As Reported by the Senate Judiciary--Criminal Justice Committee
126th General Assembly | Regular Session | 2005-2006 |
| |
Representatives Latta, McGregor, C. Evans, D. Evans, Hughes, Perry, Blessing, Combs, Domenick, Faber, Schneider, Seitz, Taylor, Wagoner, Willamowski, Yuko
A BILL
To amend sections 9.92, 109.85, 309.08, 311.07, 1506.35, 2152.20, 2901.01, 2909.08, 2913.34, 2913.421, 2923.01, 2923.31, 2923.32, 2923.34, 2923.36, 2923.41, 2923.42, 2923.44, 2925.03, 2925.14, 2925.42, 2927.02, 2929.18, 2930.11, 2933.75, 2935.03, 2945.44, 3719.11, 3719.141, 3719.21, 3729.13, 3743.68, 3745.13, 4301.29, 4301.45, 4301.53, 4305.13, 4503.233, 4503.234, 4510.41, 4511.195, 4549.62, 4549.63, 4728.04, 4729.65, 5735.121, 5739.15, 5743.082, and 5743.112, to enact sections 2941.1417, 2981.01, 2981.02, 2981.03, 2981.04, 2981.05, 2981.06, 2981.07, 2981.08, 2981.09, 2981.11, 2981.12, 2981.13, and 2981.14, and to repeal sections 2923.33, 2923.35, 2923.45, 2923.46, 2923.47, 2925.41, 2925.43, 2925.44, 2925.45, 2933.41, 2933.42, 2933.43, 2933.44, 2933.71, 2933.72, 2933.73, and 2933.74 of the Revised Code to adopt the Criminal Sentencing Commission's recommendations regarding revision of the Forfeiture Laws.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 9.92, 109.85, 309.08, 311.07, 1506.35, 2152.20, 2901.01, 2909.08, 2913.34, 2913,421, 2923.01, 2923.31, 2923.32, 2923.34, 2923.36, 2923.41, 2923.42, 2923.44, 2925.03, 2925.14, 2925.42, 2927.02, 2929.18, 2930.11, 2933.75, 2935.03, 2945.44, 3719.11, 3719.141, 3719.21, 3729.13, 3743.68, 3745.13, 4301.29, 4301.45, 4301.53, 4305.13, 4503.233, 4503.234, 4510.41, 4511.195, 4549.62, 4549.63, 4728.04, 4729.65, 5735.121, 5739.15, 5743.082, and 5743.112 be amended and sections 2941.1417, 2981.01, 2981.02, 2981.03, 2981.04, 2981.05, 2981.06, 2981.07, 2981.08, 2981.09, 2981.11, 2981.12, 2981.13, and 2981.14 of the Revised Code be enacted to read as follows:
Sec. 9.92. (A) As used in this section:
(1) "Citizens' reward
program" means any organization that
satisfies all of the
following criteria:
(a) It is a nonprofit organization;
(b) It is organized and operated exclusively to offer and
pay rewards to citizens for volunteering tips and information to
law enforcement agencies concerning felonies, offenses of
violence, or misdemeanors that have been committed;
(c) It has established a reward fund to be used solely
for
the payment of rewards to citizens for volunteering tips and
information to law enforcement agencies concerning felonies,
offenses of violence, or misdemeanors that have been committed.
(2) "Detention facility" has the same meaning as in section
2921.01 of the Revised Code.
(B) A citizens' reward program may apply to the board of
county commissioners of any county or counties in which it
operates for recognition as the official reward program for that
county or counties. Upon receipt of the application, the board
of
county commissioners shall determine if it is in proper order
and
the information it contains is correct. If the application
meets
these criteria, the board, by resolution, may officially
recognize
the program. Recognition of a program by a county
under this
division qualifies the program for funding of its
reward fund
under division (E)(2) (F) of section 2933.41 2981.12 of the
Revised Code. No
more than one such reward program shall be
recognized in any
county.
