What is an Administrative License Suspension (“ALS”)?
Unfortunately, when an individual is charged with a first offense OVI, the law enforcement officer must place the person under a 90-day Administrative License Suspension (“ALS”) if the person submits to a chemical test and tests over the legal limit. If that person refuses to submit to a chemical test, the law enforcement officer will place the individual under an Administrative License Suspension for one year. In the test-over scenario, the first-time offender must wait 15 days until he or she is eligible to obtain any limited driving privileges whatsoever from the court. In the refusal scenario, the first-time offender must wait 30 days until he or she is eligible to obtain limited driving privileges. This period of no driving is referred to as the “hard time” suspension period.
What is a refusal?
The law essentially says a refusal occurs where a person, through acts, words, or general conduct manifests an unwillingness to submit to a chemical test. Unfortunately, the person cannot pick and choose the type of test they want to take. For instance, if the police offer an OVI arrestee a breath test and the person refuses but says they would instead like to submit to a urine test, the officer does not have to accommodate the individual and the refusal of the breath test would still constitute as a refusal. Typically, however, most law enforcement agencies in this area will offer a breath or urine test. One common issue we see is individuals who do not blow hard enough into the breath machine. Officers will typically mark treat this as a refusal, even if the person state he or she is having a difficult time blowing into the machine due alleged diminished lung capacity. Of course, the issue of whether this would truly constitute a refusal can be litigated through an ALS appeal, discussed below.
Can I Appeal an ALS?
Yes. The law states an individual charged with OVI is entitled to an ALS appeal hearing within five business days of being cited for OVI. These are formal hearings where the state must prove it is more likely than not the officer had reasonable grounds to believe the person was operating a vehicle OVI, the officer requested the person submit to a chemical (breath, urine, or blood) test, and the person either failed the test or refused to submit to the test offered by the officer.
On What Grounds Can I Appeal my ALS?
As stated above, it is the prosecutor’s burden to prove the ALS is valid. If the prosecutor fails to prove the above, then the ALS should be terminated or stayed. There are other reasons some Ohio courts have ruled an ALS is invalid. These reasons include but are not limited to the following: where the OVI occurred on private property not used by the public, where the officer failed to cite the defendant into court within five business days after the date of the arrest, where the ALS form was either not read to the arrestee, not notarized by the officer, or does not state reasonable grounds for the OVI or physical control arrest, or where an individual is charged with a physical control and fails a chemical test.
Keep in mind, even if the court finds the ALS is invalid and as a result, either stays or terminates it, the court has discretion to impose a court-ordered suspension, typically referred to as a public safety suspension. The likelihood of a public safety suspension being imposed where an ALS is either stayed or suspended depends on the circumstances of the case, the allegations of the offense, and who the particular magistrate or judge is faced with such decision.
If I am Found Not Guilty of the OVI, Is the ALS Terminated?
Unfortunately, the ALS is separate and apart from the OVI charge and the OVI conviction (if any). Unfortunately, there have been many instances where a judge keeps the ALS in place where the individual is acquitted by the court. This is technically legal but for obvious reasons, does not seem fair. An ALS does terminate by law where the individual charged with OVI is convicted of the OVI. However, in its place, a court suspension must be imposed, the length of which is determined the OVI history of the defendant and discretion of the court. On a first offense, there is a mandatory one year driver’s license suspension—but the individual faces a possible maximum three year license suspension.
Attorney Steve Kilburn recently represented a client charged with an OVI-refusal and reckless operation offense in the Hamilton County Municipal Court. The prosecutor would not offer any deals and Steve believed in his client’s innocence and felt the state could not prove his client’s guilt. The case proceeded to a bench trial. The only evidence presented by the prosecutor was testimony from the arresting officers who said our client’s breath smelled like alcohol, that he slurred his speech, that he was disrespectful, and that he was driving recklessly. After hearing testimony in the case and arguments from the attorneys, the court found our client not guilty. Further, the court terminated the ALS and waived the costly $475 reinstatement fee. We believe this was the correct and fair decision.
If you or someone you know has been charged with an OVI or physical control, please contact the experienced criminal and traffic defense attorneys at Rittgers Rittgers & Nakajima at 513-932-2115.