DUI - ADMINISTRATIVE APPEAL FROM LICENSE SUSPENSION: TAYLOR V. HARVEY
Taylor v. Harvey, [Ms. 2160435, Oct. 13, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In this unanimous decision by Judge Pittman (Thompson, P.J., and Thomas, Moore, Donaldson, JJ., concur) the court reverses a judgment by the Colbert Circuit Court that reinstated the driving privileges of Harvey.
Following his arrest for suspicion of DUI, Harvey refused a breath test. Ms. *2. The uniform traffic ticket and complaint (“UTTC”) bears the printed name of the arresting officer but does not contain the officer’s signature or an entry indicating the UTTC was “sworn to and acknowledged before” a magistrate judge. Ms. *2. The officer also completed Form AST-60 informing Harvey of his duty to provide a breath sample and potential loss of driving privileges resulting from refusal to do so. While an unsworn copy of Form AST-60 was provided to Harvey, “a notarized original was transmitted to [ALEA] along with a copy of the UTTC.” Ms. *3.
Harvey filed an administrative appeal of ALEA’s suspension of his driving privileges. Following an administrative hearing, ALEA upheld the suspension. Ms. *4. Harvey timely appealed to the Colbert Circuit Court which conducted a de novo review and after hearing testimony reinstated Harvey’s driving privileges. At the de novo hearing, the officer admitted that the UTTC had not been signed or sworn to. Ms. *5. Noting that the Alabama Administrative Procedure Act (“AAPA”) does not apply to decisions by ALEA concerning suspension of driving privileges, the court agreed with Harvey that the circuit court’s review of the hearing officer’s decision was de novo and not subject to the AAPA’s deferential standard of review. Ms. *6-7.
However, on de novo review, the court reversed the circuit court’s judgment reinstating Harvey’s driving privileges. The court cited “evidence presented to the circuit court indicat[ing] that a sworn copy of Form AST-60, ..., was transmitted to and received by DPS ....” Ms. *8. The court noted pursuant to the clear terms of § 32-5A-301(a), Ala. Code 1975, for purposes of license suspension that “the report (Form AST-60) of the arresting officer is what must be sworn, not the UTTC copy ....” Ms. *9.