When Government Breaks Rules For Ohio Administrative License Suspensions

There are few instances when the government can take our property without first holding a hearing.  An Ohio Administrative License Suspension (A.L.S.) is one of those instances.  If a driver refuses a chemical test or tests ‘over the limit’, an officer takes the driver’s license on-the-spot.  Accordingly, to protect drivers’ rights to due process of law, Ohio has rules which must be followed for an A.L.S to be imposed.  A recent A.L.S. case in an Ohio Court of Appeals demonstrates what happens when the rules are not followed.

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There Are Rules For Imposing License Suspensions
The case is Toledo v. Ferguson.  Ferguson was stopped and given field sobriety tests.  The police officer charged Ferguson with OVI and imposed an A.L.S.  For the A.L.S., the officer completed a BMV 2255 report and sent a copy to the court.  However, the report was sent to the court six days after the arrest, and Ohio Revised Code section 4511.192(E) requires that the report be sent “as soon as possible, but not later than 48 hours after the arrest.”  Ferguson’s lawyer filed an appeal of the A.L.S. on the ground the BMV 2255 report was not timely filed.  The trial court refused to terminate the A.L.S., so Ferguson appealed to the Sixth District Court of Appeals.

Government Claims There Is No Remedy For Violating Rules
The prosecution argued the officer’s violation of the 48-hour requirement is not a ground for terminating the A.L.S.  Ohio Revised Code section 4511.197 establishes the parameters for A.L.S. appeals.  That section establishes four bases for appealing the A.L.S.  In Ferguson, the prosecution argued that, because the 48-hour rule is not one of those four bases, violation of the 48-hour rule cannot result in termination of the A.L.S.  The trial court agreed with the prosecution.

Courts Have Authority To Fashion Remedies
The Court of Appeals, however, concluded there was no ‘competent credible evidence to support the lower court’s ruling’.  The Court gave two rationales for its conclusion.  First, if a driver shows the BMV erred by imposing the suspension, the suspension terminates.  The officer is an agent of the BMV, and, because the officer erred in this case, the suspension should have been terminated.  Second, a driver only has to prove one of the four bases in O.R.C. 4511.197 if the government first demonstrates compliance with the requirements of O.R.C. 4511.192.  In this case, the government did not present proof of compliance with O.R.C. 4511.192, so the defendant’s A.L.S appeal should have been granted.

Although the Ohio Revised Code does not specify that failure to follow the rules results in termination of the A.L.S., courts have the inherent authority to determine remedies when another branch of government violates the law.  In the 1803 case of Marbury v. Madison, the U.S. Supreme Court stated, ‘it is emphatically the province and duty of the judicial department to say what the law is.’  As the Sixth District Court of Appeals observed, “[t]he state cannot set forth a statutory scheme to suspend a person’s operating privileges, not follow the scheme, and then claim that, since such actions are not one of the four issues allowed in an ALS appeal, a municipal or county court has no authority to terminate the ALS.”

Belt And Suspenders Approach To Challenging The A.L.S.
This is a recurring issue in Ohio DUI / OVI litigation.  Some courts continue to maintain an A.L.S. can only be terminated if the defendant proves one of the four bases in O.R.C. 4511.197.  Hopefully, the Ferguson case clarifies the distinction between an appeal of the A.L.S. based on the four factors and a motion to terminate the A.L.S. based on non-compliance with the rules for imposing an A.L.S.  Ohio DUI / OVI lawyers would be wise to challenge the Administrative License Suspension by filing both an appeal of the suspension and a separate motion to terminate the suspension.