(C)(1) If a board of county commissioners enters into an
agreement of affiliation with a citizens' reward program pursuant
to division (D) of this section, any municipal court, county court, or court of common pleas within the county shall
impose the sum of one dollar as costs in any case in which a
person is convicted of or pleads guilty to any offense other than
a traffic offense. This one dollar
additional court costs is in addition to any other court costs
that the court is required by law to impose upon the offender, and, the court
shall impose the one dollar additional court costs as long as the agreement of
affiliation remains in effect, but the court, in the court's discretion, may remit this one dollar additional court costs to the offender. The clerk of
each court shall transmit all such moneys collected during a month
on or before the twentieth day of the following month to the
affiliated citizens' reward program.
(2) No person shall be placed or held in a detention
facility for failing to pay the additional one dollar court costs
that are required to be paid by division (C)(1) of
this section.
(3) A citizens' reward program receiving funds pursuant to
division (C)(1) of this section may use the funds for any
purpose described in division (A)(1)(b) or (c) of this section.
(D)(1) Any citizens' reward program that is recognized under
division (B) of this section may enter into a written agreement of
affiliation with a board of county commissioners in the county in
which the program operates. Agreements of affiliation executed
pursuant to this division shall be valid for two years and may be
renewed. The agreements shall do all of the following:
(a) Specify the relationship between the citizens' reward
program, the county, and law enforcement agencies in the county;
(b) Specify that the citizens' reward program shall account
annually to the board of county commissioners for all funds raised
by the organization from all sources and all funds expended by the
organization for any purpose;
(c) Allow the citizens' reward program to itemize the
sources of funds raised without referring to the name of the source;
(d) Prohibit the citizens' reward program from divulging the
identity of any person
to whom a reward was paid.
(2) In every county in which the board of county
commissioners approves of an agreement of affiliation, the board
shall notify the clerk of each municipal court, county court, and court of common pleas within the county of that
agreement of affiliation and of the duty to collect the additional
court costs imposed pursuant to division (C) of this
section.
(E) The recognition of a citizens' reward program under
this section does not make it a governmental unit for purposes of
section 149.43 of the Revised Code and does not subject it to the
disclosure provisions of that section. A board of county
commissioners that recognizes a citizens' reward program pursuant
to this section shall require the program to provide the board
with an accounting of all funds the program receives or disburses
subsequent to its recognition in order to maintain recognition.
(F) A board of county commissioners that recognizes a
citizens' reward program under this section may by resolution
revoke its recognition of the program. The board shall send a
copy of the resolution, upon adoption, to the program and to each
appropriate law enforcement agency that has jurisdiction over the
territory served by the program.
(G) An application for recognition of a citizens' reward
program shall contain all of the following information:
(1) The name of the program and its mailing address;
(2) The name and address of each of its officers or
officials;
(3) Information sufficient to establish the intention and
ability of the program's officers to implement the program
throughout the county;
(4) The purposes for which the program is organized and
operated and the services it offers;
(5) A copy of the articles of incorporation and bylaws of
the program, if applicable, or a copy of the rules and procedures
under which the program is organized and operated;
(6) Any other relevant information that the board of
county
commissioners requires, by resolution.
Sec. 109.85. (A) Upon the written request of the
governor,
the general assembly, the auditor of state, the
director of job
and family services, the director of
health, or the
director of
budget and management, or upon the attorney general's
becoming
aware of criminal or improper activity related to
Chapter 3721.
and the medical assistance program established
under section
5111.01 of the Revised Code, the attorney general
shall
investigate any criminal or civil violation of law related
to
Chapter 3721. of the Revised Code or the medical assistance
program.
