97-1335
DUI IMPOUND
Signed 6/1/98
BEFORE THE UTAH STATE TAX COMMISSION
____________________________________
PETITIONER, )
:
Petitioner, ) FINDINGS
OF FACT,
: CONCLUSIONS OF LAW,
v. ) AND
FINAL DECISION
:
CUSTOMER SERVICE DIVISION
OF ) Appeal
No. 97-1335
THE UTAH STATE TAX
COMMISSION,:
)
Respondent. : Tax
Type: DUI Impound Fee
_____________________________________
STATEMENT OF CASE
This matter came before
the Utah State Tax Commission for a Formal Hearing on March 4, 1998. Jane Phan, Administrative Law Judge, heard
the matter for and on behalf of the Commission. Petitioner was present and represented himself. Present and representing Respondent were
Victoria Davis from the Attorney General's Office, Michelle Bush, Assistant
Attorney General, and Julie Halvorson, Assistant Director of the Motor Vehicle
Customer Service Division.
Based upon the evidence
in the file and presented at the hearing, the Commission makes its:
FINDINGS OF FACT
1. Petitioner
is appealing the $$$$$ administrative impound fee which was assessed when his
vehicle was impounded after his son was cited for driving under the influence
of alcohol or drugs (DUI).
2. Petitioner
explained that when he and his wife
returned from a vacation his son was not a home and neither was
Petitioner's truck. Petitioner assumed
that his son had taken the truck which the son often drove and Petitioner did
not report the truck as being stolen.
Later that evening Petitioner was notified that his son had been
arrested for DUI.
3. The site
of the arrest was only 8 miles from Petitioner's home. Petitioner was not present at the scene of
the arrest. Petitioner felt that the
arresting officer should have called Petitioner to the scene so that he could
pick up the truck. Instead the police
officer impounded the truck.
4. The
Sheriff's Office did not give notice to the Motor Vehicle Division of the
impound within 24 hours, instead notice was sent five days after the
impound. The notice indicated that the
truck had been taken to an incorrect impound lot.
5. The Motor
Vehicle Division mailed notice of the impound to Petitioner the day after it
received notice from the Sheriff's Office.
However, the Motor Vehicle Division also erred by listing an incorrect
impound lot.
6.
Petitioner located the truck by going around to the various towing businesses
in Fillmore. He eventually found his
vehicle and was charged $$$$$ by the business for towing and storage fees, in
addition to the $$$$$ administrative fee which he paid to the Motor Vehicle
Division.
7. Petitioner
filed an Objection to Jane Phan acting as a Formal Administrative Hearing
Judge. Judge Phan overruled Petitioner's
objection and presided at the Formal Hearing in this mater.
APPLICABLE LAW
The Utah Legislature adopted provisions concerning
the impound of a motor vehicle after the operator is arrested or cited for DUI
in Utah Code Ann. '41-6-44.30 as follows:
(1)(a)If a peace officer arrests or cites the
operator of a vehicle for violation of Section 41-5-44 or 41-6-44.10, or a
local ordinance similar to Section 41-6-44 which complies with Subsection
41-6-43(1), the officer shall: (I)seize and impound the vehicle, except as
provided under Subsection (2). . .
(2) If the operator is not a registered owner of
the vehicle, and if a registered owner of the vehicle, other than the operator,
is present at the time of arrest, the officer may release the vehicle to that
registered owner, but only if the registered owner: (a) requests to remove the
vehicle from the scene; (b) presents to the officer a valid operator's license
and sufficient identification to prove ownership of the vehicle. . .
(3) (a) The peace officer or agency by whom the
officer is employed shall, within 24 hours after seizure, notify the Motor
Vehicle Division of the seizure and impoundment and within five days forward
any license plates and registration materials seized to the Motor Vehicle Division.
. .
(5)(a)The impounded
vehicle shall be released after the registered owner or the owner's agent: (I)
makes a claim in person for release of the vehicle at any office of the State
Tax Commission; (ii) pays an administrative impound fee of $100; (iii) presents
identification sufficient to prove ownership of the impounded vehicle; and (iv)
pays all towing and storage fees to the impound lot where the vehicle was
stored.
DECISION
AND ORDER
Petitioner argues that
the failure of the Sheriff's Office to notify the Commission of the impound
within twenty four hours took the jurisdiction away from the State to assess
the DUI impound fee. Petitioner also argues
that the statute providing for the impound and assessment of the $$$$$ fee is
unconstitutional, asserting that it violates both equal protection and due
process provisions. Further, Petitioner
asserts that police officers are given too much discretion in Utah Code Ann. '41-6-44.30(2) to determine
who is "present" at the time of the arrest.
The Commission does not find that statute at issue
to be unconstitutional and further finds to be without merit Petitioner's
argument that the phrase in Utah Code Ann. '41-6-44.30(2) "present at the time of the
arrest" gives police officers to much discretion. The failure of the arresting officer to send
notice of the impound to the Tax Commission within the required 24 hour period
is troubling. However, the Commission
does not find that under the statute this justifies refund of the $$$$$ DUI
impound fee.
Based upon the foregoing, the Tax Commission denies
Petitioner's request for refund of the $$$$$ administrative impound fee. It is so ordered.
DATED this 1 day of June, 1998.
BY ORDER OF THE UTAH
STATE TAX COMMISSION.
Jane Phan
Administrative Law Judge
The agency has reviewed this case and the
undersigned concur in this decision.
DATED this 1 day of June, 1998.
BY ORDER OF THE UTAH
STATE TAX COMMISSION.
W. Val Oveson Richard B. McKeown
Chairman Commissioner
Joe B. Pacheco Pam Hendrickson
Commissioner Commissioner
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