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Administrative License Suspension and Driving Privileges

If you test over the legal limit or refuse a test after an OVI arrest the police should give you notice of an Administrative License Suspension or ALS. This is 90 days for a first offense test over the limit and 1 year for a refusal. What the police do not tell you is that your lawyer can ask the court for driving privileges after 15 days for a test over or 30 days for a refusal. The court has very broad discretion to grant privileges. Commonly granted are privileges for work, family school, family medical, personal/grocery/household necessity, AA/NA meetings, and childcare/activities. Less common are gym, church, vacations, coaching, clubs, and sports/recreational leagues.

ALS or Administrative License Suspension

When you are arrested for OVI in Ohio the officer will often ask you to take a portable breath test. This is by handheld device at the location of the stop. They will tell you that the result is not admissible for court, but you should know that they put the result in the report and the prosecutor and judge will see it even if a jury may not. Refusal of this test will not cause an ALS or suspension from the BMV as it is not an approved machine for evidentiary breath testing in Ohio by the Ohio Department of Health.

If you refuse to take a breath test on a machine at the station that has been approved for use by the Ohio Dept. of Health your license will be suspended immediately. The officer will have read you the back of the BMV 2255 form that says on a first offense if you test over the limit your license is suspended for 90 days and if you refuse it is 1 year.

Most people do the simple math and say well 90 days is better than a year and take the test. The police also dangle a carrot in front of you that if you test under the limit, you will not be suspended. Most people take the test despite many lawyers telling people not to. In truth the police and the legislature fail to tell you that no matter what you do the BMV suspension will often be terminated as part of a plea negotiation or be terminated as a matter of law upon conviction for DUI. In any case you can get driving privileges on both. You will have to wait 15 days on a first offense test over the limit and 30 days for a refusal.

A refusal must be supported by a manifestation of your intention to not take the test, meaning you must verbalize your refusal. Appeals in this area are most common with people that cannot produce enough volume of air for a sample in the machine. It should not be a refusal if you try but cannot produce a sample. It is best if there are medical records that can document and support the fact that you cannot produce a sample.

If you take the test and you are over the limit it can cause the prosecutor to refuse to offer a plea deal. Depending on the extent to which you test over the limit, the case just became easier for them to win at trial. A result that is over the high-tier limit can cause you to suffer extra mandatory penalties if convicted like special restricted license plates, a breathalyzer in the car, and 6 days in jail for first offenders. When you test, all they must prove is that you drank/used drugs, you drove, and that you are over the limit. You do not have to be drunk. Prosecutors are more likely to offer a reduction if you refuse the test, but you should always consult a lawyer before taking or refusing a test so the facts unique to your case can be considered before making your decision.

Testing under the limit and effects on an ALS

ALS stands for administrative license suspension. If you test under the limit, you will be given a BMV 2255 ALS paper. However, this will not (or should not) have the box for “placed under administrative license suspension” checked. To be suspended, you will have to refuse or test over the limit of .08 BrAC.

Length of Suspension

Ohio now has a 10-year lookback period for the ALS. Subsequent arrests in 10 years for OVI will increase the suspension length and waiting period or hard time before privileges can be granted.

Suspension for Failed Chemical Test (test over the legal limit)

OVIs/10yrsLengthMin. wait for Driving Privileges
1st90 days15 days
2nd1 year45 days
3rd2 years180 days
4th3 years3 years

Suspension for Refusal of Chemical Test (blood, breath, urine)

OVIs/10yrsLengthMin. wait for Driving Privileges
1st1 year30 days
2nd2 years90 days
3rd3 years1 year
4th5 years3 years

Note: IF YOU TEST UNDER THE LEGAL LIMIT, YOU SHOULD NOT BE SUSPENDED. (*Talk to a lawyer before taking any tests*).

5 Day Hearing to Appeal ALS

When you are placed under an ALS the police must get you a hearing date within 5 days. Failure to have a hearing can give rise to an appealable issue. This means that the court should terminate the ALS and waive the reinstatement fee. You have 30 days to file an appeal of the ALS. Most courts will want to see something in writing from your lawyer. This is an issue that should be addressed at the first court date. If the court terminates the ALS, they can still impose a judicial pretrial suspension if they make a finding that your continued driving is a threat to public safety. There is no waiting period required before you can ask to drive under this type of suspension.

