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Davis v. Brown6/27/2005
SMITH, P. J., ELLINGTON and ADAMS, JJ.
James R. Davis, the Commissioner of the Department of Motor Vehicle Safety appeals from the order of the superior court setting aside the suspension of Stuart R. Brown's driver's license.
On February 22, 2004, Brown was arrested for driving under the influence and failing to yield after he pulled out of a parking lot into the path of a police car driven by Athens-Clarke County Police Officer Timothy Scott. After stopping Brown for the traffic violation, Officer Scott observed signs of intoxication, testifying that he appeared "pretty drunk." The officer administered a number of field sobriety tests, which Brown failed. He read Brown the implied consent warning at the scene, but Brown refused to submit to a breath test.
Officer Scott transported Brown to the Athens-Clarke County Jail where he filled out the "necessary paperwork," including DPS Form 1205. This form documented Brown's refusal to consent to the breath test and notified him that his license would be suspended. The back of the form notifies a driver of the right to a hearing before an administrative law judge to challenge the suspension and further informs the driver that he has ten days to request such a hearing as provided in OCGA § 40-5-67.1 (g) (1). Both Brown and Officer Scott signed this form, and the officer testified that he gave Brown a copy, stapled to his citations. In signing, Officer Scott certified that he had provided Brown with a copy of the form.
Brown testified that he recalled signing some papers, but stated that his copies of these documents were "taken back" when he was placed into a holding cell. Although Brown did not recall what documents he signed, he stated that he did not have any personal papers when he was placed in the holding cell, nor did he have any papers when he later left the jail. Brown subsequently pled guilty to the DUI charge and attended a DUI school in relation to the charge.
Brown did not, however, request a hearing before an ALJ regarding the license suspension within the requisite ten-day period and the DMVS subsequently suspended his driver's license. Brown received notice of his suspension at the time he entered his guilty plea, as well as subsequent written notice by mail.
Brown appealed his suspension to the superior court pursuant to OCGA § 40-5-66. The superior court set aside the suspension on the ground that Brown was not effectively served with the DPS Form 1205. The court found that Officer Scott's service of the form was nullified when another officer at the jail confiscated Brown's copy of the form, depriving Brown of a meaningful opportunity to contest the license suspension. The superior court further found that even if the service were effective, the fact that the form was confiscated was an event beyond Brown's control that prevented him from filing a timely hearing request. As a result, the court concluded that Brown was entitled to a hearing under the DMVS rules.
1. Davis contends that the superior court strayed from its permissible scope of review and relied upon facts not in evidence in making these findings. In particular, he asserts that the trial court improperly applied equitable principles in setting aside the license suspension.
While a hearing on an appeal to the superior court of a license suspension is de novo, OCGA § 40-5-66 (b), the superior court sits as an appellate court in conducting its review of the suspension. Thus, the decision of the DMVS must be affirmed if there is "any evidence" to support it. Miles v. Andress, 229 Ga. App. 86 (493 SE2d 233) (1997). "The superior court shall not substitute its judgment for that of the agenc
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