If you are reader of this blog, you already know that Ohio law requires that the accused be informed of the consequences of their failure to submit to a chemical test prior to taking the actual test.  This “disclosure” is codified in ORC 4511.192 and is contained on the reverse side of Form 2255 that is read to the accused prior to testing.  The disclosure states:

 
“You now are under arrest for ….. If you refuse to take any chemical test required by law, your Ohio driving privileges will be suspended  immediately, and you will have to pay a fee to have the privileges reinstated. If you have a prior of OVI, OVUAC, or operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance conviction under state or municipal law within the preceding twenty years, you now are under arrest for state OVI, and, if you refuse to take a chemical test, you will face increased penalties if you subsequently are convicted of the state OVI. If you take a chemical test, you may have an independent chemical test taken at your own expense.”

 
What if Form 2255 contains inaccurate information regarding the length of suspension?  What, if after reading the required language, the officer reads the inaccurate information contained on the form?  Does this supply grounds for suppressing the results of any chemical test?

 
One court in Ohio has weighted in one aspect of this issue.  In the case of State v. Noster, 2011 Ohio 2730, the First Appellate District Court (Hamilton County) reversed the decision of a lower court who suppressed the results due to the accused being provided incorrect information on the bottom of Form 2255 regarding her length of suspension.  In its opinion the court said:

 
“The fact that BMV Form 2255 contained incorrect information regarding length of suspension in a different section placed lower on the form that was not read aloud to Noster is of no effect and does not detract from the adequacy of the information provided to Noster concerning the consequences of refusal. In Bryan v. Hudson, [77 Ohio St.3d 376, 380, 1997 Ohio 261, 674 N.E.2d 678], the Ohio Supreme Court clearly held that, when informing an arrestee of the consequences of refusing to submit to a chemical test, an officer need not inform the arrestee of the exact length of the ALS faced.”

 
The court went on, “We hold that the arresting officer was not required to inform Noster of the exact length of her potential ALS, and that the officer complied with the requirements of R.C. 4511.192(B) by reading the top portion of BMV Form 2255. Noster was adequately informed of the consequences of refusing to submit to a breath test and the trial court erred in concluding otherwise.”

 
In this instance the officer did not read the information contained at the bottom of the form and, therefore, that did not enter into the court’s decision.  But, what if the officer HAD read the misinformation, or better yet, volunteered misinformation?

The Noster court carefully avoided responding to that consequence.
We will wait for another time and another court to respond to that issue.

A number of readers and attorneys make the assumption if a DUI charge is dismissed or results in a not guilty verdict, the ALS suspension is automatically terminated. This is not necessarily true.

 
To give the reader some background, if certain criteria are met, the police officer is required to immediately confiscate the driver’s license of the offender when charged with OVI. This is known as an “Administrative License Suspension.”  Thereafter, if the offender  pleads guilty or is found guilty, any subsequent suspension is considered a “judicial suspension” – one imposed by the court based upon the parameters set forth in the OVI statute.

 
In the case of State v. Hayes, 2007 WL 2994219, 2007 Ohio 5517 (Fifth Appellate District), the court argued a not guilty finding in a DUI case terminates the ALS in a per se violation but not in an OVI case.  Based upon the courts review, it reasoned that a not guilty finding for driving while having unlawful level of alcohol or drugs in your system does automatically end the ALS but the same can not be said for a not guilty finding for driving while impaired.  This reasoning was also followed in State v. Tweddell, 2010 Ohio 4927, a Second Appellate District case.

 
A more recent case from the First Appellate District, State v. Lewis, 187 Ohio App. 3d 701, discussed the termination of an ALS for refusing to take a chemical test.  In its opinion, the court stated, “…an ALS imposed for the refusal to submit to a chemical test remains in effect even if a defendant is found not guilty of the charge resulting in the request for the chemical test…”

 
If I can suggest some reasoning behind these decisions, an ALS is an administrative suspension based upon specific criteria.  Charges of DUI (OVI in Ohio) are judicial in nature and arise out of specific statutes and the subsequent suspension is determined within the judicial process.  Therefore, they are mutually exclusive and since an ALS suspension can only be terminated based upon specific grounds, if these criteria are not addressed when defending the OVI charge, the ALS remains in effect.  Therefore, in the Hayes case, since one of the criteria for termination of the ALS is the per se reading in breath, blood or urine, any not guilty finding in that regard will consequently result in the termination of the ALS since the defense, in itself, sustained one of the criteria for termination.  But, if the offender is found not guilty in an OVI case only, the ALS does not terminate because that defense does not  incorporate any of the criteria for termination of the ALS.

 
In the Lewis case, the ALS suspension was based upon the defendant’s refusal to submit to a chemical test.  Since the defendant’s not guilty verdict had no application to his refusal, the ALS stayed in effect.

 
Therefore, if one is seeking termination of an ALS, they must be sure their trial defense includes addressing one of the grounds for ALS termination.

A recent Ohio Court of Appeals case points to a very important aspect of Ohio’s OVI law.  The case, State v. Lewis, 187 Ohio App. 3d 701 involved the arrest of an individual for OVI.  The defendant refused to take a chemical test.  The defendant was tried on the charge of OVI only found not guilty.  As a result, the court terminated the defendant’s administrative license suspension.
The City of Cincinnati appealed arguing that a finding of not guilty to an OVI charge does not terminate an administrative license suspension.  The court, in its opinion stated:
“R.C. 4511.191(B) provides for an automatic license suspension following the refusal to submit to a chemical test. And R.C. 4511.191(D)(1) specifically states that “[a]ny subsequent finding that the person is not guilty of the charge that resulted in the person being requested to take the chemical test or tests under division (A) of this section does not affect the suspension.”
Clearly, if a defendant refuses to submit to a chemical test and is subsequently found not guilty of OVI, their administrative license suspension will continue not withstanding the not guilty finding.
Now, what is the administrative license suspension results from a chemical test exceeding the legal limit (.08 in the case of a breathalyzer test).  It is this writer opinion that a subsequent not guilty finding WILL result in a termination of the administrative license suspension.  4511.19(D)(1) is very specific.  It relates to a suspension resulting from a refusal to take a test only.  Therefore, a not guilty finding when the defendant has agreed to take a chemical test will result in a termination of the ALS.