Posts Tagged ‘driving privileges’

Driving Is A Right Not A Privilege

September 3rd, 2014

driving is a rightDriving Is A Right!

Have you ever been told that “driving is a privilege?” Bah! This author argues that the DUI case law needs to be expanded to include “driving” as a fundamental right under the First Amendment’s Freedom of Assembly. Thus, the analysis should be under the substantive due process analysis not simply under the procedural due process analysis. Because the human rights of freedom of movement, right to earn a living and the right to peaceably assemble are only capable of being maintained with a valid driver’s license, the Court should require a more rigorous standard before depriving someone of this basic right. The right to drive is a fundamental right that is deeply rooted in American history and tradition. Why is it important to establish driving as a fundamental right? Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. Strict scrutiny asks whether the law is justified by a compelling state interest, and whether the law is narrowly tailored to address the state interest.

I base this claim on cases decided in the United States Supreme Court.  DUI case law analysis at the United States Supreme Court provides that driving is not “just” a privilege as alleged and assumed by most Ohioans. You may have heard the expression that a driver’s license is “a privilege — not a right”, and thus there were few effective remedies available to a driver who wished to contest a suspension. The U.S. Supreme Court changed that in Bell v. Burson, 402 U.S. 535 (1971), recognizing that a license’s “continued possession may become essential in the pursuit of a livelihood”. Because of their value, then, they “are not to be taken away without that procedural due process required by the Fourteenth Amendment”. The Court premised its opinion on the Fifth and Fourteenth Amendments protections that neither the State or Federal government can deprive a person of life, liberty or property without due process of law. Without this decision it is likely that the police would confiscate your license without any recourse in or appeal. See also, Mackey v. Montrym (1979) 443 U.S. 1, involving a license suspension for refusing to submit to a DUI breath test.  But they need to go further.

To understand why driving is a right in light of DUI case law, it is important to understand how the United States Supreme Court analyzes due process issues.  “The Supreme Court has identified two distinct categories of fundamental liberties. The first category includes most of the liberties expressly enumerated in the Bill of Rights. Through a process known as “selective incorporation,” the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to bar states from denying their residents the most important freedoms guaranteed in the first ten amendments to the federal Constitution. Only the Second Amendment right to bear arms, the Third Amendment right against involuntary quartering of soldiers, and the Fifth Amendment right to be indicted by a grand jury have not been made applicable to the states. Because these rights remain inapplicable to state governments, the Supreme Court is said to have “selectively incorporated” the Bill of Rights into the Due Process Clause.

The second category of fundamental liberties includes those liberties that are not expressly enumerated in the Bill of Rights but which are nonetheless deemed essential to the concepts of freedom and equality in a democratic society. These unenumerated liberties are derived from Supreme Court precedents, common law, moral philosophy, and deeply rooted traditions of U.S. Legal History. The word liberty cannot be defined by a definitive list of rights, the Supreme Court has stressed. Instead, it must be viewed as a rational continuum of freedom through which every facet of human behavior is safeguarded from Arbitrary impositions and purposeless restraints. In this light, the Supreme Court has observed, the Due Process Clause protects abstract liberty interests, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination. Id.  Let’s get driving, freedom of movement and freedom of assembly to be included as a fundamental liberty.

Attorney Charles M. Rowland II believes that driving is a right and dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

To help make sure driving is a right call me or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

Ohio BMV License Suspension

March 20th, 2014

BMV License SuspensionThe most common reasons that a person will have a driver’s license suspension by the Ohio Bureau of Motor Vehicles include:

  • Accumulating 12 “points” for traffic violations
  • Driving Without Insurance
  • Operating a Vehicle Impaired (testing over .08 or refusing to test)
  • Drug Offenses
  • Out-of-State DUI/OVI or drug related offenses

If you would like an unofficial copy of your driving record or more information on your type of license suspension or reinstatement, you can visit the BMV web site by clicking HERE.

You should not ignore a notice of suspension because it does not go away unless and until you pay the required reinstatement fees to the Ohio Bureau of Motor Vehicles. You can appeal your BMV suspension by filing a proper petition with your local municipal court which is also empowered to give you driving privileges during the pendency of your license suspension.   The only exception exists if your license is suspended due to a failure to pay child support.  In such cases, petitions for driving privileges will be handled by the county’s Domestic Relations/Family Court.  Once you submit the appropriate paperwork and pay your filing fee, your appeal will be assigned to a Judge. At this time, you can also present a driving permit to the Court for consideration by a Judge. You can request driving privileges for work, educational or medical reasons.

The court will also allow you t set up a payment plan should you not be able to pay off your reinstatement fee in a lump sum.  The Ohio BMV will offer a driver’s license reinstatement fee installment plan to those individuals who have met all their reinstatement requirements except for paying reinstatement fees. The plan will allow individuals owing $150 or more in reinstatement fee to become valid or eligible to retest for a driver license by paying only $50.00 or more every 30 days for as long as it takes to pay their reinstatement fees.

