suhrelaw | December 30, 2016 | Criminal Law
The ALS is an Administrative License Suspension. This means that it is a suspension initiated by Bureau of Motor Vehicles and not the court. An ALS suspension can occur in one of two ways. First, if you get pulled over for OVI and you test over the legal limit. For example- If you get pulled over for swerving on the road, the police officer smells alcohol on you, you admit to having a couple of drinks, you do some field sobriety tests and taken to the station where you blow over a .08. At that time, the police officer would issue an ALS suspension. That means that your license is suspended by the BMV for driving while you were over the legal limit. Second, an ALS is issued if you refuse the chemical test. When you sign all of the paperwork to get your driver’s license you consent to giving a chemical test if you are suspected of OVI. By refusing to provide the test requested, the BMV can and will suspend your license.
How is the BMV? The police officer is the one who suspended my license.
The police officer acts as an agent of the state, and therefore initiates the suspension on behalf of the BMV. The suspension is immediate. As soon as the officer reads the ALS form and hands it to you (whether you sign it or not) the suspension is in effect.
How is this constitutional? Isn’t this unfair?
The constitutionality of this practice is questionable. On its face, the ALS procedure seemingly violates the due process clause of the constitution. The due process clause states that government cannot take life, liberty, or property without notice and the opportunity to be heard. It would appear as though taking someone’s driver’s license immediately with no opportunity to be heard would be unconstitutional. Well, Ohio legislators disagree. However, in an effort to appear just, there is a five day hearing requirement. This means, that within five days from the issuance of the ALS suspension, you have to have the opportunity to be in front of a judge and appeal the suspension.
Are there time constraints?
Yes. The officer has two hours from the time of the arrest to request a chemical test. If the test is not requested within two hours, there must be no ALS. Further, if the officer requests a test, it must be submitted within three hours of the time of the alleged violation.
Can I get privileges?
Yes. There is usually a “hard time” suspension associated with ALS suspensions. For a test over, the “hard” suspension is 15 days. For a refusal, the “hard” suspension is 30 days. In most jurisdictions, it is impossible to get privileges until the hard time has passed. Then, you can get work, child care, education, medical, and other essential driving privileges. In Columbus, however, most judges “stay” the ALS suspension until the case is resolved. This means that the suspension is “put on hold” and not in effect until the case is resolved. This is a wonderful benefit to clients. If the ALS is stayed, the client is free to drive while the case is pending.
What do I do next?
Have you been charged with an OVI? It is important to contact an experienced attorney who can assist you through the process. Please contact Jaime Glinka at Suhre and Associates. She will be happy to discuss your options and answer any questions you may have.