4511.197 Appeal of implied consent suspension.

(A) If a person is arrested for operating a vehicle, streetcar, or trackless trolley in violation of division (A) or (B) of section 4511.19 of the Revised Code or a municipal OVI ordinance or for being in physical control of a vehicle, streetcar, or trackless trolley in violation of section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance and if the person's driver's or commercial driver's license or permit or nonresident operating privilege is suspended under sections 4511.191 and 4511.192 of the Revised Code, the person may appeal the suspension at the person's initial appearance on the charge resulting from the arrest or within the period ending thirty days after the person's initial appearance on that charge, in the court in which the person will appear on that charge. If the person appeals the suspension, the appeal itself does not stay the operation of the suspension. If the person appeals the suspension, either the person or the registrar of motor vehicles may request a continuance of the appeal, and the court may grant the continuance. The court also may continue the appeal on its own motion. Neither the request for, nor the granting of, a continuance stays the suspension that is the subject of the appeal, unless the court specifically grants a stay.

(B) A person shall file an appeal under division (A) of this section in the municipal court, county court, juvenile court, mayor's court, or court of common pleas that has jurisdiction over the charge in relation to which the person was arrested.

(C) If a person appeals a suspension under division (A) of this section, the scope of the appeal is limited to determining whether one or more of the following conditions have not been met:

(1) Whether the arresting law enforcement officer had reasonable ground to believe the arrested person was operating a vehicle, streetcar, or trackless trolley in violation of division (A) or (B) of section 4511.19 of the Revised Code or a municipal OVI ordinance or was in physical control of a vehicle, streetcar, or trackless trolley in violation of section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance and whether the arrested person was in fact placed under arrest;

(2) Whether the law enforcement officer requested the arrested person to submit to the chemical test or tests designated pursuant to division (A) of section 4511.191 of the Revised Code;

(3) If the person was under arrest as described in division (A)(5) of section 4511.191 of the Revised Code, whether the arresting officer advised the person at the time of the arrest that if the person refused to take a chemical test, the officer could employ whatever reasonable means were necessary to ensure that the person submitted to a chemical test of the person's whole blood or blood serum or plasma; or if the person was under arrest other than as described in division (A)(5) of section 4511.191 of the Revised Code, whether the arresting officer informed the arrested person of the consequences of refusing to be tested or of submitting to the test or tests;

(4) Whichever of the following is applicable:

(a) If the suspension was imposed under division (B) of section 4511.191 and section 4511.192 of the Revised Code, whether the arrested person refused to submit to the chemical test or tests requested by the officer;

(b) If the suspension was imposed under division (C) of section 4511.191 and section 4511.192 of the Revised Code, whether the arrest was for a violation of division (A) or (B) of section 4511.19 of the Revised Code or a municipal OVI ordinance and, if it was, whether the chemical test results indicate that at the time of the alleged offense the arrested person's whole blood , blood serum or plasma , breath , or urine contained at least the concentration of alcohol specified in division (A)(1)(b), (c), (d), or (e) of section 4511.19 of the Revised Code or at least the concentration of a listed controlled substance or a listed metabolite of a controlled substance specified in division (A)(1)(j) of section 4511.19 of the Revised Code.

(D) A person who appeals a suspension under division (A) of this section has the burden of proving, by a preponderance of the evidence, that one or more of the conditions specified in division (C) of this section has not been met. If, during the appeal, the judge or magistrate of the court or the mayor of the mayor's court determines that all of those conditions have been met, the judge, magistrate, or mayor shall uphold the suspension, continue the suspension, and notify the registrar of motor vehicles of the decision on a form approved by the registrar.

Except as otherwise provided in this section, if a suspension imposed under section 4511.191 of the Revised Code is upheld on appeal or if the subject person does not appeal the suspension under division (A) of this section, the suspension shall continue until the complaint alleging the violation for which the person was arrested and in relation to which the suspension was imposed is adjudicated on the merits or terminated pursuant to law. If the suspension was imposed under division (B)(1) of section 4511.191 of the Revised Code and it is continued under this section, any 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 section 4511.191 of the Revised Code does not terminate or otherwise affect the suspension. If the suspension was imposed under division (C) of section 4511.191 of the Revised Code in relation to an alleged misdemeanor violation of division (A) or (B) of section 4511.19 of the Revised Code or of a municipal OVI ordinance and it is continued under this section, the suspension shall terminate if, for any reason, the person subsequently is found not guilty of the charge that resulted in the person taking the chemical test or tests.

