U.S Department of Transportation
National Highway Traffic Safety Administration

Examining the Effectiveness of Utah's Law Allowing for
Telephonic Testimony at ALR Hearings

CHAPTER 3 – PROJECT EVALUATION

APPROACH

            The focus of this project was to conduct a process or administrative evaluation of the effects of adopting telephonic testimony on the overall hearing process for administrative license suspensions for DUI and, by extension, on the implementation of the total ALR law in Utah.  While solutions to all of the problems listed in the previous chapter were reviewed, most were not of a nature that was amenable to a formal evaluation.  However, those problems and solutions were discussed during the focus group sessions and during any interviews, and the results are included in those sections.

            This evaluation has three primary foci: one is to present a system description detailing how the ALR process works; the second is an examination of objective data descriptive of the ALR process that provides counts of variables such as arrests, hearings, hearings results and form of testimony; the third is the subjective impressions of participants in the process on the effects the changes have had on the system.  This was accomplished through surveys of law enforcement officers and hearing officers conducted under the auspices of state government, as well as informal focus groups and discussions with state officials, law enforcement officers, hearing officers, and members of the defense bar.

            The results of the process description, data analyses and reflections of participants in the system are provided in this chapter.  The results of implementing the solution, as far as this assessment can determine, are provided in the next chapter.

PROCESS DESCRIPTION

Driver License Seizure

            Under Utah Public Safety Code Sections 53-3-223.3 and 53-3-223.4, a peace officer must seize the driver's license or permit of a motorist upon determining that the driver has been operating a motor vehicle while intoxicated or impaired.  In its place, the officer may issue a temporary license certificate to the driver that is valid for 29 days.  The officer shall also furnish the driver with an official form that provides information on how the individual may request a formal hearing before the Driver License Division (DUI Summons and Citation Form, see Appendix B). 

            This automatic license seizure is handled by a peace officer in Utah at the time of arrest for DUI, and occurs when a driver has violated one or more of three State statutes:

+        Administrative Per Se (Section 53-3-223) – The Utah statute that states a driver of a motorized vehicle may not have a blood alcohol concentration (BAC) of .08 percent or higher ( >_   .04 percent for commercial drivers), and/or that a peace officer may determine that a motorist with a BAC at any level may be incapable of safely operating a vehicle.

+        Implied Consent (Section 41-6-44.10) – The Utah law which states that drivers exercising the privilege to operate a vehicle implicitly consent to submit to a lawfully-requested test to determine the alcohol content of their blood, breath, or urine.  Therefore, a Utah licensed driver does not have the right to refuse to provide a BAC sample when one is requested by a peace officer.

+        Zero Tolerance or “Not A Drop” (Section 53-3-231) – The Utah statute that dictates a person under the age of 21 may not operate a motor vehicle with any detectable alcohol in the body.

Request for an ALR Hearing

            Drivers arrested for intoxicated or impaired driving in Utah, having had their driver's licenses or permits removed at the time of arrest, have ten days to request an administrative hearing from the Driver License Division of the Utah Department of Public Safety.  As informed by the arresting officer and as stated on the DUI Summons and Citation form (see copy in Appendix B), if they desire a hearing to protest the pending revocation of driving privileges, they must request that hearing in writing.  The appropriate address is provided on the form.  The form states “failure to properly request a hearing, or to appear for a hearing, may result in loss of driving privileges.”

            Within five days of arrest, the arresting officer sends the following to the Driver License Division:  the confiscated license or permit; a copy of the citation; a signed report indicating the chemical test results, if any; and other pertinent information such as a videotape or the results of standardized field sobriety tests.

Conditions for an ALR Hearing

            Hearings regarding pending revocation of driver's licenses by the Utah Driver License Division are granted when the Division receives a written request within ten days of the arrest.  At the discretion of the Driver License Division, the hearings also may be granted to drivers who make a request beyond the ten days allowed by statute.  When a hearing request is made in a timely fashion, an ALR hearing must be held within 29 days after the day of arrest.  For a late request, as a condition to being granted, an ALR hearing may be held beyond the 29^th day limit set by statute, but the driving privileges are still withdrawn on the 30^th day after the date of arrest.  If a request for an ALR hearing is not received, the driver license is automatically withdrawn.

