H.B. 387
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: K.P. Gasser 6
6 02-03-23 11:46 AM 6
H.B. 387
1 SUSPENDED DRIVER LICENSE APPEALS AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Quinn Kotter
5 Senate Sponsor: ____________
6
7LONG TITLE
8General Description:
9 This bill amends provisions related to an administrative hearing to determine whether
10to suspend a driver license of an individual accused of driving under the influence.
11Highlighted Provisions:
12 This bill:
13 <amends provisions regarding the timing of notice and a hearing with the Driver
14License Division for a person accused of driving under the influence;
15 <requires certain evidence be provided before the administrative hearing to a person
16accused of driving under the influence;
17 <classifies as a protected record certain video evidence provided to a person accused
18of driving under the influence; and
19 <makes technical changes.
20Money Appropriated in this Bill:
21 None
22Other Special Clauses:
23 None
24Utah Code Sections Affected:
25AMENDS:
26 41-6a-520, as last amended by Laws of Utah 2022, Chapters 116, 134
27 41-6a-521, as last amended by Laws of Utah 2019, Chapter 77
*HB0387* H.B. 387 02-03-23 11:46 AM
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28 53-3-223, as last amended by Laws of Utah 2022, Chapter 116
29
30Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 41-6a-520 is amended to read:
32 41-6a-520. Implied consent to chemical tests for alcohol or drug -- Number of
33tests -- Refusal -- Warning, report.
34 (1) (a) A person operating a motor vehicle in this state is considered to have given the
35person's consent to a chemical test or tests of the person's breath, blood, urine, or oral fluids for
36the purpose of determining whether the person was operating or in actual physical control of a
37motor vehicle while:
38 (i) having a blood or breath alcohol content statutorily prohibited under Section
3941-6a-502, 41-6a-530, or 53-3-231;
40 (ii) under the influence of alcohol, any drug, or combination of alcohol and any drug
41under Section 41-6a-502; or
42 (iii) having any measurable controlled substance or metabolite of a controlled
43substance in the person's body in violation of Section 41-6a-517.
44 (b) A test or tests authorized under this Subsection (1) must be administered at the
45direction of a peace officer having grounds to believe that person to have been operating or in
46actual physical control of a motor vehicle while in violation of any provision under Subsections
47(1)(a)(i) through (iii).
48 (c) (i) The peace officer determines which of the tests are administered and how many
49of them are administered.
50 (ii) If a peace officer requests more than one test, refusal by a person to take one or
51more requested tests, even though the person does submit to any other requested test or tests, is
52a refusal under this section.
53 (d) (i) A person who has been requested under this section to submit to a chemical test
54or tests of the person's breath, blood, or urine, or oral fluids may not select the test or tests to be
55administered.
56 (ii) The failure or inability of a peace officer to arrange for any specific chemical test is
57not a defense to taking a test requested by a peace officer, and it is not a defense in any
58criminal, civil, or administrative proceeding resulting from a person's refusal to submit to the 02-03-23 11:46 AM H.B. 387
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59requested test or tests.
60 (2) (a) A peace officer requesting a test or tests shall warn a person that refusal to
61submit to the test or tests may result in criminal prosecution, revocation of the person's license
62to operate a motor vehicle, a five or 10 year prohibition of driving with any measurable or
63detectable amount of alcohol in the person's body depending on the person's prior driving
64history, and a three-year prohibition of driving without an ignition interlock device if the
65person:
66 (i) has been placed under arrest;
67 (ii) has then been requested by a peace officer to submit to any one or more of the
68chemical tests under Subsection (1); and
69 (iii) refuses to submit to any chemical test requested.
70 (b) (i) Following the warning under Subsection (2)(a), if the person does not
71immediately request that the chemical test or tests as offered by a peace officer be
72administered, a peace officer shall, on behalf of the Driver License Division and within 24
73hours of the arrest, give notice of the Driver License Division's intention to revoke the person's
74privilege or license to operate a motor vehicle.
75 (ii) When a peace officer gives the notice on behalf of the Driver License Division, the
76peace officer shall supply to the operator, in a manner specified by the Driver License Division,
77basic information regarding how to obtain a hearing before the Driver License Division.
