As Introduced                            1            

123rd General Assembly                                             4            

   Regular Session                                H. B. No. 202    5            

      1999-2000                                                    6            


       REPRESENTATIVES WINKLER-ALLEN-BRADING-FORD-HAINES-          8            

       MOTTLEY-O'BRIEN-PADGETT-PRINGLE-SULZER-TERWILLEGER-         10           

                     TIBERI-VAN VYVEN-YOUNG                                     


_________________________________________________________________   11           

                          A   B I L L                                           

             To amend sections 2913.01, 2913.02, 2913.42,          13           

                2913.51, 2925.01, and 2951.041 of the Revised      14           

                Code to expand the offense of tampering with       15           

                records to also prohibit tampering with any                     

                package or receptacle containing dangerous drugs   16           

                or the contents of any such package or             17           

                receptacle, to prohibit treatment in lieu of                    

                conviction for a person charged with violating     18           

                the new prohibition, to rename the offense as      19           

                "tampering with records or drugs," and to                       

                increase the penalty for tampering with records    20           

                or drugs when it involves records required to be   21           

                kept under the drug laws.                                       




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        23           

      Section 1.  That sections 2913.01, 2913.02, 2913.42,         25           

2913.51, 2925.01, and 2951.041 of the Revised Code be amended to   26           

read as follows:                                                   27           

      Sec. 2913.01.  As used in this chapter, unless the context   36           

requires that a term be given a different meaning:                 37           

      (A)  "Deception" means knowingly deceiving another or        39           

causing another to be deceived by any false or misleading          40           

representation, by withholding information, by preventing another  41           

from acquiring information, or by any other conduct, act, or       42           

omission that creates, confirms, or perpetuates a false            43           

                                                          2      


                                                                 
impression in another, including a false impression as to law,     44           

value, state of mind, or other objective or subjective fact.       45           

      (B)  "Defraud" means to knowingly obtain, by deception,      47           

some benefit for oneself or another, or to knowingly cause, by     48           

deception, some detriment to another.                              49           

      (C)  "Deprive" means to do any of the following:             51           

      (1)  Withhold property of another permanently, or for a      53           

period that appropriates a substantial portion of its value or     54           

use, or with purpose to restore it only upon payment of a reward   55           

or other consideration;                                            56           

      (2)  Dispose of property so as to make it unlikely that the  58           

owner will recover it;                                             59           

      (3)  Accept, use, or appropriate money, property, or         61           

services, with purpose not to give proper consideration in return  62           

for the money, property, or services, and without reasonable       63           

justification or excuse for not giving proper consideration.       64           

      (D)  "Owner" means, unless the context requires a different  66           

meaning, any person, other than the actor, who is the owner of,    68           

who has possession or control of, or who has any license or        70           

interest in property or services, even though the ownership,                    

possession, control, license, or interest is unlawful.             71           

      (E)  "Services" include labor, personal services,            73           

professional services, public utility services, common carrier     74           

services, and food, drink, transportation, entertainment, and      75           

cable television services.                                         76           

      (F)  "Writing" means any computer software, document,        78           

letter, memorandum, note, paper, plate, data, film, or other       79           

thing having in or upon it any written, typewritten, or printed    80           

matter, and any token, stamp, seal, credit card, badge,            82           

trademark, label, or other symbol of value, right, privilege,      83           

license, or identification.                                                     

      (G)  "Forge" means to fabricate or create, in whole or in    85           

part and by any means, any spurious writing, or to make, execute,  86           

alter, complete, reproduce, or otherwise purport to authenticate   87           

                                                          3      


                                                                 
any writing, when the writing in fact is not authenticated by      88           

that conduct.                                                      89           

      (H)  "Utter" means to issue, publish, transfer, use, put or  91           

send into circulation, deliver, or display.                        92           

      (I)  "Coin machine" means any mechanical or electronic       94           

device designed to do both of the following:                       95           

      (1)  Receive a coin, bill, or token made for that purpose;   97           

      (2)  In return for the insertion or deposit of a coin,       99           

bill, or token, automatically dispense property, provide a         100          

service, or grant a license.                                       101          

      (J)  "Slug" means an object that, by virtue of its size,     103          

shape, composition, or other quality, is capable of being          104          

inserted or deposited in a coin machine as an improper substitute  105          

for a genuine coin, bill, or token made for that purpose.          106          

      (K)  "Theft offense" means any of the following:             108          

      (1)  A violation of section 2911.01, 2911.02, 2911.11,       110          

2911.12, 2911.13, 2911.31, 2911.32, 2913.02, 2913.03, 2913.04,     111          

2913.041, 2913.05, 2913.06, 2913.11, 2913.21, 2913.31, 2913.32,    113          

2913.33, 2913.34, 2913.40, 2913.42, 2913.43, 2913.44, 2913.45,     115          

2913.47, former section 2913.47 or 2913.48, or section 2913.51,    116          

2915.05, or 2921.41 of the Revised Code;                           117          

      (2)  A violation of an existing or former municipal          119          

ordinance or law of this or any other state, or of the United      120          

States, substantially equivalent to any section listed in          121          

division (K)(1) of this section or a violation of section          122          

2913.41, 2913.81, or 2915.06 of the Revised Code as it existed     123          

prior to July 1, 1996;                                                          

      (3)  An offense under an existing or former municipal        125          

ordinance or law of this or any other state, or of the United      126          

States, involving robbery, burglary, breaking and entering,        127          

theft, embezzlement, wrongful conversion, forgery,                 128          

counterfeiting, deceit, or fraud;                                  129          

      (4)  A conspiracy or attempt to commit, or complicity in     131          

committing, any offense under division (K)(1), (2), or (3) of      132          

                                                          4      


                                                                 
this section.                                                      133          

      (L)  "Computer services" includes, but is not limited to,    135          

the use of a computer system, computer network, computer program,  136          

data that is prepared for computer use, or data that is contained  137          

within a computer system or computer network.                      138          

      (M)  "Computer" means an electronic device that performs     140          

logical, arithmetic, and memory functions by the manipulation of   141          

electronic or magnetic impulses.  "Computer" includes, but is not  142          

limited to, all input, output, processing, storage, computer       143          

program, or communication facilities that are connected, or        144          

related, in a computer system or network to an electronic device   146          

of that nature.                                                                 

