Articles Posted in DUI/OVI license suspensions

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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Occasionally, evidence in Ohio O.V.I. (D.U.I.) cases comes from a blood sample taken at a hospital. When the blood sample is obtained in a hospital setting, issues arise regarding the admissibility of the blood test. One issue is whether the suspect’s consent to giving the blood sample is valid. For the second time in a year, a court of appeals has concluded that a defendant’s consent to a blood draw was not valid because it was not made knowingly and voluntarily.

The case in which the court of appeals reached this conclusion is State v.Rawnsley. In Rawnsley, the defendant was involved in a two-car accident and taken to the hospital. At the hospital, a police officer read to the defendant an Ohio BMV form that informed the defendant of the consequences of consenting to a blood test and refusing a blood test. Ohio’s ‘implied consent’ law says there is an Administrative License Suspension for refusing the test or testing over the limit. The defendant consented to a blood test, and the result was presumably over the limit. The other driver involved in the accident was seriously injured, so the defendant was charged with Aggravated VehicularAssault.

The appeals court analyzed whether the defendant’s consent to the blood test was valid. The court reasoned that, for the defendant to be subjected to an Administrative License Suspension, the defendant must be under arrest. As this defendant was not under arrest, she could not be subjected to an Administrative License Suspension for refusing the test. Because the officer erroneously told the defendant her license would be suspended for refusing the blood test, the defendant’s consent to the blood draw was not made knowingly and voluntarily. As her consent was invalid, the blood test evidence was suppressed. The prosecution will not have to decide whether there is enough evidence to go forward with the charge of AggravatedVehicular Assault without the blood test evidence.

R.W. lay in the hospital bed waiting for his injuries to be treated. A police officer came in the room and said she wanted to talk with him about the accident. The officer read to him the B.M.V. 2255 form regarding the consequences of taking and refusing the blood test. She asked him to submit to a blood test, and he refused. The officer wrote him a ticket for O.V.I. (D.U.I.) and imposed a one-year Administrative License Suspension (A.L.S.); the consequence for refusing the blood test.

We filed a motion to terminate R.W.’s A.L.S. At the hearing on our motion, the officer testified that she did not handcuff R.W. and did not intend to actually arrest him. She only intended to question him, request a blood sample, and write him a ticket. We argued that, based on the recent case of State v. Whitt, the judge should terminate R.W.’s A.L.S.

State v. Whitt was decided in August of 2010 by the Fifth District Court of Appeals. The facts of the Whitt case are nearly identical to the facts in R.W.’s case. In Whitt, the court reviewed the legislative language related to A.L.S. and concluded that an “arrest” is necessary before an A.L.S. can be imposed. In the Whitt case, the issue was whether the defendant’s submission to the blood test was coerced. The officer told Whitt the consequences of refusing a test (an A.L.S.), but those consequences couldn’t really be imposed; there could not be an A.L.S. because there was no arrest. The Court in the Whitt case concluded that the defendant’s submission to the blood test was therefore coerced and consequently inadmissible.