78 (c) [As a matter of procedure, the] The peace officer shall submit [a signed report,] to
79the Driver License Division within 10 calendar days after [the day on which notice is provided
80under Subsection (2)(b), that] the date of the arrest:
81 (i) a copy of the citation issued to the person for the offense;
82 [(i)] (ii) a signed report stating that:
83 (A) the peace officer had grounds to believe the arrested person was in violation of any
84provision under Subsections (1)(a)(i) through (iii); and
85 [(ii)] (B) the person had refused to submit to a chemical test or tests under Subsection
86(1)[.];
87 (iii) all video and audio recordings of the investigation, arrest, and chemical testing for
88the offense; and
89 (iv) any other basis for the peace officer's determination that the person has violated H.B. 387 02-03-23 11:46 AM
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90Section 41-6a-502, 41-6a-517, 76-5-102.1, or 76-5-207.
91 (d) The county sheriff shall send to the division any video or audio of a chemical test
92conducted in a jail facility within 10 days after the date of the chemical test.
93 (3) Upon the request of the person who was tested, the results of the test or tests shall
94be made available to the person.
95 (4) (a) The person to be tested may, at the person's own expense, have a physician or a
96physician assistant of the person's own choice administer a chemical test in addition to the test
97or tests administered at the direction of a peace officer.
98 (b) The failure or inability to obtain the additional test does not affect admissibility of
99the results of the test or tests taken at the direction of a peace officer, or preclude or delay the
100test or tests to be taken at the direction of a peace officer.
101 (c) The additional test shall be subsequent to the test or tests administered at the
102direction of a peace officer.
103 (5) For the purpose of determining whether to submit to a chemical test or tests, the
104person to be tested does not have the right to consult an attorney or have an attorney, physician,
105or other person present as a condition for the taking of any test.
106 (6) Notwithstanding the provisions in this section, a blood test taken under this section
107is subject to Section 77-23-213.
108 (7) A person is guilty of refusing a chemical test if a peace officer has issued the
109warning required in Subsection (2)(a) and the person refuses to submit to a test of the person's
110blood under Subsection (1) after a court has issued a warrant to draw and test the blood.
111 (8) A person who violates Subsection (7) commits an offense classified as a
112misdemeanor or felony in accordance with Subsections 41-6a-503(1), (2), and (3).
113 (9) As part of any sentence for a conviction of violating this section, the court shall
114impose the same sentencing as outlined for driving under the influence violations in Section
11541-6a-505, based on whether this is a first, second, or subsequent conviction as defined by
116Subsection 41-6a-501(2), with the following modifications:
117 (a) any jail sentence shall be 24 consecutive hours more than would be required under
118Section 41-6a-505;
119 (b) any fine imposed shall be $100 more than would be required under Section
12041-6a-505; and 02-03-23 11:46 AM H.B. 387
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121 (c) the court shall order one or more of the following:
122 (i) the installation of an ignition interlock system as a condition of probation for the
123individual in accordance with Section 41-6a-518;
124 (ii) the imposition of an ankle attached continuous transdermal alcohol monitoring
125device as a condition of probation for the individual; or
126 (iii) the imposition of home confinement through the use of electronic monitoring in
127accordance with Section 41-6a-506.
128 (10) (a) The offense of refusal to submit to a chemical test under this section does not
129merge with any violation of Section 32B-4-409, 41-6a-502, 41-6a-517, or 41-6a-530.
130 (b) In accordance with Subsection 77-2a-3(8), a guilty or no contest plea to an offense
131of refusal to submit to a chemical test under this section may not be held in abeyance.
132 Section 2. Section 41-6a-521 is amended to read:
133 41-6a-521. Revocation hearing for refusal -- Appeal.
134 (1) (a) A person who has been notified of the Driver License Division's intention to
135revoke the person's license under Section 41-6a-520 is entitled to a hearing.
136 (b) A request for the hearing shall be made in writing within 10 calendar days after the
137day on which notice is provided.
138 (c) (i) Upon request in a manner specified by the Driver License Division, the Driver
139License Division shall grant to the person an opportunity to be heard within 29 days after the
140date of arrest.
141 (ii) The Driver License Division shall comply with Subsection 53-3-223(6) to provide
142evidence and other information to the person before the hearing described in Subsection
143(1)(c)(i).
