- September 26, 2018 |
- Category: DUI and Courtroom Process
- Category: License Suspension
There are four recognized grounds for appeal of an administrative license suspension under Ohio Revised Code 4511.197(C). However, there are additional ways to challenge the suspension that are found in other provisions of the law. For example, when an officer doesn’t comply with any one of the specific provisions of Ohio Revised Code 4511.192, the DUI suspect may be able to challenge the suspension under a due process argument. The manner in which the provisions of 4511.192 are written indicates they are not optional, but mandatory. Therefore, when law enforcement doesn’t comply, the appropriate outcome should be a dismissal of the administrative license suspension.
One of the most common provisions that law enforcement ignore is the requirement that they file the notice of suspension (BMV 2255) paperwork with the court “as soon as possible, but not later than 48 hours after the arrest.” In my experience, it’s very common for officers to file the paperwork beyond the 48 hour limitation set by law. In fact, I find that they file it late much more often than they file it on time. In such cases, a DUI suspect has a good argument to get the administrative license suspension dismissed. In one such case, Toledo v. Ferguson, the appellate court dismissed the license suspension when the officer filed the paperwork on the day of the first court appearance, which was six days after the arrest.
Probably the second most common mistake officers make when administering an administrative license suspension is using an old, outdated notice of suspension (BMV 2255) form. The Ohio BMV updates their paperwork every few years and law enforcment is required to use the current version of the paperwork. The most recent version of the form was drafted in April of 2017. However, in approximately 25% of the cases I handle, I find that the officer used an older version of the form, some as old as 2010. These old forms contain outdated law, including the length of the look-back period and the length of the license suspension. When this happens, it’s not terribly difficult to convince the judge to dismiss the administrative license suspension.
Sometimes, even the courts ignore mandatory provisions of Ohio Revised Code 4511.192. The law states very clearly that DUI suspects are entitled to a hearing within five days of their arrest so they can challenge the administrative license suspension. Appellate courts have held that the suspension of a person’s driver license implicates the due process clause and the statutory appeal process safeguards against erroneous deprivation of a person’s property interest in the license. As such, the failure to provide the suspect with a “five-day hearing” deprives him of due process and requires the termination of the suspension.
These are just a handful of ways to attack an administrative license suspension at the beginning of a DUI case. There are many, many more.
