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Mikell GA DDS v Hortenstine – Client pays for Attorney mistake for DUI license appeal

Mikell (Georgia Department of Driver Services v. Hortenstine, A15A1576, Rev, November 17, 2015. Robert Mikell, Commissioner of the Department of Driver Services (hereinafter “Department”) appealed from the Trial Court’s order reversing the Department’s decision to deny as untimely, Jayson Hortenstine’s request for an administrative license hearing under OCGA 40-5-67.1.  The Court of Appeals held that Hortenstine’s attorney’s failure to timely mail a request for a hearing was imputed to Hortenstine, the client, despite no fault on the part of Mr. Hortenstine.  Hortenstine moved to have the appeal dismissed as moot as the underlying DUI charge was dismissed in exchange for a plea to reckless driving which eliminated any possibility of an administrative DUI license suspension but the Court of Appeals rejected the motion to dismiss.

Hortenstine was arrested for DUI. The arresting officer issued a DDS form 1205 which acts as an administrative license suspension after 31 days.  If a request for a hearing is postmarked in 10 business days from the date of the arrest, the administrative license suspension stays until a hearing can be held. In this case, Hortenstine hired an attorney and paid him the required filing fee on the second business day. The Attorney prepared the letter two days later, but the letter was not postmarked until the day after the 10th business day. The failure to timely mail the letter was due solely to the acts and omissions of Hortenstine’s attorney.

The Georgia Court of Appeals held that under OCGA 10-6-51 “a principal shall be bound by the authorized acts of his agent as effectively as if he had been present and personally committed the act.” (emphasis added) Ford Motor Company v. Abercrombie, 207 Ga. 464(2), 62 SE2d 209 (1950); OCGA 15-19-5; Abney v. State, 47 GA. App. 40, 41, 169 SE 539 (1933).

The lesson of this story is bad things can happen if you hire a bad attorney, and that the Court of Appeals will hold you accountable for the actions of your attorney. Query: Is sending an untimely license hearing letter an “authorized act” of the agent? Did not the client hire and pay the attorney to mail the letter in a timely fashion? Is attorney malpractice an authorized act?

By George C. Creal, Jr.

Atlanta DUI Lawyer | DUI Attorney Atlanta