Utah DUI Attorney : Salt Lake City DUI Lawyer & Attorney : Glen Neeley : Serving Davis County, Ogden, Brigham City, Logan

Most, if not all, of my clients ask me when they come in for a consultation, "if my driver's license gets suspended, can I get a work permit?" 

Answer:  No, not in Utah.

The Department of Motor Vehicles will not issue a work permit.  I have only seen one in my years of practicing law and the client was not supposed to get it.  It was rare.  It was a mistake on the part of the DMV and the license suspension was not related to a DUI.

Utah's Law:  Utah has no provisions for a work permit.  My friends in Texas can get a "needs necessity license" that allows people to go to and from work and to conduct visitation with children.  Utah has no such license.  If your license gets revoked or suspended, and you get caught driving on that suspension, you not only face more criminal charges, but the DMV will extend the suspension.

Alternate Transportation:  My advice is to find alternate transportation.  I know what you are thinking, "the bus doesn't work for me."  Do some creative thinking.  If I was in high school and had no money, I would have been happy to drive someone around for a small cost.  Hire a driver.  Find someone who has no job, but has a driver's license.  Put them to work.  That way, there is no risk for you on the suspension Issue.

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I was stopped by an attorney the other day that told me the Department of Public Safety (DMV) took action on his client’s driver’s license when he plead guilty to an Alcohol Related Reckless (ARR) Driving charge. This perplexed me because I watched the laws closely this last legislative session and did not see any law like this go into effect. So, I decided to research it and called a Hearing Officer and then the Bureau Chief for clarification. They told me they are not taking action on an ARR outright. However, just as it always has been, if a person has two reckless driving citations in one year (weather alcohol related or not) there will be a suspension.  If the person has too many points (ARR will give 80 points) on their driving record, that can cause a suspension.  Also, if a person pleads to an Alcohol Related Reckless and had a prior per se suspension within ten years, the Department will require an ignition interlock device pursuant to 41-6a-518.2.

Here is were some confusion comes in. Pursuant to the new law that was effective in April 2007, the division will allow a reinstatement of the driver’s license after 60 days if the charge is reduced or dismissed. The statute is Utah Code §53-3-223(7)(b).

(b) (i) Notwithstanding the provisions in Subsection (7)(a)(i), the division shall reinstate a person's license prior to completion of the 90 day suspension period imposed under Subsection (7)(a)(i) if the person's charge for a violation of Section 41-6a-502 or 41-6a-517 is reduced or dismissed prior to completion of the suspension period.
     (ii) The division shall immediately reinstate a person's license upon receiving written verification of the person's dismissal of a charge for a violation of Section 41-6a-502 or 41-6a-517.
     (iii) The division shall reinstate a person's license no sooner than 60 days beginning on the 30th day after the date of arrest upon receiving written verification of the person's reduction of a charge for a violation of Section 41-6a-502 or 41-6a-517.

   
            So the scenario is that you lose the driver’s license administrative hearing.  If you were to walk in and plead guilty to an Alcohol Related Reckless Driving charge, you would then be eligible to take written verification to the DMV and get reinstated after 60 days.  Of course the DMV still wants their reinstatement fee.

            If the scenario is that that you win the driver’s license administrative hearing and you plead to an Alcohol Related Reckless Driving, my understanding is that the only action on a driver's license would be a “no alcohol restricted license.”  There would be no suspension.

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After the informal administrative driver’s license hearing is held and the DMV mails out notice that the citizen’s driver’s license will be suspended, there are a couple of procedures that need to be followed in appealing the DMV’s decision. The following is an outline of the process and procedures that I follow to file an appeal. I appeal most of my driver’s license decisions and seem to be successful at most of them.

1. File a letter with the DMV requesting reconsideration of the decision. Many times I do this the day the hearing is held. The DMV decisions have become such a rubber stamp and most decision are held against the citizen. The request of reconsideration letter will do no good and a form letter will come back from the DMV indicating “after careful consideration, the Department upholds the decision of the hearing officer.” However, this is an important step to take away the Attorney General’s argument that all administrative procedures and remedies have not been exhausted.
2. File a Petition for Judicial Review of Suspension of Driver’s License and follow the guidelines Utah Code Ann. §63-46b-15.  Include procedural due process claims and allege that the Department is not following the Administrative Procedures Act as you see fit.
   

(2) (a) The petition for judicial review of informal adjudicative proceedings shall be a complaint governed by the Utah Rules of Civil Procedure and shall include:      

      (i) the name and mailing address of the party seeking judicial review;

      (ii) the name and mailing address of the respondent agency;

      (iii) the title and date of the final agency action to be reviewed, together with a copy, summary, or brief description of the agency action;

      (iv) identification of the persons who were parties in the informal adjudicative proceedings that led to the agency action;

      (v) a copy of the written agency order from the informal proceeding;

      (vi) facts demonstrating that the party seeking judicial review is entitled to obtain judicial review;

      (vii) a request for relief, specifying the type and extent of relief requested; and

     (viii) a statement of the reasons why the petitioner is entitled to

3.      The Filing Fee is $155.

4.      Prepare a Motion for an Expedited Hearing. I allege the facts that my client will lose their job, the issue will be moot if not heard before 90 days, that the DMV did not follow their own rules in conducting a hearing that is supposed to substantially comply with fairness and due process, and I allege that my client will most likely prevail on the issues.

