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Administrative License Suspension (ALS)

The ALS is an administrative suspension imposed by the Ohio Bureau of Motor Vehicles (BMV or DMV).  This is generally a pre-trial suspension imposed for either taking a chemical test with a BAC above the legal limit or refusing to take a chemical test, in regards to an Ohio DUI charge.

On the first DUI offense, the ALS suspension lasts 1 year for a refusal.  On a first offense test above the legal limit, the ALS suspension lasts 90 days. The suspension period begins to increase exponentially depending on prior convictions and prior refusals.

Refusal of a Blood / Breath / Urine Test

No. of Refusal/        Length of                  Driving                      Restricted            Ignition         

Offense in 6 yrs.      Suspension             Privileges                 Plates                     Interlock

     1st                              1 years                      After 30 days               Optional                    Optional

     2nd                             2 years                     After 90 days               Optional                    Optional

     3rd                              3 years                     After 1 year                  Optional                    Optional

    4th or more               5 years                      After 3 years                Optional                   Optional

 

Failed Blood / Breath / Urine Test

No. of Offense    Length of          Driving            Restricted               Ignition

in 6 yrs.               Suspension       Privileges          Plates                     Interlock

    1st                      90 days            After 15 days          Optional                    Optional

    2nd                   1 year1               After 45 days         Optional                    Optional

    3rd                   2 years               After 180 days       Optional                   Required if alcohol;Optional if drugs

   4th or more    3 years               After 3 years           Optional                   Required if alcohol; Optional if drugs

 

Hard Time and Limited Driving Privileges

The ALS is immediate (upon refusal or BAC test above the limit).  It is designed to impose a pre-trial consequence for those charged with DUI.  In other words, this suspension is imposed even before a person is found guilty of DUI (or their case is resolved in some other way).

Many are surprised by the immediate impact of the ALS.  For instance, someone arrested for DUI with a refusal or test above the legal limit cannot drive to work the next day or even the day after.  They cannot drive to get their car out of impound, to pick up their children from school, or take them to a doctor’s appointment.  They cannot rent a car, drive to call on a client, or drive home for the holiday season.  These are very real issues that folks face regularly.  But most people do not appreciate the significance of these consequences until they have to face them.

The law provides for some relief from the harsh ALS consequences, but not before a period of “hard time.”  As shown in the table above, a court may temper the ALS by granting limited driving privileges, but not before a waiting period of “hard time.”

For instance, on a first offense with a refusal, a DUI defendant must wait 30 days before obtaining limited driving privileges (even for essential things like work or children).  A first offense with a test above the limit is a better, but still requires a 15-day waiting period for limited driving privileges.  For a defendant with prior convictions, the wait period increases exponentially.

For those who are eligible, limited driving privileges temper the impact of the ALS significantly.  The court has discretion to grant privileges for work, school, family, medicant, and other purposes.  Many courts grant privileges liberally.  But other courts may not grant privileges at all.

It is not uncommon in certain jurisdictions for courts to deny any privileges for those who have refused a chemical test.  They operate on the theory that these defendants have “cheated” the system and should not be rewarded with driving privileges. Some courts continue to deny privileges on a refusal ALS even when the defendant wins at trial.

Timing of ALS

At the time of the stop and arrest for DUI, the police have two separate (but related) roles.  They are acting as law enforcement officers, enforcing DUI laws, gathering evidence, and preparing the case for prosecution.  But they are also acting as representatives of the Ohio Bureau of Motor Vehicles (BMV).  As a technical matter, the BMV imposes the ALS, not the police.  The police are merely acting on behalf of the BMV.

Back in the 90’s, the ALS became immediate, meaning that it was imposed at the time of the DUI arrest.  When this change occurred, the BMV originally touted the ALS as “Swift and Sure.”  It was meant to create an immediate punishment (later called a “sanction”) for DUI, before the case ever got to court.

There are two basic events that will trigger the ALS.  The first is a chemical test above the legal limit.  The second is a refusal of the chemical test.

Breath, Blood, Urine and the ALS

In the event of a breath test, there is generally a result at the time of the arrest.  This typically results in an immediate ALS.  The police fill out Form 2255, deliver it to the suspect, and thereby suspend the suspect’s driver’s rights on the spot.  They can’t drive home (impaired or not), they can’t driver to court, they can’t drive at all.  The police will confiscate the suspect’s driver’s license.  On a first offense, the ALS is 90 days. It increases exponential based on a suspect’s prior record.