      (N)  "Computer system" means a computer and related          148          

devices, whether connected or unconnected, including, but not      149          

limited to, data input, output, and storage devices, data          150          

communications links, and computer programs and data that make     151          

the system capable of performing specified special purpose data    152          

processing tasks.                                                  153          

      (O)  "Computer network" means a set of related and remotely  155          

connected computers and communication facilities that includes     156          

more than one computer system that has the capability to transmit  157          

among the connected computers and communication facilities         158          

through the use of computer facilities.                            159          

      (P)  "Computer program" means an ordered set of data         161          

representing coded instructions or statements that, when executed  162          

by a computer, cause the computer to process data.                 163          

      (Q)  "Computer software" means computer programs,            165          

procedures, and other documentation associated with the operation  166          

of a computer system.                                              167          

      (R)  "Data" means a representation of information,           169          

knowledge, facts, concepts, or instructions that are being or      170          

have been prepared in a formalized manner and that are intended    171          

for use in a computer, computer system, or computer network.  For  173          

purposes of section 2913.47 of the Revised Code, "data" has the    175          

                                                          5      


                                                                 
additional meaning set forth in division (A) of that section.      176          

      (S)  "Cable television service" means any services provided  178          

by or through the facilities of any cable television system or     179          

other similar closed-circuit coaxial cable communications system,  180          

or any microwave or similar transmission service used in           181          

connection with any cable television system or other similar       182          

closed-circuit coaxial cable communications system.                183          

      (T)  "Gain access" means to approach, instruct, communicate  185          

with, store data in, retrieve data from, or otherwise make use of  186          

any resources of a computer, computer system, or computer          187          

network.                                                           188          

      (U)  "Credit card" includes, but is not limited to, a card,  190          

code, device, or other means of access to a customer's account     191          

for the purpose of obtaining money, property, labor, or services   192          

on credit, or for initiating an electronic fund transfer at a      193          

point-of-sale terminal, an automated teller machine, or a cash     194          

dispensing machine.                                                195          

      (V)  "Electronic fund transfer" has the same meaning as in   197          

92 Stat. 3728, 15 U.S.C.A. 1693a, as amended.                      198          

      (W)  "Rented property" means personal property in which the  200          

right of possession and use of the property is for a short and     201          

possibly indeterminate term in return for consideration; the       202          

rentee generally controls the duration of possession of the        203          

property, within any applicable minimum or maximum term; and the   204          

amount of consideration generally is determined by the duration    205          

of possession of the property.                                                  

      (X)  "Telecommunication" means the origination, emission,    208          

dissemination, transmission, or reception of data, images,                      

signals, sounds, or other intelligence or equivalence of           209          

intelligence of any nature over any communications system by any   210          

method, including, but not limited to, a fiber optic, electronic,  211          

magnetic, optical, digital, or analog method.                      212          

      (Y)  "Telecommunications device" means any instrument,       215          

equipment, machine, or other device that facilitates               216          

                                                          6      


                                                                 
telecommunication, including, but not limited to, a computer,      217          

computer network, computer chip, computer circuit, scanner,        218          

telephone, cellular telephone, pager, personal communications      219          

device, transponder, receiver, radio, modem, or device that        220          

enables the use of a modem.                                                     

      (Z)  "Telecommunications service" means the providing,       223          

allowing, facilitating, or generating of any form of               224          

telecommunication through the use of a telecommunications device   225          

over a telecommunications system.                                               

      (AA)  "Counterfeit telecommunications device" means a        228          

telecommunications device that, alone or with another              229          

telecommunications device, has been altered, constructed,          230          

manufactured, or programmed to acquire, intercept, receive, or                  

otherwise facilitate the use of a telecommunications service or    231          

information service without the authority or consent of the        233          

provider of the telecommunications service or information          234          

service.  "Counterfeit telecommunications device" includes, but    235          

is not limited to, a clone telephone, clone microchip, tumbler     236          

telephone, or tumbler microchip; a wireless scanning device        237          

capable of acquiring, intercepting, receiving, or otherwise        238          

facilitating the use of telecommunications service or information  239          

service without immediate detection; or a device, equipment,       240          

hardware, or software designed for, or capable of, altering or     241          

changing the electronic serial number in a wireless telephone.     242          

      (BB)(1)  "Information service" means, subject to division    245          

(BB)(2) of this section, the offering of a capability for          247          

generating, acquiring, storing, transforming, processing,          248          

retrieving, utilizing, or making available information via         249          

telecommunications, including, but not limited to, electronic      250          

publishing.                                                                     

      (2)  "Information service" does not include any use of a     252          

capability of a type described in division (BB)(1) of this         254          

section for the management, control, or operation of a             255          

telecommunications system or the management of a                   256          

                                                          7      


                                                                 
telecommunications service.                                                     

