I dissent. Logan City Court is presided over by a lawyer-judge and has jurisdiction throughout Cache County. The Wellsville justice of the peace is a non-lawyer. He likewise has county-wide jurisdiction of misdemeanors. There is nothing in the record to show where the justice of the peace was at the time of the arrest or whether he was "available" at that time.
The plaintiff alleged in his complaint that he was not taken before the nearest and most accessible magistrate when he was arrested. It would appear that he would be required to prove that allegation as a part of his case. By failing to do so, he was not entitled to prevail in his suit, and the lower court was correct in so ruling.
The City Court of Logan has jurisdiction of the offense of drunk driving, and the idea that Mr. Wells should have been taken elsewhere is no defense to this action. Mr. Wells was taken to Logan in order that a breathalyzer test could be made pursuant to Section 41-6-14.10, U.C.A. 1953 (Replacement Volume 5A), since that is the only place in Cache County where the test could be conducted. He accompanied the officer here and after taking the test was released. He was not taken before a magistrate in Logan City or anywhere else.
The prosecution was initiated against Mr. Wells at a later date by the filing of a complaint and the service of a summons upon him pursuant to Section 77-12-21, U.C.A. 1953.
The venue of criminal actions is set out in Section 76-1-202, U.C.A. 1953 (1973 Pocket Supplement). That section sets forth a number of situations not material here and then in (g)(v) it provides:
For any other offense, trial may be held in the county in which the defendant resides, or, if he has no fixed residence, in the county in which he is apprehended or to which he is extradicted.
It thus appears that Mr. Wells can be tried in any court in Cache County which has jurisdiction therein, and the misdemeanor charge in the Logan City Court is properly placed, and the trial thereof should not be interfered with by this court.
In addition to what is said above, this prosecution is proper in view of the fact *Page 685 that a new section was added to our statute by Chapter 7, Section 3, Laws of Utah 1971,1 which reads as follows:
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.
The statute thus gives the officer the discretion and the right to take a prisoner to or file a complaint in the nearest citycourt having jurisdiction of the offense. The defendant herein was the only city court in the county. The other magistrates were mere town justices.
The ruling of the trial court in my opinion was correct and should be affirmed.
CROCKETT, J., concurs in the views expressed in the dissenting opinion of ELLETT, J.