(B) When it appears to the attorney general, as a result
of
an investigation under division (A) of this section, that
there is
cause to prosecute for the commission of a crime or to
pursue a
civil remedy, the attorney general may refer the
evidence to the
prosecuting attorney having jurisdiction of the matter, or to a
regular grand jury drawn and impaneled pursuant to sections
2939.01 to 2939.24 of the Revised Code, or to a special grand
jury
drawn and impaneled pursuant to section 2939.17 of the
Revised
Code, or the attorney general may initiate and
prosecute any
necessary
criminal or civil actions in any court or tribunal of
competent
jurisdiction in this state. When proceeding under this
section,
the attorney general, and any assistant or special
counsel
designated by the attorney general for that purpose, have
all rights, privileges,
and powers of prosecuting attorneys. The
attorney general shall
have exclusive supervision and control of
all investigations and
prosecutions initiated by the attorney
general
under this section. The forfeiture
provisions of sections
2933.71 to 2933.75 Chapter 2981. of the Revised Code
apply in relation to any
such criminal action initiated and
prosecuted by the attorney
general.
(C) Nothing in this section shall prevent a county
prosecuting attorney from investigating and prosecuting criminal
activity related to Chapter 3721. of the Revised Code and the
medical assistance program established under section 5111.01 of
the Revised Code. The forfeiture provisions of sections 2933.71
to 2933.75 Chapter 2981. of the Revised Code apply in relation to any
prosecution of criminal activity related to the medical
assistance
program undertaken by the prosecuting attorney.
Sec. 309.08. (A) The prosecuting attorney may inquire
into the commission of crimes within the county. The prosecuting
attorney shall prosecute, on behalf of the state, all complaints,
suits, and controversies in which the state is a party, except
for those required to be prosecuted by a special prosecutor
pursuant to section 177.03 of the Revised Code or by the attorney
general pursuant to section 109.83 of the Revised Code, and
other suits, matters, and controversies that the prosecuting
attorney is required to
prosecute within or outside the county, in the probate court,
court of common pleas, and court of appeals. In conjunction with
the attorney general, the prosecuting attorney shall prosecute
in the supreme court cases arising in
the prosecuting attorney's county, except for
those cases required to be prosecuted by a special prosecutor
pursuant to section 177.03 of the Revised Code or by the attorney
general pursuant to section 109.83 of the Revised Code.
In every case of conviction, the prosecuting attorney
forthwith shall cause execution to be issued for the fine and
costs, or costs only, as the case may be, and faithfully shall
urge the collection until it is effected or found to be
impracticable to collect. The prosecuting attorney
forthwith shall pay to the county
treasurer all moneys belonging to the state or county which come
into the prosecuting attorney's possession.
The prosecuting attorney or an assistant prosecuting
attorney of a county may participate, as a member of the
investigatory staff of an organized crime task force established
under section 177.02 of the Revised Code that has jurisdiction in
that county, in an investigation of organized criminal activity
under sections 177.01 to 177.03 of the Revised Code.
(B) The prosecuting attorney may pay a reward to a person
who has volunteered any tip or information to a law enforcement
agency in the county concerning a drug-related offense that is
planned to occur, is occurring, or has occurred, in whole or in
part, in the county. The prosecuting attorney may provide for
the payment, out of the following sources, of rewards to a person
who has volunteered tips and information to a law enforcement
agency in the county concerning a drug-related offense that is
planned to occur, is occurring, or has occurred, in whole or in
part, in the county:
(1) The law enforcement trust fund established by the
prosecuting attorney pursuant to division (D)(C)(1)(c) of section
2933.43 2981.13 of the Revised Code;
(2) The portion of any mandatory fines imposed pursuant to
divisions (B)(1) and (2) of
section 2929.18 or Chapter 2925. of the Revised Code that is paid to the
prosecuting attorney pursuant to that division or chapter, the portion of
any additional fines imposed under division (B)(5)(A) of section 2929.18
of the Revised Code that is paid to the prosecuting attorney pursuant to that
division, or the portion of any double fines imposed pursuant to
division (B)(5)(A) of section 2925.42 of
the Revised Code that is paid to the prosecuting attorney
pursuant to that division (B) of that section;
(3) The furtherance of justice fund allowed to the
prosecuting attorney under section 325.12 of the Revised Code or
any additional funds allowed to the prosecuting attorney under
section 325.13 of the Revised Code;
(4) Any other moneys lawfully in the possession or control
of the prosecuting attorney.
(C) As used in division (B) of this section, "drug-related
offense" means any violation of Chapter 2925. or 3719. of the
Revised Code or any violation of a municipal ordinance that is
substantially equivalent to any section in either of those
chapters.
Sec. 311.07. (A) Each sheriff shall preserve the public
peace and cause all persons guilty of any breach of the peace,
within the sheriff's knowledge or view, to enter into
recognizance with
sureties to keep the peace and to appear at the succeeding term
of the court of common pleas, and the sheriff shall commit such
persons to jail in case they refuse to do so. The sheriff
shall return a
transcript of all the sheriff's proceedings with the
recognizance so taken
to such court. The sheriff shall, except as provided in
division (C) of
this section, execute all warrants, writs, and other process
directed to the sheriff by any proper and lawful authority
of this state,
and those issued by a proper and lawful authority of any other
state. The sheriff shall attend upon the court of common
pleas and the
court of appeals during their sessions, and, when required, shall
attend upon the probate court. In the execution of official
duties
of the sheriff, the sheriff may call to
the sheriff's aid such persons or
power of the county as is necessary. Under the direction and
control of the board of county commissioners, such sheriff shall
have charge of the court house. A sheriff or deputy sheriff of a
county may participate, as the director of an organized crime
task force established under section 177.02 of the Revised Code
or as a member of the investigatory staff of such a task force,
in an investigation of organized criminal activity in any county
or counties in this state under sections 177.01 to 177.03 of the
Revised Code.
(B) The sheriff of a county may call upon the sheriff of
any other county, the mayor or other chief executive
of any municipal corporation,
and the chairperson of the board of township trustees
of any township within this state, to furnish
such law enforcement or fire protection personnel, or both,
together with appropriate equipment and apparatus, as may be
necessary to preserve the public peace and protect persons and
property in the requesting sheriff's county. Such aid shall be furnished to
the
sheriff requesting it, insofar as possible without withdrawing
from the political subdivision furnishing such aid the minimum
police and fire protection appearing necessary under the
circumstances. Law enforcement and fire
protection
personnel acting outside the territory of their regular
employment shall be considered as performing services within the
territory of their regular employment for the purposes of
compensation, pension or indemnity fund rights, workers'
compensation, and other rights or benefits to which they may be
entitled as incidents of their regular employment. The county
receiving aid shall reimburse, as provided in this
section, the political subdivision
furnishing it the cost of furnishing such aid, including
compensation of personnel, expenses incurred by reason of the
injury or death of any such personnel while rendering such aid,
expenses of furnishing equipment and apparatus, compensation for
damage to or loss of equipment or apparatus while in service
outside the territory of its regular use, and such other
reasonable expenses as may be incurred by any such political
subdivision in furnishing aid.
The cost of furnishing such
aid may be paid from the sheriff's furtherance of justice fund
created pursuant to section 325.071 of the Revised
Code or from the law enforcement trust fund created
pursuant to section 2933.43 2981.13 of the Revised Code,
or from the county general fund to the extent
moneys have been appropriated for such purposes
pursuant to section 5705.38 of the Revised Code
unless the board of county commissioners adopts a resolution
restricting or prohibiting the use of general fund moneys
without the prior approval of the board of county
commissioners. Nothing in this section
shall be construed as superseding or modifying in any way any
provision of a contract entered into pursuant to section 311.29
of the Revised Code. Law enforcement officers acting pursuant to
this section outside the territory of their regular employment
have the same authority to enforce the law as when acting within
the territory of their regular employment.
(C) The sheriff shall not execute process that is issued
in a state other than this state, unless the process contains
either of the following:
(1) A certification by the judge of the court that issued
the process stating that the issuing court has jurisdiction to
issue the process and that the documents being forwarded conform
to the laws of the state in which the court is located;
(2) If the process is an initial summons to appear and
defend issued after the filing of a complaint commencing an
action, a certification by the clerk of the court that issued the
process stating that the process was issued in conformance with
the laws of the state in which the court is located.
