When you’re charged with a crime, you should be innocent until proven guilty.
Utah Code of Criminal Procedure §77-1-4 is clear: “No person shall be punished for a public offense until convicted in a court having jurisdiction.”
The Fourteenth Amendment is also clear: “[n]or shall any State deprive any person of life, liberty, or property, without due process of law.”
In other words, we shouldn’t just guess that a person should be punished. We should let the system work, so that an accused gets all the necessary privileges and protections, so an innocent man doesn’t wind up being punished.
“Due process” means “fairness”. And this should start with a “hearing” after a charge has been filed.
However, when a person is arrested for a DUI, the officer will often seize the individual’s driver’s license, then give them a 30-day temporary one. The individual must then notify the Driver’s License Division (DLD) within 10 days to request an administrative hearing, or the DLD will suspended the driver’s license, for 120 days, or until they are 21, whichever is longer (Utah Code 41-6a-509).
The previous stated time periods are for a first offense. So, in other words, unless the accused demands a hearing, the system will presume his license should be taken. If you are scratching your head, you’re not alone. After all, shouldn’t a hearing be held, so that an administrative officer can at least verify that the police officer has at least alleged facts that would support such a taking?
So, a person can lose their license even though nobody has made a finding that they were driving under the influence. All we have is an officer that wrote a ticket, and his job, by law, is not to determine if a person is guilty, rather, to simply cite a person.
This is allowed to go on under the theory that since the license is “only” being taken for 120 days, it is not a “criminal” action, rather a “remedial” one. Of course, Thomas Jefferson would likely have differed, because after all it seems pretty obvious that a “taking” is clearly occurring.
The procedure would not be so troubling if it were not pursuant to a criminal allegation – that the driver was illegally driving under the influence. So, if the person does not demand a hearing, and win, you could argue that they are being punished “for a public offense” even though they have not been “convicted in a court having jurisdiction.”
Until this thinking gets changed by the judiciary or the legislature, it is vital when you are cited for a DUI to request an administrative hearing within the required time period to ensure that your rights are protected.
Kyler Ovard and Greg Smith of Greg Smith and Associates