98-1132
PROPERTY TAX
Signed 2/11/99
BEFORE THE
UTAH STATE TAX COMMISSION
____________________________________
PETITIONER, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Petitioner, ) AND FINAL DECISION
)
v. ) Appeal No. 98-1132
) Parcel No. A459447
MOTOR VEHICLE
CUSTOMER )
SERVICE
DIVISION, UTAH STATE ) Tax Type:
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TAX COMMISSION, )
) Presiding: Phan
Respondent. )
_____________________________________
Presiding:
Joe B. Pacheco,
Commissioner
Jane Phan,
Administrative Law Judge
Appearances: L. Anderson
For Petitioner:
For Respondent: Michelle Bush, Assistant Attorney General
Julie
Halvorson, Assistant Director Motor Vehicle Customer Service Division
STATEMENT
OF THE CASE
This matter came before the Utah State
Tax Commission for a Formal Hearing on January 28, 1999. Based upon the evidence and testimony
presented at the hearing, the Tax Commission hereby makes its:
FINDINGS
OF FACT
1. Petitioner
is appealing the $$$$$ administrative impound fee which was assessed when his
vehicle was impounded after the driver of the vehicle was arrested for driving
under the influence of alcohol or drugs (DUI).
2. The
driver of the vehicle, NAME, was cited for a DUI on July 5, 1998. The arresting officer impounded the vehicle
at the scene of the arrest and TOWING COMPANY towed the vehicle to its impound
lot. The arrest occurred approximately
eight miles from Petitioner's residence.
3. The
impounded vehicle was a 1979 Mercury Bobcat.
It was registered to Petitioner,
however, Petitioner had allowed his son NAME to drive the vehicle for
the purposes of attending school and work in the Salt Lake area. NAME had returned to Fillmore with the car
on July 4, 1998. In the evening Darve
Anderson met with friends in Fillmore and gave the car keys to NAME to move the
vehicle from a parking lot to the public park a few blocks away. About a half hour later NAME went to the
park but neither the vehicle nor NAME were there. NAME waited for possibly an hour then spotted a tow truck which
he followed thinking that NAME had been in an accident. He found the vehicle but the tow truck
operator would not release it to him without the consent of the Sheriff's
Office. NAME then went to the Sheriff's
Office and spoke with the deputy who had arrested NAME, but the deputy would
not release the vehicle.
4. Petitioner
found out about the impoundment of his vehicle from the impound yard the
following morning. Petitioner told
Sheriff's deputies that he had never heard of NAME and discussed the
possibility of theft. The deputy said
that NAME had given NAME permission and so the deputy would not consider it to
be a theft.
5. Petitioner was not
present at the scene of the arrest, nor was Petitioner's son NAME. The arresting officer did not call
Petitioner at the time of the arrest to give him the opportunity to retrieve
the vehicle prior to its impoundment although the arresting officer knew Petitioner
personally and would have had access to Petitioner's phone number.
6. Petitioner was required to pay the $100
impound fee as well as $100 for towing and storage fees.
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 . . .
(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 . . .
(7) The
registered owner of the vehicle upon the payment of all fees and charges
incurred in the seizure and impoundment of the owners's vehicle has a cause of
action for all the fees and charges, together with damages, court costs, and
attorney fees, against the operator of the vehicle whose actions caused the
impoundment . . .
CONCLUSIONS OF
LAW
As the driver of the vehicle was arrested and
cited for a DUI the vehicle was properly impounded and the $100 administrative
impound fee properly charged to Petitioner pursuant to Utah Code Ann. '41-6-44.30.
DECISION
AND ORDER
Petitioner
presented several arguments in support of his position that he should be
refunded the $100 impound fee as well as reimbursed for the towing and storage
charges. The Commission finds
Petitioner's argument that he was "present at the scene of the
arrest" for the purposes of Utah
Code Ann. '41-6-44.30 to be without merit. The Commission also finds to be without
merit Petitioner's various constitutional arguments. The law does not require the arresting officer to attempt to
contact the registered owner of the vehicle at the time of the arrest and wait
for them to remove the vehicle from the scene.
There is a rational basis for this including public safety reasons and
to expedite the time that the officer is required to remain at the site of the
arrest. In addition Petitioner is not
entitled to a pre depravation hearing on this issue.
Petitioner also argues that for the sake
of equity or fairness he should be refunded the fee and compensated for the
other expenses. Petitioner does have a
statutory cause of action for recovery of these funds from the driver of the
vehicle who was arrested. Clearly the
Legislature contemplated the situation that Petitioner finds himself in because
it provided this cause of action against the driver who was arrested for the
DUI. As all other registered owners in
situations similar to Petitioner have been charged the penalty it would be
unequitable or unfair to waive it for Petitioner.
Based upon the foregoing, the Tax
Commission denies Petitioner's request for refund of the $100 administrative
impound fee. It is so ordered.
DATED this 11TH day of February, 1999.
_____________________
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 11th day of February, 1999.
Richard B.
McKeown Joe
B. Pacheco
Chairman Commissioner
Pam Hendrickson R.
Bruce Johnson
Commissioner Commissioner
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