Is the 30-Day Time Limit to Appeal an ALS Discretionary?

When the OVI statutes in Ohio were initially amended many thought the administrative license suspension (ALS) appeal was required to be filed at the first appearance. But controversy arose, and thus divergent court opinions, in interpreting the legislature’s intent. This resulted from the act's language that stated, “...the person may appeal the suspension at the person's initial appearance on the charge.”

As a result of the language, many courts held that the requirement that the appeal be made at the defendant’s first appearance was discretionary, see State v. Nichols (Nov. 6, 2001), 5th Dist. Nos. 01CA7, 01CA8, and some permitted the filing of the ALS appeal after the initial appearance.

Subsequently, the legislature amended the statute permitting the filing of an ALS appeal within 30 days after the defendant’s first appearance. While the language of the statute still contained the word “may,” one Ohio district court opined this discretion is no longer available.

A Seventh Appellate Court case, State v. Derov, 2009 Ohio 4810, involved a defendant who filed her ALS appeal after the 30-day time period. The lower court denied her appeal citing the fact that the appeal was not filed timely. In her appeal the defendant argued that the language still contained the term “may” and, thus, the court had the discretion to hear her appeal outside the statutory period. The appellate court disagreed. In its opinion the court stated:

“There is no reason why the time period for this type of appeal would be treated differently from the jurisdictional time periods mandated in other appellate contexts. The use of "may" in the statute does not mean that one can file an ALS appeal at the initial appearance or within thirty days of that initial appearance or at any time the person so chooses.”

The court went on to say “‘may’ can be construed as mandatory, citing State ex rel. Smith v. Barnell, 109 Ohio St. 246, 256.

Therefore, any defendant or their attorney should be aware that many courts no longer hold that the time limit within which to file an ALS appeal is discretionary and their failure to file within the 30-day time limit could jeopardize that appeal.