            The hearing is typically held in the county in which the offense occurred, but may be held in another county if agreed upon by all parties.  A representative of the Utah Driver License Division, Central Office Driver Control Bureau, must subpoena the arresting officer(s) at their respective law enforcement agencies, and notify the individual arrested for DUI of the hearing date, along with a hearing officer.  Subpoenas may also be issued to witnesses and for the production of relevant materials such as arrest reports and videotapes.  Costs for the attendance of peace officers and witnesses are partially defrayed with monies from the State's Transportation Fund.

Administrative Hearings On Driver License Actions

            Attendees at an ALR hearing include the hearing officer, the pertinent peace officers (e.g., arresting officers, those administering BAC or field sobriety tests), the appellant and, if desired by the appellant, a defense attorney(s).  An audio recording is always made of each ALR hearing.  The audio equipment is set up and operated by the hearing officer.

            If any ALR hearing participants, other than the hearing officer, are not able to physically attend the hearing, now they may participate telephonically, if those capabilities are available. ^[7]  The hearing officer is responsible for setting up the telephone equipment.

            As outlined in the Hearing Officer Training Module #3 (see Appendix C), “while formal rules of evidence and procedure shall not strictly apply, the hearing officer, in conducting the hearing, shall substantially comply with the fundamental rules of due process in legal proceedings.  Sworn testimony will be taken, and the driver shall have the privilege of having witnesses present in his behalf.  He may offer testimony and may cross examine those who testify against him.”  The defense attorney, when present, generally handles the cross-examination.  It is not unusual for defense attorneys to attempt to gain information pertinent to the pending judicial case but that is not relevant to the ALR hearing.  Hearing officers are trained to limit issues covered during the hearing.  The major issues allowed during an ALR hearing are:

+        whether the arresting officer(s) had reasonable cause to stop the vehicle;

+        if the officer(s) had reasonable grounds to believe the driver was impaired or intoxicated;

+        whether the individual refused to submit to a BAC test; and

+        the results of any BAC test.

            An Alcohol Hearing Checklist (a copy of which appears in Appendix C) was developed to assist hearing officers when preparing for and conducting ALR hearings.  Hearing officers are trained to review, prior to the hearing, the arresting officer's DUI report, all attachments, the chemical test machine maintenance test records and affidavit.  These documents are entered into evidence at the start of the hearing session.

Outcome of ALR Hearings

            Obviously the outcome of the ALR hearing is that either the license revocation is upheld, or it is reversed and driving privileges are reinstated.^[8]  There are a number of reasons that determine a finding, such as those listed below.

            The hearing officer may render a verdict at the end of the ALR hearing, or may elect to deliver the verdict in writing in the days following the hearing.  A specific form must be completed by the hearing officer and submitted to the Driver License Division along with the audiotapes.  Action is taken by the Driver License Division based on the reports received from the hearing officers.

            DUI-related administrative license suspensions in Utah occur for the following types of violations:

      Administrative Per Se – For a first offense, license suspension is for 90 days beginning on the 30^th day after the date of the arrest.  A subsequent suspension is for a period of one year, beginning on the 30^th day after the date of the arrest.

      Implied Consent Refusal – For a first refusal, the license suspension is for one year.  If the person has a previous license sanction or a conviction after July 1, 1993, then the license suspension is for 18 months.

      Zero Tolerance – For a first offense, the license suspension is for 90 days.  For a second or subsequent offense within three years of a prior denial or suspension, the Driver License Division will suspend the license for one year.  An individual without a valid operator's license will be refused a license for one year or until age 17, whichever is longer.

            When a driving license is withdrawn by administrative action, there is a $50 reinstatement fee and a $150 administrative fee to reinstate that license after the suspension period.

Resolution of Conflicts/Appeals

            Both the appellant and/or defense attorney and the arresting officers may protest the conduct and/or findings of the hearing officer.  The first step is typically to notify a Manager of the Driver License Division.  That Manager will review the audiotape of the session in question and will typically make a determination whether to uphold or dismiss the findings of the hearing officer.  A person whose driver's license has been withdrawn by the Utah Driver License Division may seek judicial review.  According to State statutes, judicial review of an informal adjudicative proceeding is a trial in the district court in the county where the alleged offense occurred. 

