Hillyard v. Logan City Court

MAUGHAN, Justice: The district court granted plaintiff’s petition for an extraordinary writ under Rule 65B, U.R.C.P. It issued an order prohibiting Logan City Court from further proceeding against plaintiff in a criminal action. The action was begun by the state charging defendant with driving under the influence of alcohol in violation of Sec. 41-6-44. The state appeals. The order of the district court is affirmed. All statutory references are to U.C.A.1953. Plaintiff was arrested on July 28, 1976, by an officer of the Cache County Sheriff’s Office on U.S. Highway 91 within the limits of the town of Hyde Park, in Cache County. [1271] Following his arrest, plaintiff was taken to the sheriff’s office for the purpose of taking a breathalyzer test. Subsequently, the arresting officer telephoned the magistrate in Hyde Park, who was the nearest and most accessible magistrate, with reference to the place where the arrest was made. The magistrate fixed bail, and defendant was released from custody several hours after his arrest. The next day, a complaint was filed by the county attorney in the city court of Logan. The matter was set for trial. Plaintiff then challenged the venue of the city court to try this action. A continuance was granted to permit plaintiff to petition for an extraordinary writ, which the district court granted. On appeal, defendant contends the district court erred in its ruling that venue in this action was laid in Hyde Park by Sec. 41-6-166, U.C.A.1953, as amended 1975. 41-6-166, U.C.A.1953, as amended, 1975, provides: (1) Whenever any person is arrested for any violation of this act punishable as a misdemeanor, the arrested person, for the purpose of setting bond, shall in the following cases, be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of such offense and is nearest or most accessible with reference to the place where said arrest is made, in any of the following cases: [[Image here]] (b) When the person is arrested upon a charge of driving while under the influence of intoxicating liquor or narcotic drugs. [Emphasis supplied.] Thus, under this statute, which is specifically concerned with certain offenses under the Motor Vehicle Code, the arrested person must be taken to the nearest and most accessible magistrate with reference to the place where the arrest was made. After arriving at the nearest magistrate, the procedure of Sec. 77-13-17, U.C.A.1953, as amended 1971, is applicable. The relevant provisions state: When an arrest is made without a warrant by a peace officer . . . the person arrested must, without unnecessary delay, be taken to the magistrate in the precinct of the county or the city in which the offense occurred, and a complaint, stating the charge against the person must be made before such magistrate. In the event the magistrate of that precinct is not available, the arrested person shall be taken before the nearest available magistrate to the scene of the alleged offense. . . The magistrate before whom such charge is made, if the offense is triable by him, shall have full jurisdiction over the offense and the defendant to try and determine such offense. . . [Emphasis supplied.] 78-4-16.5, U.C.A.1953, as enacted 1971, provides: Whenever a complaint may be commenced before a magistrate under section 77-57-2, or an arrested person is to be taken before a magistrate under section 77-13-17, the complaint may be commenced or the arrested person may be taken before the nearest city court judge in counties where city courts have been established. [Emphasis supplied.] Under Section 78-4-16.5, the peace officer at the time of an arrest without a warrant, has the option of taking the person arrested to the nearest city court or to the magistrate in the precinct of the county or city in which the offense occurred. However, the option is precluded under the later and more specific statute, Section 41-6-166,1 which commands where the arrested person shall be taken when he has allegedly committed the specific offenses set forth. The rights accorded to one arrested without a warrant in Section 77-13-17, are not in any way circumscribed or excluded by Section 41-6-166; the two statutes can be construed together to conform with the expressed legislative intent. [1272] 77-13-17 lays venue in a specific magistrate. Section 78-4-16.5 provides for an optional venue in a city court, but there is no provision for taking the arrested person before one magistrate and thereafter continuing the prosecution before another magistrate. 77-13-17 was designed to prevent judge shopping and to assure that the designated magistrate to whom the arrested person is taken, is the one before whom the complaint must be made, and the offense tried and determined.2 The procedure In the instant case violated the statutory provisions, in particular, Section 41-6-166, which commanded that plaintiff be taken before the magistrate in Hyde Park. WILKINS and HALL, JJ., concur. Footnotes [1] Wells v. City Court of Logan City, Utah, 535 P.2d 683. [2] Subject to other statutory provisions not relevant here, which allow removal from a Justice of the Peace Court.