(D) As used in this section and section 311.08 of the
Revised Code, "proper and lawful authority" means any authority
authorized by law to issue any process and "process" means those
documents issued in this state in accordance with section 7.01 of
the Revised Code and those documents, other than executions of
judgments or decrees, issued in a state other than this state
that conform to the laws of the state of issuance governing the
issuance of process in that state.
Sec. 1506.35. (A) The director of natural resources may
suspend or revoke, in accordance with Chapter 119. of the Revised
Code, a permit issued under section 1506.32 of the Revised Code
if the permit holder has done either of the following:
(1) Failed to comply with sections 1506.30 to 1506.36 of
the Revised Code, any rules adopted under those sections, or any
provision or condition of the holder's permit;
(2) Damaged abandoned property other than in accordance
with the provisions or conditions of the permit.
(B) Any motor vehicle, as defined in section 4501.01 of
the Revised Code, watercraft, as defined in section 1547.01 of
the Revised Code, mechanical or other assistance, scuba gear,
sonar equipment, or other equipment used by any person in the
course of committing a third or subsequent violation of division
(K) of section 1506.32 of the Revised Code shall be considered
contraband for the purposes of sections 2933.42 and 2933.43 Chapter 2981. of
the Revised Code, except that proceeds from the sale of such
contraband shall be disposed of in the following order:
(1) To the payment of the costs incurred in the forfeiture
proceedings under section 2933.43 Chapter 2981. of the Revised Code;
(2) To the payment of the balance due on any security
interest preserved under division (C)(F) of section 2933.43 2981.04 of the
Revised Code;
(3) To the payment of any costs incurred by the seizing
agency under section 2933.43 Chapter 2981. of the Revised Code in connection
with the storage, maintenance, security, and forfeiture of the
contraband;
(4) Fifty per cent of the remaining money to the credit of
the Lake Erie submerged lands preserves fund created in division
(C) of this section, and fifty per cent of the remaining money to
the Ohio historical society for deposit into the fund created
pursuant to division (C) of section 149.56 of the Revised Code.
(C) There is hereby created in the state treasury the Lake
Erie submerged lands preserves fund. The fund shall be composed
of moneys credited to it under division (B)(4) of this section
and division (D)(2) of section 1506.33 of the Revised Code, all
appropriations, contributions, and gifts made to it, and any
federal grants received by the department of natural resources
for the purposes of sections 1506.30 to 1506.36 of the Revised
Code. The director shall use the moneys in
the Lake Erie submerged lands preserves fund solely to implement
and administer sections 1506.30 to 1506.36 of the Revised Code.
(D) The director may request the
attorney general to, and the attorney general shall, bring a
civil action in any court of competent jurisdiction for any of
the following purposes:
(1) To enforce compliance with or restrain violation of
sections 1506.30 to 1506.36 of the Revised Code, any rules
adopted under those sections, or any permit issued under section
1506.32 of the Revised Code;
(2) To enjoin the further removal of abandoned property or
archaeological material from Lake Erie;
(3) To order the restoration of an area affected by a
violation of sections 1506.30 to 1506.36 of the Revised Code or
of a permit issued under section 1506.32 of the Revised Code to
its prior condition.
Any action under this division is a civil action governed
by the Rules of Civil Procedure.
(E) A peace officer of a county, township, or municipal
corporation, and a preserve officer, wildlife officer, park
officer, or watercraft officer designated under section 1517.10,
1531.13, 1541.10, or 1547.521 of the Revised Code, as applicable,
may enforce compliance with sections 1506.30 to 1506.36 of the
Revised Code, any rules adopted under those sections, and any
permit issued under section 1506.32 of the Revised Code and may
make arrests for violation of those laws, rules, and permits.