DATA ANALYSIS

            The Driver License Division in the state of Utah maintains extensive driver history records.  We examined pertinent information relating to DUI arrests and administrative hearing actions for the years 1995-2001.  Cumulatively over these years, roughly 16% of drivers arrested for DUI-related offenses had been involved in a crash.

            Arrests for drinking and driving offenses in Utah were over 14,000 per year in 1995 and 1996, dropped slightly during 1997-1998 (roughly 13,000 per year) and then steadily increased up to 16,455 in 2001.  The numbers of monthly DUI arrests statewide are displayed in Figure 3‑1 below.

Figure 3-1: DUI Arrests in Utah by Month, January 1995-January 2002

Cumulatively over the years examined (1995-2001), 57% of DUI-related arrests in Utah were handled by municipal law enforcement agencies.  The Utah Highway Patrol handled 30% and sheriff departments handled roughly 13% of DUI-related arrests in Utah.

            The numbers of administrative license hearings held have increased greatly in recent years, going from about 100 per month prior to 1999 to about 330 per month in early 2001 (Figure 3‑2 ).  Such increases occurred for all three of the most frequent alcohol-related violations:  DUI per se, refusal to submit to a BAC test, and DUI by a driver under age 21, as well as DUI-related violations as a whole (Figure 3‑3 ).

Figure 3-2: ALR Hearings in Utah by Month, January 1995-January 2002

Figure 3‑3: ALR Hearings in Utah by Year and Violation Type, 1995-2001

            In the seven years we examined, almost half (45%) of the ALR hearings resulted in “no action” (license was not withdrawn), with 68% of these “no action” findings ruled as a result of the absence of the arresting officer.^[10] 

            The time from the date of arrest until an ALR hearing was conducted fluctuated over the seven-year period, peaking in 1999 at about 47 days (Figure 3‑4 ).  But the modal time, meaning the time that appeared most frequently, was 29 days.

Figure 3-4: Mean Time - Arrest Date to ALR Hearing in Utah by Year, 1995-2001

            The number of requests for an ALR hearing more than tripled between 1998 and 2001.  Telephonic ALR hearings were implemented beginning in September of 2000, although a small number were conducted prior to that time.  The numbers of ALR hearings conducted using telephonic equipment as a percentage of all ALR hearings are displayed below (Figure 3‑5 ).  Those percentages increased steadily during the year 2001, with the highest monthly percentage to date (20%) occurring in October 2001.  (A total of 53 out of the 263 ALR hearings conducted in Utah during that month had one or more persons participating telephonically.)

The data indicate the number of administrative license hearings where the license was returned (“no action”) due to the absence of the arresting LEA officers increased after the implementation of telephonic hearings.  However, the number of all no-action ALR hearings increased even more, so the proportion of those hearings resulting in “no action” due to peace officers failing to participate actually fell by about 20% (Figure 3‑6 ).  A time series analysis revealed this reduction to be statistically significant (p=0.01).  Basically, prior to the passage of the telephonic law, the number of DWI arrests increased substantially and so requests for ALR hearings also increased, but the number of hearings where law enforcement officers did not appear decreased.  It is most likely that more command emphasis on DWI actions by law enforcement officials and discussions about the passage and implementation of the telephonic law resulted in fewer absences by officers at ALR hearings.

Figure3-5: Telephone ALR Hearings as a Percent of All ALR Hearings in Utah by Month, January 1998-January 2002

Figure3-6: No-Action Hearings with no Peace Officers (POs) Present as a Percent of All No-Action Hearings In Utah by Month, January 1995-January 2002

Although this decline cannot be attributed entirely to the use of the telephonic format because the reduction began before the implementation of telephonic ALR hearings, we consider the use of the telephonic format to be a factor in the continued reduced rate of “no action” findings due to the absence of law enforcement.  Telephonic hearings can be a useful tool to law enforcement, especially in those states where officers must cover large rural areas.

REFLECTIONS OF PARTICIPANTS

Besides the objective measures described above, it was important to gather the perceptions of those who actually operate the system.  We spoke with state officials and managers, hearing officers, law enforcement personnel, and defense attorneys.

