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Administration Review Hearing in Utah

By law, a person who drives a motor vehicle is deemed to have given her consent to chemical testing of her blood or breath for the purpose of determining the alcoholic content of her blood, if lawfully arrested for driving under the influence. Before giving a sample, the officer shall tell the motorist that her failure to submit to, or failure to complete, the required chemical testing will result in her license being suspended.

If the motorist refuses to submit or fails to complete a chemical test, the officer shall notify the Department of Motor Vehicles. The department shall give notice of intent to revoke to both the arresting officer and motorist. Within 15 days of receiving notice, the motorist may request a hearing. At the hearing, the department must show by a preponderance of the evidence that (1) the peace officer had reasonable cause to believe that the motorist was driving under the influence, (2) the person was placed under arrest, (3) the motorist refused or failed to complete the chemical test or tests after being requested by a peace officer, and (4) the person had been told that her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing. The motorist is allowed to present her own evidence disproving any of these elements. If the department determines, by a preponderance of the evidence, that any of those facts were not proven, the department shall rescind the order of suspension and reinstate the motorist’s license.

There are a few defenses to the administrative review hearing. One defense is incapacity to refuse due to a medical condition unrelated to alcohol consumption. For example, a motorist refusal to take the breathalyzer test could not be held guilty where she had sustained skull fracture and serious injury to the head during a motorcycle accident which made it difficult, if not impossible, for her to understand implied consent advisory. Furthermore, in determining whether the motorist can or cannot understand the implied consent statute, the judge is allowed to consider evidence of the motorist’s capacity and not confined to the reasonableness of arresting officer’s conclusion that the motorist was capable of refusing to submit to test.

But certain conditions do not make a motorist “incapable.” Self-inducing condition rendering motorist incapable of understanding and refusing to submit to chemical test does not excuse his failure to take test, particularly if resulting from alcohol consumption. Accordingly, a motorist who self-inducing herself to the point of being too drunk to understand proffered information or explanations does not excuse refusal to take chemical test. Moreover, a motorist who is dead, unconscious, or otherwise in a condition rendering her incapable of refusal, is not a defense. Courts normally held that the Utah Statute is to be interpreted liberally and apply even to those who are unable to refuse. It should be noted that the law treats a medically incapacitated motorists differently from one who is dead, unconscious, or otherwise incapable of refusal. The medially incapacitated motorist can still answer “yes” or “no.” This motorist is excused from her response because due to a medical condition, she cannot understand the implied consent statute. A dead or unconscious motorist has no opportunity to say “yes” or “no.” Furthermore, it is unclear if the motorist could or could not understand the implied consent statute; as such, the law assumes that she consented.

Administrative Revocation Procedure

The Arrest

The first step in the DUI process is the arrest. Under Utah law, a police officer may stop any vehicle if she has probable cause that the driver is under the influence or that the driver committed a traffic violation (i.e. speeding). Upon the stop, if the officer has probable cause that you have been drinking, she may ask you to submit to sobriety tests. The tests could include anything, but is normally limited to three: walk & turn, one-leg stand, and the horizontal Gaze Nystagmus (HGN). The walk & turn is basically asking you to walk in a straight line toe-to-heel and walk back. The one-leg stand is asking you to stand on one foot and count to a certain number (most common is 10). To administer HGN, the officer will take a stimulus (a pen) and tell you to follow it with your eyes from side to side. If the officer still believes that you are intoxicated, she may request a breath, urine, or blood sample. For administrative revocation purposes, you will refuse. It should be noted that you have no right to an attorney before refusing to give a sample.

15 days procedure

This is an important step. Upon arrest, you will receive a ticket and notice that Utah is revoking your license. You have ONLY 15 days to request a hearing. If you fail to make a request, you waived your right to challenge the revocation. Upon request, a trial date will be issued.

Plea bargain & Trial

There is no arraignment or preliminary hearing, there is only the trial. Before the trial starts, you may contact the prosecutor and ask for a plea bargain. The plea normally involves you taking a class or participating in a program (i.e. Alcohol Anonymous). If no plea is reached, trial shall proceed.

At trial, both you and the prosecutor will present opening statements outlining your case. The prosecutor will then present evidence of your DUI. You have the right to cross-examine any witnesses produced. The prosecutor will then rest and you shall present your case. You may present any evidence/witness that is reliable, material, and relevant to the case. The prosecutor has the right to cross-examine your witnesses. You shall then rest. Both you and the prosecutor will then make closing statements.

Punishment for Administrative DUI Revocation

If you are found guilty of refusing to give a sample and this is your first offense, your license shall be revoked for 180 days.

If you are found guilty of refusing to give a sample and you have a prior conviction within the last ten years, your license shall be revoked for one year.

If you are found guilty of refusing to give a sample and you have two or more prior convictions within the last ten years, your license shall be revoked for three or more years.

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