Articles Tagged with A.L.S. Appeal

The last entry in this blog discussed lesson number one for appealing an Ohio Administrative License Suspension (A.L.S.).  The lesson came from a recent appellate case.  That lesson was for defense lawyers, and it was simple:  file the appeal on time.  This entry discusses lesson number two, which also comes from a recent appellate case.  This lesson is for courts, and it is also simple:  follow the law.

Scales of justice half

The government cannot take property without due process of law.  Due process of law includes an opportunity to be heard (a hearing) at a meaningful time and in a meaningful manner.  With an A.L.S., the executive branch of government takes property from an individual by suspending the individual’s driver’s license.  Therefore, the individual is entitled to a meaningful hearing at meaningful time.  The most meaningful time for the hearing would be before the license suspension is imposed.  However, the Ohio Supreme Court held the A.L.S., with a post-suspension hearing, is not unconstitutional.

What keeps the A.L.S. from being unconstitutional is mainly the procedures found in Ohio Revised Code (O.R.C.) section 4511.192.  That statute includes the following requirements:

•    The officer must advise the individual of the consequences of taking or refusing a chemical test, using a form (BMV form 2255).
•    The officer’s advice must be witnessed, and the witness must sign the form.
•    The officer must write on the form the officer’s reasonable grounds to believe the individual was under the influence.
•    The officer must notify the individual of the suspension and the individual’s right to appeal the suspension.
•    The officer must sign the form, and the form must be sworn.
•    The officer must give a sworn copy of the form to the individual.
•    The officer must send copies of the form to the court and the BMV within 48 hours of the individual’s arrest.

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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.

Woody Allen with quote

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.

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