State Officials

Discussions were held with State officials and managers at the Utah Driver License Division.  Legislation regarding .08 BAC limits and ALR legislation were adopted in Utah in 1983, and administrative alcohol hearings have been held since that time.  It is the policy of the Utah Driver License Division to instruct hearing officers to conduct the ALR hearings in accordance with administrative rule.  As listed previously in this report, there are four main elements that ALR hearings are limited to:  probable cause for the stop by law enforcement; if there were reasonable grounds to believe the driver was impaired or intoxicated; whether the driver refused to submit to a breath test as required by the implied consent law; and the breath test results, if any. 

According to officials, despite this limitation of scope, over the years there have been many issues raised regarding the roles of the participants during these hearings, resulting in ongoing attempts to educate participants.  While it is the right of the driver who has been accused of DUI actions to question the arresting officer, defense attorneys have attempted to broaden the scope of the hearing in order to discover facts and concerns relative to their client's court case, but perhaps not relevant to an administrative driver license hearing.  Law enforcement officers may sometimes step outside their role of witness and try to expand their authority.  Sometimes the paperwork is not in order and ALR hearings are either not held, or are dismissed on technicalities.  Hearing officers may have trouble controlling the scope of the ALR hearings and/or the participants.  Training is an ongoing process as issues and policies change.  In addition, changes in State statutes and methods that may differ, for example, when personnel changes occur at the State Attorney General's office, can also provide a need for training updates.

Managers described the procedures following a typical ALR hearing session as follows.  The hearing officer, after listening to all of the testimony and reviewing all of the evidence presented at the hearing, will make a finding of facts, conclusions, and render a decision as outlined in the hearing report form.^[11]  Each ALR hearing is audio recorded, and the hearing officer forwards the written report and the tape recording of the proceedings to the Utah Driver Control Administration.  There reports are examined, records are updated, and audits of the audiotapes are randomly conducted for quality control.  If there is a complaint or a problem with a particular hearing, the manager reviews the report and audiotape and takes appropriate actions.

Reportedly, many hearing officers have been in their positions for many years, and managers and some officials also have experience and background as hearing officers.  This has, most likely, contributed to the relatively smooth operation of ALR hearings, and the willingness to examine and change procedures as necessary to insure fair hearings into the future.

There is widespread acceptance and support for ALR telephonic hearings among State officials who worked with lawmakers to draft and pass the ALR telephonic hearing law.  Allowing telephonic participation as a means to decrease the numbers of peace officers absent from ALR hearings was viewed as a relatively easy solution to this problem that essentially voids the administrative license action.  As stated earlier, when the arresting law enforcement officer does not appear at an ALR hearing, it almost certainly leads to the reversal of the driver license suspension, at least until punitive steps are taken by the courts.

Hearing Officers

We conducted focus groups with all of the current hearing officers in Utah and several managers (22 persons total) during a regularly scheduled day of training.  According to data we received from the State, eleven of the hearing officers had conducted at least one ALR hearing where at least one party participated by telephone.  The hearing officers reported that telephonic ALR hearings require the same, or less time than conducting the same type of hearing when all parties are physically present.  In fact, during the focus group sessions, no one said that an ALR telephonic hearing required significantly more time to conduct than one where all parties were present; nine thought there was no significant difference in the length of time required, and eight thought less time was actually required for a telephonic hearing. 

While there were some proponents for the telephonic capability, the majority of the hearing officers did not seem to be overwhelmingly supportive of this method.  When asked to describe their reaction to the law allowing parties involved in ALR hearings to participate by telephone, ten described their reaction as “negative,” nine as “neutral” and three as “positive.”  (These were the actual words they were asked to choose from to describe their reaction.)  When asked directly why they did not favor telephonic hearings, the majority denied that they did not support this method, but then proceeded to offer negative comments about telephonic hearings, albeit many were constructive criticisms.  One hurdle, that could not be remedied, was the feeling that not having all parties physically present could seem to diminish the importance of ALR hearings and the weight they invoke in the administrative process.  When asked how they would rate the professional integrity of the proceedings when held telephonically as opposed to when all parties are physically present, fourteen hearing officers thought telephonic hearings were less effective than when all parties were present, and six thought there was no difference (two did not answer).  In Chapter 4, under the section discussing our findings, we discuss this and other possibilities in greater detail.

