Articles Posted in DUI/OVI license suspensions

Until a few days ago, the scope of driving privileges for Ohio DUI/OVI suspensions was very limited.  A parent on limited driving privileges was not permitted to drive children for extra-curricular activities.  A person on limited driving privileges was not allowed to drive to care for elderly parents.  A person on limited driving privileges could not drive to AA or counseling unless it was court-ordered.  That changed last week, when the state legislature revised Ohio law for limited driving privileges.

Statehouse with Ohio flag

The revised law is Ohio Revised Code section 4510.021.  That section authorizes courts to grant limited driving privileges for driver license suspensions, including DUI/OVI suspensions.  The last time the statute changed was 2004.  Before 2004, the law only provided for occupational driving privileges.  In 2004, the statute was revised to expand driving privileges, authorizing privileges for the following purposes:

•    Occupational, educational, vocational, or medical purposes;
•    Taking the driver’s or commercial driver’s license examination;
•    Attending court-ordered treatment.

The most recent change to the law, in September of 2016, further expands the permissible scope of limited driving privileges.  The statute still lists the purposes above and now adds the catch-all phrase, “Any other purpose the court determines appropriate”.

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The last entry in this blog discussed lesson number one for appealing an Ohio Administrative License Suspension (A.L.S.).  The lesson came from a recent appellate case.  That lesson was for defense lawyers, and it was simple:  file the appeal on time.  This entry discusses lesson number two, which also comes from a recent appellate case.  This lesson is for courts, and it is also simple:  follow the law.

Scales of justice half

The government cannot take property without due process of law.  Due process of law includes an opportunity to be heard (a hearing) at a meaningful time and in a meaningful manner.  With an A.L.S., the executive branch of government takes property from an individual by suspending the individual’s driver’s license.  Therefore, the individual is entitled to a meaningful hearing at meaningful time.  The most meaningful time for the hearing would be before the license suspension is imposed.  However, the Ohio Supreme Court held the A.L.S., with a post-suspension hearing, is not unconstitutional.

What keeps the A.L.S. from being unconstitutional is mainly the procedures found in Ohio Revised Code (O.R.C.) section 4511.192.  That statute includes the following requirements:

•    The officer must advise the individual of the consequences of taking or refusing a chemical test, using a form (BMV form 2255).
•    The officer’s advice must be witnessed, and the witness must sign the form.
•    The officer must write on the form the officer’s reasonable grounds to believe the individual was under the influence.
•    The officer must notify the individual of the suspension and the individual’s right to appeal the suspension.
•    The officer must sign the form, and the form must be sworn.
•    The officer must give a sworn copy of the form to the individual.
•    The officer must send copies of the form to the court and the BMV within 48 hours of the individual’s arrest.

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Practicing law is an art, not a science, and there are various methods to develop skill at the art of lawyering. One method is to learn the hard way. In a recent Ohio OVI case, the defense lawyer learned the hard way lesson number one for appealing an Administrative License Suspension (A.L.S.). Hopefully, others will learn from this example.

In Ohio, an A.L.S. is separate from the underlying charge of O.V.I. An A.L.S. is imposed if a suspect is arrested for O.V.I. and either refuses a chemical test for alcohol/drugs or tests ‘over the limit’. The length of the A.L.S. and the suspect’s eligibility for limited driving privileges depend on whether the suspect has prior O.V.I. convictions and/or prior test refusals.

Woody Allen with quote

The A.L.S. can be appealed. Although the A.L.S. is separate from the O.V.I. case, a defendant may appeal the A.L.S., and/or seek limited driving privileges, in the context of the O.V.I. case. The A.L.S. appeal is filed with the court in which the O.V.I. case is being held, and the A.L.S. appeal is typically heard by the same judge who hears the O.V.I. case.

The A.L.S. was appealed in the case of State v. Schertzer.  In that case, the defendant was arrested for O.V.I., and his breath test result was .303.  As a result, Schertzer was subjected to a 90-day A.L.S.  The defendant was arrested on June 6 and went to his initial court appearance on June 8.  On September 2, 86 days after his initial appearance in court, the defense lawyer filed an appeal of the A.L.S.

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Ohio takes drivers’ licenses before a person is found guilty of DUI/OVI.  If a person is arrested for DUI/OVI and tests over the limit, or refuses to test, that person’s license is suspended immediately.  No judge reviews the circumstances beforehand to determine if the suspension should be imposed.  Instead, the executive branch of the government takes the driver’s license automatically.