144 (d) If the person does not make a request for a hearing before the Driver License
145Division under this Subsection (1), the person's privilege to operate a motor vehicle in the state
146is revoked beginning on the 45th day after the date of arrest:
147 (i) for a person 21 years [of age] old or older on the date of arrest, for a period of:
148 (A) 18 months, unless Subsection (1)(d)(i)(B) applies; or
149 (B) 36 months, if the arrest was made on or after July 1, 2009, and the person has had a
150previous:
151 (I) license sanction for an offense that occurred within the previous 10 years from the H.B. 387 02-03-23 11:46 AM
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152date of arrest under Section 41-6a-517, 41-6a-520, 41-6a-530, 53-3-223, or 53-3-231; or
153 (II) conviction for an offense that occurred within the previous 10 years from the date
154of arrest under Section 41-6a-502 or a statute previously in effect in this state that would
155constitute a violation of Section 41-6a-502;
156 (ii) for a person under 21 years [of age] old on the date of arrest:
157 (A) until the person is 21 years [of age] old or for a period of two years, whichever is
158longer, if the arrest was made on or after July 1, 2011, unless Subsection (1)(d)(ii)(B) applies;
159or
160 (B) until the person is 21 years [of age] old or for a period of 36 months, whichever is
161longer, if the arrest was made on or after July 1, 2009, and the person has had a previous:
162 (I) license sanction for an offense that occurred within the previous 10 years from the
163date of arrest under Section 41-6a-517, 41-6a-520, 41-6a-530, 53-3-223, or 53-3-231; or
164 (II) conviction for an offense that occurred within the previous 10 years from the date
165of arrest under Section 41-6a-502 or a statute previously in effect in this state that would
166constitute a violation of Section 41-6a-502; or
167 (iii) for a person that was arrested prior to July 1, 2009, for the suspension periods in
168effect prior to July 1, 2009.
169 (2) (a) Except as provided in Subsection (2)(b), if a hearing is requested by the person,
170the hearing shall be conducted by the Driver License Division in:
171 (i) the county in which the offense occurred; or
172 (ii) a county which is adjacent to the county in which the offense occurred.
173 (b) The Driver License Division may hold a hearing in some other county if the Driver
174License Division and the person both agree.
175 (3) The hearing shall be documented and shall cover the issues of:
176 (a) whether a peace officer had reasonable grounds to believe that a person was
177operating a motor vehicle in violation of Section 41-6a-502, 41-6a-517, 41-6a-530, or
17853-3-231; and
179 (b) whether the person refused to submit to the test or tests under Section 41-6a-520.
180 (4) (a) In connection with the hearing, the division or its authorized agent:
181 (i) may administer oaths and may issue subpoenas for the attendance of witnesses and
182the production of relevant books and papers; and 02-03-23 11:46 AM H.B. 387
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183 (ii) shall issue subpoenas for the attendance of necessary peace officers.
184 (b) The Driver License Division shall pay witness fees and mileage from the
185Transportation Fund in accordance with the rates established in Section 78B-1-119.
186 (5) (a) If after a hearing, the Driver License Division determines that the person was
187requested to submit to a chemical test or tests and refused to submit to the test or tests, or if the
188person fails to appear before the Driver License Division as required in the notice, the Driver
189License Division shall revoke the person's license or permit to operate a motor vehicle in Utah
190beginning on the date the hearing is held:
191 (i) for a person 21 years [of age] old or older on the date of arrest, for a period of:
192 (A) 18 months unless Subsection (5)(a)(i)(B) applies; or
193 (B) 36 months, if the arrest was made on or after July 1, 2009, and the person has had a
194previous:
195 (I) license sanction for an offense that occurred within the previous 10 years from the
196date of arrest under Section 41-6a-517, 41-6a-520, 41-6a-530, 53-3-223, or 53-3-231; or
197 (II) conviction for an offense that occurred within the previous 10 years from the date
198of arrest under Section 41-6a-502 or a statute previously in effect in this state that would
199constitute a violation of Section 41-6a-502;
200 (ii) for a person under 21 years [of age] old on the date of arrest:
201 (A) until the person is 21 years [of age] old or for a period of two years, whichever is
202longer, for an arrest that was made on or after July 1, 2011, and unless Subsection (5)(a)(ii)(B)
203applies; or
204 (B) until the person is 21 years [of age] old or for a period of 36 months, whichever is
205longer, if the arrest was made on or after July 1, 2009, and the person has had a previous:
206 (I) license sanction for an offense that occurred within the previous 10 years from the
207date of arrest under Section 41-6a-517, 41-6a-520, 41-6a-530, 53-3-223, or 53-3-231; or
208 (II) conviction for an offense that occurred within the previous 10 years from the date
209of arrest under Section 41-6a-502 or a statute previously in effect in this state that would
210constitute a violation of Section 41-6a-502; or
211 (iii) for a person that was arrested prior to July 1, 2009, for the revocation periods in
212effect prior to July 1, 2009.
