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Davis v. Brown6/27/2005
her to have prevented a timely request.
(Emphasis added.) Ga. Comp. R. & Regs. r. 375-3-3-.04. The Department of Public Safety has a similar rule providing for a hearing without a timely request where "events uncontrollable by the aggrieved person are shown by him to have prevented a timely request." Ga. Comp. R. & Regs. r. 570-6-.04.
Here, the evidence showed that although the form was served upon Brown, his copy was taken away from him when he was placed in a holding cell, presumably a short time after he received the notice. And although there was no direct evidence that the form was seized by a deputy or other police officer, this fact could properly be inferred from the circumstances surrounding arrest procedures. Accordingly, we agree with the trial court that Brown demonstrated that events uncontrollable by him prevented his making a timely request for a hearing. As our Supreme Court has noted, "It is axiomatic that a driver's license is a property interest that may not be denied to an individual without due process of law." Miles v. Shaw 272 Ga. 475, 477 (532 SE2d 373) (2000). Thus, the superior court properly could have found under the appropriate standards that the DMVS acted arbitrarily and capriciously and abused its discretion in applying the ten-day notice requirement under the facts present here. OCGA § 50-13-19 (h) (6).
Judgment affirmed in part and reversed in part. Smith, P. J., and Ellington, J., concur.
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