form and states that,
in order to retain driving privileges, the defendant must “prevail both
before the court and the Driver License Division (DLD) separately.”
The instructions explain that the Driver License Division must receive
a written request for a hearing within ten calendar days of arrest. The
numbers of individuals requesting a hearing from the DLD as a result of
a DUI arrest have increased steadily since 1995 to a current level of
approximately 20% of DUI arrestees.
The Driver License Division, by statute, has 30 days from
the date of a DUI-related arrest to comply with a driver's request for
a hearing. Hearings are conducted in the jurisdiction where the arrest
was made. There are 22 hearing officers and managers, employed by the
Utah Driver License Division, situated throughout the state who handle
driver license related hearings resulting from all types of offenses.
However, the alleged DUI offense is the only offense that has time stipulations
attached to the hearing request. These hearings are given priority by
the hearing officers.
As with many other states, the Department of Public Safety
in Utah has faced problems with fulfilling the intent of the ALR law,
that is, to remove hazardous drivers from the State's roadways. Officials
in Utah have demonstrated a willingness to actively confront problems
with ALR implementation. This project has allowed staff an opportunity
to track, evaluate and work with the site to document the problems encountered
and solutions devised so that we may provide information to other states
that may encounter similar problems when implementing ALR. The problems
identified during the project, along with the solutions, are discussed
below.
Individuals arrested for DWI-related offenses had complained
they were not aware of the right to an ALR hearing, even though notice
of that right is printed on the Summons and Citation form (see Appendix
B). As a result, new DUI Summons and Citation forms were printed with
the “Right To Hearing” title printed in red ink. In addition, the arresting
officers have been instructed to verbally inform the driver of the right
to a hearing and to note on the DUI Summons and Citation form that this
task was completed.
During our work over the years with law enforcement officers
from across the United States, we have often heard complaints that defense
attorneys inappropriately ask unrelated, discovery type questions at ALR
hearings as a means of preparation for the separate judiciary proceedings.
Reportedly, this has also been a problem at ALR hearings held in Utah.
Most DUI-related cases in Utah are adjudicated in Justice Court, which
means there are no preliminary hearings. Therefore it is the complaint
of law enforcement officers, as well as some hearing officers, that defense
attorneys attempt to use the Driver License Division hearing as a discovery
tool. (However, as one law enforcement officer pointed out, this can
also work to assure the demise of a challenge if the video or the officer's
statement shows an extremely strong case.)
While this complaint will probably always be a problem, especially
when defense attorneys are present, hearing officers in Utah receive training
on how to handle inappropriate questions that are asked during a hearing
session. This type of training is complicated, because some questions
that might be considered discovery in nature are appropriate at an ALR
hearing. Performance evaluations of the hearing officers are continual,
as all hearings are audio taped and a manager randomly reviews these tapes
to detect potential problems. When there is a formal complaint made,
the manager always reviews the referenced hearing. If necessary, a hearing
officer may receive additional training to enable that officer to effectively
handle difficult situations surrounding inappropriate discovery type questions.
Initially, defense attorneys had the last opportunity to
sway the decision of the hearing officer because they could make closing
statements. The law enforcement officer, whose role in an ALR hearing
is that of a witness, was not allowed to make closing statements. Some
law enforcement officers believed they, too, should be able to make closing
remarks. The result is that now the arresting officers are permitted
to make brief closing statements to the hearing officer, although it is
not clear that all hearing officers ask LEA officers in all sessions if
they wish to make any closing remarks. There is an ongoing evaluation
process in place, as a manager is randomly reviewing the audiotapes, but
data is not being collected on how many law enforcement officers choose
to make closing statements.
The individual law enforcement agencies (LEAs) must absorb
the costs of officers appearing at ALR hearings. For example, depending
upon the agency, this might require payment of overtime, or time taken
from other scheduled duties. Reportedly, this has caused a problem in
the past so that some agencies were not encouraging the arresting officers
to attend the ALR hearings. Currently, a nominal fee is paid from a special
fund to law enforcement agencies to assist in defraying appearance costs.
The Driver License Division reimburses each LEA in the amount of $18.25
for each ALR hearing an officer attends. However, the fee does not completely
cover the costs, and there is speculation that some law enforcement authorities,
probably due to personnel time and cost constraints, actually discourage
officers from appearing at ALR hearings.
Due to detailed record keeping, state officials were able
to determine that a significant number of law enforcement officers were
not appearing at ALR hearings. As a result, those drivers who had been
arrested for DUI-related offenses were allowed to keep their driving privileges
pending court actions. The intent of the ALR law, to remove unsafe drivers
from public roadways, was being thwarted.
Arresting officers might not appear at a hearing for a variety
of reasons. Conflicts could arise with LEA-related training schedules,
work-related duties such as a crash taking priority, and personal reasons
such as a hearing scheduled during the officer's vacation or off-duty
hours when other commitments intervened. (An example given was that officers
working the night shift often had spouses working during the day, which
meant child care responsibilities for the off-duty officers.) Also, as
stated above, there were indications that in some LEAs, command officers
do not encourage the arresting officers to attend hearings because their
Department must pay most of the costs for the officers' time.
During the year 2000 General Session, Utah state legislators
voted to enact Section 53-3-223.5 of the Utah Code to allow telephonic
or live audio-visual testimony at hearings. The law states, “In any division
hearing authorized under this chapter or Title 41, Chapter 6, Article
5, Driving While Intoxicated and Reckless Driving, the division may permit
a party or witness to attend or to testify by telephone or live audio-visual
means.” While a few unofficial telephonic hearings were held during the
summer months of 2000, the actual implementation began in September of
that year, with telephonic capabilities increasing throughout the following
months.
Though several ALR issues are discussed above, the adoption
of the option of telephonic testimony was selected as the specific measure
to be the subject of this evaluation study.
Utah
Department of Public Safety, Driver License Division. (1999.) Utah Driver
Handbook. Salt Lake City, Utah: State of Utah, Department of Public Safety.
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