      (CC)  "DANGEROUS DRUG" AND "PRESCRIBER" HAVE THE SAME        259          

MEANINGS AS IN SECTION 4729.01 OF THE REVISED CODE.                261          

      (DD)  "TAMPER" MEANS TO CHANGE, SUBSTITUTE, OR ALTER, BY OR  264          

THROUGH DECEPTION, WHEN THE CHANGE, SUBSTITUTION, OR ALTERATION    265          

IS NOT DONE PURSUANT TO A VALID ORDER OF A LICENSED PRESCRIBER IN  266          

THE NORMAL COURSE OF PROFESSIONAL PRACTICE.                        267          

      Sec. 2913.02.  (A)  No person, with purpose to deprive the   276          

owner of property or services, shall knowingly obtain or exert     277          

control over either the property or services in any of the         278          

following ways:                                                    279          

      (1)  Without the consent of the owner or person authorized   281          

to give consent;                                                   282          

      (2)  Beyond the scope of the express or implied consent of   284          

the owner or person authorized to give consent;                    285          

      (3)  By deception;                                           287          

      (4)  By threat.                                              289          

      (B)  Whoever violates this section is guilty of theft.       291          

Except as otherwise provided in this division, a violation of      292          

this section is petty theft, a misdemeanor of the first degree.    293          

If the value of the property or services stolen is five hundred    294          

dollars or more and is less than five thousand dollars or if the   295          

property stolen is any of the property listed in section 2913.71   296          

of the Revised Code, a violation of this section is theft, a       297          

felony of the fifth degree.  If the value of the property or       298          

services stolen is five thousand dollars or more and is less than  299          

one hundred thousand dollars or if the property stolen is a        300          

firearm or dangerous ordnance, as defined in section 2923.11 of    301          

the Revised Code, a violation of this section is grand theft, a    302          

felony of the fourth degree.  If the property stolen is a motor    303          

vehicle, as defined in section 4501.01 of the Revised Code, a                   

violation of this section is grand theft of a motor vehicle, a     304          

felony of the fourth degree.  If the value of the property or      305          

services stolen is one hundred thousand dollars or more, a         306          

                                                          8      


                                                                 
violation of this section is aggravated theft, a felony of the     307          

third degree.  If the property stolen is any dangerous drug, as    308          

defined in section 4729.01 of the Revised Code, a violation of     310          

this section is theft of drugs, a felony of the fourth degree,     311          

or, if the offender previously has been convicted of a felony      312          

drug abuse offense, as defined in section 2925.01 of the Revised   313          

Code, a felony of the third degree.                                314          

      Sec. 2913.42.  (A)  No person, knowing the person has no     323          

WITHOUT privilege to do so, and with purpose to defraud or         325          

knowing that the person is facilitating a fraud, shall do any of   326          

the following:                                                                  

      (1)  Falsify, destroy, remove, conceal, alter, deface, or    328          

mutilate any writing, computer software, data, or record;          330          

      (2)  Utter any writing or record, knowing it to have been    332          

tampered with as provided in division (A)(1) of this section;      333          

      (3)  TAMPER WITH ANY PACKAGE OR RECEPTACLE CONTAINING ANY    335          

DANGEROUS DRUG OR WITH THE CONTENTS OF ANY PACKAGE OR RECEPTACLE   337          

CONTAINING ANY DANGEROUS DRUG.                                                  

      (B)(1)  Whoever violates this section is guilty of           339          

tampering with records OR DRUGS.                                   340          

      (2)  Except as provided in division (B)(4) of this section,  343          

if the offense does not involve data or computer software,         344          

tampering with records OR DRUGS is whichever of the following is   345          

applicable:                                                                     

      (a)  If division (B)(2)(b) OR (c) of this section does not   347          

apply, a misdemeanor of the first degree;                          349          

      (b)  If the OFFENSE INVOLVES A writing or record THAT is a   351          

will unrevoked at the time of the offense OR THAT IS A RECORD      354          

REQUIRED TO BE KEPT BY CHAPTER 3719. OR 4729. OF THE REVISED       356          

CODE, a felony of the fifth degree;                                             

      (c)  IF THE OFFENSE INVOLVES A PACKAGE OR RECEPTACLE         359          

CONTAINING DANGEROUS DRUGS OR INVOLVES THE CONTENTS OF A PACKAGE   360          

OR RECEPTACLE CONTAINING DANGEROUS DRUGS, A FELONY OF THE SECOND   361          

DEGREE.                                                                         

                                                          9      


                                                                 
      (3)  Except as provided in division (B)(4) of this section,  364          

if the offense involves a violation of division (A) of this        365          

section involving data or computer software, tampering with                     

records is whichever of the following is applicable:               367          

      (a)  Except as otherwise provided in division (B)(3)(b),     369          

(c), or (d) of this section, a misdemeanor of the first degree;    370          

      (b)  If THE DATA INVOLVES RECORDS REQUIRED TO BE KEPT BY     373          

CHAPTER 3719. OR 4729. OF THE REVISED CODE AND DIVISION (B)(3)(c)  375          

OR (d) OF THIS SECTION DOES NOT APPLY OR IF the value of the data  377          

or computer software involved in the offense or the loss to the    379          

victim is five hundred dollars or more and is less than five       380          

thousand dollars, a felony of the fifth degree;                                 

      (c)  If the value of the data or computer software involved  382          

in the offense or the loss to the victim is five thousand dollars  384          

or more and is less than one hundred thousand dollars, a felony    385          

of the fourth degree;                                                           

      (d)  If the value of the data or computer software involved  387          

in the offense or the loss to the victim is one hundred thousand   389          

dollars or more or if the offense is committed for the purpose of  390          

devising or executing a scheme to defraud or to obtain property    391          

or services and the value of the property or services or the loss  392          

to the victim is five thousand dollars or more, a felony of the    394          

third degree.                                                                   

      (4)  If the writing, data, computer software, or record is   397          

kept by or belongs to a local, state, or federal governmental                   

entity, a felony of the third degree.                              398          

      Sec. 2913.51.  (A)  No person shall receive, retain, or      407          

dispose of property of another knowing or having reasonable cause  409          

to believe that the property has been obtained through commission  410          

of a theft offense.                                                             

      (B)  Whoever violates this section is guilty of receiving    412          

stolen property.  Except as otherwise provided in this division,   414          

receiving stolen property is a misdemeanor of the first degree.    415          

If the value of the property involved is five hundred dollars or   416          

                                                          10     


                                                                 
more and is less than five thousand dollars, if the property       417          

involved is any of the property listed in section 2913.71 of the   418          

Revised Code, receiving stolen property is a felony of the fifth   419          

degree.  If the property involved is a motor vehicle, as defined   420          

in section 4501.01 of the Revised Code, if the property involved   421          

is a dangerous drug, as defined in section 4729.01 of the Revised  422          

Code, if the value of the property involved is five thousand       424          

dollars or more and is less than one hundred thousand dollars, or  425          

if the property involved is a firearm or dangerous ordnance, as    426          

defined in section 2923.11 of the Revised Code, receiving stolen   427          

property is a felony of the fourth degree.  If the value of the    428          

property involved is one hundred thousand dollars or more,                      

receiving stolen property is a felony of the third degree.         430          

      Sec. 2925.01.  As used in this chapter:                      439          

      (A)  "Administer," "controlled substance," "dispense,"       441          

"distribute," "hypodermic," "manufacturer," "official written      443          

order," "person," "pharmacist," "pharmacy," "sale," "schedule I,"  445          

"schedule II," "schedule III," "schedule IV," "schedule V," and    446          

"wholesaler" have the same meanings as in section 3719.01 of the   447          

Revised Code.                                                                   

