When you are arrest for DUI in Ohio the officer will often ask you to take a portable breath test. This is by handheld devise 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.
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 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 been 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 has to be supported by a manifestation of your intention to not take the test. 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 since the case just became very easy for them to win at trial. Or it can show a result that is over the high-tier limit causing you to suffer extra mandatory penalties if convicted, such as special restricted license plates, a breathalyzer in the car, and 6 days in jail for first offenders.
When you test, all they have to 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 BAC.
Physical Control and Refusal Vs. Test Over
You can also be placed under suspension after an arrest for physical control. Physical control is where you are alleged to be under the influence, in possession of the car keys, and in the car. This is like sleeping it off in the car with the keys in the ignition and you are in the driver’s seat. If you refuse to take the test the officer will suspend your license. If you take the test and test over the limit there is no suspension. This is different than what happens if you are arrested for DUI.
Five-day Hearing
When you are placed under an ALS the police must get you a hearing date within five 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.
Impoundment and Immobilization
If the police tow your car after arrest for DUI, they can impound or hold it until at least the first court date. Upon conviction of a second offense DUI in six years, the court must generally immobilize the vehicle for 90 days. This can be at the police station, your house, or a tow lot. They will take the plates and depending on your court, sometimes allow you to have the bailiff or clerk club the vehicle at a location of your choosing to avoid up to $3000 of storage costs.
If you fail to tender your car for immobilization after conviction when ordered by the court and you get caught driving it the police can seize the car and it is subject to forfeiture to the state! Most police officers will not fill out the proper paperwork and fail to comply with the notice requirements of vehicle impoundment. Your lawyer will be able to object to this in some cases the judge will not require the 90 days immobilization for second offenders.
Administrative License Suspension or ALS
When you are arrested for OVI in Dayton, Ohio the police will most likely ask you to take a blood, breath, or urine test.
If you refuse the test the BMV will suspend your license as follows:
| Number of Offense(s) in 6 yrs. | Suspension | Waiting Period (Before Court Can,Grant Driving Privileges) |
|---|---|---|
| 1 | 1 year | 30 |
| 2 | 2 years | 90 |
| 3 | 3 years | 1 |
| 4 or more | 5 years | 3 |
If you test over the limit of 0.08 the BMV will suspend your license as follows:
| Number of Offense(s) in 6 yrs. | Suspension | Waiting Period (Before Court Can,Grant Driving Privileges) |
|---|---|---|
| 1 | 90 days | 15 days |
| 2 | 1 years | 45 days |
| 3 | 2 years | 180 days |
| 4 or more | 3 years | 3 years |
There is no suspension if you test under the limit or the test result is not known as would be the case in a blood or urine sample that is sent to the lab.
Limited Driving Privileges
Your lawyer will help you apply for a letter to drive once the waiting period or “hard-time” of the suspension has been served. Some courts charge a fee to file the petition to request driving privileges. The court is regulated by law to what they can grant.
Privileges can be granted for work, school, medical, and vocational reasons. The court can also grant you privileges to test for a license in Ohio if your license is expired more than 6 months or if you are from out of state, but plan to declare residency in Ohio.
All courts vary wildly in what they will and will not grant. You lawyer will be able to give you reasonable expectations about what to expect in your case.
All courts will place time limitation on the letter to drive. Reasonable you can expect 50-60 hours in most courts.
If you have a prior conviction, high-tier test over 0.170, or a refusal the judge will require ignition interlock. This is a breathalyzer that goes in your car. Some judges will allow you to drive 24/7 with interlock. That can be a pain to deal with but a blessing since you can go wherever you want whenever you want.
Vocational privileges are not defined. Some courts will even allow privileges for grocery, family necessity, personal needs, and church.
If you have any questions, contact our Dayton DUI defense lawyers to discuss your case and your legal options.
