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Show TNI rAGUMHT DAILY IICORD Office of the Attorney General THURSDAY, AUGUST 10, 1972 State of Utah the misdemeanor citation program is OPINION NO. was brought about by the 72-0- 31 Penal Code. 3, 1972 August now legislature. being used, the change Sec. 853.6 California There is the potential alternative that the State -4 nay Supreme Court in harmony with Utah Code Ann. S a but such result a of procedure allowing prescribe rule appears to this writer that new legislation would be the most prudent route for accomplishing the University's 78-2- BY i REQUESTED Director, Department of Public Safety, University of Utah Wayne D. Shepherd, Vernon B. Romney, Attorney General David S. Young, Chief Assistant Attorney General PREPARED BY: the University of Utah Department of Public a mis- -. Safety have the authority to implement demeanor arrest by citation program without legisktive action? Does QUESTION! conclusion! it objective. Because the program in question is in conflict with existing state laws governing criminal procedure and also because as a general rule, only the legislature may make major procedural changes , it appears that the proposed change could only be made by legislative action. Respectfully submitted. No. VERNON l i. General ROMNEY Attorney OPINION The present question involves a change in criminal which has been implemented in several states and procedure which the University of Utah Department of Public Safety would like to adopt as part of its program. I is intended to alter the procedure defendant does not demand to the of misdemeanor arrests and a if the alleged crime is not be taken 'before magistrate one of violence and the suspect is found to meet certain standards. In such cases, the arrested person, reliability instead of being held in custody until he can be taken before a magistrate, is issued a written notice to appear in court name and the offense of such The proposed program ; when 780 address person, and such where time and the person should appear. place charged He is then released. The The . 782 following sections of the Utah controlling in this instance. Code Jack L. Carter etux to Benefhdal Fin; West- ern States Title, issue for discussion is whether the University of Utah Department of Public Safety can implement such a program as a matter of departmental policy, or whether such a change! would need to be authorized by legislative enactment. 859 861 -- 3653 W, Alabama. 49. 8555 S. 150 W. Dr. Reed Anderson etux to Western Sav. $18500. 2249 Belaire. 791 Orlin Ross Fausett etux to Valley Bank. appear to be 867 S 77-5- 7-2 reads as. follows: (as amended Aug. 6, 1971) "Other than as provided by section proceedings and actions before a justice's court for a misdemeanor offense must be commenced by complaint under oath, setting forth the offense charged, with such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the 77-13-- ; ; offense complained of, and 799 869 806 to answer the co- states Utah Code Ann. S 77-13- -17 (as amended Aug. 6, 1971) arrest is without a warrant a or by peace officer private person, the person arrested must, without unnecessary delay, be taken to the magistrate in the pre- ' made cinct of the county or city in which the offense occurred, and a complaint, stating the charge against the person must be made before such magistrate. . . .Any officer or person violating any of, the provisions of this section shall be guilty of a misdemeanor." : proposed misdemeanor citation program seems to be in conflict with these code provisions. It appears to replace the sworn complaint, required by Section with a citation and also does not provide that in arrests made without warrants, the arrested person will be brought before a magistrate without unnecessary delay as required by Section It should be noted that violation of this 814 Chas. S. Ryser to Murray 1st Thrift; Kay Lewis, $7417. 07. 1828 815 The 77-13-- -2, criminal procedures as set forth in the Utah binding on the University of Utah by Utah Code S (1953) which states "All of the criminal laws of this state including the traffic laws, are in full force and effect on the campuses of state institutions of higher Code Ann. are 53-45- The made -6 . . . education. 818 820 It therefore arrests. This conclusion is further supported by looking at tho methods that have been used to make similar changes in criminal procedure in the past. In 1941, a misdemeanor arrest by citation program for violations of the motor vehicle code was implemented. Session Laws 1941, Ch.- 52, S 150, now S 41-6-1- 67. This program change was very it was brought about by similar to the one in question and legislative action. It I. $ 908 Vernon A. Rux etux to The Lockhart Co; Western States, $6100. 80. 420 A Street. should also be noted that in California where 4 I Yeck etux to Ralph Melvin McDaniel etux to 1st Fed. Sav. $21650. 4539 Cre-ekvie- 922 David K, Tame etux to Commonwealth Mtge; Lydia D, Trujillo etux to A VCOFin. Ser. Western States Tide, $20,000. 3760 S. Ehst. $15824.15. 7361 S. 145 42-- 65 923 Gennady Potklns etux to AVCO Fin; Western States Title, $7278.21. 1736 E. 3150 S. John S. Swenson etux to United Skv; McGhie $18500. 2548 Starling. 929 LeeM-au- r. Donald R. Gilbert etux to Murray 1st Thrift; Kay Lewis, $3870.94. 5099 W. 5360 S. 931 Wixi, Branwell Harvey etux to Peoples Fin; Delbert M. Draper Jr. $16159.20, 5467 Reve- American Tierra to Western Mtge; McGhie $16,000. 4416 Werner Slotosch'etux to Peoples Fin; Delbert M. Draper Jr. $2066. 40. 3750 Loan; McGhie, $13850. Honey-woo- d. re. 935 Doris Lou Payne etux to Murray 1st Thrift; Kay Lewis, $5880. 852 655 - Utah Code Ann. Yuma. legislative action could change the present procedure regarding misdemeanor J, W, -- 7573 S. State. appears that since the existing state since the proposed Jesse Jerome Tullls Murray 1st Thrift; Kay Lewis, $33322.75. 821,823,827,829, 831,833, 836, J It K Ent. to Ut. Mtge 839 laws are binding on the University and program is in conflict with them, only 888 W. a crime. As the Utah State Supreme Court stated in State v. Johnson, 100 Utah 316, 114 P.2d34 (1941), "The procedure laid down by the legislature must be followed." . . Erwin H. Thaxton etux to PIE Em, Fed. Cr; 1st Am. Tide, $5000, etux to Tracy Mtge; Tracy Collisn Bank, $ 85000. 2127 Keller. Western States Title, 17. section is 877 S. Viscounti. Dee Noma S. Matson ti to Western Mtge; Sec. Title, $16,500. 1168 E. Turquoise. Barney C. Webster etux to Western Mtge; Title Ins. Agen. $23, CIP Systems to Zions $27,000. 19 S. 7th W. 817 77-57- 872 875 8211 et- 1328 W. 7200 South. Milton Davis etux tO St. Sav. It Lean, $20. 000. 615 Vine. 813 : "When an Milton L. Davis etux to St. Sav. fc Loan, $34600. 615 Vine. 500. mplaint." Roland H, Wadley ux to Western Mtge; Sec. Title, $16,500. 17 800 Bruce C. Cummings to Western Sav. $32, 000, 386 Brahma. 2469- - $21200. Utah Code Ann. airid A, Sekino etux Loan Sec. Tide, $16,500. tb Western Mtge $73-8- 8. 789 Cecil E, Clark etux to Western Mtge; Sec. Title, $16,500. 6895 S. Georgia, Salle. states the which Ronald Herman Denison etux to The Lockh art Co; Western States Title, $5736. 6010 La Dsn C. Hamblin etux toPrud. Fed. Sav. $500a 329 E. 6240 S. Stanley L. Demartinis etux to Western Mtge; Sec. Title, $17950. 2862 S. 8950 W. 937 946 6896 Georgia. 857 James H. Walker etux to Western Mtge; Sec. Title, $16,500. 3686 Decatur. Wm. R. Denver etux (bnt. Bank, $3500. to The John J. McSwenney etux to Western Sav. $18000. 479 949 JSt. American Tierra to Western Mtge; Meade, $13000. 2481 |