213 (b) The Driver License Division shall also assess against the person, in addition to any H.B. 387 02-03-23 11:46 AM
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214fee imposed under Subsection 53-3-205(12), a fee under Section 53-3-105, which shall be paid
215before the person's driving privilege is reinstated, to cover administrative costs.
216 (c) The fee shall be cancelled if the person obtains an unappealed court decision
217following a proceeding allowed under Subsection (2) that the revocation was improper.
218 (6) (a) Any person whose license has been revoked by the Driver License Division
219under this section following an administrative hearing may seek judicial review.
220 (b) Judicial review of an informal adjudicative proceeding is a trial.
221 (c) Venue is in the district court in the county in which the offense occurred.
222 Section 3. Section 53-3-223 is amended to read:
223 53-3-223. Chemical test for driving under the influence -- Temporary license --
224Hearing and decision -- Suspension and fee -- Judicial review.
225 (1) (a) If a peace officer has reasonable grounds to believe that a person may be
226violating or has violated Section 41-6a-502, 41-6a-517, 76-5-102.1, or 76-5-207, the peace
227officer may, in connection with arresting the person, request that the person submit to a
228chemical test or tests to be administered in compliance with the standards under Section
22941-6a-520.
230 (b) In this section, a reference to Section 41-6a-502 includes any similar local
231ordinance adopted in compliance with Subsection 41-6a-510(1).
232 (2) The peace officer shall advise a person prior to the person's submission to a
233chemical test that a test result indicating a violation of Section 41-6a-502, 41-6a-517,
23476-5-102.1, or 76-5-207 shall, and the existence of a blood alcohol content sufficient to render
235the person incapable of safely driving a motor vehicle may, result in suspension or revocation
236of the person's license to drive a motor vehicle.
237 (3) If the person submits to a chemical test and the test results indicate a blood or
238breath alcohol content in violation of Section 41-6a-502, 41-6a-517, 76-5-102.1, or 76-5-207,
239or if a peace officer makes a determination, based on reasonable grounds, that the person is
240otherwise in violation of Section 41-6a-502, 76-5-102.1, or 76-5-207, a peace officer shall, on
241behalf of the division and within 24 hours of arrest, give notice of the division's intention to
242suspend the person's license to drive a motor vehicle.
243 (4) When a peace officer gives notice on behalf of the division as described in
244Subsection (3), the peace officer shall supply to the driver, in a manner specified by the 02-03-23 11:46 AM H.B. 387
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245division, basic information regarding how to obtain a prompt hearing before the division.
246 (5) (a) [As a matter of procedure, a] A peace officer shall send to the division within 10
247calendar days after the day on which notice is provided to the driver:
248 [(a)] (i) a copy of the citation issued [for the offense] to the driver;
249 [(b)] (ii) a signed report in a manner specified by the division indicating the chemical
250test results, if any; [and]
251 (iii) all video and audio recordings of the investigation, arrest, and chemical testing for
252the offense; and
253 [(c)] (iv) any other basis for the peace officer's determination that the person has
254violated Section 41-6a-502, 41-6a-517, 76-5-102.1, or 76-5-207.
255 (b) The county sheriff shall send to the division any video or audio of a chemical test
256described in Subsection (1)(a) conducted in a jail facility within 10 days after the date of the
257chemical test.
258 (6) (a) (i) Upon request in a manner specified by the division, the division shall grant to
259the person an opportunity to be heard within 29 days after the date of arrest.
260 (ii) The request to be heard shall be made within 10 calendar days [of the day on which
261notice is provided under Subsection (5)] after the date of the arrest.
