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.
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.
According to Ohio Revised Code section 4511.197, an A.L.S. appeal must be filed at the defendant’s initial court appearance on the O.V.I. charge or within 30 days of that initial court appearance. As the defense attorney in Schertzer did not file the A.L.S. appeal until 86 days after the initial appearance, the judge ruled against the defendant and upheld the A.L.S.
The defendant appealed to the Court of Appeals. The appellate court focused on the fact the appeal was not timely filed. The Court’s states, “If an administrative license suspension is not timely appealed, the court has no jurisdiction to consider the appeal.” Because Schertzer’s attorney did not file the A.L.S. appeal within 30 days of the initial court appearance, the court could not even consider the appeal. Therefore, the appellate court affirmed the decision of the trial court to uphold the A.L.S.
The appellate court’s decision is not surprising. Ohio law says the A.L.S. appeal must be filed within 30 days, and the lawyer waited until the 86th day to file the appeal. When the law gives a deadline of 30 days, a court is not going to conclude 86 days is acceptable. This decision was a no-brainer for the trial court and the court of appeals.
As it is so clear the deadline is 30 days, why would the defense attorney wait until the 86th day to file the appeal? The appellate court’s decision does not provide a clear answer. Perhaps the attorney was not aware of the 30-day deadline. Maybe the delayed appeal was a strategic decision. Whether the delay was strategic or negligent, it didn’t work.
Lesson number one for appealing Ohio Administrative License Suspensions is for defense attorneys: file the appeal on time. As Woody Allen said, “80% of success is showing up.” The Ohio legislature actually made it easier for defense attorneys to ‘show up’. Before 2004, lawyers had to appeal the A.L.S. at the initial appearance. Lawyers now have an additional 30 days to complete the appeal.
Of course, it would be helpful if the attorney is knowledgeable about A.L.S. law and skilled in making legal arguments. At a minimum, the attorney needs to at least file the appeal on time. One problem with learning the hard way is clients are harmed in the process of the lawyer’s on-the-job education.