The process is a bit different in the event of a blood or urine test (as opposed to breath).  The blood and urine tests do not register an immediate result.  The police merely obtain samples of blood or urine and send them to a lab for analysis.

This means that the suspect submitted to the test (did not refuse) but there is no result above the limit.  In this situation, the police do not have any reason (yet) to impose the ALS.  Note that this does not mean the police will wait to charge the suspect with DUI violations.  There will still be an Impaired charge, but there will not be a Per Se violation (for a test above the legal limit.  That case will proceed to court (as if there were a refusal).  A second Per Se charge may come later (if the blood or urine test is above the legal limit).

The lack of an immediate test means that there is no immediate ALS.  But this does not eliminate the ALS, it just delays it.  The police can still impose an ALS later, presuming the lab results show a test above the legal limit.  Once the police receive the lab results, they fill out Form 2255, and deliver to the suspect (sometimes at their residence, sometimes at court, sometimes through counsel).  And this triggers the ALS.

Sometimes a case can be completed before the lab results come back.  If this happens, there will be no ALS.  These are pre-trial (or pre-resolution) suspensions that can only be imposed before the case is resolved.

For strategic reasons, it sometimes makes sense to resolve a case before the lab results.  If there is concern about a high BAC or other illicit drugs showing up in the blood or urine, it may be advantageous to plea bargain on the OVI Impaired violation.  If a defendant pleads to an impaired OVI before the test results come back from the lab, there can be no per se violation.

The strategy is to avoid a potential high test Per Se OVI, that can result (among other things) in double jail time penalties.

ALS for Refusal & Implied Consent—The Beggar’s Choice

The second trigger for an ALS is a refusal.  If the police request a blood, breath, or urine test, the suspect must comply or face an ALS for refusing.  One a first offense without any prior refusals, the ALS is 1 year.  Recall that the ALS is only 90 days for a test result above the limit.  As with the ALS for a test above the limit, the duration of the suspension increases based on a suspect’s prior record.

The premise rational of the refusal ALS is the concept of implied consent.  Driving is considered a privilege, not a right.  There is a quid pro quo for the privilege of driving.  Ohio drivers agree to submit to a chemical test in exchange for the privilege of driving.  In other words, the give consent by implication (implied consent) when they obtain a driver’s license.

All this means that the State of Ohio (and other states) can lawfully and constitutionally prescribe a consequence when a driver refuses a chemical test.  In Ohio, that consequence is the ALS (codified in Ohio Revised Code 4511.191).

This often places drivers in catch-22 dilemma.  If they are driving and they are impaired by alcohol or abusive drugs, they have limited options—take the test and provide evidence of their own impairment (BAC) or refuse and face a suspension.

The DUI suspect must choose and choose wisely.

The Hidden Ball Trick- Why the ALS May not Matter

The consequence of the refusal may not be as bad as it seems.  There is a hidden ball trick.  After a DUI arrest, the police are required to read specific language to a suspect before offering the chemical test.  This language appears on the back of BMV Form 2255.  This language takes the form of convoluted “legalize.”  It’s confusing, it’s poorly written, and it’s deceptive.

The 2255 language leaves the suspect with the impression that the only consideration is the length of the suspension.  Refuse and get 1 year.  Take the test fail, only 90 days.  This sounds like an easy choice.

But the perceived problem with the beggar’s choice is not as bad as it sounds.  At the outset, the difference is not just suspension vs. no suspension.  There is an ALS either way—90 days for a first offense test above the limit and 1 year for a refusal.

And a refusal offers are certain advantages that may outweigh the consequence of a longer ALS.  A refusal will eliminate the Per Se offense altogether—there cannot be Per Se offense without a test result.  That makes it easier to defend the case.

But the secret to the hidden ball trick is not what the police (through Form 2255) tell the DUI suspect.  The secret lies in what they don’t tell the suspect.  To be sure, there will a longer ALS if the suspect refuses.  But the ALS is a pre-trial, pre-resolution suspension.  If the suspect goes to court and pleads guilty to OVI or DUI, the judge (or court) imposes a different suspension of its own. Generally, this suspension is 1 year, even if the defendant took the test.  In other words, the Administrative suspension in the form of the ALS is different than the court suspension that is imposed once the case is resolved.

