In order to be convicted of driving under suspension, the Ohio BMV must have – at the very least – mailed a notice of your suspension.
One Ohio case – State v. Walker, 2010-Ohio-3043 – demonstrates this rule. If you are pulled over for driving under suspension before the BMV sends a notice of suspension – as in State v. Walker – then you cannot be convicted of driving under suspension as a matter of law.
Notice of the suspension is considered an “inferred element of a driving under suspension charge.” Without written notice, the state cannot prove each element of driving under suspension.
Driver Charged with Driving Under Suspension
The defendant was in an auto accident on November 16 and was cited as being at fault. He was given a citation for an improper lane change. The police ran the defendant’s license through LEADS and discovered that five days before, his driver’s license was placed under a child support suspension. Thus, he was also cited for driving under suspension.
At trial, a BMV employee testified that the BMV imposed a suspension of the driver’s license on November 10, but didn’t mail the notification until November 19. The notification, then, was mailed only after he was cited for driving under suspension. Further, the defendant’s license had been placed under child support suspensions twice before in the prior year.
A supervisor at the Child Support Enforcement Agency (“CSEA”) also testified. She stated that the defendant received a default notice on August 15 informing him that he was in default for not paying his required child support payments. He also received several “last chance letters,” which told him that if he failed to respond, the CSEA’s next action would be to impose a block on his driver’s license. The defendant never contacted the CSEA.
Also at trial, the defendant testified that he was shocked to find out that his driver’s license had been suspended. He said he never received any notice that he was in default on his child support payments or that his driver’s license could be suspended.
He contacted the CSEA after he was cited with driving under suspension and then received the BMV suspension notice a few days later.
Ohio’s Driving Under Suspension Statute
The applicable driving under suspension statute (which is identical to the R.C. 4510.11), states:
“No person whose driver’s or commercial driver’s license * * * has been suspended under any provision of the Revised Code, * * * [other than financial responsibility / insurance suspensions], * * *shall operate any motor vehicle upon the public roads and highways * * * within this state during the period of suspension unless the person is granted limited driving privileges and is operating the vehicle in accordance with the terms of the limited driving privileges.” R.C. 4510.11(A).
What is Considered “Notice” by the Ohio BMV?
Notice of the suspension is considered an “inferred element of a driving under suspension charge.”
The prosecution doesn’t have to prove actual knowledge of the suspension — that the driver actually knew his license was under suspension. But at the very least the BMV must have mailed a notice of the suspension.
Previous courts have held that “it would be fundamentally unfair to convict a defendant for driving under suspension when he has not been given notice that his license has been suspended; therefore, a notice element is inferred in the offense of driving under of suspension.” State v. Webb (1998), 126 Ohio.App.3d 808, 711 N.E.2d 711.
The BMV is considered to have give “written notice” when they deposit the notice with the Post Office. Actual receipt by the driver / defendant is not required. (Note that one of the judges authored a concurrence questioning whether this “written notice” without actual receipt satisfies constitutional due process).
Driving Under Suspension Conviction Reversed for Lack of Evidence (Notice)
Here, the BMV and CSEA suspended the driver’s license on November 10, but didn’t mail the notification until November 19th. So when the driver was pulled over for driving under suspension on the 16th, the BMV had not even yet mailed the notice.
Thus, the State did not present sufficient evidence for a jury to find the defendant guilty of driving under suspension beyond a reasonable doubt. In addition, due process was not satisfied as the defendant was not given notice of the suspension by the BMV until after being charged.