262 (iii) Upon receiving the request for a hearing, and at least 10 days before the hearing,
263the division shall provide the driver or the driver's counsel the entire agency file and all
264information gathered during the investigation in accordance with Subsection 63G-4-203(1)(f)
265to include:
266 (A) the summons and citation for driving under the influence;
267 (B) the driving under the influence report form;
268 (C) any other police reports and supplemental reports documenting the investigation
269and arrest; and
270 (D) all video and audio recordings made during the investigation, arrest, and chemical
271testing.
272 (b) (i) Any video evidence provided as described in Subsection (6)(a)(iii)(D) is
273protected record, as defined in Section 63G-2-103.
274 (ii) A person who receives video or audio evidence as described in Subsection
275(6)(a)(iii)(D) may not disclose the video or audio evidence in violation of Title 63G, Chapter 2, H.B. 387 02-03-23 11:46 AM
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276Government Records Access and Management Act.
277 (iii) A person who intentionally discloses, provides a copy of, or improperly uses video
278or audio evidence described in Subsection (6)(a)(iii)(D) is subject to the penalties described in
279Section 63G-2-801.
280 [(b)] (c) (i) Except as provided in Subsection [(6)(b)(ii),] (6)(c)(ii), a hearing, if held,
281shall be before the division in:
282 (A) the county in which the arrest occurred; or
283 (B) a county that is adjacent to the county in which the arrest occurred.
284 (ii) The division may hold a hearing in some other county if the division and the person
285both agree.
286 [(c)] (d) The hearing shall be documented and shall cover the issues of:
287 (i) whether a peace officer had reasonable grounds to believe the person was driving a
288motor vehicle in violation of Section 41-6a-502, 41-6a-517, 76-5-102.1, or 76-5-207;
289 (ii) whether the person refused to submit to the test; and
290 (iii) the test results, if any.
291 [(d)] (e) (i) In connection with a hearing the division or its authorized agent:
292 (A) may administer oaths and may issue subpoenas for the attendance of witnesses and
293the production of relevant books and papers; or
294 (B) may issue subpoenas for the attendance of necessary peace officers.
295 (ii) The division shall pay witness fees and mileage from the Transportation Fund in
296accordance with the rates established in Section 78B-1-119.
297 [(e)] (f) The division may designate one or more employees to conduct the hearing.
298 [(f)] (g) Any decision made after a hearing before any designated employee is as valid
299as if made by the division.
300 (h) The division may not conduct a hearing if the division did not provide the person
301the information described in this Subsection (6) at least 10 days before the date of the hearing.
302 (7) (a) If, after a hearing, the division determines that a peace officer had reasonable
303grounds to believe that the person was driving a motor vehicle in violation of Section
30441-6a-502, 41-6a-517, 76-5-102.1, or 76-5-207, if the person failed to appear before the
305division as required in the notice, or if a hearing is not requested under this section, the division
306shall: 02-03-23 11:46 AM H.B. 387
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307 (i) if the person is 21 years old or older at the time of arrest, suspend the person's
308license or permit to operate a motor vehicle for a period of:
309 (A) 120 days beginning on the 45th day after the date of arrest for a first suspension; or
310 (B) two years beginning on the 45th day after the date of arrest for a second or
311subsequent suspension for an offense that occurred within the previous 10 years; or
312 (ii) if the person is under 21 years old at the time of arrest:
313 (A) suspend the person's license or permit to operate a motor vehicle:
314 (I) for a period of six months, beginning on the 45th day after the date of arrest for a
315first suspension; or
316 (II) until the person is 21 years old or for a period of two years, whichever is longer,
317beginning on the 45th day after the date of arrest for a second or subsequent suspension for an
318offense that occurred within the previous 10 years; or
319 (B) deny the person's application for a license or learner's permit:
320 (I) for a period of six months beginning on the 45th day after the date of the arrest for a
321first suspension, if the person has not been issued an operator license; or
322 (II) until the person is 21 years old or for a period of two years, whichever is longer,
323beginning on the 45th day after the date of arrest for a second or subsequent suspension for an
324offense that occurred within the previous 10 years.