      (B)  "Drug dependent person" and "drug of abuse" have the    449          

same meanings as in section 3719.011 of the Revised Code.          450          

      (C)  "Drug," "dangerous drug," "licensed health              452          

professional authorized to prescribe drugs," and "prescription"    454          

have the same meanings as in section 4729.01 of the Revised Code.  455          

      (D)  "Bulk amount" of a controlled substance means any of    457          

the following:                                                     458          

      (1)  For any compound, mixture, preparation, or substance    460          

included in schedule I, schedule II, or schedule III, with the     462          

exception of marihuana, cocaine, L.S.D., heroin, and hashish and                

except as provided in division (D)(2) or (5) of this section,      464          

whichever of the following is applicable:                                       

      (a)  An amount equal to or exceeding ten grams or            466          

twenty-five unit doses of a compound, mixture, preparation, or     467          

                                                          11     


                                                                 
substance that is or contains any amount of a schedule I opiate    468          

or opium derivative;                                               469          

      (b)  An amount equal to or exceeding ten grams of a          472          

compound, mixture, preparation, or substance that is or contains   473          

any amount of raw or gum opium;                                    474          

      (c)  An amount equal to or exceeding thirty grams or ten     477          

unit doses of a compound, mixture, preparation, or substance that  478          

is or contains any amount of a schedule I hallucinogen other than  479          

tetrahydrocannabinol or lysergic acid amide, or a schedule I       482          

stimulant or depressant;                                           483          

      (d)  An amount equal to or exceeding twenty grams or five    486          

times the maximum daily dose in the usual dose range specified in  487          

a standard pharmaceutical reference manual of a compound,          488          

mixture, preparation, or substance that is or contains any amount  489          

of a schedule II opiate or opium derivative;                       490          

      (e)  An amount equal to or exceeding five grams or ten unit  492          

doses of a compound, mixture, preparation, or substance that is    493          

or contains any amount of phencyclidine;                           494          

      (f)  An amount equal to or exceeding one hundred twenty      496          

grams or thirty times the maximum daily dose in the usual dose     497          

range specified in a standard pharmaceutical reference manual of   498          

a compound, mixture, preparation, or substance that is or          499          

contains any amount of a schedule II stimulant that is in a final  500          

dosage form manufactured by a person authorized by the "Federal    501          

Food, Drug, and Cosmetic Act," 52 Stat. 1040 (1938), 21 U.S.C.A.   503          

301, as amended, and the federal drug abuse control laws, as       504          

defined in section 3719.01 of the Revised Code, that is or                      

contains any amount of a schedule II depressant substance or a     506          

schedule II hallucinogenic substance;                                           

      (g)  An amount equal to or exceeding three grams of a        509          

compound, mixture, preparation, or substance that is or contains   510          

any amount of a schedule II stimulant, or any of its salts or      511          

isomers, that is not in a final dosage form manufactured by a      512          

person authorized by the Federal Food, Drug, and Cosmetic Act and  513          

                                                          12     


                                                                 
the federal drug abuse control laws.                               514          

      (2)  An amount equal to or exceeding one hundred twenty      517          

grams or thirty times the maximum daily dose in the usual dose     518          

range specified in a standard pharmaceutical reference manual of   520          

a compound, mixture, preparation, or substance that is or          522          

contains any amount of a schedule III or IV substance other than   524          

an anabolic steroid or a schedule III opiate or opium derivative;  525          

      (3)  An amount equal to or exceeding twenty grams or five    527          

times the maximum daily dose in the usual dose range specified in  528          

a standard pharmaceutical reference manual of a compound,          529          

mixture, preparation, or substance that is or contains any amount  531          

of a schedule III opiate or opium derivative;                                   

      (4)  An amount equal to or exceeding two hundred fifty       533          

milliliters or two hundred fifty grams of a compound, mixture,     534          

preparation, or substance that is or contains any amount of a      535          

schedule V substance;                                              536          

      (5)  An amount equal to or exceeding two hundred solid       539          

dosage units, sixteen grams, or sixteen milliliters of a           540          

compound, mixture, preparation, or substance that is or contains   541          

any amount of a schedule III anabolic steroid.                     542          

      (E)  "Unit dose" means an amount or unit of a compound,      544          

mixture, or preparation containing a controlled substance that is  545          

separately identifiable and in a form that indicates that it is    547          

the amount or unit by which the controlled substance is            548          

separately administered to or taken by an individual.              549          

      (F)  "Cultivate" includes planting, watering, fertilizing,   551          

or tilling.                                                        552          

      (G)  "Drug abuse offense" means any of the following:        554          

      (1)  A violation of division (A) of section 2913.02 that     556          

constitutes theft of drugs, A VIOLATION OF SECTION 2913.42 OF THE  557          

REVISED CODE THAT INVOLVES ANY RECORD REQUIRED TO BE KEPT BY       559          

CHAPTER 3719. OR 4729. OF THE REVISED CODE OR THAT INVOLVES ANY    560          

PACKAGE OR RECEPTACLE CONTAINING DANGEROUS DRUGS OR THE CONTENTS                

OF ANY PACKAGE OR RECEPTACLE CONTAINING DANGEROUS DRUGS, or a      561          

                                                          13     


                                                                 
violation of section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06,  563          

2925.11, 2925.12, 2925.13, 2925.22, 2925.23, 2925.31, 2925.32,     565          

2925.36, or 2925.37 of the Revised Code;                                        