When the ALR hearing process was implemented in 1983, the initial group of hearing officers reportedly received “superb” training under the auspices of an attorney general who “cared how we learned to handle administrative hearings.”  All hearing officers attended a weeklong training course on civil administrative law and on conducting quasi-judicial hearings.  Also, there were group meetings held quarterly, and updated training and constructive feedback on the hearings were provided.  But in later years, newly hired hearing officers did not have the same training opportunities and often had to rely on more experienced training officers to share their knowledge and experiences. 

The telephonic ALR hearing law was announced to hearing officers at a group meeting, but it took time to implement due to the logistics of buying and distributing the equipment to the hearing officers.  In fact before the equipment was in place, an attorney who wanted to participate telephonically in a hearing approached one hearing officer, and the hearing officer accommodated the attorney by using his regular office telephone with the speaker feature.   

Hearing officers first watched a demonstration on the use of telephonic equipment at a regularly scheduled meeting.  Supervisors watched and listened to a mock telephonic ALR hearing.  However, there appeared to be numerous problems initially in the field such as the equipment not working properly and poor audio quality.   

Most of the hearing officers did not notice a change in the number of ALR hearings that they conducted since telephonic hearings have been available.  They reported that geography and law enforcement command emphasis have both played important roles in which agencies' law enforcement officers attend ALR hearings.  Several hearing officers reported that discussing the importance of such hearings with LEA command officers sometimes had helped in the past to remedy the absences of the arresting officers.  There may still be problems in rural areas with law enforcement officers not being provided with subpoenas until the day before, or even the day of, the hearing.  But due to the process and because of the 29 day statutory restriction, it can be nearly impossible to get subpoenas out to a rural officer with more than one or two days notice.

The majority of the hearing officers, while not objecting to the concept of telephonic hearings, would prefer not to conduct ALR hearings with telephonic participants except in exceptional cases because of the following reasons.

+        Visual cues during testimony, not possible to see in telephonic hearings, are very important to many hearing officers.  (One focus group participant suggested video teleconferencing, which is allowed by the existing statute, as a better approach.)

+        The hearing itself is of great importance to the driver; therefore, the driver should be able to personally confront all parties involved in the hearing process.

+        It is not possible to conduct telephonic hearings in all locations across the State (discussed below).

+        The telephone equipment is not of the best quality and this causes sporadic technical problems.  Also, there are limitations in the number of parties who may be connected telephonically and, while this has not proven to be problematic to date, it could be a problem in the future.  (For example, there are times when multiple law enforcement officers may testify.)

+        It is not possible to positively identify persons participating telephonically, nor be certain if other unknown parties are present.

+        The peace officer can merely read off of the report.  (As a witness in the hearing, the officer must testify and is not permitted to read verbatim off of reports.)

Some hearing officers acknowledge that telephonic hearings are a relatively new process and note that some attorneys who originally objected strongly to the method are now requesting this type of hearing.^[12]  But several hearing officers have heard defense attorneys talking to their clients about joining a class action lawsuit to challenge the constitutionality of telephonic hearings in an apparent attempt to retract the law. 

One apparent problem is that in some rural locations that could most benefit from a telephonic type hearing by eliminating extensive travel time, the facilities to permit these types of hearings are either not available or the availability is not certain, so the option of a telephonic hearing can not be offered.  (When there is no dedicated office, office space is “borrowed” wherever available from the police station, court house, etc. and sometimes telephone lines can not be used because the hearing would tie up a line that is dedicated to other functions.)

Law Enforcement

During the first site visit, discussions were held with law enforcement officers on the subject of administrative license hearings.  The findings from these discussions were covered under the previous LEA section in Chapter 2 when problems with the ALR law implementation in Utah were presented, but are also reiterated below.  In addition to these discussions, a survey on this subject was conducted under the auspices of the Utah Department of Public Safety with peace officers from state and local LEAs.  Officers at law enforcement agencies across Utah were asked by the Director of the Utah Driver License Division and the Director of the Utah Highway Safety Office to participate in the survey.  The purpose of the survey was to gather perceptions of law enforcement officers relative to how the ALR system operates, problems they encounter, and their reaction to the implementation of telephonic testimony in lieu of physical attendance.  The major findings of this survey are presented below.  A copy of the survey appears in Appendix D.

