In the Great State of Ohio, including the majority of the State’s in the Union, there is an Implied Consent Law in effect. Ohio Revised Code 4511.191 provides that any person operating a motor vehicle on public or private property, shall be deemed to have given consent to a chemical test if arrested for Operating a Vehicle under the Influence (OVI).
A typical scenario as to when R.C. 4511.191 is where an individual is stopped by law enforcement, arrested for suspicion of OVI, and then charged for OVI. At this point, the individual is in the back of the police cruiser thinking of all the ways he/she just screwed up. Now, prior to asking said individual if he/she is willing to submit to a chemical test, the arresting officer must read to the arrested individual the “Advice to OVI Arrestee” on the back of the BMV 2255 Administrative License Suspension pursuant to R.C. 4511.192.
The long and short of the advice is that if a person refuses to submit to a test they are looking at a 1, 2, 3, or 5 year suspension depending on how many prior chemical test refusals the individual had in the past 6 years. The majority of the time, the OVI charge is a first time charge for the individual and that person is looking at a 1 year license suspension for refusing the chemical test.
Now if the person decides to take the chemical test and fails the chemical test, that license suspension range is from 90 days to 3 years. Once again, the driver’s license suspension range depends on the person’s past record over six years. The majority of the time it is a first time failure of a chemical test bringing about a 90 day suspension.
As you can imagine, by the time a person gets to an OVI attorney, it is usually too late with what to do in regards to either taking or refusing a chemical test. But fear not, because Ohio Law does allow an individual to appeal an Administrative License Suspension. Let’s take a look at Toledo v. Ferguson, 2017-Ohio-1394, for some general background on Administrative License Suspensions and how one of the defenses worked to have the Administrative License Suspension vacated.
In Ferguson, Ferguson was stopped, arrested, and charged with OVI on May 7, 2016. On May 13, 2016, six days after Ferguson’s citation, the arresting officer filed the Administrative License Suspension (ALS) BMV 225 Form. Ferguson filed an ALS appeal on May 17, 2016, seeking the trial court to vacate the ALS on “all grounds generally, and specifically but not limited to, the violation of 4511.192.”
After the ALS hearing, the trial court denied the ALS appeal. Soon after, Ferguson filed an appeal with the Sixth District Court of Appeals. On appeal, Ferguson argued that because the police officer failed to comply with R.C. 4511.192. The state, however, argued that because only factors of R.C. 4511.197(C) are to be considered for ALS appeals, noncompliance with R.C. 4511.192 does not result in Ferguson’s ALS being vacated.
R.C. 4511.197(C) provides that the scope of an appeal of an ALS for OVI is limited to determining whether one of the conditions is not met.
Below are the four conditions in R.C. 4511.197:
1) The officer had reasonable grounds to believe offender was driving impaired;
2) The officer requested a chemical or other test to determine impairment;
3) The officer properly informed or notified of consequences for refusal to submit to the test; and
4) The offender refused to submit or test results show the offender was driving impaired.
Hold on tight, I am about to dive into some more statutory analysis!
R.C. 4511.192(D)(1)(a) requires that the arresting officer shall:
Notify the person that:
1) Their Ohio driver’s license is suspended immediately;
2) That the suspension will last at least until the person’s initial appearance on the charge;
3) Which will be held within five days after the date of the person’s arrest or the issuance of a citation to the person; and
4) That the person may appeal the suspension at the initial appearance or during the period of time ending thirty days after that initial appearance.
But wait! It gets better!
R.C. 4511.192(D)(1)(d) and (E) require the arresting officer to, within 48 hours of arrest or citation, send a sworn report to the BMV and trial court.
The above notice requirements protect the licensee’s interest in appealing the ALS at his or her initial appearance. State v. Frame, 1999 Ohio App. LEXIS 2498 (May 24, 1999); Meadows v. Ohio BMV, 71 Ohio Misc.2d 3.
Based on the above, the appellate court found the BMV 2255 was not filed with the court until May 13, 2016, six days after Ferguson was arrested. This, of course, was not within the 48 hours. Thus, the appellate court held that the arresting officer failed to comply with R.C. 4511.192 by not filing the BMV 2255 form in a timely manner.
So what does this mean for Ferguson? Remember, The state argued that because only factors of R.C. 4511.197(C) are to be considered for ALS appeals, noncompliance with R.C. 4511.192 does not result in Ferguson’s ALS being vacated.
In an evidentiary hearing to determine whether to terminate an ALS, the licensee has the burden of showing, by a preponderance of the evidence, that the actions of the BMV were taken in error. State v. Williams, 2004-Ohio-2453. For the purposes of an ALS hearing, the officer is acting as an agent of the BMV. State v. Henry, 66 Ohio Misc.2d 57. Thus, any action taken by the officer in error can result in the termination of an ALS. Triguba v. Registrar, 1996 Ohio App. LEXIS 2771 (June 27, 1996).
The state cannot set forth a statutory scheme to suspend a person’s operating privileges, not follow the scheme, and then claim that since such actions are not one of the four issues allowed in an ALS appeal a municipal or county court has no authority to terminate the ALS. Henry. Thus, the licensee is relieved of the burden of proving that one of the R.C. 4511.197(C) conditions had not been met where the BMV fails to present prima facie proof the officer complied with all mandates of R.C. 4511.192. Langen v. Caltrider, 1999 Ohio App. LEXIS 3828 (Aug. 20, 1999).
The appellate court found that the record revealed that the BMV failed to present prima facie proof of compliance with R.C. 4511.192. Based on the noncompliance, Ferguson should have been relieved of the burden of proving that one of the R.C. 4511.197(C) conditions had not been met. Thus, Ferguson’s ALS was vacated.
Sometimes it is in the very fine details to get that big win!