      (2)  A violation of an existing or former law of this or     567          

any other state or of the United States that is substantially      568          

equivalent to any section listed in division (G)(1) of this        569          

section;                                                           570          

      (3)  An offense under an existing or former law of this or   572          

any other state, or of the United States, of which planting,       573          

cultivating, harvesting, processing, making, manufacturing,        574          

producing, shipping, transporting, delivering, acquiring,          575          

possessing, storing, distributing, dispensing, selling, inducing   576          

another to use, administering to another, using, or otherwise      577          

dealing with a controlled substance is an element;                 578          

      (4)  A conspiracy to commit, attempt to commit, or           580          

complicity in committing or attempting to commit any offense       581          

under division (G)(1), (2), or (3) of this section.                582          

      (H)  "Felony drug abuse offense" means any drug abuse        584          

offense that would constitute a felony under the laws of this      585          

state, any other state, or the United States.                      586          

      (I)  "Harmful intoxicant" does not include beer or           588          

intoxicating liquor but means any compound, mixture, preparation,  590          

or substance the gas, fumes, or vapor of which when inhaled can    591          

induce intoxication, excitement, giddiness, irrational behavior,   592          

depression, stupefaction, paralysis, unconsciousness,              593          

asphyxiation, or other harmful physiological effects, and          594          

includes, but is not limited to, any of the following:             595          

      (1)  Any volatile organic solvent, plastic cement, model     597          

cement, fingernail polish remover, lacquer thinner, cleaning       598          

fluid, gasoline, or other preparation containing a volatile        599          

organic solvent;                                                   600          

      (2)  Any aerosol propellant;                                 602          

      (3)  Any fluorocarbon refrigerant;                           604          

      (4)  Any anesthetic gas.                                     606          

                                                          14     


                                                                 
      (J)  "Manufacture" means to plant, cultivate, harvest,       608          

process, make, prepare, or otherwise engage in any part of the     609          

production of a drug, by propagation, extraction, chemical         610          

synthesis, or compounding, or any combination of the same, and     611          

includes packaging, repackaging, labeling, and other activities    612          

incident to production.                                            613          

      (K)  "Possess" or "possession" means having control over a   615          

thing or substance, but may not be inferred solely from mere       616          

access to the thing or substance through ownership or occupation   617          

of the premises upon which the thing or substance is found.        618          

      (L)  "Sample drug" means a drug or pharmaceutical            620          

preparation that would be hazardous to health or safety if used    621          

without the supervision of a licensed health professional          623          

authorized to prescribe drugs, or a drug of abuse, and that, at    624          

one time, had been placed in a container plainly marked as a       625          

sample by a manufacturer.                                                       

      (M)  "Standard pharmaceutical reference manual" means the    627          

current edition, with cumulative changes if any, of any of the     628          

following reference works:                                         629          

      (1)  "The National Formulary";                               631          

      (2)  "The United States Pharmacopeia," prepared by           633          

authority of the United States Pharmacopeial Convention, Inc.;     634          

      (3)  Other standard references that are approved by the      636          

state board of pharmacy.                                           637          

      (N)  "Juvenile" means a person under eighteen years of age.  639          

      (O)  "Counterfeit controlled substance" means any of the     641          

following:                                                         642          

      (1)  Any drug that bears, or whose container or label        644          

bears, a trademark, trade name, or other identifying mark used     645          

without authorization of the owner of rights to that trademark,    646          

trade name, or identifying mark;                                   647          

      (2)  Any unmarked or unlabeled substance that is             649          

represented to be a controlled substance manufactured, processed,  650          

packed, or distributed by a person other than the person that      651          

                                                          15     


                                                                 
manufactured, processed, packed, or distributed it;                652          

      (3)  Any substance that is represented to be a controlled    654          

substance but is not a controlled substance or is a different      655          

controlled substance;                                              656          

      (4)  Any substance other than a controlled substance that a  658          

reasonable person would believe to be a controlled substance       659          

because of its similarity in shape, size, and color, or its        660          

markings, labeling, packaging, distribution, or the price for      661          

which it is sold or offered for sale.                              662          

      (P)  An offense is "committed in the vicinity of a school"   664          

if the offender commits the offense on school premises, in a       665          

school building, or within one thousand feet of the boundaries of  666          

any school premises.                                                            

