Ohio DUI Law: ALS and Unsworn 2255
State v. Allen, 2010-Ohio-1257, 13-09-25 (OHCA3)
Defendant Allen was stopped and arrested for OVI and subsequently tested over 0.08. She was given an unsworn copy of the 2255 and then the officer submitted an unsworn copy of the 2255 to the Court and the BMV. The Tiffin Municipal Court upheld the suspension. The 3rd District Court of Appeals held that the suspension was valid IMMEDIATELY upon testing over and it has nothing to do with the 2255 being sworn or not. In his dissent from this ruling, Judge Rogers states, “I submit that the requirement that BMV Form 2255 be sworn to by the arresting officer is no less important than the swearing to a criminal complaint, and without which the complaint would be a nullity. Because the effect of an administrative license suspension is intended to be immediate and without prior due process, perfect compliance must be demanded.” Below are pertinent portions of the majority decision
Upon arrest for operating a vehicle under the influence, R.C. 4511.192(B) requires the arresting officer to read specific language to the arrestee prior to requesting the arrestee submit to a chemical test. BMV form 2255 contains the same language found in the statute informing the arrestee of the charge for which she is arrested and states in pertinent part: “[i]f you take any chemical test required by law and are found to be at or over the prohibited amount of alcohol * * * your Ohio driving privileges will be suspended immediately, and you will have to pay a fee to have the privileges reinstated.” (Emphasis added). If the arrestee submits to the chemical test and the test results indicate a prohibited concentration of alcohol in the person’s breath the arresting officer shall, “[o]n behalf of the registrar of motor vehicles, notify that person that, independent of any penalties or sanctions imposed on the person, the person’s Ohio driver’s license or commercial driver’s license or permit or nonresident operative privilege is suspended immediately .” R.C. 4511.192(D)(1)(a) (Emphasis added). Additionally, R.C. 4511.191(B)(1) provides record keeping instructions to the registrar stating, “[u]pon receipt of the sworn report of a law enforcement officer * * * the registrar shall enter the into the registrar’s records the fact that the person’s driver’s or commercial driver’s license or permit or nonresident operating privilege was suspended by the arresting officer[.] (Emphasis added).
It is clear from the statutory language above that the arrestee’s suspension is effective immediately upon the chemical test results finding that the arrestee’s breath contained a prohibited concentration of alcohol. Therefore contrary to Allen‘s assertions, her license suspension was effective immediately upon the alcohol concentration in her breath registering at 0.204% and thus was not dependent on the registrar receiving a sworn copy of the BMV form 2255. Moreover, the receipt of the sworn report merely operates as a record keeping function. Upon receiving the sworn report, the Registrar makes a record of the suspension already effectuated at the time of arrest.
Furthermore, to interpret the effectiveness of the ALS to be dependent on the Registrar receiving a sworn report is not only contrary to the express statutory language but would also serve to make the suspension process inefficient and impractical. If the ALS does not take effect immediately upon refusal to submit to the chemical test or upon the chemical test indicating a prohibited concentration of alcohol, then presumably a person’s driver’s license would remain effective until the Registrar processed the form. Depending on the jurisdiction, this could take a day or several days leading to a disparate result for when the ALS becomes effective. On the other hand, effectuating the suspension immediately at the time of a refusal or failure of the chemical test provides for a uniformed application of the ALS process across jurisdictional lines.