Herein lies the hidden ball trick.  The police do not tell the suspect at the time of arrest that the ALS will generally only last until the case is resolved.  Once the suspect resolves the case, the ALS typically will terminate in exchange for a different court suspension.  If the ALS was 90 days for a test above the limit, it will terminate for a minimum 1 year court suspension.  If the ALS was 1 year for a refusal, it will terminate for a court suspension of the same duration.

The police do not share this information with the suspect, and they are not required by law to do so.  Form 2255 says nothing about the court suspension, the benefits of a refusal, or the fact that a shorter ALS for a positive test will increase if and when the court imposes its own suspension.

There are some caveats here to consider.

First, it is not always the case that the court suspension will replace the ALS.  It is possible to win an OVI or DUI case and therefore avoid the court suspension.  In that situation, the ALS may stand.  There is no court suspension to replace it.

Second, if someone has prior convictions, it may be a separate offense to refuse the chemical test.  In that situation, the suspect will face a DUI and a separate refusal offense under Ohio Revised Code 4511.19(A)(2).

To Test or Not to Test–How to Choose

The ALS suspension is the subject of much confusion.  Even under the best of scenarios, it is difficult to comprehend all the options, considerations, and potential consequences.  And when faced with these choices on the side of the road or in a police station after an arrest, the myriad of options become overwhelming.

The best choice is to get legal advice before making any decisions.  And police will typically permit a suspect to reach out to an attorney for advice before deciding what to do.  That is why the DUI and OVI attorneys at Yavitch & Palmer are available 24/7 to help folks make this difficult choice.  Our attorneys will take the time to explain the suspension and driver’s license ramifications in simple, understandable detail.  For 25 years, we have helped folks (even in the middle of the night) navigate the minefield of the DUI arrest process.

Choosing Blood, Breath, or Urine

Under Ohio’s Implied Consent law, suspects do not get to choose what test to take.  They cannot, for instance, insist on a blood test instead of a breath test, or a urine test instead of a blood test, etc.

The suspect in a DUI must decide to take the test the police are offering.  The police, not the suspect, decide what test to offer.  If the suspect insists on a test other than the one offered, it will be classified as a refusal with an ALS to match.

There is only one choice—submit or refuse.

Refusing without Refusing

Sometimes a DUI suspect is willing to submit to a chemical BAC test, but unable to complete the test offered.

If, for instance, the police insist on a urine test and the suspect cannot urinate, the police and the law deem this a refusal and impose a refusal ALS.

This problem arises more often with breath test machines.  Sometimes the suspect is unable (or unwilling) to continue “blowing into” the machine long enough. Or perhaps there is a contaminate that corrupts the test.  The machine will stop the process and call this an “invalid sample.”  The police may classify this as a refusal, even though the suspect attempted to complete the test.

Forced Consent–Warrant for blood

Ohio’s Implied Consent law does not actually force a suspect to submit to a chemical BAC.  It imposes consequences (in the form of the ALS) for a refusal, but it does not force submission.

This means that a DUI suspect can accept the consequences and refuse to consent to the BAC.

To combat this, Ohio DUI courts have begun to force consent.  This is not premised on Implied Consent law under Revised Code 4511.191.  They are forcing consent by obtaining a search warrant for a suspect’s blood.

It works like this.  The police stop a suspect for whatever reason (maybe marked lanes, accident, etc.).  The suspect refuses to take a breath test under the Implied Consent laws.   The police then write an affidavit explaining why they believe there is “probable cause” to search the suspect’s blood.  By search, they mean to obtain blood sample and test it for alcohol.  They wake up a judge or magistrate (if in the middle of the night), present the affidavit, and obtain a search warrant. They then transport the suspect to a hospital and force a blood draw.

Though this procedure may seem draconian, it has been upheld.  And often jurisdictions employ “No Refusal Weekends,” where a judge agrees to be available (any time of day or night) for a search warrant.  Even if a suspect refuses a chemical BAC test, the police obtain warrant for blood and force the test.

In this situation, suspects not only face a refusal ALS, they end up with a blood test result.

The premise of this process is the search warrant process.  Under the Fourth Amendment to the United States Constitution, the police cannot “search” a person’s blood without a warrant.  To obtain a warrant, they must testify or submit an affidavit to a judge.  They must explain why they believe there will be evidence or “fruits of a crime” in a suspect’s blood.  They must explain why they believe the suspect is impaired, present their evidence, and establish that there is probable cause the blood alcohol content is above the legal limit.