            Surveys went out to 128 local and county law enforcement agencies in Utah and to the 15 Sections of the Utah Highway Patrol.  Individuals from 77 local and county LEAs and all 15 Sections of the Utah Highway Patrol responded, providing a well-rounded sampling of Utah law enforcement organizations.  Out of the total responses (N=569), sixty percent (N=340) came from local peace officers, 19% (N=110) were submitted from county LEAs, and 21% (N=119) came from the Utah Highway Patrol.

            When asked about their reaction to the law allowing parties involved in ALR hearings to participate telephonically, 32% of the respondents reported that they were not aware of this law.  Of the 380 LEA officers who were aware of the law, 36% reported a positive reaction to the law that authorized participation by telephone at ALR hearings, 24% were neutral and 8% were negative (Figure 3-7).

Figure 3‑7: Police Officers' Responses to the Law Allowing Telephonic Hearings, by Agency Type

            The most important survey finding was that almost half (48%) of the LEA officers who responded were not aware of current telephonic capabilities for ALR hearings ( Figure 3‑8 ).  (Note:  This 48% is comprised of the 32% above who were not aware of the law and another 16% who knew of the law, but didn't know the telephonic capabilities were available for use.  And, in fact, telephonic equipment is not yet available in all areas of Utah.  We do not know how many of these peace officers work in those areas where telephonic hearings are not yet possible due to limited facilities that cannot support the telephone equipment.)

Figure 3‑8: Police Officers' Awareness of Current Capabilities for ALR Hearings, by Agency Type

            Seventy-six percent (76%) of the survey respondents had not participated telephonically in a hearing, and of these, only 11% indicated that in the future they would not plan to participate by telephone in ALR hearings.  Of those who had experienced telephonic participation, 69% said there was no difference in the professional integrity of the proceedings; 12% rated these telephonic hearings more effective; and 17% rated them less effective.  When asked about their viewpoints based on their personal experiences, 60% had a positive view of telephonic testimony (80% of these were from the Utah Highway Patrol); 19% said they were neutral; and 6% rated telephonic testimony negatively (the remaining 15% chose “Don't know”). 

            The majority (57%) of survey respondents reported that during the past year, all of the drivers they had arrested for DUI-related offenses, and who had requested hearings, appeared at those ALR hearings.  Forty percent (40%) of the officers reported that in 1 - 5 cases, the accused individual did not appear at the ALR hearing.  The remaining 3% of LEA personnel indicated that individuals failed to appear at ALR hearings more than 6 times in the past twelve months. 

            LEA respondents reported similar numbers when asked about their own absences from ALR hearings.  Fifty-nine percent reported they had not missed any ALR hearings in the past 12 months; 37% reported missing between 1 and 5 ALR hearings; 2% reported missing between 6 and 10 ALR hearings, and 2% reported being absent more than 10 times.  Using these percentages and the least number of hearings reportedly missed, we have calculated that officers reported that they had missed 393 ALR hearings.  This number is based on:

n      569 LEA survey responses;

n      37% of respondents reported being absent from 1-5 ALR hearings;

n      2% reported being absent from 6-10 ALR hearings; and

n      2% reported being absent from more than 10 ALR hearings.

OR

[(569 X .37) X 1 hearing] + [(569 X .02) X 6 hearings]+[(569 X .02) X 10 hearings]

OR

211 + 68 + 114 = 393 ALR hearings

Thus, we can conservatively estimate that during the previous 12 months, these LEA officers reported being absent from 393 ALR hearings.  At a minimum, that was roughly 13% of the ALR hearings conducted during the year 2001 (reference Figure 3-3).

            During the discussions with law enforcement officers, project staff learned that the arresting officers might not appear at an ALR hearing for a variety of reasons.  Conflicts could arise with LEA-related training schedules, work-related duties taking priority (such as a crash investigation), 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).  These positions were supported by the survey responses.  Of those officers who failed to appear at ALR hearings during the past 12 months, 23% reported a conflict due to work-related duties and 25% reported a conflict due to scheduled personal time off from work. 

