Irvine was convicted in Georgia for DUI; a 90 day suspension of driver license was ordered by the Director of Public Safety under 32-5A-195 (e) giving the Director the discretionary authority to suspend or revoke a driver license upon receipt of an out of state conviction. Irvine did not request an administrative hearing under 32-5A-195(l).

On appeal from order of cancellation, suspension or revocation of driver’s license, hearing is de novo with trial court empowered to have hearing, take testimony, receive evidence, and make findings on its own. A circuit court hearing regarding the revocation or suspension of a driver license is not a separate, distinct, or additional method by which the motorist can seek reinstatement of his license; it is dependent upon the exhaustion of administrative remedies pursuant to the Code of Alabama, 32-5A-195(q). See, Ex parte State ex rel. Lylerly, 38 Ala. App. 630, 91 So. 2d 233 (1956).

The general rule is that where the authority for an administrative agency to revoke or suspend an operator’s license is based on an out-of-state conviction, the agency has the burden of proving the licensee was convicted in another state. Thus, the Director has the carry the burden of proof.

Since the administrative review is a civil proceeding, the Alabama Rules of Civil Procedure apply. Rule 43(b) allows calling an adverse party and questioning the party. The trial court’s refusal to permit Director of DPS to question motorist as adverse witness to prove an out of state conviction in license suspension proceeding prejudicially and substantially affected rights of Director since motorist’s answers may have established Director’s prima facie case.