12 Aug
Author: Colin Maher
Date: 2013-08-12
Categories: Traffic

35 Procedural Errors to Fight DUI / OVI Administrative License Suspension in Ohio

There are two types of license suspensions that can be imposed after you have been charged for operating under the influence. They act to suspend your license while your case is pending in court. One is called a public safety suspension that the judge can impose if they feel your continued driving will be a threat to public safety. The other is an administrative license suspension through the Ohio Bureau of Motor Vehicles. This is also referred to as an implied consent suspension.

An administrative license suspension is the initial suspension resulting from testing over the legal limit or refusing to submit to a test when arrested for driving under the influence. The suspension ranges from 90 days to 5 years depending on the facts in your case. The Ohio Revised Code provides the procedures that must be followed in order for this suspension to be valid.

The Ohio Bureau of Motor Vehicles uses a form called a 2261 for the court to report to the BMV on the status of your license suspension. If the court in which your charge is pending grants a termination, your license will be valid while your case goes through the court process as long as a public safety suspension is not imposed. If your administrative license suspension is terminated, make sure you get a certified copy of the 2261 before leaving the court.

You must timely file an appeal of the administrative license suspension. A hearing will be held at your initial appearance, or shortly thereafter, to determine whether the suspension should remain in place. Depending on the court you are in, any one of the errors listed below can aid in your argument to terminate the license suspension.

  1. Sample not withdrawn within 3 hours of the alleged violation 4511.19(D)(1)(b)
  2. Person did not submit to chemical test AND blood or urine sample not obtained pursuant to a valid search warrant 4511.19(D)(1)(b)
  3. Blood sample not withdrawn by physician, registered nurse, emergency medical technician-intermediate, emergency medical technician-paramedic, qualified technician, qualified chemist, or qualified phlebotomist 4511.19(D)(1)(b)
  4. Bodily substance not withdrawn or analyzed in accordance with methods approved by director of health 4511.19(D)(1)(b)
  5. Bodily substance not analyzed by person possessing valid permit issued by the director of health 4511.19(D)(1)(b)
  6. Results of chemical test were not made available to the person or person’s attorney upon request 4511.19(D)(3)
  7. Person not advised at the time of arrest that they may have an independent chemical test performed at own expense 4511.19(D)(3)
  8. Lab report does not have signature under oath of person performing analysis 4511.19(E)(1)(a)
  9. Lab report does not contain findings as to the identity and quantity of substance 4511.19(E)(1)(b)
  10. Lab report does not have a notarized statement that contains the name of each certified analyst or test performer involved in the report, their employment relationship, and a notation that performing an analysis of the type involved is part of their regular duties 4511.19(E)(1)(c)
  11. Lab report does not contain an outline of the analyst’s or test performer’s education, training, and experience performing the type of analysis involved 4511.19(E)(1)(d)
  12. Lab report does not contain certification that the lab satisfies appropriate quality control standards for the particular analysis under the rules of the department of health 4511.19(E)(1)(d)
  13. Copy of the lab report was not served upon the defendant or defendant’s attorney 4511.19(E)(2)
  14. Officer did not have reasonable grounds to believe person was operating or was in physical control under the influence 4511.191(A)(3)
  15. Person was not in fact under arrest 4511.191(A)(5)(a)
  16. Officer did not request the person to submit 4511.191(A)(5)(a)
  17. If you have two or more priors in the last 6 years, officer did not advise person at time of arrest that if they refuse, the officer may use whatever reasonable means are necessary to ensure the person submit to a blood test 4511.191(A)(5)(a)
  18. If you have two or more priors in the last 6 years, officer did not advise person at time of arrest that the person may have an independent chemical test taken at person’s own expense 4511.191(A)(5)(a)
  19. Person arrested was in physical control of a vehicle and submitted to a chemical test 4511.191(C)(1)
  20. Person’s initial appearance was not held within 5 days of arrest or issuance of the citation 4511.191(D)(2)
  21. On first or second offense within six years, officer did not give advice on submitting or refusing in written form 4511.192(A)
  22. On first or second offense within six years, officer did not read advice on submitting or refusing 4511.192(A)
  23. On first or second offense within six years, the written advisement form does not have a statement that it was shown to the person under arrest and read to the person by the arresting officer 4511.192(A)
  24. On first or second offense within six years, reading of the written advisement form was not witnessed 4511.192(A)
  25. On a first or second offense within 6 years, the written advisement form does not have a witnesses signature 4511.192(A)
  26. Officer did not request to submit to a chemical test within 2 hours of the alleged violation 4511.192(A)
  27. Officer did not send sworn report to registrar within 48 hours after the person’s arrest 4511.192(D)(1)(d)
  28. Officer’s sworn report does not indicate they had reasonable grounds to believe the person arrested was operating or was in physical control while under the influence 4511.192(D)(1)(d)(i)
  29. Officer’s sworn report does not indicate person was arrested and charged 4511.192(D)(1)(d)(ii)
  30. Officer’s sworn report does not indicate that they asked the person to submit to a chemical test, advised the person of the consequences, and gave the person the advice in written form 4511.192(D)(1)(d)(iii)
  31. Officer’s sworn report does not indicate that the person arrested either refused to submit to a chemical test or results indicated a prohibited concentration 4511.192(D)(1)(d)(iv)
  32. Officer did not give the arrested person a copy of the sworn report at the time of arrest or the registrar of motor vehicles did not send the report to the arrested person within 14 days after they received the sworn report 4511.192(E)
  33. Officer did not send a copy of the sworn report to the court within 48 hours after arrest 4511.192(E)
  34. The arrested person did not refuse to submit to the chemical test 4511.197(C)(4)(a)
  35. The arrest was not for operating or being in physical control while under the influence 4511.197(C)(4)(b)

In the event that the court does not terminate your administrative license suspension or sets the appeal hearing for a later date, you may request a stay of the license suspension. A stay is like a pause of the suspension until the court decides to terminate or re-impose the suspension. You are able to legally drive while your license suspension is stayed.

Arguing to have your license suspension terminated can be complicated. To ensure you have an accurate argument and a complete record, you should hire an experienced OVI / DUI attorney to protect your license and defend you.

Ohio DUI Attorney | The Maher Law Firm | 614-205-2208

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