Driving Privileges

Driving privileges can be granted by the court as soon as 15 days after the arrest if you tested over the limit. Every court will handle this differently. There is a statute that gives some guidelines though. The old law granted the court authority to modify an ALS to grant limited privileges to drive for work, school, medical, and vocational reasons. Some courts will still limit privileges to this. Recently, the law added a provision that the court can basically give privileges for anything in their discretion.

To ask the court for driving privileges you will need an otherwise valid license (no other suspensions/license trouble/etc.), auto insurance proof listing the driver’s name and car you were pulled over in and valid both at the time of the incident and currently. This can be obtained from your auto insurance company in the form of an Auto Insurance ID card or Declarations Page.

The judge or magistrate will also sometimes verify with the Ohio BMV that you are in fact suspended in the BMV’s system. The law does not really require this, but some judges feel that you are not really suspended until you are in the computer. The law says you are suspended once you receive the ALS form from the officer stating you are in fact placed under an ALS.

Ohio Revised Code (ORC) Section 4510.021 is titled, “Granting limited driving privileges.” It says that the court shall:

…specify the purposes, times, and places of the privileges and may impose any other reasonable conditions on the person's driving of a motor vehicle. The privileges shall be for any of the following limited purposes:

  1. (1) Occupational, educational, vocational, or medical purposes;
  2. (2) Taking the driver's or commercial driver's license examination;
  3. (3) Attending court-ordered treatment;
  4. (4) Any other purpose the court determines to be appropriate;
  5. (5) Attending any court proceeding related to the offense for which the offender's suspension was imposed;
  6. (6) Transporting a minor to a child care provider, day-care, preschool, school, or to any other location for purposes of receiving child care.

Number 4 basically gives jurisdiction back to the court allowing them to do whatever they want in granting driving privileges. You will have to talk to your Ohio OVI lawyer about your specific needs and the particular court you are in front of for best practices in asking for privileges. Some courts also require you to fill out forms applying for privileges. Courts are able to use discretion to order an ignition interlock device (also called a Blow and Go or Breathalyzer) or restricted plates (they are an orange/reddish color sometimes called Party Plates) as a condition of driving privileges.

Most courts want to see some proof that you are employed. The strictest courts will require you to submit your work schedule on company letterhead. You will also have to show proof of auto insurance. Medical privileges are a little more freely given and often granted on an as needed basis with the instruction that you carry proof like an appointment card. Medical privileges are also used pretrial for alcohol and drug assessments, treatment, and AA meetings.

A school schedule on school letterhead will suffice for all courts that require proof in writing.  This is almost always obtained without having to disclose the pending charges to the school.  Vocational privileges are not as clear and vary the most among Ohio courts.  It is not defined in the statutes.

Some courts will not grant them at all. Other courts use this to give privileges for personal needs once a week for a few hours, for childcare, family needs, school and school activities for children, church, court appearances, and care of young and elderly dependents.

At the very least, you will most likely be able to obtain driving privileges in most every court for work in short order. However, courts are allowed to set reasonable restrictions on the privileges by limiting days and hours to say 50 to 60 hours a week and making you choose a day where you will not drive at all. They can also add restrictions that you have a breathalyzer device and/or restricted orange license plates installed on your car before you can use the privileges. There is no obligation that you display these things on your car as long as you choose not to drive.

Driving in violation of restrictions on an OVI suspension is Ohio is about as serious as the OVI itself. It has mandatory jail time, a mandatory fine, and can carry up to a one-year license suspension.

What You Should Know About License Suspensions

There are myriad reasons your license is suspended:

Noncompliance

Too many points on your license

FRA

Driving without insurance

DUI/OVI

DUI/OVI charges with an administrative license suspension

Accident

You were in an accident

The first step is to determine the reason your license is suspended, and that will determine the legal path we will need to follow. No matter why your license is suspended, seeking legal counsel can get the problem resolved faster than fighting this on your own. You probably need to get back to work or you have kids’ activities to get to, and not having a license is a hindrance. It’s important that you remember that driving with a suspended license could get you into even more trouble.

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Robert F. Healey, Jr.

Attorney – Of Counsel
Minnillo Law Group Co., LPA

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