CAN AN OHIO ALS SUSPENSION (ADMINISTRATIVE LICENSE SUSPENSION) BE TERMINATED DUE TO A POLICE ERROR?
The Ohio Court of Appeals recently held that if a police officer doesn’t follow statutory procedure when putting a driver on an Ohio ALS suspension (Administrative License Suspension), the driver is entitled to an immediate termination of the license suspension. Toledo v. Ferguson, 2017-Ohio-1394
In Ohio, an Administrative License Suspension (ALS) is a driver’s license suspension that can be imposed, before being found guilty of any crime, on individuals charged with Operating a Vehicle while Impaired (OVI).
In Ferguson, the Defendant was charged with OVI (DUI / Operating a Vehicle while Impaired). The officer filed a report to the Ohio Bureau of Motor Vehicles (BMV) indicating the Defendant had blood shot eyes, smelled of alcohol, and showed signs of impairment based on a field sobriety test.
However, the officer filed the report with the court six days after the Defendant was cited for OVI. The Defendant appealed the ALS, and a hearing was held to determine whether the ALS should be terminated.
OHIO REVISED CODE SECTION 4511.197: REQUIRED ALS SUSPENSION WHEN CHARGED WITH OVI
Ohio Revised Code Section 4511.192 describes the notice requirement officers must follow when placing an individual under an ALS.
A driver who has been charged with OVI and placed under an ALS suspension will have his or her license suspended immediately, but may appeal the ALS suspension within 5 days of being arrested for OVI.
The Court in Ferguson found that the arresting officer did not allow for the Defendant to appeal his ALS within 5 days as his initial court appearance was held 6 days after being arrested for OVI.
In addition to allowing for an appeal of the ALS within 5 days, the officer must also send a certified copy of his report within 48 hours to the BMV and the court that will have jurisdiction over the case. Ohio Revised Code Section 4511.192(D)(1)(d) and (E).
The Court in Ferguson held that the purpose of the 48 hour rule is to, “provide an aggrieved licensee with a means of obtaining prompt, post-suspension review of an ALS.”
Similar cases to Ferguson have upheld the termination of the ALS due to the arresting officer failing to adhere to the notice requirement of 4511.192:
- An officer failed to send the report to the court. The court stated that “sending a copy of the sworn report to the court is a mandatory requirement” for an ALS. State v. Frame, 5th Dist. Morrow No. CA-881, 1999 Ohio App. LEXIS 2498
- An officer filed the report in the wrong court, and as a result, the case was dismissed and refiled beyond 5 days after the arrest or citation. The Court stated that notice to the court is intended to allow the offender to “begin the process of judicial review’ of a police officer’s actions, and the delay was a violation of the defendant’s Due Process. Meadows v. Ohio BMV, 71 Ohio Misc.2d 3, 4, 653 N.E.2d 757
In Ferguson, the arresting officer failed to file the report with the court within 48 hours or the earliest possible date. “As a result, appellant did not have appropriate opportunity to review the notarized, sworn report and prepare written appeal for his initial appearance.” Toledo v. Ferguson, 2017-Ohio-1394
ANY ERROR ON BEHALF OF THE BMV MAY RESULT IN TERMINATION OF OHIO ALS SUSPENSION
The Court in Ferguson held that for purposes of an ALS, the officer is an agent of the BMV, and any action taken by the officer in error can result in the termination of an ALS. Toledo v. Ferguson, 2017-Ohio-1394 citing Triguba v. Registrar, 10th Dist. Franklin No. 95APG11-1416, 1996 Ohio App. LEXIS 2771.
The State of Ohio cannot set forth the guidelines for determining how the ALS is to be administered, not follow the guidelines, and still hope to enforce the ALS. This is particularly true where the defendant is not given the opportunity to review the documents in a timely fashion.
Administrative License Suspension can vary from case to case and there can be difficulty understanding what defenses may be available to you.
It is important to contact a Columbus OVI attorney who is knowledgeable about the ins and outs of defending against the ALS suspension, including whether the arresting officer gave proper notice of the ALS.
If you have questions about your Columbus DUI or related charges, talk to our Columbus DUI attorneys at 614-361-2804.