Morgan v. Blackstock

----ooOoo----

Stephen Lynn Morgan,
Petitioner and Appellant,

v.

G. Barton Blackstock, Bureau Chief, Driver License Division,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981340-CA

F I L E D
May 13, 1999
  1999 UT App 162 -----

Second District, Farmington Department
The Honorable Rodney S. Page

Attorneys:
D. Bruce Oliver, Salt Lake City, for Appellant
Jan Graham and James H. Beadles, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

Appellant Stephen Lynn Morgan appeals from a district court judgment following a trial de novo, which affirmed a suspension of his driver's license by the Driver License Division.

We first consider the Division's claim this court lacks subject matter jurisdiction based on Morgan's failure to request a presuspension hearing before the Division prior to seeking judicial review. The district court denied a motion to dismiss on this basis. Although Utah Code Ann. § 53-3-223(6) (1998) requires the Division to grant a hearing if one is requested in writing within ten days of arrest, no statute requires a hearing to be held as a prerequisite to judicial review. Utah Code Ann. § 53-3-223(8)(B)(1998) states "[a] person whose license has been suspended by the division under this subsection may file a petition within 30 days after the suspension for a hearing on the matter which, if held, is governed by Section 53-3-224." Utah Code Ann. § 53-3-224 (1998) states, in part, that a person whose license has "been canceled, suspended, or revoked by the division may seek judicial review of the division's order." In fact, the Division's order suspending Morgan's license advised him that he could seek judicial review in district court. Under Utah Code Ann. § 63-46b-14(2)(1997), a petitioner need not exhaust all administrative remedies when "this chapter or any other statute states that exhaustion is not required." The trial court did not err in denying the motion to dismiss based upon its construction of the statutes governing judicial review.

The Division also seeks dismissal of the appeal as moot because the suspension has expired and the requested relief could not be obtained on appeal. However, Morgan's request in district court sought reversal of the suspension or, if it had expired, expungement of Morgan's driving record. Based upon the latter request, the appeal is not moot.

Morgan argues the trial court's refusal to hear defense counsel's closing arguments denied him due process by preventing him from raising all of the defenses available to him. Morgan's contention the Division did not present any evidence that he received timely notice of the Division's intent to suspend his license is without merit. The DUI Summons and Citation contained notice of the intent to suspend his license and a certification by the arresting officer that "a copy of the summons and citation was duly served upon the defendant according to law on the above date," referring to the July 25, 1997 date of arrest. In addition, the officer testified at the trial de novo that he filled out the DUI citation and he issued it to Morgan "directly after [he] performed the intoxilizer test and completed the form." Evidence supporting timely notice was entered in the record without objection, and Morgan presented no conflicting evidence. Morgan asserted his other procedural argument at trial, which resulted in a ruling that service of the DUI summons and citation on the Division was timely. He has not attempted to demonstrate on appeal that this finding was erroneous. Because the argument that the Division did not demonstrate compliance with the statutory notice requirements is without merit, Morgan was not prejudiced by not being allowed to present closing argument on these claimed defenses.

Accordingly, we affirm the district court's judgment following the trial de novo.
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge