As Reported by House Criminal Justice Committee 1
123rd General Assembly 4
Regular Session Sub. S. B. No. 8 5
1999-2000 6
SENATORS BLESSING-JOHNSON-OELSLAGER-CUPP-HOTTINGER-WATTS- 8
LATTA-NEIN-WHITE-MUMPER-GARDNER-DRAKE-SCHAFRATH-SPADA- 9
REPRESENTATIVES LUCAS-DePIERO-WOMER BENJAMIN-WILLAMOWSKI- 10
TIBERI-TAYLOR 11
_________________________________________________________________ 12
A B I L L
To amend section 2937.03, to enact new section 14
2937.32 and section 2937.222, and to repeal 15
section 2937.32 of the Revised Code to enact 16
procedures to implement the amendment to Section 17
9 of Article I of the Ohio Constitution adopted 18
in the November 1997 general election pursuant 19
to which a judge may deny bail to a person 20
accused of specified offenses. 22
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 24
Section 1. That section 2937.03 be amended and new section 26
2937.32 and section 2937.222 of the Revised Code be enacted to 27
read as follows:
Sec. 2937.03. After the announcement, as provided by 36
section 2937.02 of the Revised Code, the accused shall be 37
arraigned by the magistrate, or clerk, or prosecutor of the court 39
reading the affidavit or complaint, or reading its substance, 40
omitting purely formal parts, to him THE ACCUSED unless such THE 41
reading be OF THE AFFIDAVIT OR COMPLAINT IS waived. The judge or 43
magistrate shall then inquire of the accused whether he THE 44
ACCUSED understands the nature of the charge. If he THE ACCUSED 45
does not indicate understanding, the JUDGE OR magistrate shall 47
give explanation in terms of the statute or ordinance claimed 49
violated. If he THE ACCUSED is not represented by counsel and 50
2
expresses A desire to consult with an attorney at law, the judge 51
or magistrate shall continue the case for a reasonable time to 52
allow him THE ACCUSED to send for or consult with counsel and 54
shall set bail for such THE later appearance if the offense is 55
bailable. If the accused is not able to make bail, BAIL IS 56
DENIED, or the offense is not bailable, the court or magistrate 58
shall require the officer having custody of THE accused forthwith 60
IMMEDIATELY to take a message to any attorney at law within the 61
municipal corporation where THE accused is detained, or 62
IMMEDIATELY to make available to the accused forthwith use of A 65
telephone for calling to arrange for legal counsel or bail. 66
Sec. 2937.222. (A) ON THE MOTION OF THE PROSECUTING 68
ATTORNEY OR ON THE JUDGE'S OWN MOTION, THE JUDGE SHALL HOLD A 69
HEARING TO DETERMINE WHETHER AN ACCUSED PERSON CHARGED WITH 70
AGGRAVATED MURDER WHEN IT IS NOT A CAPITAL OFFENSE, MURDER, A 71
FELONY OF THE FIRST OR SECOND DEGREE, A VIOLATION OF SECTION 72
2903.06 OF THE REVISED CODE, OR A FOURTH DEGREE FELONY OMVI
OFFENSE SHALL BE DENIED BAIL. THE JUDGE SHALL ORDER THAT THE 73
ACCUSED BE DETAINED UNTIL THE CONCLUSION OF THE HEARING. EXCEPT 74
FOR GOOD CAUSE, A CONTINUANCE ON THE MOTION OF THE STATE SHALL 75
NOT EXCEED THREE COURT DAYS. EXCEPT FOR GOOD CAUSE, A 77
CONTINUANCE ON THE MOTION OF THE ACCUSED SHALL NOT EXCEED FIVE
COURT DAYS UNLESS THE MOTION OF THE ACCUSED WAIVES IN WRITING THE 78
FIVE-DAY LIMIT AND STATES IN WRITING A SPECIFIC PERIOD FOR WHICH 79
THE ACCUSED REQUESTS A CONTINUANCE. A CONTINUANCE GRANTED UPON A 80
MOTION OF THE ACCUSED THAT WAIVES IN WRITING THE FIVE-DAY LIMIT 81
SHALL NOT EXCEED FIVE COURT DAYS AFTER THE PERIOD OF CONTINUANCE 82
REQUESTED IN THE MOTION.
