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Show FFtDAV, OCTOBER 22t 1971 THE DAILY KICOKD FACE SEYEN State of Utah Office of the Attorney General J. Ellis, REQUESTED BY: Mr. Glen PREPARED BY: Vernon B. Romney, Attorney General David S. Young, Chief Assistant Attorney General QUESTION: Is the standard form "Complaint and Notice to Appear" presently used by the Utah Highway Patrol violative of Utah Code Ann. (1953), as 77-57- amended, or Utah Code Ann. 41-6-1- release the person arrested from custody. -3 officer violating any of the provisions of this section shall be guilty of misconduct in office and shall (1953), as 67 amended? CONCLUSION: arresting officer satisfactory to the tourt so to appear in by signing at least one copy of the written notice The officer. prepared by the arresting a officer shall deliver copy of such notice to the person promising to appear. Thereupon, said officer shall forthwith Attorney's Office Provo City (e) No. be subject to removal from with the above cited section reveals the following: (a) The form is prepared in four name copies; space is provided for thenumber of and address of such person; the his operator's license; the license number of his vehicle; the offense charged; the time and place when and where such person shall appear in court. OPINION This office received a letter from Provo City questionthe ing validity of the Utah Highway Patrolmen's "Complaint and Notice to Appear." It was suggested that the form used by the Highway Patrol does not meet the formal requirements of a complaint as provided by Utah Code Ann. (1953), as amended, nor the requirements set forth in Utah Code Ann. (1953) as amended, "which provides for a waiver of the a formal of filing " 77-57- -2 41-6-1- 67 . properly completed the form provides place allowing for the time specified to appear to be at least a In light of a Utah Supreme Court rule and the practice of the Utah Highway Patrol it is not necessary to determine if the form used by the Highway Patrol meets the requirement of a The Supreme Court complaint as set forth in Section promulgated and adopted the following rule to be effective five days after such arrest or sooner the person arrested shall demand. c'i In order to secure his release the person must sign the form giving his promise, to the officer, that satisfactory ne will appear at thearresting and time set place forth. Preceding the space provided for the i r (d) 41-6-1- 67 1 legible duplicate copy of such notice, filed with the court, shall, in lieu of verified complaint, and notwithstand- arrested person's signature are the words . "I Promise To Appear Before non. Duly Elected Magistrate at when a "If, however, the-defendan- when properly completed all of the is a valid and statutory requirements as set forth in Section the provisions of the Supremo Court Rule. In light of the Highway Patrol practice of issuing a formal complaint when the defendant pleads other than "guilty" it is not necessary to deal with the contention of the invalidity of the form as a "Notice to Appear" and complies with 41-6-1- 67, violate his promise to appear in court, or shall not deposit lawful bail, or shall plead other than 'guilty' of the offense charged, a; complaint shall be filed which shall be deemed to be an original complaint, and thereafter proceedings shall be had as provided by law; provided, that a defendant may, by an agreement in writing, subscribed by him and filed with the court, waive the filing of a verified complaint and elect that the prosecution may proceed upon the written notice to appear." (Emphasis - Patrol form The Utah Highway shall t Signature 12, 'guilty'. plead 19 . . or Before On . day of the ing the provisions of section Code of Criminal Procedure, constitute a complaint to which the defendant may 77-57-- When (c) writ ten notice to .anpv-thas been prepared by a police officer under Utah the provisions of Section Code Annotated, nd when such notice has been delivo .o the person charged, and with the ourt, or whenever notice of filed has been given, an exact and parking illegal r if properly completed the form reveals the magistrate within the county before whom the arrested person must appear. -2. February 1, 1959: "Vr,:v.,p.'v-- When (b) . 77-57- office." comparison of the "Complaint and Notice to Appear A complaint Any -- "complaint ." it would appear the "Complaint and Notice to Appear" employed by the Utah Highway Patrol is not or the Supreme Court Rule violative of either Section -2 adopted February 1, 1959, or Section In conclusion, 77-57- 41-6-1- G7. $ Respectfully submitted. r Cr supplied.) should be noted that the above quoted Supreme .Court rule incorporates the term "may" when dealing with the defendant's waiver of the filing of a verified complaint. The common practice of the Utah Highway Patrol is that a "Complaint and Notice to Appear" is used only as a "notice to appear." In all cases where a defendant pleads other than "guilty," a formal .'complaint is prepared and issued in accordance with the Supreme Court rule above stated. Thus, the only question remaining is whether or not the "Complaint and Notice to Appear" form as used by the Highway Patrol meets the requirements of Section it VERNON B. ROMNEY Attorney General i 41-6-1- Section 41-6-1- states: 67 " Q Chief Assistant Attorney General DAVID S . YOljNG 67 (a) Upon any act punishable as a person Mortgages violation of this a misdemeanor, whenever is immediately taken before a magistrate as hereinbefore provided, the in triplicate police officer ashall prepare or more copies written notice to appear in court containing the name and address of such person, the number, if. any, of his operator's pr chauffeur's license, the of his vehicle, the registration number offense charged,' and the time and place when and where such person shall appear in court . 400 Herman W Pollaehne etux to Pfnd Fed Say Thetirfe specified in said notice e to appear must lie at least five days after such arrest unless the person arrested shall (c) earlier hearing. The 4l4 Louis V Thomas etux to Harris B Mills etux 441 J Richard to MoGhle An arson Land 625. 442 etux Title Tr notice to appear must be made before a magistrate within the county in which the offense charged is alleged to have been committed and who of such offense. has The Ditto 451 J 4 to 465 X 504 Grant W P Morrison etux to Utah State Em Cr ' 6,046.60 507 Em to Cr C 'John Maurer etux Utah State Em Cr to 6,550.63 508 Robt K Shod grass to Utah State N 2,000. 18,500. 509 Johns ai etux to 20,000. If Harry O'Neil etux to Com Seo Bk 4,6?2.80 Em etux Cr 4,027. Biterprises Jho 492 Robt D Clausing etux to Norma W Stephans 495 State 2,557.99 Xooh 2ho Keith American 2,206. Utah Fed HLdg jurisdiction arrested person, in order to secure release as provided in this section, must give his written promise (d) 445 to 503 Jimmie F Buns etux to Utah State Em Cr 443 Ditto Ditto Beebe 505 Arthur Jordison etux Ditto 444 B Sar 4,316.40 11,000. 446 Ditto place specified in said 496 Zola 5,431.20 i ()) demand an ; Willard Van Dee Nedsai etux to Utah State Em Cr 2,330.66 510 David L Orlob etux to Utah State Bn Cr 4,053. 512 Carl H WLeohert etux to Utah State Em Cr 3,597.28 |