Appeal To Superior Court From Administrative Revocation {AP-220}

AP-220 (1/18)(gold cover) APPELLANT INSTRUCTIONS Appeal to Superior Court From Administrative Revocation of Driver's License Under Alaska Statute 28.15.165 Court staff generally can inform you about court procedures, court rules, court records, and forms. Court staff must remain neutral and impartial. They are not allowed to give legal advice. Court staff cannot: advise you how statutes and rules apply to your case, tell you whether the documents you prepare properly present your case, tell you what the best procedures are to accomplish a particular objective, or interpret laws for you. If you need help with your case, you should talk to a lawyer. January 2018 ALASKA COURT SYSTEM website: http://www.courts.alaska.gov/forms/index.htm American LegalNet, Inc. www.FormsWorkFlow.com 251 Copyright 1989, 1990, 1994, 2001, 2004, 2007, 2015, and 2018 by Alaska Court System All rights reserved. Permission to reproduce the contents of this booklet, but not for profit, is hereby granted to governmental and non-profit educational institutions. However, reproduction of any part of this booklet for commercial purposes without the express written permission of the Alaska Court System is strictly prohibited. American LegalNet, Inc. www.FormsWorkFlow.com AP-220 (1/18) 1 INSTRUCTIONS FOR FILING AN APPEAL TO THE SUPERIOR COURT FROM AN ADMINISTRATIVE REVOCATION OF DRIVER'S LICENSE UNDER AS 28.15.165 NOTICE: Appeals to the superior court are governed by Appellate Rules 600-612. Appeals are complicated, and you should consider seeing a lawyer if you want to appeal. I. INTRODUCTION These instructions describe the procedure for appealing the decision of an administrative hearing officer if the hearing officer has decided to uphold the Department of Administration's revocation of your driver's license because you either failed a breath test for alcohol or refused to submit to one. This appeal is called an "administrative appeal" because you are appealing the decision of an administrative agency, the Department of Administration, Division of Motor Vehicles (DMV). Definitions: A. ADMINISTRATIVE APPEAL. An administrative appeal is a review by the superior court of the final decision of a state or local government agency, board or commission. An appeal is not a new hearing or a trial. The superior court will not accept any new evidence. The only information the superior court will consider on appeal is the following: 1. an electronic recording of the administrative hearing (unless the court requires a typed transcript instead of an electronic recording); 2. any items offered as evidence at the hearing; 3. the documents and depositions in the agency file; and 4. legal briefs filed in the appeal. B. APPELLANT. The appellant is the party who files the appeal. In this case, you are the appellant. C. APPELLEE. The appellee is the party who defends against the appeal. In this case, the appellee is DMV. American LegalNet, Inc. www.FormsWorkFlow.com AP-220 (1/18) 2 II. COPIES TO OTHER PARTIES The court rules require each party to send to all other parties a copy of any document which that party files with the court. Appellate Rule 602(j) Proof that this has been done must be shown on or attached to each document you file. The forms which the court provides for your use include a certificate of distribution section which, if completed, will satisfy the requirement for proof of service. If another party is represented by an attorney, the documents must be served on the attorney instead of the party. Agencies are usually represented by an attorney. You should contact DMV to find out the name and address of the attorney representing DMV on appeal. See paragraph III. C. 4. about where you must send copies of your notice of appeal and all attachments. III. TO FILE AN APPEAL A. Grounds for appeal. (AS 28.15.166(m)). You may file an appeal if you believe that DMV: 1. misinterpreted the law, 2. acted in an arbitrary and capricious manner, or 3. made a determination unsupported by the evidence in the record. B. When can an appeal be filed. 1. You may file an appeal only after the administrative review hearing in DMV has been completed. If no hearing has been held, you must apply to DMV for permission to have a late hearing before you can file an appeal in superior court. If DMV denies your request for a late hearing, you may appeal that decision. 2. Your notice of appeal must be filed within 30 days from the date the hearing officer's decision is mailed or otherwise distributed to you. 1 Appellate Rule 602(a)(2). If you want to file a notice of appeal after the 30 days, you must file a Request and Order (form AP-135) asking the court to accept your late-filed appeal. Your request must state why your appeal is late. File your request at the time you file your notice of appeal. 1 For the 30-day time limit to apply, an agency must clearly indicate that its decision is a final order and that the claimant has 30 days to appeal. Manning v. Alaska Railroad Corporation, 853 P.2d 1120, 1124 (Alaska 1993) American LegalNet, Inc. www.FormsWorkFlow.com AP-220 (1/18) 3 C. How to File an Appeal. To file an appeal, do the following: 1. Notice. File a Notice of Appeal (form AP-102) with a superior court. 2 You must attach a copy of the DMV decision. 3 2. Filing Fee. You must either: a. pay a $250 filing fee (make your check or money order payable to "Clerk of Court"); or b. if you cannot afford to pay the filing fee, you may file a Request and Order (form AP-135) asking the court to waive the filing fee. A financial statement (form CR-206) must be filed with the request. File your request at the time you file your notice of appeal. 3. Bond. You must file one of the following at the time you file your notice of appeal: a $750 cost bond; or a motion to waive or reduce cost bond. a. $750 Cost Bond. The purpose of filing a cost bond is to make sure DMV's costs to defend the appeal (attorney fees, etc.) will be paid by you if the appeal is dismissed or if you lose the appeal. To meet the cost bond requirement, you can either file a surety bond or make a cash deposit as described below: (1) Surety Bond. This is a document which guarantees payment of money if certain things occur. The person or company that writes the bond is called the surety. The surety guarantees the payment by becoming liable (responsible) for it. Such bonds are generally available from insurance companies or third parties qualified to write surety bonds. There will be a fee. The court 2 According to Appellate Rule 3 Appellate Rule 602(c)(1)(D) American LegalNet, Inc. www.FormsWorkFlow.com AP-220 (1/18) 4 system does not provide forms for surety bonds. (2) Cash Deposit. If you want to make a cash deposit with the court instead of filing a surety bond, complete the Cash Deposit on Appeal (form AP-110). Check the first box on the form, fill out the rest of it, acknowledge it before a court clerk or notary public and give it to the clerk along with your money. b. Motion to Waive or Reduce Cost Bond. Appellate Rule 204(c)(1) requires that the cost bond be for $750 unless the superior court fixes a lesser amount. If you think this amount is unnecessarily high because the expected appeal costs (including attorney fees) for DMV will be considerably less than $750, you may file: (1) a Motion to Waive or Reduce Cost Bond (form AP-120); and (2) an Order Re Cost Bond (form AP-130). If you believe you cannot afford to post a $750 cost bond, you may file: (1) a Motion to Waive or Reduce Cost Bond (form AP-120); (2) an Order Re Cost Bond (form AP-130); and (3) a Financial Statement (form CR-206). The court will notify you of its decision. If the court orders a cost bond to be posted, you must file a surety bond or cash deposit in the amount set by the court or your appeal will be dismissed. c. Return of Bond After Appeal. After the appeal is decided, the court will send you and DMV a notice that the bond will be released unless there is an objection. If you lose your appeal, DMV may file an objection to the release of the bond or may request that the bond be applied to DMV's appeal costs. If no objection is filed by DMV, the bond will be released an