Is my license suspended before Igo to court for a DUI?

If you were charged with a DUI in Ohio and either (1) failed the breath test, or (2) were listed as refusing to take the test, then the officer would have given you a BMV-2255 Form on the spot and seized your license. That form has a check box on it saying whether or not you license is suspended. Depending on your particular circumstances, there is a hard-time waiting period during which you are not permitted any driving privileges whatsoever.

I strongly suggest that you contact an experienced DUI lawyer in your local area immediately, as you have the right to appeal the Administrative License Suspension if you do it soon enough.

Dan J. Weisenburger
Attorney at Law

www.OhioCrimeLawyer.com

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.