      (Q)  "School" means any school operated by a board of        668          

education or any school for which the state board of education     669          

prescribes minimum standards under section 3301.07 of the Revised  670          

Code, whether or not any instruction, extracurricular activities,  671          

or training provided by the school is being conducted at the time  672          

a criminal offense is committed.                                   673          

      (R)  "School premises" means either of the following:        675          

      (1)  The parcel of real property on which any school is      677          

situated, whether or not any instruction, extracurricular          678          

activities, or training provided by the school is being conducted  679          

on the premises at the time a criminal offense is committed;       680          

      (2)  Any other parcel of real property that is owned or      682          

leased by a board of education of a school or the governing body   683          

of a school for which the state board of education prescribes      684          

minimum standards under section 3301.07 of the Revised Code and    685          

on which some of the instruction, extracurricular activities, or   686          

training of the school is conducted, whether or not any            687          

instruction, extracurricular activities, or training provided by   688          

the school is being conducted on the parcel of real property at    689          

the time a criminal offense is committed.                          690          

      (S)  "School building" means any building in which any of    692          

                                                          16     


                                                                 
the instruction, extracurricular activities, or training provided  693          

by a school is conducted, whether or not any instruction,          694          

extracurricular activities, or training provided by the school is  695          

being conducted in the school building at the time a criminal      696          

offense is committed.                                              697          

      (T)  "Disciplinary counsel" means the disciplinary counsel   699          

appointed by the board of commissioners on grievances and          700          

discipline of the supreme court under the Rules for the            701          

Government of the Bar of Ohio.                                     702          

      (U)  "Certified grievance committee" means a duly            704          

constituted and organized committee of the Ohio state bar          705          

association or of one or more local bar associations of the state  706          

of Ohio that complies with the criteria set forth in Rule V,       707          

section 6 of the Rules for the Government of the Bar of Ohio.      708          

      (V)  "Professional license" means any license, permit,       710          

certificate, registration, qualification, admission, temporary     711          

license, temporary permit, temporary certificate, or temporary     712          

registration that is described in divisions (W)(1) to (35) of      713          

this section and that qualifies a person as a professionally       714          

licensed person.                                                   715          

      (W)  "Professionally licensed person" means any of the       717          

following:                                                         718          

      (1)  A person who has obtained a license as a manufacturer   720          

of controlled substances or a wholesaler of controlled substances  721          

under Chapter 3719. of the Revised Code;                           722          

      (2)  A person who has received a certificate or temporary    724          

certificate as a certified public accountant or who has            725          

registered as a public accountant under Chapter 4701. of the       726          

Revised Code and who holds an Ohio permit issued under that        727          

chapter;                                                           728          

      (3)  A person who holds a certificate of qualification to    730          

practice architecture issued or renewed and registered under       731          

Chapter 4703. of the Revised Code;                                 732          

      (4)  A person who is registered as a landscape architect     734          

                                                          17     


                                                                 
under Chapter 4703. of the Revised Code or who holds a permit as   735          

a landscape architect issued under that chapter;                   736          

      (5)  A person licensed as an auctioneer or apprentice        738          

auctioneer or licensed to operate an auction company under         739          

Chapter 4707. of the Revised Code;                                 740          

      (6)  A person who has been issued a certificate of           742          

registration as a registered barber under Chapter 4709. of the     743          

Revised Code;                                                      744          

      (7)  A person licensed and regulated to engage in the        746          

business of a debt pooling company by a legislative authority,     747          

under authority of Chapter 4710. of the Revised Code;              748          

      (8)  A person who has been issued a cosmetologist's          750          

license, manicurist's license, esthetician's license, managing     751          

cosmetologist's license, managing manicurist's license, managing   752          

esthetician's license, cosmetology instructor's license,           753          

manicurist instructor's license, esthetician instructor's          754          

license, or tanning facility permit under Chapter 4713. of the     755          

Revised Code;                                                      756          

      (9)  A person who has been issued a license to practice      758          

dentistry, a general anesthesia permit, a conscious intravenous    759          

sedation permit, a limited resident's license, a limited teaching  760          

license, a dental hygienist's license, or a dental hygienist's     761          

teacher's certificate under Chapter 4715. of the Revised Code;     762          

      (10)  A person who has been issued an embalmer's license, a  764          

funeral director's license, a funeral home license, or a           765          

crematory license, or who has been registered for an embalmer's    766          

or funeral director's apprenticeship under Chapter 4717. of the    767          

Revised Code;                                                                   

      (11)  A person who has been licensed as a registered nurse   769          

or practical nurse, or who has been issued a certificate for the   770          

practice of nurse-midwifery under Chapter 4723. of the Revised     771          

Code;                                                              772          

      (12)  A person who has been licensed to practice optometry   774          

or to engage in optical dispensing under Chapter 4725. of the      775          

                                                          18     


                                                                 
Revised Code;                                                      776          

      (13)  A person licensed to act as a pawnbroker under         778          

Chapter 4727. of the Revised Code;                                 779          

      (14)  A person licensed to act as a precious metals dealer   781          

under Chapter 4728. of the Revised Code;                           782          

      (15)  A person licensed as a pharmacist, a pharmacy intern,  785          

a wholesale distributor of dangerous drugs, or a terminal                       

distributor of dangerous drugs under Chapter 4729. of the Revised  786          

Code;                                                              787          

      (16)  A person who is authorized to practice as a physician  789          

assistant under Chapter 4730. of the Revised Code;                 790          

      (17)  A person who has been issued a certificate to          792          

practice medicine and surgery, osteopathic medicine and surgery,   793          

a limited branch of medicine, or podiatry under Chapter 4731. of   795          

the Revised Code;                                                               

      (18)  A person licensed as a psychologist or school          797          

psychologist under Chapter 4732. of the Revised Code;              798          

      (19)  A person registered to practice the profession of      800          

engineering or surveying under Chapter 4733. of the Revised Code;  801          

      (20)  A person who has been issued a license to practice     804          

chiropractic under Chapter 4734. of the Revised Code;                           

      (21)  A person licensed to act as a real estate broker,      806          

real estate salesperson, limited real estate broker, or limited    807          

real estate salesperson under Chapter 4735. of the Revised Code;   808          

      (22)  A person registered as a registered sanitarian under   810          

Chapter 4736. of the Revised Code;                                 811          

      (23)  A person licensed to operate or maintain a junkyard    813          

under Chapter 4737. of the Revised Code;                           814          

      (24)  A person who has been issued a motor vehicle salvage   816          

dealer's license under Chapter 4738. of the Revised Code;          817          

      (25)  A person who has been licensed to act as a steam       819          

engineer under Chapter 4739. of the Revised Code;                  820          

      (26)  A person who has been issued a license or temporary    822          

permit to practice veterinary medicine or any of its branches, or  823          

                                                          19     


                                                                 
who is registered as a graduate animal technician under Chapter    824          

4741. of the Revised Code;                                         825          

      (27)  A person who has been issued a hearing aid dealer's    827          

or fitter's license or trainee permit under Chapter 4747. of the   828          

Revised Code;                                                      829          

      (28)  A person who has been issued a class A, class B, or    831          

class C license or who has been registered as an investigator or   832          

security guard employee under Chapter 4749. of the Revised Code;   833          

      (29)  A person licensed and registered to practice as a      835          

nursing home administrator under Chapter 4751. of the Revised      836          

Code;                                                              837          

      (30)  A person licensed to practice as a speech-language     839          

pathologist or audiologist under Chapter 4753. of the Revised      841          

Code;                                                                           

      (31)  A person issued a license as an occupational           843          

therapist or physical therapist under Chapter 4755. of the         844          

Revised Code;                                                      845          

      (32)  A person who is licensed as a professional clinical    847          

counselor or professional counselor, licensed as a social worker   848          

or independent social worker, or registered as a social work       849          

assistant under Chapter 4757. of the Revised Code;                 850          

      (33)  A person issued a license to practice dietetics under  852          

Chapter 4759. of the Revised Code;                                 853          

      (34)  A person who has been issued a license or limited      856          

permit to practice respiratory therapy under Chapter 4761. of the  857          

Revised Code;                                                      858          

      (35)  A person who has been issued a real estate appraiser   860          

certificate under Chapter 4763. of the Revised Code.               861          

      (X)  "Cocaine" means any of the following:                   863          

      (1)  A cocaine salt, isomer, or derivative, a salt of a      865          

cocaine isomer or derivative, or the base form of cocaine;         866          

      (2)  Coca leaves or a salt, compound, derivative, or         868          

preparation of coca leaves, including ecgonine, a salt, isomer,    869          

or derivative of ecgonine, or a salt of an isomer or derivative    870          

                                                          20     


                                                                 
of ecgonine;                                                       871          

      (3)  A salt, compound, derivative, or preparation of a       873          

substance identified in division (X)(1) or (2) of this section     875          

that is chemically equivalent to or identical with any of those    876          

substances, except that the substances shall not include           877          

decocainized coca leaves or extraction of coca leaves if the       878          

extractions do not contain cocaine or ecgonine.                    879          

      (Y)  "L.S.D." means lysergic acid diethylamide.              882          

      (Z)  "Hashish" means the resin or a preparation of the       884          

resin contained in marihuana, whether in solid form or in a        885          

liquid concentrate, liquid extract, or liquid distillate form.     886          

      (AA)  "Marihuana" has the same meaning as in section         888          

3719.01 of the Revised Code, except that it does not include       890          

hashish.                                                                        

      (BB)  An offense is "committed in the vicinity of a          892          

juvenile" if the offender commits the offense within one hundred   894          

feet of a juvenile or within the view of a juvenile, regardless    895          

of whether the offender knows the age of the juvenile, whether     896          

the offender knows the offense is being committed within one       897          

hundred feet of or within view of the juvenile, or whether the     898          

juvenile actually views the commission of the offense.                          

