Helsten v. Schwendiman

• Decision Date: 06 June 1983
• Docket Number: 18583,Nos. 18440,s. 18440
• Citation: 668 P.2d 509
• Parties: Ruth E. HELSTEN, Plaintiff and Appellant, v. Fred C. SCHWENDIMAN, Defendant and Respondent. Curtis J. STEVENS, Plaintiff and Appellant, v. Fred C. SCHWENDIMAN, Plaintiff and Respondent.
• Court: Utah Supreme Court

Page 509

668 P.2d 509

Ruth E. HELSTEN, Plaintiff and Appellant, v. Fred C. SCHWENDIMAN, Defendant and Respondent.

Curtis J. STEVENS, Plaintiff and Appellant, v. Fred C. SCHWENDIMAN, Plaintiff and Respondent.

Nos. 18440, 18583.

Supreme Court of Utah.

June 6, 1983.

Stephen R. McCaughey, Sumner J. Hatch, Salt Lake City, for plaintiffs-appellants.

David L. Wilkinson, Bruce M. Hale, Salt Lake City, for Schwendiman.

STEWART, Justice:

In these consolidated cases, appellants are drivers whose licenses were revoked by the Department of Public Safety pursuant to Utah's implied consent statute, U.C.A., 1953, § 41-6-44.10. A district court upheld the revocations. Appellants contend that the revocation procedure was invalid because the arresting police officer failed to submit a "sworn report," as required by § 41-6-44.10(b).

Section 41-6-44.10 authorizes the Department of Public Safety to revoke the license of a driver who refuses to submit to a chemical test for the purpose of determining whether that person was driving under the influence of alcohol or drugs. Section 41-6-44.10(b) is set forth in full text below. ¹ In brief, that statute provides:

1. If a police officer has grounds to believe that the driver of a motor vehicle was under the influence of alcohol or drugs while in control of the vehicle, the officer may, after arresting the driver, request him to submit to a chemical test for the presence of alcohol or drugs in his body. If the driver refuses to submit to the test, the officer shall warn the driver that his refusal can result in revocation of his license. On numerous occasions, we have ruled that drivers may not defeat the purpose of the statute by devising various strategies to try to justify not taking a breach test. E.g., Cavaness v. Cox, Utah, 598 P.2d 349 (1979); Beck v. Cox, Utah, 597 P.2d 1335 (1979).

2. If the driver does not agree to take a test when requested, the statute states that the officer shall

submit [to the Department] a sworn report that he had grounds to believe the arrested person had been driving ... a motor vehicle while under the influence ... and that the person had refused to submit to [the required] chemical test.

3. After receiving the sworn report, the Department must notify the driver that an administrative hearing will be held. If at the hearing the averments in the report are determined to be true, or if the driver fails to appear at the hearing, his license is revoked for one year.

4. If the license is revoked, the driver may petition for a trial de novo in district court to review the administrative hearing. At the trial de novo, the Department has the burden of proof and the burden of going forward with the evidence. Pledger v. Cox, Utah, 626 P.2d 415 (1981).

In each of the instant cases, the appellants were apprehended by a Murray City police officer and the prescribed administrative hearings were held resulting in orders of revocation followed by affirmances in the district court.

In each case the police officer's report was not signed in the presence of a notary, and hence was not a sworn report as required by the statute, even though there is a jurat on the report which states: "Personally appeared before me, [the name of the officer], and being first duly sworn ...." Thus, the jurats were in fact false.

Under the practice followed by the Murray City Police Department, all reports filed in a day are placed in a basket, and they are notarized the next day or at some later time. Appellants' contention that a report is not sworn to by the police officer whose name appears on the report, or by anyone else, under this procedure is correct.

States with implied consent statutes similar to Utah's have held that if an officer's report that initiates the administrative revocation proceeding is not under oath the ensuing proceeding is invalid. Wilcox v. Billings, 200 Kan. 654, 438 P.2d 108 (1968); Neeley v. State, La.App., 308 So.2d 880 (1975); Dawson v. Austin, 44 Mich.App. 390, 205 N.W.2d 299 (1973); Blackburn v. Motor Vehicles Division, 33 Or.App. 397, 576 P.2d 1267 (1978); Binkley v. State, 16 Wash.App. 398, 556 P.2d 561 (1976). But see People v. Rehfeldt, 103 Ill.App.3d 368, 59 Ill.Dec. 165, 431 N.E.2d 450 (1982) (contrary result reached under implied consent statute which does not provide for administrative-level proceedings). In these states, the provision for a sworn report is "mandatory" rather than "directory." See generally Sjostrom v. Bishop, 15 Utah 2d 373, 393 P.2d 472 (1964).

We think the reasons that support this rule are sound. It is, of course, true that under our implied consent statute, a driver is not deprived of his license except upon the sworn testimony of the officer in the initial administrative hearing, and thereafter, if an appeal is taken, upon sworn testimony in the district court. But if for some reason a driver fails to appear at the initial hearing, his license is automatically revoked for one year. In that case the revocation would be based essentially upon the report alone.

Furthermore, since there is always a lapse of time between the filing of the report and the hearing, and since such hearings often must be decided upon the basis of the credibility of the driver and the police officer, whose memory will have been dimmed by the passage of time and the handling of numerous similar cases in the intervening period, it is reasonable to provide for a procedure that will obviate, to the extent possible, error and misstatement that may arise because of the passage of time.

Since the Legislature in enacting the implied consent statute required a sworn statement by a police officer, it is not for this Court to dispense with that requirement, especially since it serves to promote reliability. In truth, a police officer will very likely have very little actual recollection of the event beyond what is in the report, and he, in effect, will often be testifying to the contents of the report, not from his own recollection. Under the circumstances, it is reasonable to require that the critical--and in point of fact often determinative--evidence, be sworn to at the time the events are freshly recorded. ²

As the Kansas Supreme Court stated, the requirement of a sworn report affords "some measure of reliability and some protection to the licensee against unwarranted accusation." Wilcox v. Billings, supra, at 658, 438 P.2d at 112. The oath encourages honesty in filling out the report, both by the act of swearing, which emphasizes the serious implications of the report's contents, and by the penalties attached to false swearing. See U.C.A., 1953, §§ 76-8-502 to -504. The statutory requirement is appropriate because the driver, "based on the report alone, [is] put in the position of having to take affirmative steps to defend himself." Neeley v. State, supra, at 883.

Some states go so far as to denominate the sworn report a "jurisdictional requirement" of the subsequent administrative proceeding. E.g., Blackburn v. Motor Vehicles Division, 33 Or.App. 397, 576 P.2d 1267 (1978). It is clear that whether denominated jurisdictional or not, the sworn report "is essential to the validity of the subsequent proceedings for ... revocation," and that "where the report is not in fact sworn to, the subsequent proceedings are void." Wilcox v. Billings, supra, at 659, 438 P.2d at 112. Cf. Peterson v. Salt Lake City, 118 Utah 231, 221 P.2d 591 (1950).

In the present case, since the report was not signed in the presence of a notary, the report was not...