If the judge or magistrate determines that there is probable cause, a warrant will issue for the suspect’s blood.

This presents another set of complicated considerations.  DUI attorneys must challenge the probable cause affidavit and file motions to suppress based upon Fourth Amendment violations. If the warrant is not valid, the prosecutor cannot present the blood test results in court.

There are other concerns regarding the blood draw. It must still comply with the mandates of the Ohio Administrative Code.  And often the warrant process takes too long, exceeding the time limits in the code.

Forced consent and No Refusal Weekend DUI cases require unique and careful consideration.  Experience in Fourth Amendment issues and the complexities blood test science is critical to defend these cases.

Challenging the ALS in Court

Although the ALS is immediate, a DUI defendant has certain procedural and constitutional options to challenge the suspension.  But to challenge an ALS effectively, DUI attorneys must have a firm understanding and experience with constitutional law, procedural due process, and the Implied Consent statutory scheme in 4511.191 of the Ohio Revised Code.

Procedural Due Process and the 5 Day ALS Hearing

Generally, when the government “takes” or deprives an individual of life, liberty, or property interest, the Due Process Clauses of the Fifth and Fourteenth Amendments of the United State’s Constitution mandate a formal process to make sure that the deprivation was legitimate and fair.

This “due process” mandates official “notice” and an “opportunity to be heard” (at a hearing).  And where there is a governmental taking of something before there is a hearing (like an ALS), courts are clear that there has to be some recourse for the individual soon thereafter.

Regarding the ALS, there is certainly a “taking” or “deprivation” of an interest—a suspect’s driver’s license.  And this taking is immediate, without prior hearing.  The police have authority to impose an ALS at the time of an arrest (if there is a refusal or a test above the limit).  The ALS results in a pre-trial driver’s license suspension.

In the early 90’s, the ALS became immediate, meaning that a person’s license was suspended on the spot.  This raised all sorts of constitutional and legal questions related to Procedural Due Process.  The statutory and administrative process in Ohio’s DUI law makes effort to meet procedural due process requirements.

Notice—Form 2255

Form 2255 is designed to provide notice to suspects that their driver’s license is suspended.  This is hardly helpful to the suspect.  The notice comes at the same time as the taking, and there is not a prior review or hearing process.  Courts have found, nonetheless, that such a procedure is sufficient, provided there is a hearing or review by a court or administrative body shortly after the taking.

Opportunity to Be Heard—5 Day Hearing

After the police take a suspect’s license on behalf of the BMV, there must be a hearing within 5 days.  This means 5 business days (not counting weekends and holidays).  Generally, this hearing is scheduled to occur at DUI defendant’s arraignment.  This explains why the court date (typically noted at the bottom of the Uniform Traffic Citation), schedules the first court date or arraignment as soon as possible after the arrest.

Many might be surprised by what happens (or doesn’t happen) at hearing. Though the hearing must be scheduled within 5 days, it rarely occurs.  Any party—the court, the defendant, or the prosecutor—can ask the court to continue or postpone the hearing.  The hearing is scheduled, everyone is there, and it gets kicked to a later date.  There are all sorts of reasons for this.  Maybe the police are witnesses and are not available, often the defense attorney does not have all required information yet (after all, it’s often only a few days after the arrest), and many times court’s just do not take the time at the arraignment (where there is a cattle call of all sorts of cases) to conduct a hearing.

Even if there is a hearing, standards to uphold the ALS are minimal. Courts may only consider 4 basic issues:

  1. Whether the arrest based on reasonable grounds.
  2. Whether the police actually asked the suspect to take a blood, breath, or urine test?
  3. Whether the police read Form 2255 and thus notified the defendant of the consequences of a refusal or failed the test.
  4. Whether the defendant refused or failed the test.

These are particularly difficult questions for the government.  The police usually can meet these requirements as a matter of routine.

But there are some additional issues that arise relating to the validity of the notice (Form 2255).  Though police usually comply with the requirements above, they sometimes fail to fill out Form 2255 correctly. This is a carbon form.  The police keep a copy, a copy is delivered to the court, and the clerk is required to send another to the Bureau of Motor Vehicles.