      (CC)  "Presumption for a prison term" or "presumption that   900          

a prison term shall be imposed" means a presumption, as described  901          

in division (D) of section 2929.13 of the Revised Code, that a     902          

prison term is a necessary sanction for a felony in order to       903          

comply with the purposes and principles of sentencing under        904          

section 2929.11 of the Revised Code.                                            

      (DD)  "Major drug offender" has the same meaning as in       906          

section 2929.01 of the Revised Code.                               907          

      (EE)  "Minor drug possession offense" means either of the    909          

following:                                                         910          

      (1)  A violation of section 2925.11 of the Revised Code as   912          

it existed prior to July 1, 1996;                                  913          

      (2)  A violation of section 2925.11 of the Revised Code as   915          

                                                          21     


                                                                 
it exists on and after July 1, 1996, that is a misdemeanor or a    916          

felony of the fifth degree.                                        917          

      (FF)  "Mandatory prison term" has the same meaning as in     920          

section 2929.01 of the Revised Code.                                            

      (GG)  "Crack cocaine" means a compound, mixture,             922          

preparation, or substance that is or contains any amount of        923          

cocaine that is analytically identified as the base form of        924          

cocaine or that is in a form that resembles rocks or pebbles       925          

generally intended for individual use.                                          

      Sec. 2951.041.  (A)  If the court has reason to believe      934          

that an offender charged with a felony or misdemeanor is a drug    935          

dependent person or is in danger of becoming a drug dependent      936          

person, the court shall accept, prior to the entry of a plea,      937          

that offender's request for treatment in lieu of conviction.  If   938          

the offender requests treatment in lieu of conviction, the court   939          

shall stay all criminal proceedings pending the outcome of the     940          

hearing to determine whether the offender is a person eligible     941          

for treatment in lieu of conviction.  At the conclusion of the     942          

hearing, the court shall enter its findings and accept the         943          

offender's plea.                                                   944          

      (B)(1)  An offender who requests treatment in lieu of        946          

conviction under division (A) of this section is eligible for      947          

that treatment if the court finds that:                            948          

      (1)(a)  The offender's drug dependence or danger of drug     950          

dependence was a factor leading to the criminal activity with      951          

which the offender is charged, and rehabilitation through          952          

treatment would substantially reduce the likelihood of additional  953          

criminal activity.                                                 954          

      (2)(b)  The offender has been accepted into a program        956          

licensed by the department of alcohol and drug addiction services  958          

pursuant to section 3793.11 of the Revised Code, a program         960          

certified by the department pursuant to section 3793.06 of the     961          

Revised Code, a public or private hospital, the veterans           962          

administration or other agency of the federal government, private  963          

                                                          22     


                                                                 
care or treatment rendered by a physician or a psychologist        964          

licensed in the state, or other appropriate drug treatment         965          

facility or program.                                                            

      (3)(c)  If the offender is convicted of a misdemeanor, the   967          

offender would be eligible for probation under section 2951.02 of  969          

the Revised Code, except that a finding of any of the criteria     970          

listed in division (D) of that section shall cause the offender    971          

to be conclusively ineligible for treatment in lieu of             972          

conviction.  If the offender is convicted of a felony, the         973          

offender would be eligible for a community control sanction.       974          

      (4)(d)  The offender is not a repeat offender or dangerous   976          

offender, as defined in section 2935.36 of the Revised Code;       978          

      (5)(e)  The offender is not charged with a violation of      980          

section 2925.02, 2925.03, 2925.04, or 2925.11 of the Revised Code  982          

that is not a minor drug possession offense, as defined in         983          

section 2925.01 of the Revised Code;                               984          

      (f)  THE OFFENDER IS NOT CHARGED WITH A VIOLATION OF         986          

DIVISION (A)(3) OF SECTION 2913.42 OF THE REVISED CODE.            987          

      (2)  Upon a finding of that nature UNDER DIVISION (B)(1) OF  990          

THIS SECTION THAT THE OFFENDER IS ELIGIBLE FOR TREATMENT IN LIEU   991          

OF CONVICTION and if the offender enters a plea of guilty or no    993          

contest, the court may stay all criminal proceedings and order     994          

the offender to a period of rehabilitation.  If a plea of not      995          

guilty is entered, a trial shall precede further consideration of  996          

the offender's request for treatment in lieu of conviction.        997          

      (C)  The offender and the prosecuting attorney shall be      999          

afforded the opportunity to present evidence to establish          1,000        

eligibility or ineligibility for treatment in lieu of conviction,  1,001        

and the prosecuting attorney may make a recommendation to the      1,002        

court concerning whether the offender should receive treatment in  1,003        

lieu of conviction.  Upon the request of the offender and to aid   1,004        

the offender in establishing the offender's eligibility for        1,005        

treatment in lieu of conviction, the court may refer the offender  1,006        

for medical and psychiatric examination to the department of       1,007        

                                                          23     


                                                                 
mental health, to a state facility designated by the department,   1,008        

to a psychiatric clinic approved by the department, or to a        1,009        

facility or program described in division (B)(2) of this section.  1,010        

However, the psychiatric portion of an examination pursuant to a   1,011        

referral under this division shall be performed only by a          1,012        

court-appointed individual who has not previously treated the      1,013        

offender or a member of the offender's immediate family.           1,014        

      (D)  An offender found to be eligible for treatment in lieu  1,016        

of conviction and ordered to a period of rehabilitation shall be   1,017        

placed under the control and supervision of the county probation   1,018        

department or the adult parole authority as provided in this       1,019        

chapter as if the offender were on probation or as if the          1,020        

offender were under a community control sanction.  The court       1,021        

shall order a period of rehabilitation to continue for any period  1,022        

that the judge or magistrate determines.  The period of            1,023        

rehabilitation may be extended, but the total period shall not     1,024        

exceed three years.  The period of rehabilitation shall be         1,025        

conditioned upon the offender's voluntary entrance into an         1,026        

appropriate drug treatment facility or program, faithful           1,027        

submission to prescribed treatment, and any other conditions that  1,028        

the court orders.                                                               