            It was also pointed out during the discussions that in some LEAs, command officers do not encourage officers to attend hearings because that law enforcement agency must pay for the officers' time.  The Driver License Division reimburses each LEA in the amount of $18.25 for each appearance an officer makes at a hearing.  While this amount does not completely cover the expense, it does help defray some of the cost.

            Forty-six percent (46%) of the ALR respondents reported they did not feel adequately trained in ALR hearing procedures (Figure 3‑9 ).  (Sixty-eight percent of these responses came from local law enforcement agencies.)  Of those responding, 115 officers indicated that they had not received any training regarding ALR hearing procedures.  Forty-five individuals reported learning through experience, by attending hearings.  Eleven persons stated they had received training at the Academy, but had no further training after leaving the Academy.

Figure 3‑9: Police Officers' Responses to the Question Asking if They Were Adequately Trained in ALR Hearing Procedures, by Agency Type

            Survey participants were asked if they thought they had been adequately trained relative to handling questions in ALR hearings posed by the hearing officers, defense attorneys, and the defendants.  On average, one-third of the responses fell into each category:  No, Somewhat, or Yes ( Figure 3‑10 ).  In addition, fifty officers wrote in comments stating that the questions usually went beyond the bounds of what they believed should be permitted during an ALR hearing.  Five persons commented that they would like an opportunity to hear the final results and reasons for the hearing officer's decision, which doesn't always happen because the ruling doesn't have to be given that day.

Figure 3‑10: Respondents' Belief That They Had Been Adequately Trained to Handle Questions by Defendants, Defense Attorneys, and Hearing Officers in ALR Hearings

            Most DUI cases in Utah are adjudicated in Justice Court, which means there are no preliminary hearings.  Therefore it is the complaint of Utah peace officers, as well as some hearing officers, that defense attorneys often attempt to use the Driver License Division hearing as a discovery process.  (However, as one officer pointed out, this can also work to assure the demise of a challenge if the video or the officer's statement during the ALR hearing shows an extremely strong case.)  Hearing officers are trained to control the sessions so these occasions are limited, although some law enforcement officers believe there is still a problem.  And, as described in the following section, during discussions with the defense attorneys, one attorney in particular admitted that discovery was the reason he always advises clients to request an ALR hearing.  It was an opportunity for him to learn more about the case.

            When asked on the survey how often they thought inappropriate discovery-type questions were asked during an ALR hearing, and how often they were directed by hearing officers to answer, 37% of peace officers believed that they were asked inappropriate questions (25% regularly and 12% often).  Twenty-one percent reported that they were directed by hearing officers to answer these questions (16% regularly and 5% often).

            Self-reported numbers of arrests made during the most recent twelve-month period for impaired or intoxicated driving offenses (N=7,743) are displayed below by type of law enforcement agency.  While the combined local LEAs reported handling the largest number of DUI-related cases (Figure 3‑11 ), county agencies actually had the largest per officer ratio (Figure 3‑12 ).  Seventy-five percent of the individual officers (from all three agency types) reported handling 15 or fewer DUI-related cases during the past year; the bulk of the officers who individually reported a high volume of these arrests (up to 150 per year) were with the Utah Highway Patrol or county agencies.

Figure 3‑11: Self-Reported Annual Number of DUI Arrests for Impaired or Intoxicated Driving Offenses by Type of Law Enforcement Agency

Figure 3‑12: Estimated Annual Number of DUI Arrests Per Officer for Impaired or Intoxicated Driving Offenses by Type of Law Enforcement Agency

These self-reported data appear to be fairly accurate based on a comparison with the latest annual statewide DUI arrest number of approximately 16,000.  (A reported number of 7,743 DUI arrests by the respondents is plausible.  All units of the Highway Patrol and over half of the local and county LEAs responded to the survey, although not every peace officer who had made DUI arrests from each of those agencies participated.)

Defense Attorneys

During a second site visit, a series of unstructured discussions were conducted with three defense attorneys who handle DUI cases.  These attorneys provided a variety of personal views regarding ALR telephonic hearings.