Sometimes the police simply forget to check all the correct boxes on the front of Form 2255.  Sometimes the police do not properly sign or notarize the form.  And often the copy provided to the defendant is different than the one provided to the court.

It is crucial that DUI attorneys know what to look for on this form and compare the defendant’s copy to the one in the court file.

Appeal the ALS

Any challenge to the ALS must start with an official “appeal.”  If a defendant or suspect fails to notify the court of the intent to appeal or challenge the ALS, any problems may be waived.  In other words, the ALS can stand if the defendant or the attorney fails to appeal the ALS, even where one of the 4 basic questions are not satisfied or Form 2255 is incomplete or the police failed to fill it out correctly.

There is no magical process to the appeal.  The attorney or defendant must simply tell the court on the record at the arraignment that they wish to “appeal the ALS” and request a hearing at some point in the future.  Most courts expect this as a matter of procedure, and courts often have pre-printed forms ready for filing.

Postpone or Stay the ALS

The ALS, by its very design, is intended to cause an immediate negative consequence.  The ALS was originally called an administrative sanction, not a punishment.  This was intended to avoid a problem with the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.  If the Swift and Sure impact of the immediate suspension amounts to a punishment, the Double Jeopardy Clause would prohibit it.

The courts did not agree that simply labeling something as a sanction does not make it so.  Courts determined that there must be some possible relief (beyond the 4 basic questions) from the ALS to avoid constitutional issues with the ALS.

To avoid these constitutional and legal problems, Ohio courts carved out some relief for DUI defendants facing the “Swift and Sure” immediacy of the ALS.  At a defendant’s first court appearance (the arraignment) or even at later appearances, trial courts may (if they think it’s appropriate) postpone or “stay” the ALS.

If the defendant (usually through their attorney) is facing a hardship caused by the ALS, the court may agree to sign an order that simply delays it.  This does not mean that the ALS is gone altogether (as it would be if there were a successful appeal).  But the immediacy of the ALS is attenuated.

The court will typically create an entry indicating the ALS (though not terminated) is postponed.  That entry is filed with the clerk of courts and send to the BMV and provide a certified copy to the DUI attorney or directly to the defendant.

The defendant’s driver’s license (the actual plastic) is generally gone by now and lost in the BMV “ether.”  The certified copy of the court’s stay entry acts as a temporary driver’s license until the case is fully resolved and all suspension issues are sorted out.

There are a few things that important to know about the stay/postponement of the ALS:

  1. Know the Jurisdiction. Not all courts will grant a stay.  Many jurisdictions will deny any request for any reason for any hardship.  But many courts grant ALS stays routinely.  The City of Columbus (Franklin County) Municipal Court has pre-printed entries.  But, depending on various circumstances, stays are not granted automatically.  It is important that the DUI attorney has experience in the jurisdiction to know and understand how the court handles requests for a stay.
  1. To Stay or Not to Stay. Sometimes a Stay makes sense, sometimes it doesn’t.  A stay of the ALS only kicks the “suspension can” down the road.  For those defendants who have to drive immediately, it’s a great option to avoid job loss, family hardship, or the like.  The stay will avoid the immediate hardship of the ALS “hard time.” (time period without any limited driving privileges).  But this does not eliminate the hard time altogether, it simply delays it.  If the court later imposes a court suspension or re-imposes the stayed ALS, the defendant may have to serve the hard time later.

Though the stay is often enticing, it sometimes make sense to get the hard time done first.  And it may even make sense not to ask for a stay and let the ALS run its course.  Every individual has a unique situation.  It may be summer break for a teacher and thus a great time to serve a suspension.  Or the opposite may be true, summer may be the bus time for someone in the building or construction industry, and it makes sense to postpone the ALS to a slower work season.

There are many factors that must be considered (employment, family, future plea negotiations, timing etc.).  This is not a “one size fits all” decision.  It requires careful contemplation of each unique situation.  The DUI attorneys at Yavitch & Palmer make a careful and concerted effort to discuss these issues with our clients.

  1. BMV Notices are Confusing. Those facing DUI charges with ALS issues often receive confusing and conflicting notifications from the BMV. Once the BMV learns of the ALS (usually from the clerk of courts sending the 2255), it will generate paperwork (a notice) and send it to the defendant.  This initial notice informs the individual that there is an ALS and their license is suspended.  The problem is that this notification process takes several weeks.  Often the defendant has already been to court and obtained a stay of the ALS and may even resolved the case altogether.  Once the BMV learns of the new developments, it sends out another notice (often contradicting the first). These notices generally contain confusing language and conflicting information about the duration of the license suspension and the reinstatement fees required.