Sec. 2152.20. (A) If a child is adjudicated a delinquent
child
or a juvenile traffic offender, the court may order any of
the
following dispositions, in addition to any other disposition
authorized or required by this chapter:
(1) Impose a fine in accordance with the following schedule:
(a) For an act that would be a minor misdemeanor or an
unclassified misdemeanor if committed by an adult, a fine not to
exceed
fifty dollars;
(b) For an act that would be a misdemeanor of the fourth
degree
if committed by an adult, a fine not to exceed one hundred
dollars;
(c) For an act that would be a misdemeanor of the third
degree if
committed by an adult, a fine not to exceed one hundred
fifty
dollars;
(d) For an act that would be a misdemeanor of the second
degree
if committed by an adult, a fine not to exceed two hundred
dollars;
(e) For an act that would be a misdemeanor of the first
degree if
committed by an adult, a fine not to exceed two hundred
fifty
dollars;
(f) For an act that would be a felony of the fifth degree or
an
unclassified felony if committed by an adult, a fine not to
exceed three
hundred dollars;
(g) For an act that would be a felony of the fourth degree
if
committed by an adult, a fine not to exceed four hundred
dollars;
(h) For an act that would be a felony of the third degree if
committed by an adult, a fine not to exceed seven hundred fifty
dollars;
(i) For an act that would be a felony of the second degree
if
committed by an adult, a fine not to exceed one thousand
dollars;
(j) For an act that would be a felony of the first degree if
committed by an adult, a fine not to exceed one thousand five
hundred
dollars;
(k) For an act that would be aggravated murder or murder if
committed by an adult, a fine not to exceed two thousand dollars.
(2) Require the child to pay costs;
(3) Unless the child's delinquent act or juvenile traffic offense would be a minor misdemeanor if committed by an adult or could be disposed of by the juvenile traffic violations bureau serving the court under Traffic Rule 13.1 if the court has established a juvenile traffic violations bureau, require the child to make restitution to the victim of
the
child's delinquent act or juvenile traffic offense or, if the victim is deceased, to a
survivor of
the victim in an amount based upon the victim's
economic loss caused by
or related to the delinquent act or juvenile traffic offense.
The court may not require a child to make restitution pursuant to this division if the child's delinquent act or juvenile traffic offense would be a minor misdemeanor if committed by an adult or could be disposed of by the juvenile traffic violations bureau serving the court under Traffic Rule 13.1 if the court has established a juvenile traffic violations bureau. If the court requires restitution under this
division, the restitution shall be made directly to
the victim in open court or to
the probation department that
serves the jurisdiction or the clerk
of courts on behalf of the
victim.
If the court requires restitution under this division, the restitution may be in the form
of a
cash reimbursement paid in a lump sum or in installments, the
performance of repair work to restore any damaged property to its
original condition, the performance of a reasonable amount of
labor for the victim or survivor of the victim, the performance of
community service work, any other form of restitution devised by
the court, or any combination of the previously described forms of
restitution.
If the court requires restitution under this division, the court may base the restitution order
on an
amount recommended by the victim or survivor of the victim,
the
delinquent child, the juvenile traffic offender, a presentence investigation report,
estimates or
receipts indicating the cost of repairing or
replacing property, and any
other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the delinquent act or juvenile traffic offense. If the court decides to order restitution under this division and the amount of
the restitution is disputed
by the victim or survivor or by the
delinquent child or juvenile traffic offender, the court
shall hold a hearing on the
restitution. If the court requires restitution under this division, the court shall
determine, or order the
determination of, the amount of
restitution to be paid by the
delinquent child or juvenile traffic offender. All restitution
payments shall be credited
against any recovery of economic loss
in a civil action brought by
or on behalf of the victim against
the delinquent child or juvenile traffic offender or the
delinquent child's or juvenile traffic offender's parent, guardian,
or other custodian.
If the court requires restitution under this division, the court may order that the delinquent child or juvenile traffic offender pay a
surcharge, in
an amount not exceeding five per cent of the amount
of restitution
otherwise ordered under this division, to the
entity responsible for
collecting and processing the restitution
payments.
The victim or the survivor of the victim may request that the
prosecuting authority file a motion, or the delinquent child or juvenile traffic offender may
file a
motion, for modification of the payment terms of any
restitution ordered
under this division.
If the court
grants the motion, it may modify the payment terms as it
determines appropriate.
