How can the government take my license before I am convicted of a crime?
We all know that we are innocent unless and until proven guilty in this country. Yet, after an OVI accusation, it feels as though punishment is served prior to any conviction and without due process. In most Ohio OVI cases, a person’s license is taken immediately upon suspicion of OVI through the “Administrative License Suspension” (ALS). Ohio imposes the ALS because Ohio is an “implied consent” state-essentially your Ohio Driver’s license is a contract between you and the state of Ohio, whereby you agree to follow Ohio’s rules to drive on Ohio’s roads. One of those rules is that you agree to blow into the machine and not blow over in exchange for the right to drive. If you refuse to blow or blow over, then the state can take your license on the spot. While this seems directly related to your criminal OVI charge, it is a civil action by the Ohio BMV against you for violating your implied consent agreement.1
How long does the Administrative License Suspension last?
It depends on whether you refused to test or blew over the limit. If you refused the test, the suspension lasts for one year (unless you have prior OVI convictions or refusals, in which case it can be up to 5 years). If you blew over the limit, the suspension is for 90 days (unless you have prior OVI convictions or refusals, in which case it can be up to 3 years). Thus, the state tries to incentivize you to take the test even if you blow over. That said, if you are going to blow over, especially a lot over, it is almost always better to refuse. The officer will read you a BMV2255 form and warn you of the increased license suspension refusing detailed above.2 The problem is that the breath test machines are not accurate and the mandatory minimum license suspension for a first-offense OVI is now one-year which makes the 90 day incentive meaningless.
How do I get driving privileges after an OVI?
Within 5 days of your citation for OVI, you should have a court hearing. Within 30 days of that hearing you can file an appeal of the ALS suspension. There are a number of procedural requirements that the officer must follow in order for the ALS to be valid. Perhaps the most frequent mistake that officers make is not turning in the BMV 2255 form within the necessary time limit or filling out the form incorrectly. These are both grounds to “stay” (AKA temporarily suspend) or “vacate” (AKA permanently remove) the ALS suspension. An experienced OVI attorney can help you search for other potential issues with the ALS.3
If the officer did everything correctly when suspending your license, then your next course of action is to have your attorney ask for driving “privileges” under the ALS. These privileges allow you the limited right to drive for occupational, educational, and medical purposes during the ALS. There is a waiting period (called the “hard time suspension”), however, that you must wait before being allowed privileges. For a refusal, this is typically 30 days (but up to 3 years if you have priors). If you blew over, this is typically 15 days (but also up to 3 years if you have priors).4 Your preference should be to have your ALS completely vacated (or in some circumstances stayed) rather than receive privileges on your suspension, but privileges are certainly better than a complete suspension.
Is it possible to get driving privileges before the mandatory wait period?
The hard time for a first offense, non-refusal, is 15 days and for a first offense, refusal, it is 30 days. Certain errors on the ALS give rise to vacating the license suspension immediately. If the ALS is valid, it is still possible to petition the Court for a stay of the ALS, imposition of a public safety suspension, and driving privileges effective immediately. A public safety suspension provides the government with the ability to keep a license suspension but avoid the wait period for driving privileges. No Court wants to see a person lose employment but also has a duty to protect the public. This approach can be successful and depends on the Court, the circumstances, and needs of the defendant.
At Rittgers Rittgers & Nakajima we have great success in catering the right approach to each judge to maximize your ability to drive during your case.
Had your license taken away during an OVI stop? Contact the attorneys at Rittgers Rittgers & Nakajima today.
1 R.C. 4511.191(A)(2)
2 R.C. 4511.191(B)
3 R.C. 4511.197
4 R.C. 4510.13(A)