      (E)  Treatment of a person ordered to a period of            1,030        

rehabilitation under this section may include hospitalization      1,031        

under close supervision or otherwise, release on an outpatient     1,032        

status under supervision, and other treatment or after-care that   1,034        

the appropriate drug treatment facility or program considers                    

necessary or desirable to rehabilitate that person.  Persons       1,035        

released from hospitalization or treatment but still subject to    1,036        

the ordered period of rehabilitation may be rehospitalized or      1,037        

returned to treatment at any time it becomes necessary for their   1,038        

treatment and rehabilitation.                                      1,039        

      (F)  If the appropriate drug treatment facility or program   1,041        

reports to the probation officer that the offender has             1,042        

successfully completed treatment and is rehabilitated, the court   1,043        

                                                          24     


                                                                 
may dismiss the charges pending against the offender.  If the      1,044        

facility or program reports to the probation officer that the      1,045        

offender has successfully completed treatment and is               1,046        

rehabilitated or has obtained maximum benefits from treatment and  1,048        

that the offender has completed the period of rehabilitation and   1,049        

other conditions ordered by the court, the court shall dismiss     1,050        

the charges pending against the offender.  If the facility or      1,051        

program reports to the probation officer that the offender has     1,052        

failed treatment, has failed to submit to or follow the            1,053        

prescribed treatment, or has become a discipline problem, if the   1,054        

offender does not satisfactorily complete the period of                         

rehabilitation or the other conditions ordered by the court, or    1,055        

if the offender violates the conditions of the period of           1,056        

rehabilitation, the offender shall be arrested as provided in      1,057        

section 2951.08 of the Revised Code and removed from the facility  1,058        

or program, and the court immediately shall hold a hearing to      1,059        

determine if the offender failed treatment, failed to submit to    1,060        

or follow the prescribed treatment, did not satisfactorily         1,061        

complete the period of rehabilitation or any other condition       1,062        

ordered by the court, or violated any condition of the period of   1,063        

rehabilitation.  If the court so determines, it immediately shall  1,064        

enter an adjudication of guilt and shall impose upon the offender  1,065        

a term of imprisonment.                                            1,066        

      At any time and for any appropriate reason, the offender,    1,068        

the offender's probation officer, the authority or department      1,069        

that has the duty to control and supervise the offender as         1,071        

provided for in section 2951.05 of the Revised Code, or the        1,072        

facility or program may petition the court to reconsider,          1,073        

suspend, or modify its order for treatment concerning that         1,074        

offender.                                                                       

      (G)  The appropriate drug treatment facility or program      1,076        

shall report to the authority or department that has the duty to   1,077        

control and supervise the offender as provided for in section      1,078        

2951.05 of the Revised Code at any periodic reporting period the   1,079        

                                                          25     


                                                                 
court requires and whenever the offender is changed from an        1,080        

inpatient to an outpatient, is transferred to another treatment    1,081        

facility or program, fails treatment, fails to submit to or        1,082        

follow the prescribed treatment, becomes a discipline problem,     1,083        

does not satisfactorily complete the period of rehabilitation or   1,084        

other conditions ordered by the court, has violated the            1,085        

conditions of the period of rehabilitation, is rehabilitated, or   1,086        

obtains the maximum benefit of treatment.                          1,087        

      (H)  If, on the motion of an offender ordered to a period    1,089        

of rehabilitation under this section, the court finds that the     1,090        

offender has successfully completed the period of rehabilitation   1,091        

ordered by the court, is rehabilitated, is no longer drug          1,092        

dependent or in danger of becoming drug dependent, and has         1,093        

completed all other conditions, the court shall dismiss the        1,094        

proceeding against the offender.  Successful completion of a       1,095        

period of rehabilitation under this section shall be without       1,096        

adjudication of guilt and is not a criminal conviction for         1,097        

purposes of disqualifications or disabilities imposed by law and   1,098        

upon conviction of a crime, and the court may order the sealing    1,099        

of records in the manner provided in sections 2953.31 to 2953.36   1,100        

of the Revised Code.                                               1,101        

      (I)  Any person ordered to treatment by the terms of this    1,103        

section shall be liable for expenses incurred during the course    1,104        

of treatment, and, if the offender is treated in a benevolent      1,105        

institution under the jurisdiction of the department of mental     1,106        

health, the offender is subject to Chapter 5121. of the Revised    1,107        

Code.                                                                           

      (J)  An offender who is charged with a drug abuse offense,   1,109        

other than a minor misdemeanor offense involving marihuana, and    1,111        

who otherwise is eligible for treatment in lieu of conviction may  1,112        

request and may be ordered to a period of rehabilitation even      1,113        

though the findings required by divisions (B)(1)(a) and (2)(b) of  1,114        

this section are not made.  An order to rehabilitation under this  1,116        

division shall be subject to the conditions that the court         1,117        

                                                          26     


                                                                 
requires but shall not be conditioned upon entry into an           1,118        

appropriate drug treatment facility or program.                    1,119        

      (K)  As used in this section, "community control sanction"   1,121        

has the same meaning as in section 2929.01 of the Revised Code.    1,123        

      Section 2.  That existing sections 2913.01, 2913.02,         1,125        

2913.42, 2913.51, 2925.01, and 2951.041 of the Revised Code are    1,126        

hereby repealed.                                                                

      Section 3.  Section 2925.01 of the Revised Code is           1,128        

presented in this act as a composite of the section as amended by  1,129        

both Sub. H.B. 606 and Sub. S.B. 200 of the 122nd General          1,130        

Assembly, with the new language of neither of the acts shown in    1,132        

capital letters.  This is in recognition of the principle stated   1,133        

in division (B) of section 1.52 of the Revised Code that such      1,134        

amendments are to be harmonized where not substantively            1,135        

irreconcilable and constitutes a legislative finding that such is  1,136        

the resulting version in effect prior to the effective date of     1,137        

this act.