98-1102
____________________________________
PETITIONER, :
: ORDER
Petitioner, :
: Appeal No.
98-1102
v. : Account No. #####
:
MOTOR VEHICLE
CUSTOMER ) Tax Type: Miscellaneous
SERVICE
DIVISION OF THE :
THE UTAH STATE
TAX )
COMMISSION, : Presiding: Phan
:
Respondent. :
_____________________________________
Presiding:
Jane Phan,
Administrative Law Judge
Appearances:
For
Petitioner: PETITIONER
PETITIONER REP
For
Respondent: Michelle
Bush, Assistant Attorney General
Jonathon Reed, Law Clerk Attorney General's Office
Julie Halvorson, Assistant Director Motor Vehicle Customer
Service Division
STATEMENT OF THE CASE
This
matter came before the Utah State Tax Commission for an Initial Hearing
pursuant to the provisions of Utah Code Ann. §59-1-502.5, on September 22,
1998.
Petitioner
is appealing the $$$$$ administrative impound fee which was assessed when her
vehicle was impounded after her grandson, NAME, was arrested for driving under
the influence of alcohol or drugs (DUI).
The incident occurred on May 1, 1998.
NAME was driving Petitioner's
vehicle when the tire blew out causing the car to swerve and hit a sign at the
side of the road. Because he had
knocked the sign over NAME called police to let them know of the incident. The police then came to the scene and
according to NAME harassed, and then arrested him. NAME has a medical condition
and was takes prescription medication, some of which the police seized at the
scene of the arrest.
NAME's
brothers were at the scene of the arrest but were not registered owners of the
vehicle and the police did not allow them to remove the vehicle from the
scene. Petitioner, the registered owner
of the vehicle was not at the scene of the arrest. The police had Petitioner's vehicle impounded and she was
required to pay towing and storage fees as well as the $$$$$ impound fee before
the vehicle was released to her.
Several days after the arrest, NAME was cited for DUI. After a hearing the Drivers Licence Division
returned NAME's drivers license. The
DUI criminal case is still pending.
APPLICABLE LAW
If
a peace officer arrests or cites the operator of a vehicle for violation of
Section 41-5-44 or 41-6-44.10, or a similar local ordinance, the officer shall
seize and impound the vehicle. The
impounded vehicle shall be released after the registered owner or the owner's
agent: (i) makes a claim in person for release of the vehicle; (ii) pays an administrative
impound fee of $$$$$; (iii) presents identification sufficient to prove
ownership; and (iv) pays all towing and storage fees to the impound lot where
the vehicle was stored. If the
operator is not a registered owner of the vehicle, and a registered owner is
present at the time of arrest the officer may release the vehicle to that
registered owner if certain conditions are met. (Utah Code Ann. §41-6-44.30.)
DECISION AND ORDER
The
$$$$$ administrative impound fee is statutory, mandated by the Utah
Legislature. Twenty-five percent of
the fee goes to the Motor Vehicle Division and the remainder goes to the state's general fund. The Legislature did not provide for waiver
or reduction of the fee in the event the operator of the vehicle was not
convicted after the arrest or citation, or even if the arrest or citation was
improper. The law requires impound of
the vehicle unless a registered owner is at the scene of the arrest. After review of the law involved, the
vehicle was impounded upon the arrest of the driver of the vehicle and the
administrative impound fee was properly collected. This decision does not
indicate that the Tax Commission finds that the arrest itself was proper, that
the police acted appropriately or that NAME was guilty of the DUI, as the Tax
Commission does not have the authority or the jurisdiction to decide these
issues.
Based upon the foregoing,
the Tax Commission denies Petitioner's request for refund of the $$$$$
administrative impound fee.
This
decision does not limit a party's right to a Formal Hearing. However, this Decision and Order will become
the Final Decision and Order of the Commission unless any party to this case
files a written request within thirty (30) days of the date of this decision to
proceed to a Formal Hearing. Such a
request shall be mailed to the address listed below and must include the
Petitioner's name, address, and appeal number:
Utah State Tax Commission
Appeals Division
210 North 1950 West
Salt Lake City, Utah 84134
Failure
to request a Formal Hearing will preclude any further appeal rights in this
matter.
DATED
this 19 day of October, 1998.
____________________________________
Jane Phan
Administrative Law
Judge
BY ORDER OF THE UTAH STATE TAX COMMISSION.
The
Commission has reviewed this case and the undersigned concur in this decision.
DATED
this 19 day of October, 1998.
Richard B.
McKeown
Chairman
Joe B.
Pacheco Pam
Hendrickson
Commissioner Commissioner
^^