It’s called an Administrative License Suspension (ALS).  The suspension is considered a ‘civil’ (not criminal) action, and it is imposed independent of the traffic ticket charging the person with OVI.  Ohio’s administrative license suspension is similar to other states’, including Florida.

Handing driver license to officer
Florida’s administrative license suspension is currently the subject of a class action lawsuit which alleges the ALS is unconstitutional.  The plaintiff seeks damages exceeding $50 million from the Florida Department of Highway Safety and Motor Vehicles, according to this report from Click Orlando.  The plaintiff claims the failure to have a judicial officer review the propriety of the license suspension violates the Due Process clause of the 14th Amendment.

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I’m traveling to another state for a seminar next week. It just so happens the state is Nevada, and the seminar is in Las Vegas. For me, there is no risk of being convicted of DUI in Nevada because the trip is all about education! Sometimes, however, an Ohio driver comes home with the unwanted souvenir of an out-of-state DUI conviction. When it comes to DUI, what happens in Vegas does not stay in Vegas: there are consequences in Ohio for a DUI conviction in another state.


The consequence in Ohio for an out-of-state DUI conviction is suspension of the person’s Ohio driver license. Another state cannot suspend an Ohio driver’s license. Instead, if that state is part of the Interstate Driver License Compact, that state transmits to the Ohio Bureau of Motor Vehicles (BMV) information that the Ohio driver was convicted of DUI in the other state. The Ohio BMV then takes action against the person’s Ohio driver’s license according to Ohio law.

Ohio law instructs the Ohio BMV to impose a license suspension on any person who is convicted of DUI in another state. Ohio Revised Code 4510.17 states the suspension shall be a ‘Class D’ suspension, which means the suspension is six months. When the BMV receives the report from the other state, the BMV sends a notice to the driver indicating his or her driver license will be suspended beginning 21 days after the day the notice was issued.

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I thought they were all drunk: they were driving on the wrong side of the road. But they weren’t drunk, they were just driving in Scotland. And so was I. I drove on the left, sat on the right, and shifted with my left on the endless roundabouts and turns. I navigated all the sheep, stone walls, and cliffs as I drove from the English countryside to the Scottish highlands, so I consider my recent holiday a driving success. The trip prompted me to compare the drunk driving laws of Ohio to the ‘drink driving’ laws of Scotland.


My rental car, brilliantly parked outside our B&B in Portree on the Scottish Isle Of Skye.

Scotland has a lower ‘per se’ alcohol limit than Ohio. In Ohio, it is illegal to drive at or above an alcohol level of .08%. In Scotland, where the drinking age is 18, the prohibited alcohol level changed in December of 2014 to .05%. That limit is lower than the rest of the United Kingdom, which remains at .08%, but higher than some countries, like Sweden which is .02%. A comparison of the drunk driving laws of several nations is available on the website of the National Highway Traffic Safety Administration.

There are differences in sentencing between Ohio and Scotland. For a first OVI offense in Ohio, the license suspension is a minimum of six months. For a first offense of driving whilst above the legal limit in Scotland, the license disqualification is a minimum of 12 months, and that disqualification period may be reduced by completing a 16-hour ‘drink driver’s rehabilitation course’. The fine in Ohio is a maximum of $1,000, but the fine in Scotland is a maximum of 5,000 pounds: about $7,600 with the current exchange rate. Both Ohio and Scotland have a maximum jail sentence of six months, but Ohio has a minimum of three days while Scotland has no minimum jail term. Both Ohio and Scotland increase penalties for subsequent offenses: Ohio has a six-year look-back period, and Scotland’s is ten years.

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It won’t win a Pulitzer Prize, it will not be mentioned with the New York Times best sellers, and it will not be at the top of readers’ ‘wish lists’. In fact, most people may not find it very interesting. If you are charged with a DUI/OVI in Ohio, however, this book suddenly becomes a must-read. I’m talking about the new book: I Was Charged With DUI/OVI, Now What?!

I wrote the book to answer the questions most commonly asked by people charged with OVI.Cover image from book.jpg After answering those questions for 17 years, I recently came to the realization there was not a published book designed for individuals charged with OVI in Ohio. I thought it would be helpful to create a book which explains ‘what you need to know before going to court and before hiring an attorney for DUI/OVI in Ohio‘.

The book, published a couple weeks ago, is divided into four parts. The first part reveals what prosecutors need to prove for a person to be found guilty of OVI and outlines the potential consequences of an OVI conviction. The second part addresses the evidence used in OVI cases, including field sobriety tests and blood/breath/urine tests. The third part discusses the court process and its various stages. The fourth part addresses how to find a good OVI lawyer.

