Administrative License Suspension (ALS) In Dayton

The ALS is an important, complicated, and often misunderstood aspect of a DUI case. The lawyers at Suhre & Associates understand the ALS and the manner needed to analyze it for defects that will be of the most benefit to you.

There is very helpful information below that can begin to inform you about the license suspension that you are under. Contact us to find out how our skilled lawyers can make all this information work for you and the facts unique to your DUI in Ohio!

After the police arrested you for suspicion of OVI, they generally ask for a chemical test to determine the amount of drugs or alcohol in your body.

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There are 3 tests approved for use in Ohio:

• Ohio DUI Blood Test (This is the most precise – but often only used when you are taken to the hospital because of automobile accident.)
• Ohio DUI Breath Test (The most common – most officers have their own breath testing machine at the police station. Preferred by police because of the instant results.)
• Ohio DUI Urine Test (Least accurate – but often used where drugs are suspected.)

If a person refuses a test or submits to the test and tests over a level of drugs or alcohol allowed by law, the person’s license is suspended on the spot. The suspension is called an Administrative License Suspension or ALS. It is not imposed by a Court, but by the Officer acting as agent for the Ohio Bureau of Motor Vehicles.

The ALS is given to you because driving is a privilege and not a right. When you applied for an Ohio Driver’s License, you agreed to provide a blood, breath, or urine sample to police if there are reasonable grounds to arrest you for DUI. Refusing to submit or a test over the legal limit, results in a suspension.

You should know that the police could choose the test to offer. You do not get to pick. For example, if you will agree to take a blood test, but refuse to take a breath test, the police and BMV will consider that a refusal.

However, you do have the right to obtain an independent test, at your own expense, after being processed for OVI. The police do not provide the test – you have to find a provider. This is a very difficult thing to do at 3 a.m. The admissibility of the state’s test is not dependant on your ability to obtain a private test.

On a first offense, if you refuse to take a test, the term of the ALS is one year. If a test over the legal limit is obtained, the term of the ALS is 90 days. However, it’s important to remember that on a first offense DUI conviction there is a mandatory court suspension of 6 months to 3 years. This suspension is from the Judge, not the BMV.

After the police arrest you, but before asking for a chemical test, they are required to inform you of the consequences for taking or refusing the breath test. The information the police are required to give you is located on the back of form 2255 and is referred to as the implied consent provisions. These consequences relate to an ALS suspension not the consequences of a suspension imposed if there is a conviction.

The police are not required to inform you of the consequences of a conviction suspension. It is not uncommon for a client to come to our office and believe that the only suspension they are facing is a 90-day suspension for testing over the legal limit. When in reality, they are facing a suspension of up to three years with a minimum suspension of six months, if they are convicted of DUI.

The length of the Administrative License Suspension imposed depends on two primary factors:

• First, is this a refusal to submit to a chemical test, or is it a test over the legal limit?
• Second, how many prior refusals or offenses has the person had in the past 6 years?

For a Refusal

Failed Chemical Test

There are 4 reasons that an ALS can be set aside by the Judge. They are: 1) the officer did not have the right to arrest you 2) the police did not inform you of the implied consent provisions 3) you did not refuse the test or 4) you took the test and did not test over the legal limit.

The objection, commonly called an ALS Appeal – must be made within 30 days of arraignment or it is waived. At Suhre & Associates, our policy is to file the ALS appeal at or within a few days of the arraignment.

Another way we can attempt to set aside the ALS is based upon a defect in the form itself that is used by the police. The form is known as the 2255. In order for the suspension to be imposed, the BMV must receive a notarized sworn copy of the 2255.

If the form is not executed as required by law, then we can bring that to the court’s attention and request that the ALS be terminated or stayed.

Another reason the ALS can be appealed successfully is that you tried to produce a sample but could not. This happens in a breath test case you are an asthmatic and simply cannot produce the required volume of air required by the breath test machine.

It can happen in a blood test where the nurse or phlebotomist cannot locate your vein to withdraw a sufficient sample of blood. In this case you have agreed to submit to a test, but for reasons beyond your control, they cannot get a sufficient sample.

One of the biggest concerns regarding the ALS in your OVI case is its length and how it can end. The ALS terminates by law upon a conviction for a DUI. It does not terminate by law if the DUI is reduced to a lesser offense or if the person is found not guilty. For example, if you refuse the breath test and this is your first offense, there is an ALS of one year.

If the defense attorney is able to negotiate a reduction with the prosecutor from an OVI to a “wet” reckless operation and the Judge imposes a six-month driving suspension for the reckless operation, there is still an ALS in effect for 1 year. If you are convicted of DUI and the Judge imposes a 6-month driving suspension, the ALS is automatically terminated by the BMV and ends at the date of conviction. This is an important consideration that must be kept in mind before accepting a plea.

What happens if you are found not guilty? Under Ohio law, the ALS does not terminate if you are acquitted. This is because the ALS is imposed only if you tested over the limit or refused, an acquittal does not end the suspension!

The only way the ALS ends is if the court stays or terminates it because

1. the state did not have the right to arrest you
2. the police did not inform you of the implied consent provisions
3. you did not refuse the test or
4. you took the test and did not test over the legal limit.

It is common if you refuse to take the test to be found not guilty and then to have to finish serving the balance of the 1-year ALS, despite the fact the judge or jury have determined that you are not guilty of OVI.

If you submitted to a chemical test and were over the legal limit, the ALS ends after 90 days. If your case is still pending after 90 days, any pre-trial limited driving privileges granted by the Judge are no longer valid. After 90 days, the ALS is over. Since the suspension is no longer in effect, your limited driving privileges are no longer valid because there is no suspension in effect.

Just because the 90-day period has elapsed, that doesn’t mean your license is now valid. First, you must comply with the reinstatement requirements of the BMV. This means you have to pay the $475 reinstatement fee to the BMV and show proof of current insurance. You can send in the payment and proof of insurance in the mail to the BMV or take it to the Reinstatement Center located at 10948 Hamilton Ave. in Mt. Healthy.

However, it should be noted that if the person reinstates their license after the ALS lapses and there is a subsequent conviction for DUI, the court would still have to impose a suspension. On a first offense, this suspension is six months to three years. The 90-day period already served will be credited against the judicial suspension.

Your license will be re-suspended for the balance of the time imposed by the Judge less the 90-day suspension already served. Since, under this scenario, the ALS reinstatement fee would have already been paid, the payment will be credited to the reinstatement fee required at the end of the judicial suspension so you do not have to pay it twice.

If you reinstated you license at the end of the ALS and it is later determined that the police officer wrongly gave you the ALS, the BMV will return the reinstatement fee to you. It generally takes about two months for the BMV to process the refund.

For immediate help with your DUI arrest in Dayton, contact Rob Healey, the Suhre & Associates Office Manager in Dayton, or one of his associates by using the contact form to the right or calling 937-531-0435.