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Mikell v. Hortenstine

The trial court erred in overturning the Department of Driver Services' decision to deny as untimely the petitioner's request for an administrative license suspension hearing pursuant to O.C.G.A. § 40-5-67.1 subsection g, as the petitioner's counsel's error in failing to mail the request within the required timeframe was imputed to the petitioner.

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Robert G. Mikell, in his capacity as Commissioner of the Department of Driver Services the Department, following our grant of his application for discretionary appeal, appeals from the trial court’s order reversing the Department’s decision to deny, as untimely, Jayson Hortenstine’s request for an administrative license suspension hearing pursuant to OCGA § 40-5-67.1 g. We agree with Mikell that the actions of Hortenstine’s attorney in failing to mail a timely request for a hearing were imputed to Hortenstine, and reverse.1

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 Department must be affirmed by the superior court if there is any evidence to support it. Citation and punctuation omitted. Davis v. Brown, 274 Ga. App. 48, 49 1 616 SE2d 826 2005.2 And when this Court reviews a superior court’s order in such a case, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency. Citations and punctuation omitted. Id. at 50 1.

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