An Ohio DUI / OVI sentence has several parts. There is mandatory jail time (or a driver intervention program for a first offense), a mandatory fine, and a mandatory license suspension. For a first offense, the license suspension is a minimum of six months and a maximum of three years, and the judge has discretion to grant or deny limited driving privileges. There are also optional sanctions for a first offense, and one of those sanctions is the use of an ignition interlock device. Proposed legislation in New Jersey would replace mandatory license suspensions with mandatory use of an ignition interlock. Should Ohio consider this change?

Ignition interlock device.jpgAn ignition interlock device (IID) is a mechanism installed in a vehicle that measures the alcohol present on someone’s breath. After the IID is installed, the driver will have to blow into the IID before he or she is able to start the engine. The vehicle will not start if the alcohol concentration on that person’s breath exceeds a predetermined limit.

In New Jersey, there is opposition to the proposed move from license suspensions to ignition interlock devices. The main argument against the change is that removing the license suspension would remove ‘the strongest deterrence to drunken driving’. The deterrent effect of a license suspension is questionable, as thousands of people drive drunk in Ohio every year despite the existing license suspension and despite frequent anti-DUI PR campaigns. In addition, the reality is that losing one’s license does not prevent someone from getting into a car and driving again. It is illegal to drive on a suspended license, but that doesn’t actually stop a person from driving under suspension.

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A recent vehicular homicide case in Wisconsin triggers the question of whether Ohio’s implied consent law is constitutional. In that case, a former Lutheran bishop is accused of what Ohio calls Aggravated Vehicular Homicide; causing the death of another person by operating a vehicle under the influence. The bishop was told that he would lose his license if he did not consent to a blood test, so he submitted to the test. His attorney argued that the threat of a license suspension amounts to coercion, and that makes the implied consent law unconstitutional. In Ohio, this issue has been decided.

Blood draw.jpgOhio’s implied consent law says that anyone who operates a vehicle in the state of Ohio implicitly consents to take a blood/breath/urine test for alcohol and/or drugs if the driver is arrested for DUI / OVI. The arresting officer is required to advise the driver of the consequences of taking or refusing the chemical test. Like Wisconsin, one consequence of refusing the test in Ohio is suspension of the person’s driver’s license (called an ‘Administrative License Suspension‘ – ‘A.L.S.’). For a first refusal, the license suspension is one year. For repeated refusals, the license suspension increases, up to five years.

The constitutional issue involved is the driver’s right to due process of law. The fifth and fourteenth amendments to the Constitution say no person shall be “deprived of life, liberty, or property without due process of law”. People have a property interest in their driver’s licenses, so a license cannot be suspended without due process. Due process in this context means the driver must be given notice of the suspension and must also be given a hearing on the suspension at a meaningful time and in a meaningful manner.

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Imagine that you are arrested for DUI (called OVI in Ohio), and the officer takes you to a police station to take a urine test. You want to comply, because you’re sure the test will prove you are under the legal limit, but you don’t need to go. In fact, you can’t go. You drink a bunch of water and wait a while, but you still can’t go. The officer then says you refused the urine test, so your driver’s license is suspended for one year.

Urination handstand.jpgThat’s what happened in State v. Brown, a case decided last week in an Ohio Court of Appeals. In that case, Brown first took a breath test, and the result was 0.00. The officer likely suspected that Brown was under the influence of a drug other than alcohol, so the officer asked Brown to submit a urine sample. Brown agreed, drank several glasses of water, and attempted to provide a urine specimen four or five times but was unable. The officer seized Brown’s license and placed him under a one-year driver’s license suspension for ‘refusing’ the urine test.

Officers are authorized to suspend a driver’s license, on behalf of the Ohio Bureau of Motor Vehicles, if a driver is arrested for DUI/OVI and refuses to submit to a breath/blood/urine test. A driver’s license can also be suspended if a driver submits to the test and the result is over the legal limit. These suspensions are called ‘Administrative License Suspensions‘ (A.L.S.) and are separate from the sentence that is imposed if the driver is found guilty of DUI/OVI. The A.L.S. can be appealed, and the trial court has the authority to terminate the A.L.S.

Brown did appeal his A.L.S., and the trial court held a hearing on his appeal. For this type of hearing, the burden is on the defendant to prove he did not refuse the test. At the hearing, the arresting officer acknowledged that Brown apparently “was not refusing the urine specimen”, and “it was very apparent to me that he was trying but just could not produce.” Nevertheless, the trial court concluded that Brown failed to prove he did not refuse the test, so the one-year suspension remained.

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