(4) Require the child to reimburse any or all of the costs
incurred for services or sanctions provided or imposed, including,
but
not limited to, the following:
(a) All or part of the costs of implementing any community
control imposed as a disposition under section 2152.19 of the
Revised Code, including a
supervision fee;
(b) All or part of the costs of confinement in a residential
facility described in section 2152.19 of the Revised Code or in a
department of youth services institution, including, but not
limited to, a per
diem fee for room and board, the costs of
medical and
dental treatment provided, and the costs of repairing
property the
delinquent child damaged while so confined. The
amount of
reimbursement ordered for a child under this division
shall not
exceed the total amount of
reimbursement the child is
able to pay as determined at a hearing and shall
not exceed the
actual cost of the confinement. The court may collect any
reimbursement ordered under this division. If the court
does not
order reimbursement under this division, confinement
costs may be
assessed pursuant to a repayment policy adopted under
section
2929.37 of the Revised Code and
division
(D)
of section 307.93,
division
(A) of section
341.19, division
(C) of
section
341.23
or
753.16, division (C) of section 2301.56, or
division
(B) of
section
341.14, 753.02,
753.04,
or
2947.19 of the
Revised Code.
(B)(1) If Chapter 2981. of the Revised Code applies to a child who is adjudicated a delinquent child for
violating
section 2923.32 or 2923.42 of the Revised Code, the court shall
enter an
order of criminal forfeiture against the child in
accordance with
divisions (B)(3), (4), (5), and (6) and (C) to (F)
of section
2923.32 of the Revised Code.
(2) Sections 2925.41 to 2925.45 of the Revised Code
apply to
children who are adjudicated or could be adjudicated by a juvenile
court to be delinquent children for an act that, if committed by
an adult,
would be a felony drug abuse offense. Subject to
division (B) of
section 2925.42 and division (E) of section
2925.43 of the
Revised Code, a
delinquent child of that nature
loses any right to the possession of, and
forfeits to the state
any right, title, and interest that the delinquent child
may have
in, property as defined in section 2925.41 of the Revised Code and
further described in section 2925.42 or 2925.43 of the Revised
Code or for committing an act that, if committed by an adult, would be a felony drug abuse offense.
(3) Sections 2923.44 to 2923.47 of the Revised Code
apply to
children who are adjudicated or could be adjudicated by a juvenile
court to be delinquent children for an act in violation of section
2923.42 of
the Revised Code. Subject to division (B) of
section
2923.44 and division (E) of section 2923.45 of the
Revised Code, a
delinquent child of that nature loses any right to
the possession
of, and forfeits to the state any right, title, and interest
that
the
delinquent child may have in, property as defined in section
2923.41 of the Revised Code and
further described in section
2923.44
or 2923.45 of the Revised Code.
(C) The court may hold a hearing if necessary to determine
whether a child is able to pay a sanction under this section.
(D) If a child who is adjudicated a delinquent child is
indigent,
the court shall consider imposing a term of community
service under
division (A) of section 2152.19 of the Revised Code
in
lieu of imposing a financial sanction under this section. If a
child who is
adjudicated a delinquent child is not indigent, the
court may impose a term of
community service under that division
in lieu of, or in addition
to, imposing a financial sanction under
this section. The court
may order community service for an act
that if committed by an
adult would be a minor misdemeanor.
If a child fails to pay a financial sanction imposed under
this
section, the court may impose a term of community service in
lieu of the
sanction.
(E) The clerk of the court, or another person authorized by
law
or by the court to collect a financial sanction imposed under
this
section, may do any of the following:
(1) Enter into contracts with one or more public agencies or
private vendors for the collection of the amounts due under the
financial sanction, which amounts may include interest from the
date of
imposition of the financial sanction;
(2) Permit payment of all, or any portion of, the financial
sanction in installments, by credit or debit card, by another type
of
electronic transfer, or by any other reasonable method, within
any
period of time, and on any terms that the court considers
just,
except that the maximum time permitted for payment shall not
exceed five years. The clerk may pay any fee associated with
processing an electronic transfer out of public money and may
charge the fee
to
the delinquent child.
