2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 5 - Drivers' Licenses
Article 3 - Cancellation, Suspension, and Revocation of Licenses
§ 40-5-66. Appeals From Decisions of Department

1. Except as provided in subsection (h) of Code Section 40-5-67.1, subsection (h) of Code Section 40-5-64, and subsection (g) of Code Section 40-5-64.1, any decision rendered by the department shall be final unless the aggrieved person shall desire an appeal. In such case, such person shall have the right to enter an appeal in the superior court of the county of his or her residence or in the Superior Court of Fulton County. Such appeal shall name the commissioner as defendant and must be filed within 30 days from the date the department enters its decision or order. The person filing the appeal shall not be required to post any bond nor to pay the costs in advance.
2. If the person so desires, the appeal may be heard by the judge at term or in chambers or by a jury at the first term. The hearing on the appeal shall be de novo, but no appeal shall act as a supersedeas of any orders or acts of the department. No person shall be allowed to operate any vehicle in violation of any suspension or revocation by the department while any such appeal is pending.

(Ga. L. 1937, p. 322, art. 4, § 11; Ga. L. 1943, p. 196, § 5; Ga. L. 1951, p. 598, § 8; Code 1933, § 68B-315, enacted by Ga. L. 1975, p. 1008, § 1; Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 2048, § 4; Ga. L. 1992, p. 2564, § 4; Ga. L. 2016, p. 323, § 2-4/HB 205; Ga. L. 2017, p. 774, § 40/HB 323.)

The 2016 amendment, effective July 1, 2017, substituted "Code Section 40-5-67.1, subsection (h) of Code Section 40-5-64, and subsection (g) of Code Section 40-5-64.1," for "Code Section 40-5-67.1 and subsection (h) of Code Section 40-5-64," in the first sentence of subsection (a).

The 2017 amendment, effective July 1, 2017, part of an Act to revise, modernize, and correct the Code, substituted "his or her" for "his" near the middle of the second sentence of subsection (a).

- For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 298 (1992).

JUDICIAL DECISIONS

Due process.

- Right to appeal to the state court system under O.C.G.A. § 40-5-66 from a driver's license revocation does not rectify the procedural due process flaws inherent in the revocation hearing procedures because that section does not afford a prerevocation hearing. Smith v. Commissioner of Ga. Dep't of Pub. Safety, 673 F. Supp. 446 (M.D. Ga. 1987).

- Because an administrative law judge lacked jurisdiction to address the issue of a driver's habitual violator status, and thus, the ruling that the driver was wrongfully declared an habitual offender was not binding on the parties, the driver was not entitled to mandamus relief ordering the Commissioner of the Department of Driver Services to issue a driver's license. James v. Davis, 280 Ga. 497, 629 S.E.2d 820 (2006).

- Although the superior court is not required to conduct a hearing concerning the merits of the Department of Public Safety's decision to revoke the driver's license of an aggrieved party if the parties waive the parties' right to be heard, the superior court cannot avoid the dictates of O.C.G.A. §§ 5-3-29 and9-10-2 by simply failing to hold a hearing. Bowman v. Parrot, 200 Ga. App. 405, 408 S.E.2d 115, cert. denied, 200 Ga. App. 895, 408 S.E.2d 115 (1991).

- Even though defendant elected to first pursue an administrative appeal of a driver's license suspension to the Department of Public Safety, and was unsuccessful in that effort, the defendant was still entitled to file an appeal in the superior court under O.C.G.A. § 40-5-66, at which the defendant could receive a meaningful hearing upon request and, accordingly, the defendant was not denied the right to procedural due process. Miles v. Shaw, 272 Ga. 475, 532 S.E.2d 373 (2000).

- Lower courts erred in determining that an applicant's petition was untimely because the Georgia Department of Driver Services canceled, but did not revoke, the license that it had issued to the applicant; thus, the applicant was entitled by the plain terms of O.C.G.A. § 40-5-66 to make an application for a new license at any time after the cancellation. Barrow v. Mikell, 298 Ga. 429, 782 S.E.2d 439 (2016).

- It was error to affirm a decision to suspend a driver's license when, after being advised of the implied consent rights and of the consequences of refusing to submit to a state-administered breath test, the driver refused the test; as the correct standard of review was the "any evidence" test, because the hearing before the ALJ was conducted pursuant to O.C.G.A. § 40-5-67.1, the appeal in the superior court was expressly excepted from O.C.G.A. § 40-5-66(a), and had to be conducted pursuant to § 40-5-67.1(h); moreover, the administered breath tests were not invalid merely because the officer gave the breath tests ten minutes apart, and the driver's failure to give an adequate sample could not be used to suspend the license. Dozier v. Pierce, 279 Ga. App. 464, 631 S.E.2d 379 (2006).

- Trial court erred in denying a motion by the Georgia Department of Public Safety (DPS) to dismiss a motorist's petition for judicial review of a decision by the DPS which denied the motorist's application for reinstatement of the motorist's driver's license as the petition for judicial review was not filed within 30 days from the date that the DPS entered its decision as required under O.C.G.A. § 40-5-66(a). Hightower v. Cervantes, 259 Ga. App. 562, 578 S.E.2d 240 (2003).

Trial court erred by reversing the decision of the Georgia Department of Driver Services because the evidence supported the decision of the department in denying, as untimely, the driver's request for an administrative license suspension hearing, pursuant to O.C.G.A. § 40-5-67.1(g), since the actions of the driver's attorney in failing to mail a timely request for a hearing were imputed to the driver. Mikell v. Hortenstine, 334 Ga. App. 621, 780 S.E.2d 53 (2015).

Cited in Cofer v. Crowell, 146 Ga. App. 639, 247 S.E.2d 152 (1978); Akin v. Hardison, 245 Ga. 57, 262 S.E.2d 814 (1980); Hardison v. Shepard, 246 Ga. 196, 269 S.E.2d 458 (1980); Hardison v. Haslam, 250 Ga. 59, 295 S.E.2d 830 (1982); Hardison v. Martin, 254 Ga. 719, 334 S.E.2d 161 (1985); Earp v. Angel, 182 Ga. App. 860, 357 S.E.2d 596 (1987); Wells v. State, 212 Ga. App. 15, 440 S.E.2d 692 (1994).

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 107, 154 et seq.

- 60 C.J.S., Motor Vehicles, § 433 et seq.

- Suspension or revocation of driver's license for refusal to take sobriety test, 88 A.L.R.2d 1064.

Statute providing for judicial review of administrative order revoking or suspending automobile driver's license as providing for trial de novo, 97 A.L.R.2d 1367.