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Gilley v. Blackstock12/12/2002
(For Official Publication)
Melinda Gilley (Gilley) appeals the district court's dismissal of her appeal of the Driver License Division's (Division) order to revoke her license. We affirm.
BACKGROUND
On February 1, 2001, Gilley was arrested for refusing to submit to a chemical test, pursuant to Utah Code Ann. § 41-6-44.10 (1998), after police suspected her of driving under the influence of alcohol. In an order dated February 25, 2001, the Division revoked Gilley's driver license for eighteen months. No statutory driver license revocation hearing was held prior to the revocation.
Gilley subsequently filed an appeal to the district court on May 21, 2001, requesting reinstatement of her driver license and claiming she never received proper notice of the revocation process. The Division then filed a motion to dismiss for lack of jurisdiction due to untimeliness of the complaint in violation of the Utah Administrative Procedures Act (UAPA), Utah Code Ann. § 63-46b-14(3)(a) (1997). In response, Gilley argued because she never received initial notice of intent to revoke her license, as required by Utah Code Ann. § 41-6-44.10(2)(b), the Division lacked jurisdiction to proceed with revocation, and therefore UAPA time limits did not apply to her appeal to the district court.
At a hearing on the Division's motion, the Division for purposes of the hearing stipulated Gilley never received the initial notice of intent to revoke. Nevertheless, the district court dismissed Gilley's appeal as untimely, and Gilley now appeals to this court.
ISSUE AND STANDARD OF REVIEW
Gilley asserts the district court erred in dismissing her appeal to the district court as untimely. "We review the district court's legal determination that it lacked jurisdiction for judicial review on grounds of untimeliness under a correctness standard, and thus accord it no deference." Bourgeous v. Department of Commerce, 1999 UT App 146, , 981 P.2d 414 (citing C.P. v. Utah Office of Crime Victims' Reparations, 966 P.2d 1226, 1228 (Utah Ct. App. 1998)).
ANALYSIS
Relying on Mabus v. Blackstock, 1999 UT App 389, 994 P.2d 1272, Gilley argues notice of intent to revoke, required by Utah Code Ann. § 41-6-44.10, is essential to the Division's jurisdiction over revocation proceedings. Gilley asserts the UAPA's thirty-day time limit for appealing a final agency action to the district court does not apply to her claim that she never received notice of intent to revoke, essentially arguing the UAPA is inapplicable because the Division never obtained jurisdiction. The Division points to the UAPA, which provides, " party shall file a[n appeal] for judicial review of final agency action within 30 days after the date that the order constituting the final agency action is issued," Utah Code Ann. § 63-46b-14(3)(a), and asserts the district court correctly dismissed Gilley's appeal, which was filed almost three months after the revocation order's issue date.
Utah Code Ann. § 41-6-44.10(2)(b) requires a peace officer, after warning a driver of the consequences of refusing a chemical test and continued refusal, to serve "immediate notice of the Driver License Division's intention to revoke the person's privilege or license to operate a motor vehicle." This notice must include "basic information regarding how to obtain a hearing before the Driver License Division." Id. § 41-6-44.10(2)(b)(iii).
In Mabus, this court concluded service of such notice and basic information on how to obtain a hearing "is the initiatory event under the . . . statute." 1999 UT App 389 at . We concluded the Division's failure to prese
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