The first attorney reportedly has been practicing for thirty years within Utah and is very experienced in conducting ALR hearings.  In fact, DUI-related cases comprise a large part of his business and he handles cases from all across the State.  He always requests an ALR hearing and believes the administrative hearing system operates better than the judicial system.  He thinks highly of the hearing officers and believes they are well trained and fair minded.  He favors telephonic hearings for a variety of reasons.

+        He charges his clients a flat fee and not having to appear at an ALR hearing lowers his personal costs.  Therefore, he has not had to raise rates for his clients.

+        Clients who cannot leave work can still participate telephonically.

+        He can more easily control difficult clients when not in the presence of the arresting officer and/or hearing officer.

+        Reportedly, many of his clients like not having to face the arresting officer and/or the hearing officer.

+        He sees no difference between telephonic hearings and those where everyone is physically in attendance as far as how they are conducted, nor the outcome.

He believes that more law enforcement officers are participating since telephonic hearings have been conducted.  He basically believes these types of hearings focus on “problem solving” instead of becoming confrontational.

            The second attorney reportedly handles 100-150 DUI-related cases each year.  He vehemently opposes the ALR process in general and definitely opposes telephonic ALR hearings.

+        Administrative hearings are not “a real court” and therefore, according to this attorney, arresting officers can lie.  It is easier when one can observe the candor of a person visually when listening to his or her testimony.

+        In a traditional hearing, arresting officers are not allowed to sit and read a report; they must testify.  If the officers are not physically present, it is impossible to tell if they are reading from their report.

+        There is “no control” over hearings conducted telephonically.  (Note:  The hearing officers who control the hearings did not report a lack of control due to telephonic hearings.  However, this attorney seemed to believe he lost some control if all parties were not physically present.)

He believes there is a bias in the system and claims that the hearing officers “will suspend (the driver's license) if they have a warm body.”  He routinely petitions the Driver License Division for reconsideration and, after exhausting all administrative remedies, has petitioned the court.  In the past he has sued individual hearing officers and the managers at the Driver License Division.

            The third attorney is a partner in a large firm that specializes in criminal defense law.  His clients are typically better off economically than the clients of the first two attorneys.  He estimated that, before telephonic hearings, 30% of his clients retained their licenses after the administrative hearing, usually due to technicalities or the absence of the arresting officers, even though half of those clients would eventually lose their licenses as a result of the criminal case.  He was very forthright and said he routinely requests ALR hearings in the hopes of discovering details important to the judicial case.  He reports that the ALR hearing is the only real opportunity to straighten out factual issues before the case goes to court.  While he does not strenuously object to telephonic hearings for routine cases, if there are any complexities to the case, he believes all parties to the hearing should be physically present.

+        While he understands the practicalities of allowing telephonic hearings, he laments that in far, remote parts of the State where this method of hearings would most benefit the parties involved, telephonic hearings are often not available.

+        He believes that both sides should be able to stipulate if special needs exist, or if either side objects, then a telephonic hearing ought not to be allowed.

+        He notes that the loss of a driver's license is very important in today's society, and everyone should be present for such an important decision if at all possible.

^[7]In some communities, hearing officers do not have dedicated facilities and use public facilities as avail-able. If a separate telephone line is not available for use by the hearing officer, or the use of a telephone line restricts the business conducted at the public facility, then telephonic hearings may not be conducted.

^[8] The outcome of the ALR hearing is administrative in nature and is independent of any judicial process that may result in loss of driving privileges.

^[9]A peace officer must warn the driver that the results of the chemical test could lead to loss of the driving privilege. The Baker Rule requires that the person providing a BAC breath sample had no food or drink for at least 15 minutes prior to the test and had nothing in his or her mouth at the time of the test.

^[10]The percentage of officers failing to appear at ALR hearings was essentially the same across all types of law enforcement agencies. The breakdown by agency type showed that between 68% to 70% of these ALR hearings resulted in “no license action,” meaning the license was reinstated because the arresting officer failed to appear.

^[11]Utah Department of Public Safety, Driver License Division. (1994) “Hearing Officer Training Modules” Salt Lake City, Utah: Department of Public Safety.

^[12]We note that it is possible the learning curve is also continuing for the hearing officers.