The ALS is an important, complicated, and often misunderstood aspect of a DUI case. The attorneys at Suhre & Associates understand the intricacies of the ALS and the manner in which to approach it that will be of the most benefit to our client.
Read the summary below and contact us to find out how it applies to you.
After the police arrest someone for suspicion of DUI, they generally ask for a chemical test to determine the concentration of drugs and/or alcohol in the person’s body.
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There are three tests approved for use in Ohio:
- Ohio DUI Blood Test (the most accurate – used if a suspect is taken to the hospital because they were injured in a crash)
- Ohio DUI Breath Test (by far the most common – most police departments have their own breath test machine at the station)
- Ohio DUI Urine Test (the least accurate – but the one most commonly used if drugs are suspected)
If a person refuses to submit to the test or submits to the test and tests over the legal limit, the person’s license is immediately suspended. The suspension is called an Administrative License Suspension. It is not imposed by a Judge, but by the Ohio Bureau of Motor Vehicles.
The police officer acts as the BMV’s agent when they impose the suspension. Because it is not a judicial suspension and is instead imposed by an administrative agency (the BMV), it is called an Administrative License Suspension. It is often referred to as an “ALS.”
The ALS is imposed because the law considers driving a privilege and not a right. When one accepts an Ohio Driver’s License, they are agreeing to provide a blood, breath, or urine sample to a police officer if there is probable cause to believe the person is operating a vehicle under the influence of drugs or alcohol. Refusing to provide the sample or providing a sample that tests over the legal limit, results in a suspension.
It is important to know that the police officer gets to choose the test to offer a suspect. The suspect does not get to pick which test (if any) they will agree to take. For example, if a person will agree to take a blood test, but refuses to take a breath test, the police and BMV will consider that a refusal.
However, a person does have the right to obtain an independent test, at his or her own expense, after being processed for DUI. The police do not provide the test – the individual has to find their own provider. This can often be a difficult thing to do at 3 a.m. The admissibility of the police test is not dependant on the ability of the defendant to obtain his or her own private test.
On a first offense, if a person refuses to provide a sample, 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 judicial suspension of six months to three years. This suspension is imposed by the Judge, not the BMV.
After the police arrest someone, but before asking them for a chemical test, they are required to inform them of the consequences for taking or refusing the breath test. The information the police are required to give to the suspect 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 someone 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
|Prior refusals in 6 years||Length of Administrative License Suspension|
Failed Chemical Test:
|Prior Offenses in 6 years||Length of Administrative License Suspension|
There are four statutory reasons that an ALS can be set aside by the Judge. They are 1) the police did not have the right to arrest the person 2) the police did not inform the suspect of the implied consent provisions 3) the person did not refuse the test or 4) the person 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 argument to set aside the ALS is based upon a defect in the completion of the form 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 copy of the 2255.
If the form is not properly executed, then this is brought to the court’s attention and a motion is made to set aside the ALS as being void “ab initio” or “from the beginning”. The argument is that because the form was not properly filled out it is improper to impose an ALS suspension based on defective paperwork.
Another reason the ALS can be terminated is if the person tried to produce a sample but could not. This scenario commonly occurs in a breath test case where the client is an asthmatic and simply cannot produce the required volume of air needed by the breath test machine.
It can also occur in a blood test case where the nurse or phlebotomist cannot locate a vein to withdraw a sufficient sample of blood. In these cases the person has agreed to provide a test, but for reasons beyond their control, are unable to produce a sufficient sample.
One of the most important considerations regarding the ALS is its length and how it ends. 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 acquitted. For example, if a person refuses a breath test and this is a first offense, there is an ALS of one year.
If the defense attorney is able to negotiate a reduction with the prosecutor from a DUI to a reckless operation and the Judge imposes a six-month driving suspension for the reckless operation, there is still an ALS in effect for one year. Under the same allegations, if the person is convicted of DUI and the Judge imposes a six-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 during plea negotiations.
Another important consideration is what happens if there is an acquittal. Under Ohio law, the ALS does not terminate if the person is found not guilty. Because the ALS is imposed only if the person tests over the limit or refuses, an acquittal does not end the suspension.
The only way the suspension ends is if the court sets it aside because 1) the police did not have the right to arrest the person 2) the police did not inform the suspect of the implied consent provisions 3) the person did not refuse the test or 4) the person took the test and did not test over the legal limit. It is not uncommon for a person who refuses to take the test to be found not guilty and then to have to finish serving the balance of the one-year ALS, despite the fact the judge or jury have determined that they are not guilty of DUI.
If a person took a chemical test and was over the legal limit, the ALS ends after 90 days. If the 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, the person’s limited driving privileges are no longer valid because there is no suspension in effect.
But just because the 90 day period has elapsed, that doesn’t mean the person’s license is now valid. First, they must comply with the reinstatement requirements. Typically, the requirements are to pay the $475 reinstatement fee to the BMV and show proof of current insurance. This can be done by sending in the payment and proof of insurance in the mail to the BMV or by taking payment and proof of insurance 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 will 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.
In effect, the person’s license will be re-suspended for the balance of the period imposed by the Judge minus the 90-day period 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 a person does not have to pay it twice.
If a person reinstated their license at the end of the ALS and it is later determined that the police improperly imposed the ALS, the BMV will refund the reinstatement fee. It generally takes about two months for the BMV to process the refund.
For immediate help with your DUI arrest in Cincinnati, contact Joe Suhre or one of his associates by using the contact form to the left or calling (513) 333 0014.