5.      Send a form letter requesting the DMV to stay the suspension during the appeal period. You will get a form letter back saying “sorry, no dice.” However, the Attorney General cannot say that you did not exhaust all of your remedies.

6.      Sometime you can contact the Attorney General and ask for a stay, but the current AG has stopped giving those out freely. However, if the AG requests a continuance, request a stay of the suspension and the AG will usually agree to it.

7.      Prepare a Summons for the AG and an Acceptance of Service.

8.      This appeal has to be filed within 30 days of the Department’s decision pursuant to rule 53-3-223(8)(b).

9.      Once the appeal is filed, get on the phone with the clerk within a couple of days to get an expedited hearing scheduled. I have had good success with this in Weber, Davis, Box Elder, and Cache Counties. I have not had real good success with scheduling an expedited hearing in Salt Lake County because of the backlog of cases.

10. The Venue is in the District Court County where the offense occurred. See Rule 53-3-224.

11. The trial will be held by de novo review pursuant to rule 63-46b-15(1)(a).

If the citizen refused to blow and has an 18 month suspension, the AG has somewhat of a consistent practice of reducing the 18 month suspension to a 90 day suspension if the citizen will walk in and plead guilty to the DUI. However, if it is determined that this is the best route for the citizen, get the arrangement in writing from the AG.

I have had a lot of success in appealing my cases to the District Court where an attorney is allowed to cross examine the officer, present a full case, and is allowed to have all the evidence including the supplemental reports and videos. 

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Jamie Spencer from Austin Texas wrote about ALR hearings and discussed the issue of whether your attorney should do the hearing live in person or by telephone. For a Utah DUI driver’s license suspension hearing, we have the option of showing up in person or by telephone. However, the Utah Driver’s License Division has recently negated in Utah all of the valid reasons that Jamie mentions for a Texas ALR hearing. Jamie’s main point is that this is a wonderful opportunity to cross examine the officer and to get him on record. Beginning May 2007, the Utah Driver’s License Division has interpreted the DUI Driver’s License Hearing as being an informal hearing, which does not allow a person to cross examine anyone. The outline of the hearing has now turned to the following:

• The Hearing Officer asks if all parties are present.
• The Hearing Officer reads a brief statutory statement stating the rules of the hearing, the consequences, and the reason for the hearing.
• The Hearing Officer will ask the arresting officer to tell his story. It is one sided and nobody can or will contest the officer’s version of the facts of a person’s arrest.
• Then, the only way to rebut the officer’s testimony is to have the arrested person testify.
• After the person testifies, the Hearing Officer will allow closing comments from the arrested person or his attorney. 
• The hearing closes with the Hearing officer telling the person a decision will be mailed out within just a couple of weeks.

The arresting officer is permitted to phone in his testimony. There is no cross examination. Believe it or not, I have won several of these hearing and they were done by telephone. If I lose these hearings, and I see problems with the Officer’s case, I will file an appeal to the District Court. I totally agree with Jamie’s article on ALR hearings because he has the right to cross examine the witness. In Utah’s jurisdiction, the right does not exist. That’s bad. We get a whole new trial on appeal with the District Court. That’s good. I encourage the attorney’s to use the appellate process. My success rate goes way up when I file an appeal on the DUI Driver’s License Hearing.

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If you are arrested for DUI, one of the first things you have to deal with is your license. Normally, an officer will take your Utah driver’s license and issue you a citation. That citation will tell most people that the citation acts as a driver’s license for 29 days. In small print at the bottom of that citation, it will tell you that you have to request a hearing with in 10 days of your arrest. The DMV is sticklers on this point. Do this request within 10 days or you have no chance. Recently, the law was changed so you cannot appeal the DMV action of taking your license if you do not make that request within the 10 days. Even if you are one day late, the DMV will take your license.

Once the request is made, a notice will be sent to you (and your lawyer if you have hired one) telling you the hearing date and time. This hearing has to be given to you prior to your temporary driving privileges being suspended, which is with in the 29 days.

Most of these hearings are conducted by telephone. Recently, the DMV has restricted the due process in these hearings. The officer will testify first and tell the hearing judge what happened from his point of view. The citizen is then given an opportunity to testify. The citizen (or lawyer) will then make a closing statement of why you should not lose your license. The restriction that has recently come in to play is that the attorney or citizen has no right to cross examine the arresting officer. The officer can say whatever he wants without being questioned about it.

You will not receive a ruling or decision that day. You will receive the decision by mail within one or two weeks. If the department takes action on your license and suspends it, you may already be suspended by the time you get the letter. Do not drive after the 29 days have expired.

Chances of Winning: At this level, your chances of winning are very poor. Sometimes there is a small chance the officer will not show up. This rarely happens anymore. If you want to pursue your driver’s license, you must file an appeal with the District Court and ask the District Court to overturn the DMV’s ruling. Your chances of winning at this stage increase greatly. I suggest having a lawyer throughout each stage of this process.

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