The license suspension appeal process can vary from court to court.  It is often a very good investment to have an Ohio traffic attorney help you through this process.  The attorney will be familiar with the court’s appeal process and the required paperwork.  You should be able to get guidance as to how to get the maximum number of hours allowed by the court.  Often, people will need to address travel needs or have to deal with a work schedule that changes every week.  Again, a good attorney can deal with these issues.  They can also help avoid trouble by filing and re-filing should your circumstances change. It is also important to consider that driving without a valid permit could result in a criminal charge of Driving Under Suspension, a first degree misdemeanor punishable by a $1,000 fine and the possibility of 180 days in jail.

OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio and protecting you.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

Ohio BMV license suspension information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Limited Driving Privileges Under Ohio Revised Code 4510.021

December 26th, 2013

limited driving privilegesQ. Can I get limited driving privileges during the pendency of my OVI case?

A court may grant limited driving privileges to a person who has had their license suspended pursuant to a pending OVI.  The Ohio Revised Code, 4510.021 limits driving to the following purposes: (1) Occupational, educational, vocational, or medical purposes; (2) Taking the driver’s or commercial driver’s license examination; and (3) Attending court-ordered treatment.  A court is granted broad discretion to impose restrictions so long as the restrictions are reasonable.  While most courts will not impose an ignition interlock devise or restricted “party” plates on a first offense OVI, the statute specifically grants them discretion to do so.  The statute also does not grant a right or requirement that the court grant limited driving privileges.  Some courts make obtaining privileges easy and some courts do not grant privileges prior to a plea.  Hiring an attorney who is familiar with the particular requirements for limited driving privileges will save you time and frustration during the pendency of your OVI case.

Q. When will I get limited driving privileges?

A court may not grant driving limited driving privileges for a certain period of time following the imposition of an ALS. O.R.C. 4510.13(A).  The amount of time between the imposition of the ALS suspension and the time you are eligible for limited driving privileges is called “hard time.”  How long the hard time lasts depends upon whether the person has any prior offenses and whether or not the person took the test or refused the test.

First Offense Midemeanor OVI Failed Chemical Test R.C. 4511.191(C): Occupational driving privileges cannot be granted during the following periods in test cases:

  • First 15 days of suspension on a first offense
  • First 30 days of suspension on a person who had a prior OVI or refusal within 6 years.
  • First 180 days for a person who has had 2 prior OVI/refusals within 6 years.
  • First 3 years of suspension on a person who had 3 or more previous OVI/refusals within 6 years

First Offense Misdemeanor OVI Refusal R.C. 4511.19(B): Occupational driving privileges cannot be granted during the following periods in refusal cases:

  • First 30 days of suspension on a first offense.
  • First 90 days of suspension on a person who had a previous refusal within 6 years.
  • First year of suspension on a person who had 2 previous refusals within 6 years.
  • First 3 years of suspension on a person who had 3 previous refusals within 6 years.
  • A person, who within the preceding 7 years, has been convicted of or pleaded guilty to 3 or more OVI violations cannot be granted limited privileges.

Q. Is there a way to avoid the ALS suspension and limited driving privileges?

One of the first conversations you should have with your OVI lawyer will involve wether or not grounds exist for an appeal of the ALS.  You will discuss the limited circumstances under which an Administrative License Suspension can be challenged.  The court must hold the administrative license suspension hearing within five days of arrest.  You only have 30 days from your arraignment to file an appeal of the Administrative License Suspension. The scope of appeal is confined to four issues:

 1. Was your arrest based on reasonable grounds? 

2. Did the officer request that you to take a test? 

3. Were you made aware of the consequences if you refused or failed the test? 

4. Did you refuse or fail the test?

Much confusion is caused by the fact that the Administrative License Suspension is a pre-trial suspension generated by the Ohio Bureau of Motor Vehicles.  The warnings given by the arresting officer are misleading.  Often a client will come to our office under the misimpression that the worst case scenario will be a 90 day suspension.  If our client refused a chemical test, they believe they are condemned to a one year suspension.  This is not usually the case.  Upon a plea to a reduced charge (such as Reckless Operation) or to an OVI,  the Administrative License Suspension will be terminated and the court will impose its own suspension.   The minimum mandatory suspension for a first OVI offense is six months.  This will horrify the person who believed that they were facing 90 days, but a welcome relief to people who thought they were going to have a one year suspension. Limited driving privileges will be available during the pendency of the court-imposed suspension.  Again, be sure to ask your OVI attorney how your court typically handles ALS terminations and limited driving privileges.

OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

Ohio Limited Driving Privileges information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Petition for ALS Driving Privileges in the Vandalia Municipal Court

November 14th, 2013

Q. How can I obtain ALS driving privileges in the Vandalia Municipal Court?ALS Driving Privileges in the Vandalia Municipal Court

If you are stopped for an OVI, DUI or drunk driving and you refuse to take a chemical test (breathblood or urine), or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC), the police officer can and will take your driver’s license on the spot causing your drivers license to be suspended immediately.  This pre-conviction suspension is called the ADMINISTRATIVE LICENSE SUSPENSION. The ALS is a suspension imposed by the Ohio Bureau of Motor Vehicles and not a suspension imposed by the court.  A court may not grant ALS driving privileges for a certain period of time following the imposition of an ALS. O.R.C. 4510.13(A).  The amount of time between the imposition of the ALS suspension and the time you are eligible for limited ALS driving privileges is called “hard time.”  How long the hard time lasts depends upon whether the person has any prior offenses and whether or not the person took the test or refused the test.