It’s important not to ignore these notices.  The DUI attorneys at Yavitch & Palmer typically advise clients to send them for review immediately.  Most of the time the notices do not require any further action (at least not in the short term), but sometimes there are other issues that arise as a result of the ALS and related court activity (insurance suspensions, CDL problems, points, etc.).  Too often, folks (attorneys and clients alike) ignore these notices, resulting in significant license issues.

  1. Travel & Rental Cars. Many people accuse of DUI or OVI travel for their job. And often DUIs happen at the worst possible time.  An ALS may ruin travel plans that require identification.  Airport security requires picture identification.  If the police seized a person’s license, they may be unable to get through security.

 Car rentals are also problematic for those with an ALS.  Even with limited driving privileges, most rental car companies will not rent vehicles to those with suspended licenses.

There are ways to solve these issues.  But it can be complicated.  An experienced DUI attorney should always discuss these issues.  And at Yavitch & Palmer, we make it routine to ask clients about upcoming travel plans, employment travel, and the need for identification (even in the short term).  We are often able to find ways to work around and solve complicated identification issues.

  1. Credit for the ALS. Most folks charged with DUI or OVI will face a license suspension one way or another. If there is no ALS, the Court will generally impose its own suspension.  Even if there is an ALS, the court will often replace it with its own suspension.

 But this does not mean that the ALS time is “wasted.”  For instance, on a first offense DUI, a court might generally impose court suspension of one year.  If the ALS was stayed at the arraignment (maybe after 5 days), the court will typically give credit for the 5 days prior to the stay.  If the ALS has remained intact, the court will typically date its own suspension back to the beginning of the ALS (typically the dates of the arrest).  In other words, it may make sense to keep the ALS intact, even if a stay could be had, in order “to get it over with” sooner.

  1. Plea Negotiations and Complex Considerations. There are many factors that must be considered when deciding to request a stay and/or how to handle the ALS. Often it makes sense to serve a suspension under the ALS before the case is resolved.  This may help in plea negotiations.  And when dealing with defendant with a prior record, license suspension and driving privilege issues can be quite complex and even draconian.  For driving privileges with multiple priors, the court may require special license plates (yellow “party plates”) or an ignition interlock device.

There are nuances in the details of the suspension law.  Though the law may require party plates and an interlock device for driving privileges under a court suspension, it may not mandate these things under an ALS.  If this is the situation, it makes sense to serve as much time of a suspension under an ALS before the case is resolved (at which time a court suspension will take over).

These are complex issues.  It is critical to understand the end game of a DUI case.  A stay in the short term is tempting and may cause hardship.  But often the hardship becomes a matter of degree.  There may be a way to avoid even harsher consequences by keeping the ALS intact, even if there is a way to avoid it in the short term.

Even in cases where there seems to be no defense, an experienced DUI attorney can help avoid administrative and court sanctions associated with a DUI conviction.  The DUI attorneys at Yavitch & Palmer make it a priority to address the individual needs of their clients in order to provide the best strategic advice to minimize the impact of a DUI.

Other ALS Issues

Temporary vs. Permanent Identification

 When the police impose the ALS at the time of arrest, they generally seize the suspect’s driver’s license.  This often leave folks without any ID.  Absent some other form of picture identification, this can cause significant problems. Generally, we advise everyone (though sometimes too late) to maintain multiple forms of picture ID (passport, etc.).  But this is no help after-the-fact.

If someone has travel plans the day after a DUI, they may not be able to get through airport security because the police seized their driver’s license and imposed an ALS.

The BMV has options for those without a driver’s license.  Ohio has two separate forms of identification (short of a driver’s license—permanent and temporary identification cards.

This requires caution.  Someone with an ALS may be tempted to go to a license agency the next day to get an identification card.  Here’s the problem.  The BMV will not yet have notice that the ALS was imposed.  That will take several weeks.  The BMV computer records will show that the person still has a valid license, even though they do not.  This means that they will not qualify for a temporary identification card.  The BMV only allows for a temporary identification when their driver’s license suspended but otherwise valid.

