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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.

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Bad Facts Make Bad Law
If a police officer says a driver was under the influence of a drug, there is no need for testimony from an expert regarding whether the drug actually impairs driving. That is, essentially, the conclusion of the Ohio Supreme Court’s decision in State v. Richardson. There is a saying among lawyers: “bad facts make bad law”. The precedent created by this case may qualify as ‘bad law’, and the circumstances of the case definitely qualifiy as ‘bad facts’.

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These are the facts. The defendant rear-ended another car and had a child with him in his truck. He then nudged the other car repeatedly because he left his truck in gear. His speech was slurred, he slid out of the truck, he dropped all his cards on the ground, he singed his hair trying to light a cigarette, he ‘failed’ all the field sobriety tests, and he refused a blood test. The defendant told the officer he was on pain medication and took hydrocodone (at some undetermined time).

The defendant was charged with Child Endangering and felony OVI. This was his second felony OVI. That means, before this incident, he already had four OVI convictions in the last six years or six OVI convictions in the last 20 years. The defendant was convicted, and the case ultimately was heard by the Ohio Supreme Court.

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Yes, I saw Carlos Santana perform at the House of Blues.  It’s true, I rented a convertible Mustang.  I admit I hiked a breath-taking trail in Red Rock Canyon.  I also acknowledge I enjoyed the luxury of Bellagio and saw amazing views from the High Roller.  However:  the primary purpose of my trip to Vegas was to learn more about DUI/OVI defense.

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I recently attended the annual ‘DWI Means Defend With Integrity’ seminar.  The seminar is co-sponsored by the National College for DUI Defense and the National Association of Criminal Defense Lawyers.  It’s held in Las Vegas each year at the end of September or beginning of October; not a bad time to be in Vegas.  The location has historically been Caesar’s Palace, but for the last two years, the seminar has been held at Bellagio.  This year marks the 20th anniversary for the seminar, and I have attended for about 15 years.

 

This is a great seminar.  The speakers are some of the best DUI lawyers and experts from around the nation.  I have been practicing since 1997, and I have been focusing on DUI/OVI defense since 2002.  I feel like I have developed a bit of expertise in this area.  When I attend this seminar, however, I always learn more.  Hearing from the seminar faculty helps me avoid the limiting comparisons of my local market and allows me to benchmark against world class attorneys.  It also adds to my box of tools for winning.

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