325 (b) (i) Notwithstanding the provisions in Subsection (7)(a)(i)(A), the division shall
326reinstate a person's license prior to completion of the 120 day suspension period imposed under
327Subsection (7)(a)(i)(A):
328 (A) immediately upon receiving written verification of the person's dismissal of a
329charge for a violation of Section 41-6a-502, 41-6a-517, 76-5-102.1, or 76-5-207, if the written
330verification is received prior to completion of the suspension period; or
331 (B) no sooner than 60 days beginning on the 45th day after the date of arrest upon
332receiving written verification of the person's reduction of a charge for a violation of Section
33341-6a-502, 41-6a-517, 76-5-102.1, or 76-5-207, if the written verification is received prior to
334completion of the suspension period.
335 (ii) Notwithstanding the provisions in Subsection (7)(a)(i)(A), the division shall
336reinstate a person's license prior to completion of the 120-day suspension period imposed under
337Subsection (7)(a)(i)(A) immediately upon receiving written verification of the person's H.B. 387 02-03-23 11:46 AM
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338conviction of impaired driving under Section 41-6a-502.5 if:
339 (A) the written verification is received prior to completion of the suspension period;
340and
341 (B) the reporting court notifies the Driver License Division that the defendant is
342participating in or has successfully completed the program of a driving under the influence
343court as defined in Section 41-6a-501.
344 (iii) If a person's license is reinstated under this Subsection (7)(b), the person is
345required to pay the license reinstatement application fees under Subsections 53-3-105(26) and
346(27).
347 (iv) The driver license reinstatements authorized under this Subsection (7)(b) only
348apply to a 120 day suspension period imposed under Subsection (7)(a)(i)(A).
349 (8) (a) The division shall assess against a person, in addition to any fee imposed under
350Subsection 53-3-205(12) for driving under the influence, a fee under Section 53-3-105 to cover
351administrative costs, which shall be paid before the person's driving privilege is reinstated.
352This fee shall be cancelled if the person obtains an unappealed division hearing or court
353decision that the suspension was not proper.
354 (b) A person whose license has been suspended by the division under this section
355following an administrative hearing may file a petition within 30 days after the suspension for a
356hearing on the matter which, if held, is governed by Section 53-3-224.
357 (9) (a) Notwithstanding the provisions in Subsection (7)(a)(i) or (ii), the division shall
358reinstate a person's license before completion of the suspension period imposed under
359Subsection (7)(a)(i) or (ii) if the reporting court notifies the Driver License Division that the
360defendant is participating in or has successfully completed a 24-7 sobriety program as defined
361in Section 41-6a-515.5.
362 (b) If a person's license is reinstated under Subsection (9)(a), the person is required to
363pay the license reinstatement application fees under Subsections 53-3-105(26) and (27).
364 (10) (a) If the division suspends a person's license for an alcohol related offense under
365Subsection (7)(a)(i)(A), the person may petition the division and elect to become an ignition
366interlock restricted driver if the person:
367 (i) has a valid driving privilege, with the exception of the suspension under Subsection
368(7)(a)(i)(A); 02-03-23 11:46 AM H.B. 387
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369 (ii) completes a risk assessment approved by the division that:
370 (A) is completed after the date of the arrest for which the person is suspended under
371Subsection (7)(a)(i)(A); and
372 (B) identifies the person as a low risk offender;
373 (iii) installs an ignition interlock device in any vehicle owned or driven by the person
374in accordance with Section 53-3-1007; and
375 (iv) pays the license reinstatement application fees described in Subsections
37653-3-105(26) and (27).
377 (b) The person shall remain an ignition interlock restricted driver for a period of 120
378days from the original effective date of the suspension under Subsection (7)(a)(i)(A). If the
379person removes an ignition interlock device from a vehicle owned or driven by the person prior
380to the expiration of the 120 day ignition interlock restriction period:
381 (i) the person's driver license shall be suspended under Subsection (7)(a)(i)(A) for the
382remainder of the 120 day ignition interlock restriction period;
383 (ii) the person is required to pay the license reinstatement application fee under
384Subsection 53-3-105(26); and
385 (iii) the person may not elect to become an ignition interlock restricted driver under
386this section.
387 (c) If a person elects to become an ignition interlock restricted driver under Subsection
388(10)(a), the provisions under Subsection (7)(b) do not apply.