AT THE HEARING, THE ACCUSED HAS THE RIGHT TO BE REPRESENTED 85
BY COUNSEL AND, IF THE ACCUSED IS INDIGENT, TO HAVE COUNSEL 86
APPOINTED. THE JUDGE SHALL AFFORD THE ACCUSED AN OPPORTUNITY TO 87
TESTIFY, TO PRESENT WITNESSES AND OTHER INFORMATION, AND TO 88
CROSS-EXAMINE WITNESSES WHO APPEAR AT THE HEARING. THE RULES 89
CONCERNING ADMISSIBILITY OF EVIDENCE IN CRIMINAL TRIALS DO NOT 90
3
APPLY TO THE PRESENTATION AND CONSIDERATION OF INFORMATION AT THE 91
HEARING. REGARDLESS OF WHETHER THE HEARING IS BEING HELD ON THE 92
MOTION OF THE PROSECUTING ATTORNEY OR ON THE COURT'S OWN MOTION, 93
THE STATE HAS THE BURDEN OF PROVING THAT THE PROOF IS EVIDENT OR 95
THE PRESUMPTION GREAT THAT THE ACCUSED COMMITTED THE OFFENSE WITH 96
WHICH THE ACCUSED IS CHARGED, OF PROVING THAT THE ACCUSED POSES A 97
SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM TO ANY PERSON OR TO THE 98
COMMUNITY, AND OF PROVING THAT NO RELEASE CONDITIONS WILL
REASONABLY ASSURE THE SAFETY OF THAT PERSON AND THE COMMUNITY. 99
THE JUDGE MAY REOPEN THE HEARING AT ANY TIME BEFORE TRIAL 102
IF THE JUDGE FINDS THAT INFORMATION EXISTS THAT WAS NOT KNOWN TO 103
THE MOVANT AT THE TIME OF THE HEARING AND THAT THAT INFORMATION 104
HAS A MATERIAL BEARING ON WHETHER BAIL SHOULD BE DENIED. IF A 105
MUNICIPAL COURT OR COUNTY COURT ENTERS AN ORDER DENYING BAIL, A 106
JUDGE OF THE COURT OF COMMON PLEAS HAVING JURISDICTION OVER THE 107
CASE MAY CONTINUE THAT ORDER OR MAY HOLD A HEARING PURSUANT TO 108
THIS SECTION TO DETERMINE WHETHER TO CONTINUE THAT ORDER. 109
(B) NO ACCUSED PERSON SHALL BE DENIED BAIL PURSUANT TO 112
THIS SECTION UNLESS THE JUDGE FINDS BY CLEAR AND CONVINCING
EVIDENCE THAT THE PROOF IS EVIDENT OR THE PRESUMPTION GREAT THAT 114
THE ACCUSED COMMITTED THE OFFENSE DESCRIBED IN DIVISION (A) OF 116
THIS SECTION WITH WHICH THE ACCUSED IS CHARGED, FINDS BY CLEAR 117
AND CONVINCING EVIDENCE THAT THE ACCUSED POSES A SUBSTANTIAL RISK 119
OF SERIOUS PHYSICAL HARM TO ANY PERSON OR TO THE COMMUNITY, AND
FINDS BY CLEAR AND CONVINCING EVIDENCE THAT NO RELEASE CONDITIONS 120
WILL REASONABLY ASSURE THE SAFETY OF THAT PERSON AND THE 122
COMMUNITY.
