Is Ohio’s Implied Consent Law For DUI/OVI Unconstitutional?

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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.

Ohio’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.

The Ohio Supreme Court addressed the constitutionality of Ohio’s consent law in 1996. In State v. Hochhausler, the Court noted that a suspended driver can appeal the suspension, is given a post-suspension hearing within five days, can obtain limited driving privileges during the suspension, and can get a stay of the suspension by a judge. The court also pointed-out that there is not a substantial risk of erroneous license deprivation if the officers follow the procedures required by Ohio law. Therefore, the Court concluded, Ohio’s implied consent law and Administrative License Suspension are not unconstitutional.

I’m not sure if Wisconsin has addressed this issue before, but in Ohio, the issue was decided years ago: the A.L.S. is not unconstitutional, even though a driver’s consent to a breath/blood/urine test is given under the threat of a license suspension. The A.L.S. is valid, however, only if the officer followed the procedures required by Ohio law. A good DUI / OVI lawyer can advocate for his or her client by appealing the suspension, seeking a stay of the suspension, and reviewing the evidence to see if the officer, in fact, followed the required procedures.

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