One of the primary concerns of a person who has been arrested for OVI is the administrative license suspension (ALS) imposed against the driver’s license for refusing or “failing” a chemical test. The ALS is authorized under R.C. 4511.191, Ohio’s “Implied Consent” statute. This post is meant to generate some ideas, through the use of advocacy and the law, for successfully appealing an ALS.
Sources to Utilize-The relevant statutes are R.C. 4511.191 (Implied Consent), R.C. 4511.192 (Advice to Arrestee and Duties of Officer), R.C. 4511.196 (Initial Appearance and Judicial Pretrial Suspensions), and R.C. 4511.197 (Appeal of Implied Consent Suspension). The due process clauses contained in the Fifth and Fourteenth Amendments to the United States Constitution must be considered because of a person’s property interest in a license. The critical forms are the BMV 2255 (Report of Law Enforcement Officer-Administrative License Suspension), the two pages of instructions the BMV has created in connection with the 2255, and the BMV 2261 (Notice of Disposition of ALS). I leave it to the enthusiastic practitioner to locate all of the cases relevant to an ALS appeal.
Jurisdiction-The appeal must be filed within 30 days of the initial appearance in the court in which the person will appear on the OVI charge. R.C. 4511.197(A).
Stay Pending Appeal-R.C. 4511.197(A) provides that simply filing the appeal does not stay the suspension. A court must specifically grant a stay.
Statutory Grounds-4511.197(C) states that if a person appeals a suspension under division (A) of this section, the scope of the appeal is limited to determining whether one or more of the conditions set forth in R.C. 4511.197(C)(1) through (4) have not been met. As of this writing, the Ohio legislature has not been permitted to statutorily abolish the protections afforded by the Ohio and Federal Constitutions. Accordingly, due process challenges are discussed herein.
As to the statutory grounds, there is more to them than “meets the eye.” The first is whether the arresting officer had reasonable ground to believe the arrested person was OVI or in Physical Control while under the influence, and whether the person was “in fact” placed under arrest. Case law has extended this ground to include whether the officer had a reasonable ground to stop the person. Further, many appellate cases have held that simply reading to the person the part of the BMV 2255 which begins with “You are now under arrest…” is not an arrest in fact as required under implied consent law. Those cases usually involve circumstances where a person is injured in an accident and first speaks to the police at a hospital where he or she was taken for treatment.
The second is whether the officer requested the arrested person to submit to a chemical test pursuant to R.C. 4511.191(A). Note that under that provision the request cannot come from “any old officer,” but must be made by one having “reasonable grounds to believe the person was operating or in physical control…” while under the influence. Further, implied consent does not apply to a person (no matter how hammered) who is operating a vehicle on private property which is not used by the public for vehicular travel or parking within this state. So, if a person is seen only driving in the VFW parking lot, even though he is ramming into a snowbank, implied consent does not apply. Of course, he or she can still be charged with OVI as the above exception is not contained in the offense section.
The third is whether the arresting officer informed the arrested person of the consequences of refusing or submitting to a chemical test. Those are the consequences set forth on the back of the 2255. Look closely at the ticket, the copy of the 2255 given to the person, the breath test report if applicable, and other evidence which you obtain before you filed the appeal. I have been involved in many cases where the arresting officer “handed off” his duty to read the consequences to another officer.
The fourth is whether the arrested person refused or “failed” a chemical test requested by the officer. If an officer asks a person to submit to a blood test after a person is arrested and taken to a hospital and the person agrees, there is no refusal. If the hospital refuses to collect the blood at the request of law enforcement there is no failed test. If the hospital then takes blood for diagnostic reasons and the police later obtain the results, the test was not administered at the request of the police and there is no failed test for ALS purposes.
Remember, the burden to prove a statutory ground for appeal is by a preponderance of the evidence. R.C. 4511.19(D). The Appellant is entitled to an evidentiary hearing on the appeal. If the appeal is granted the ALS is removed from the person’s driving record. However, a court can still impose a judicial pretrial suspension upon granting the appeal if it determines the person’s continued driving will be a threat to public safety. R.C. 4511.196
Due Process Grounds-Several courts have made it clear: The legislature cannot create a statutory scheme to suspend a person’s license, not follow the scheme, and then limit an appeal to the statutory grounds. Procedural due process requires that the statutory protections underlying implied consent suspensions be followed.
Based on due process considerations (notice and the opportunity to be heard) courts have granted appeals because: The sworn statement set forth in the 2255 was not provided to the court and the BMV within 48 hours after arrest R.C. 4511.192(D)(1)(d) and R.C. 4511.192(E); and, the initial appearance on the OVI charge was not held within five (business) days of the person’s arrest R.C. 4511.192(D)(1)(a) and R.C. 4511.196(A).
Additionally, the BMV recognizes the following additional grounds for granting the appeal: The person before whom the arresting officer swore to the contents of the 2255 purported to be a deputy clerk of court but either was not or failed to include the court seal; and, the person before whom the arresting officer swore to the contents of the 2255 was a peace officer who has not completed an approved course of training as required by R.C. 2935.081.
A Few Relevant Cases:
State v. Hochhausler, 76 Ohio St.3d 455 (1996)
Toledo v. Ferguson, 2017-Ohio-1394
Meadows v. Ohio BMV, 71 Ohio Misc. 2d 3 (M.C. 1995)