____________________________________
PETITIONER, :
: ORDER
Petitioner, :
: Appeal No.
98-1177
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:
For
Respondent: Tim
Bodily, Assistant Attorney General
Brett Wilding, Agent, 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 April 26, 1999.
Petitioner
is appealing the $100 administrative impound fee which was assessed when his
vehicle was impounded after he was cited for driving under the influence of
alcohol or drugs (DUI).
On
August 9, 1998, Petitioner was cited with a DUI by the Utah Highway Patrol and
Petitioner's vehicle was impounded. As
is provided by law, Respondent notified Petitioner of the impound on August 14,
1998, and Respondent required that Petitioner pay the $100 impound fee prior to
allowing release of his vehicle from impound.
The criminal DUI proceeding is still pending in district court.
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 $100; (iii) presents identification sufficient to
prove ownership; and (iv) pays all towing and storage fees to the impound lot
where the vehicle was stored. (Utah Code Ann. §41-6-44.30.)
DECISION AND ORDER
Petitioner's
representative argues that his client should not be charged the $100 fee, as
there was no evidence presented to the Tax Commission that his client had, in
fact, been driving under the influence and the fee was assessed prior to the
drivers license hearing or resolution in district court. He also points out that his client is forced
to go through three separate proceedings with the DUI citation. There is the proceeding before the Drivers
License Division on whether or not the drivers license will be reinstated, the criminal proceeding in district court
and, thirdly, this proceeding at the Tax Commission. Petitioner argues that this proceeding is barred by principles of
estoppel or double jeopardy.
The
$100 administrative impound fee is statutory, mandated by the Utah
Legislature. 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. As Respondent's representative point out
the statute does not require that the Tax Commission determine if the arrest
was lawful or even valid. If a driver
of a vehicle is arrested or cited for DUI and the vehicle is impounded as the
result, the statute requires that the $100 fee be charged, regardless of the
outcome in the criminal proceeding or with the Drivers License Division.
Based upon the foregoing,
the Tax Commission denies Petitioner's request for refund of the $100
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 26TH day of May, 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 26th day of May, 1999.
Richard B.
McKeown Pam
Hendrickson
Chairman Commissioner
R. Bruce
Johnson
Commissioner
^^