(C) THE JUDGE, IN DETERMINING WHETHER THE ACCUSED PERSON 124
DESCRIBED IN DIVISION (A) OF THIS SECTION POSES A SUBSTANTIAL 127
RISK OF SERIOUS PHYSICAL HARM TO ANY PERSON OR TO THE COMMUNITY 128
AND WHETHER THERE ARE CONDITIONS OF RELEASE THAT WILL REASONABLY 129
ASSURE THE SAFETY OF THAT PERSON AND THE COMMUNITY, SHALL
CONSIDER ALL AVAILABLE INFORMATION REGARDING ALL OF THE 131
FOLLOWING:
4
(1) THE NATURE AND CIRCUMSTANCES OF THE OFFENSE CHARGED, 133
INCLUDING WHETHER THE OFFENSE IS AN OFFENSE OF VIOLENCE OR 134
INVOLVES ALCOHOL OR A DRUG OF ABUSE; 135
(2) THE WEIGHT OF THE EVIDENCE AGAINST THE ACCUSED; 137
(3) THE HISTORY AND CHARACTERISTICS OF THE ACCUSED, 139
INCLUDING, BUT NOT LIMITED TO, BOTH OF THE FOLLOWING: 140
(a) THE CHARACTER, PHYSICAL AND MENTAL CONDITION, FAMILY 143
TIES, EMPLOYMENT, FINANCIAL RESOURCES, LENGTH OF RESIDENCE IN THE 144
COMMUNITY, COMMUNITY TIES, PAST CONDUCT, HISTORY RELATING TO DRUG 145
OR ALCOHOL ABUSE, AND CRIMINAL HISTORY OF THE ACCUSED; 146
(b) WHETHER, AT THE TIME OF THE CURRENT ALLEGED OFFENSE OR 149
AT THE TIME OF THE ARREST OF THE ACCUSED, THE ACCUSED WAS ON
PROBATION, PAROLE, POST-RELEASE CONTROL, OR OTHER RELEASE PENDING 151
TRIAL, SENTENCING, APPEAL, OR COMPLETION OF SENTENCE FOR THE 152
COMMISSION OF AN OFFENSE UNDER THE LAWS OF THIS STATE, ANOTHER 153
STATE, OR THE UNITED STATES OR UNDER A MUNICIPAL ORDINANCE. 154
(4) THE NATURE AND SERIOUSNESS OF THE DANGER TO ANY PERSON 156
OR THE COMMUNITY THAT WOULD BE POSED BY THE PERSON'S RELEASE. 157
(D)(1) AN ORDER OF THE COURT OF COMMON PLEAS DENYING BAIL 160
PURSUANT TO THIS SECTION IS A FINAL APPEALABLE ORDER. IN AN 161
APPEAL PURSUANT TO DIVISION (D) OF THIS SECTION, THE COURT OF 162
APPEALS SHALL DO ALL OF THE FOLLOWING: 163
(a) GIVE THE APPEAL PRIORITY ON ITS CALENDAR; 165
(b) LIBERALLY MODIFY OR DISPENSE WITH FORMAL REQUIREMENTS 167
IN THE INTEREST OF A SPEEDY AND JUST RESOLUTION OF THE APPEAL; 168
(c) DECIDE THE APPEAL EXPEDITIOUSLY; 170
(d) PROMPTLY ENTER ITS JUDGMENT AFFIRMING OR REVERSING THE 172
ORDER DENYING BAIL. 173
(2) THE PENDENCY OF AN APPEAL UNDER THIS SECTION DOES NOT 175
DEPRIVE THE COURT OF COMMON PLEAS OF JURISDICTION TO CONDUCT 176
FURTHER PROCEEDINGS IN THE CASE OR TO FURTHER CONSIDER THE ORDER 177
DENYING BAIL IN ACCORDANCE WITH THIS SECTION. IF, DURING THE 178
PENDENCY OF AN APPEAL UNDER DIVISION (D) OF THIS SECTION, THE 179
COURT OF COMMON PLEAS SETS ASIDE OR TERMINATES THE ORDER DENYING 180
5
BAIL, THE COURT OF APPEALS SHALL DISMISS THE APPEAL. 181
(E) AS USED IN THIS SECTION: 183
(1) "COURT DAY" HAS THE SAME MEANING AS IN SECTION 5122.01 186
OF THE REVISED CODE. 187
(2) "FOURTH DEGREE FELONY OMVI OFFENSE" HAS THE SAME 189
MEANING AS IN SECTION 2929.01 OF THE REVISED CODE. 192
Sec. 2937.32. IF AN OFFENSE IS NOT BAILABLE, IF THE COURT 194
DENIES BAIL TO THE ACCUSED, OR IF THE ACCUSED DOES NOT OFFER 195
SUFFICIENT BAIL, THE COURT SHALL ORDER THE ACCUSED TO BE 196
DETAINED. 197
Section 2. That existing section 2937.03 and section 199
2937.32 of the Revised Code are hereby repealed. 201