If, during the appeal, the judge or magistrate of the trial court or the mayor of the mayor's court determines that one or more of the conditions specified in division (C) of this section have not been met, the judge, magistrate, or mayor shall terminate the suspension, subject to the imposition of a new suspension under division (B) of section 4511.196 of the Revised Code; shall notify the registrar of motor vehicles of the decision on a form approved by the registrar; and, except as provided in division (B) of section 4511.196 of the Revised Code, shall order the registrar to return the driver's or commercial driver's license or permit to the person or to take any other measures that may be necessary, if the license or permit was destroyed under section 4510.53 of the Revised Code, to permit the person to obtain a replacement driver's or commercial driver's license or permit from the registrar or a deputy registrar in accordance with that section. The court also shall issue to the person a court order, valid for not more than ten days from the date of issuance, granting the person operating privileges for that period.

(E) Any person whose driver's or commercial driver's license or permit or nonresident operating privilege has been suspended pursuant to section 4511.191 of the Revised Code may file a petition requesting limited driving privileges in the common pleas court, municipal court, county court, mayor's court, or juvenile court with jurisdiction over the related criminal or delinquency case. The petition may be filed at any time subsequent to the date on which the arresting law enforcement officer serves the notice of suspension upon the arrested person but no later than thirty days after the arrested person's initial appearance or arraignment. Upon the making of the request, limited driving privileges may be granted under sections 4510.021 and 4510.13 of the Revised Code, regardless of whether the person appeals the suspension under this section or appeals the decision of the court on the appeal, and, if the person has so appealed the suspension or decision, regardless of whether the matter has been heard or decided by the court. The person shall pay the costs of the proceeding, notify the registrar of the filing of the petition, and send the registrar a copy of the petition.

The court may not grant the person limited driving privileges when prohibited by section 4510.13 or 4511.191 of the Revised Code.

(F) Any person whose driver's or commercial driver's license or permit has been suspended under section 4511.19 of the Revised Code or under section 4510.07 of the Revised Code for a conviction of a municipal OVI offense and who desires to retain the license or permit during the pendency of an appeal, at the time sentence is pronounced, shall notify the court of record or mayor's court that suspended the license or permit of the person's intention to appeal. If the person so notifies the court, the court, mayor, or clerk of the court shall retain the license or permit until the appeal is perfected, and, if execution of sentence is stayed, the license or permit shall be returned to the person to be held by the person during the pendency of the appeal. If the appeal is not perfected or is dismissed or terminated in an affirmance of the conviction, then the license or permit shall be taken up by the court, mayor, or clerk, at the time of putting the sentence into execution, and the court shall proceed in the same manner as if no appeal was taken.

(G) Except as otherwise provided in this division, if a person whose driver's or commercial driver's license or permit or nonresident operating privilege was suspended under section 4511.191 of the Revised Code appeals the suspension under division (A) of this section, the prosecuting attorney of the county in which the arrest occurred shall represent the registrar of motor vehicles in the appeal. If the arrest occurred within a municipal corporation within the jurisdiction of the court in which the appeal is conducted, the city director of law, village solicitor, or other chief legal officer of that municipal corporation shall represent the registrar. If the appeal is conducted in a municipal court, the registrar shall be represented as provided in section 1901.34 of the Revised Code. If the appeal is conducted in a mayor's court, the city director of law, village solicitor, or other chief legal officer of the municipal corporation that operates that mayor's court shall represent the registrar.

(H) The court shall give information in writing of any action taken under this section to the registrar of motor vehicles.

(I) When it finally has been determined under the procedures of this section that a nonresident's privilege to operate a vehicle within this state has been suspended, the registrar of motor vehicles shall give information in writing of the action taken to the motor vehicle administrator of the state of the nonresident's residence and of any state in which the nonresident has a license.

Effective Date: 01-01-2004; 09-23-2004; 2008 HB215 04-07-2009