The only other option is a permanent identification card.  The pitfall here is that a permanent identification will cancel the persons driver’s license.  This means that the person will have to re-test (written and driving) to obtain a driver’s license.  They cannot get even limited driving privileges until they have an underlying valid driver’s license.

There are ways to work around this problem. And most BMV workers will warn people about the impact of a permanent identification card. But many still fall into the permanent identification trap.

Win the Case, ALS is the Prize

The administrative nature of the ALS is significant.  It is separate and distinct from any suspension that the court may impose.  DUI defendants must be careful to make this distinction.

There cannot be two suspensions at the same time.  If a person is convicted of DUI, the ALS will terminate and be replaced with the court suspension (usually the same duration).

But the opposite situation sometimes arises.  A DUI defendant with an ALS may go to court and win the case.  There may be a trial with an acquittal or a dismissal for some other procedural or constitutional problem.  In this situation that the court cannot impose its own suspension.   The problem is that the ALS may remain intact.  Defendants who win their DUI case may still end up with a suspended license under the ALS.

To make matters worse, some courts refused to grant limited privileges if a defendant wins their case at trial.  In other words, it is possible to go to trial, win the case, and end up with an ALS and no driving privileges.  Courts often use this policy to pressure defendants to plead guilty.  They will grant limited driving privileges if the person is convicted, but they will refuse privileges if the defendant is found not guilty.

While this may seem contrary to all notions of fairness, many have been “forced” to plead guilty, even when they can win at trial.

ALS Expires Before Case is Resolved.

A DUI case often takes several months to resolve, particularly if there are complicated issues or other factors to cause delays.  The ALS (on a first offense with a test above the limit) lasts for 90 days.

It often occurs that the ALS expires after 90 days, but the court case is not yet resolved.  Because of the separate administrative nature of the ALS, this can cause a significant problem.

A DUI defendant often obtains pre-trial limited driving privileges permitting them to drive under their ALS suspension.  Most of the time, the court case resolves before the 90-day ALS expires.  In this situation the court suspension (usually 1 year) takes over.  A defendant will get the same or similar limited driving privileges, and there is a seamless transition from the ALS to the court suspension.

But a problem arises if the ALS expires before the court case is resolved.  In this situation, a defendant is often driving under limited privileges for the ALS.  The privileges are tied to the ALS.  When the ALS terminates, there is no longer a suspension and the person is permitted to drive free and clear. But only if they have paid their reinstatement fee.  If they have not reinstated their driver’s license at the BMV by paying the fee, they will be driving without a valid license.  The problem is that most defendant’s do not realize that their ALS has expired, and they continue to drive thinking their limited privileges are still intact.

Experienced attorneys can help avoid this problem.  The DUI attorneys at Yavitch & Palmer make effort to monitor the duration of the ALS suspension and notify clients when they must pay their fees and reinstate their license.

Later, if the court imposes its own suspension, it typically allots credit for the suspension time served under the ALS.  When it is time to reinstate under the court suspension, the defendant should not be required to pay a second reinstatement fee.

Refusal as a Crime–4511.19(A)(2).

There is no secret that it may be beneficial to refuse a chemical BAC test, whether it be blood, breath, or urine.  If someone refuses, there is one less charge (no per se offense), and there is less evidence of guilt.

In response to this, the Ohio General Assembly has created a separate offense to discourage refusals.  Under Ohio Revised Code 4511.19(A)(2), a person may be charged with a separate offense for refusing a chemical test if they have a prior conviction within the last 20 years.

But this offense requires more than just refusing a BAC test with a prior conviction.  There is another important element of the offense.  The prosecutor must prove that the person was driving under the influence at the time of the offense.  In other words, there is a “case within a case.”  The very premise of the offense is that the suspect is guilty of OVI or DUI.

This does not mean that a Refusal Offense under 4511.19(A)(2) should be taken lightly.  But, like everything else in DUI defense, it is complicated. It very well may be better for a suspect to refuse and face a separate offense than to risk a high BAC chemical test result.

This puts a different burden on DUI defense attorneys.  Professionally and ethically, attorneys are discouraged (and perhaps prohibited) from advising clients to engage in conduct that violates the law.  If a refusal violates the law, the attorney must be cautious about advising a client to refuse.

The DUI attorneys at Yavitch & Palmer believe in providing all the information necessary for the client to make informed decisions in an ethical and professional manner. If you need legal help, email or call 614-224-6142 today to speak with an experienced ALS and DUI attorney.

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