If your misdemeanor OVI arrest took place within the jurisdiction of the Vandalia Municipal Court, you can download a petition for ALS driving privileges HERE.

A court may not grant ALS driving privileges for a certain period of time following the imposition of an ALS. O.R.C. 4510.13(A).  The amount of time between the imposition of the ALS suspension and the time you are eligible for limited ALS driving privileges is called “hard time.”  How long the hard time lasts depends upon whether the person has any prior offenses and whether or not the person took the test or refused the test.

First Offense Midemeanor OVI Failed Chemical Test R.C. 4511.191(C): Occupational driving privileges cannot be granted during the following periods in test cases:

  • First 15 days of suspension on a first offense
  • First 30 days of suspension on a person who had a prior OVI or refusal within 6 years.
  • First 180 days for a person who has had 2 prior OVI/refusals within 6 years.
  • First 3 years of suspension on a person who had 3 or more previous OVI/refusals within 6 years

First Offense Misdemeanor OVI Refusal R.C. 4511.19(B): Occupational driving privileges cannot be granted during the following periods in refusal cases:

  • First 30 days of suspension on a first offense.
  • First 90 days of suspension on a person who had a previous refusal within 6 years.
  • First year of suspension on a person who had 2 previous refusals within 6 years.
  • First 3 years of suspension on a person who had 3 previous refusals within 6 years.
  • A person, who within the preceding 7 years, has been convicted of or pleaded guilty to 3 or more OVI violations cannot be granted limited privileges.

One of the first conversations you should have with your OVI lawyer will involve wether or not grounds exist for an appeal of the ALS.  You will discuss the limited circumstances under which an Administrative License Suspension can be challenged.  The court must hold the administrative license suspension hearing within five days of arrest.  You only have 30 days from your arraignment to file an appeal of the Administrative License Suspension. The scope of appeal is confined to four issues:

 1. Was your arrest based on reasonable grounds? 

2. Did the officer request that you to take a test? 

3. Were you made aware of the consequences if you refused or failed the test? 

4. Did you refuse or fail the test?

Charles M. Rowland II is familiar with the case law relevant to determining if an ALS appeal would be beneficial in your case.  He will check to see if the 2255 form (the yellow piece of paper you were given) was notorized.  The BMV must receive a notarized sworn copy of the 2255.  If the form is not executed as required by law, then he can bring that to the court’s attention and request that the ALS be terminated or stayed.  It is important to discuss whether or not you were able to produce the requested sample.  If you have a verifiable medical condition the Administrative License Suspension may not be plausible in your case.  No matter what the circumstances, Charles M. Rowland II will help secure you limited ALS driving privileges for work or for school after the HARD TIME has passed.

If you need to obtain ALS driving privileges, contact Charles M. Rowland immediately! OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 ALS driving privileges and other  information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

How Do I Obtain Driving Privileges In The Xenia Municipal Court?

November 7th, 2013

driving privileges in the Xenia Municipal CourtQ. How do I obtain driving privileges in the Xenia Municipal Court?

Obtaining driving privileges in the Xenia Municipal Court is available via an online petition available HERE via the Xenia Municipal Court website.  The Clerks have been instructed by Judge Michael K. Murry to reject applications for driving privileges in the Xenia Municipal Court unless the requests comply with the following requirements:

  1. The request must be completely legible.
  2. The request must be completely legible.
  3. The name, address, and telephone number of the applicant’s supervisor is evident on the application.

If the applicant is requesting driving privileges during working hours, then an explanation of why the applicant needs to have driving privileges during the workday is necessary (i.e., deliver pizzas, make sales calls etc.)  To obtain driving privileges in the Xenia Municipal Court, make your request specific. The applicant must explain where he or she needs to travel, the reason he or she needs to travel to that location, and the specific time of travel.  If the request is complicated, and especially if the request involves different travel requests for different days, then it is recommended that the applicant include a daily schedule on the back of the application. The daily schedule should include the days, hours, and destinations where the applicant would be driving should the Court grant privileges. A written explanation for the schedule should be on the front of the application.

If you are granted driving privileges in the Xenia Municipal Court, you will receive no more than 50 hours per week and no more than 5 days per week will be granted.  Proof of insurance must be included with the application.  Charles M. Rowland II and the staff at DaytonDUI will be available to assist you in preparing the application for driving privileges in the Xenia Municipal Court.  Our goal is to help you get your life back to normal and often, that means getting you driving privileges as soon as possible.  To begin the process of obtaining driving privileges in the Xenia Municipal Court, click here for a printable version of the on-line petition.

OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find information on obtaining driving privileges in the Xenia Municipal Court and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville