Administrative License Suspension (ALS) in Ohio OVI/DUI Cases
If the Defendant either refuses to take a test or tests above the prohibited alcohol level, then the officer seizes the driver’s license and immediately forwards it to the court in which the arrested person is to appear on the charge. The officer must then serve a notice of suspension on behalf of the BMV and suspend the license immediately.
2001 Dub. S.B. 123, effective January 1, 2004, made several “house-keeping” changes to the ALS provisions. It amended the language of the statutes to comport with other amended statutes throughout the code to refer to whole blood, or blood serum or plasma, as well as breath or urine. It also deemed consent to be given, as opposed to “not to have been withdrawn”, if a person is dead or unconscious.
Substantively, the ALS provisions remained fairly similar to the former version. The bill placed the ALS material in three sections: RC 4511.191, which established the implied consent law; RC 4511.192, which described the arresting officer’s duties; and RC 4511.197, which discussed the ALS appeal.
2001 Sub. S.B. 123 requires the arresting officer to inform an arrestee of the consequences of refusing to take the test and of taking the rest and failing. The language in the bill differed somewhat from the former requirements. The officer must now inform the arrestee that he or she may appeal the ALS at the initial appearance or during the period of time ending 30 days after the initial appearance. The bill also allows for the new “having physical control” offense that was enacted under the bill. The officer has different duties under the new offense. Note the S.B. 123 uses the broader and more accurate term “law enforcement officer” in ALS law instead of “police officer”.
Under the bill, the suspensions for refusals are classified as administrative suspensions and are based on six-year as opposed to the former five-year look-back period for prior refusals. For refusals to submit to testing the following apply: Class C (one year) for the first refusal; Class B (two years) for a previous refusal within six years of the date of the current refusal; Class A (three years) for two prior refusals within six years of the date of the current refusal; and a five-year suspension for three or more refusals within the six-year period.
For failing the chemical test or tests, the following suspensions apply under the bill: Class E (three months); Class C (one year) for a prior OVI conviction within six years of the current test date; Class B (two year) for two prior OVI convictions within six years of the current test date; and Class A (three years) for conviction of more than two OVI convictions within six years of the test date.
A person whose license is suspended can seek “limited driving privileges” by filling a petition with the court after being served notice of the suspension by the arresting officer. The petition must be filed no later than 30 days after the arrestee’s initial appearance or arraignment. Privileges can be granted under RC 4510.021 and RC 4510.13 unless prohibited under the Implied Consent law or RC 4510.13.
No limited driving privileges are granted if the person has been convicted of three or more OVIs within the preceding six years or had refused three previous tests within the preceding six years. The bill also prohibits the court from granting limited driving privileges for other initial periods of time depending on the number of prior refusals or convictions.
Note that proposed 2007 Ohio S.B. 17, would make significant changes to ALS law for repeat offenders. Under the proposed legislation, if an officer arrests a defendant for OVI, the physical-control offense, or a substantially equivalent municipal ordinance and the defendant has been convicted of or pleaded guilty to two or more OVIs, then on request, the defendant would be required to submit to a chemical test. On refusal, the requesting officer may use whatever reasonable means are necessary to ensure the repeat offender submits to a chemical test of the person’s whole blood or blood serum or plasma.
Moreover, the requesting officer would be immune from civil and criminal liability on a claim for assault and battery or any other claim for the acts, unless the officer acted with malicious purpose, in bad faith, or in a wanton manner. The officer requesting a repeat offender under RC 4511.191(A)(5) to submit to a chemical test would not be required to advise the arrestee of the consequences of submitting to, or refusing to submit to the test and is no longer required to give the defendant the form under RC 4511.192(B). However, the arresting officer would be required to advise the arrestee at the time of arrest that an independent chemical test may be taken at the person’s expense. Obviously, there would be many legal issues for court and counsel to sort out. As of the date of this article, the House had not passed 2007 Ohio S.B. 17, but ad OVI/DUI attorneys we are aware of it.
There are many legal issues when it comes to the legality and enforceability of Administrative License Suspensions, which need to be explored by competent OVI/DUI attorneys, to protect the interest of those who are accused of an OVI/DUI or Physical Control while under the influence charges. The ALS is a separate suspension apart from any Court suspension, and is levied by the BMV, not the Court. It is a civil proceeding, not criminal, and everyone who drives in the State of Ohio, is deemed to have given “implied consent” to submit to a test for alcohol and/or drugs of abuse levels. It is advised that anyone facing such a charge consult with competent counsel to explore their options in defending these charges. After all, they are just allegations, and these cases can be defended aggressively and won.