(3) To defray administrative costs, charge a reasonable fee
to a
child who elects a payment plan rather than a lump sum
payment of a
financial sanction.
Sec. 2901.01. (A) As used in the Revised Code:
(1) "Force" means any violence, compulsion, or constraint
physically exerted by any means upon or against a person or
thing.
(2) "Deadly force" means any force that carries a
substantial risk that it will proximately result in the death of
any person.
(3) "Physical harm to persons" means any injury, illness,
or
other physiological impairment, regardless of its gravity or
duration.
(4) "Physical harm to property" means any tangible or
intangible damage to property that, in any degree, results in
loss
to its value or interferes with its use or enjoyment.
"Physical
harm to property" does not include wear and tear
occasioned by
normal use.
(5) "Serious physical harm to persons" means any of the
following:
(a) Any mental illness or condition of such gravity as
would
normally require hospitalization or prolonged psychiatric
treatment;
(b) Any physical harm that carries a substantial risk of
death;
(c) Any physical harm that involves some permanent
incapacity, whether partial or total, or that involves some
temporary, substantial incapacity;
(d) Any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement;
(e) Any physical harm that involves acute pain of such
duration as to result in substantial suffering or that involves
any degree of prolonged or intractable pain.
(6) "Serious physical harm to property" means any physical
harm to property that does either of the following:
(a) Results in substantial loss to the value of the
property
or requires a substantial amount of time, effort, or
money to
repair or replace;
(b) Temporarily prevents the use or enjoyment of the
property or substantially interferes with its use or enjoyment
for
an extended period of time.
(7) "Risk" means a significant possibility, as contrasted
with a remote possibility, that a certain result may occur or
that
certain circumstances may exist.
(8) "Substantial risk" means a strong possibility, as
contrasted with a remote or significant possibility, that a
certain result may occur or that certain circumstances may exist.
(9) "Offense of violence" means any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211,
2903.22,
2905.01, 2905.02, 2905.11, 2907.02, 2907.03, 2907.05,
2909.02, 2909.03,
2909.24,
2911.01, 2911.02, 2911.11, 2917.01,
2917.02, 2917.03, 2917.31,
2919.25, 2921.03, 2921.04, 2921.34, or
2923.161, of division (A)(1), (2), or
(3) of section 2911.12, or
of division (B)(1), (2), (3), or (4) of section
2919.22 of the
Revised Code or felonious sexual penetration in violation of
former section 2907.12 of the Revised Code;
(b) A violation of an existing or former municipal
ordinance
or law of this or any other state or the United States,
substantially equivalent to any section, division, or
offense
listed in division (A)(9)(a) of this section;
(c) An offense, other than a traffic offense, under an
existing or former municipal ordinance or law of this or any
other
state or the United States, committed purposely or
knowingly, and
involving physical harm to persons or a risk of
serious physical
harm to persons;
(d) A conspiracy or attempt to commit, or complicity in
committing, any offense under division (A)(9)(a),
(b), or (c) of
this section.
(10)(a) "Property" means any property, real or
personal,
tangible or intangible, and any interest or license in
that
property. "Property" includes, but is not limited to, cable
television service, other telecommunications service,
telecommunications devices, information service, computers, data,
computer software, financial
instruments associated with
computers, other documents
associated with computers, or copies of
the documents, whether in
machine or human readable form, trade
secrets, trademarks,
copyrights, patents, and property protected
by a trademark, copyright, or
patent. "Financial instruments
associated with computers" include, but are not limited to,
checks, drafts, warrants, money orders, notes of indebtedness,
certificates of deposit, letters of credit, bills of credit or
debit cards, financial transaction authorization mechanisms,
marketable securities, or any computer system representations of
any of them.
(b) As used in division (A)(10)
of this section, "trade
secret" has the same meaning as in section 1333.61
of the Revised
Code, and "telecommunications service" and
"information
service"
have the same
meanings as in section 2913.01 of the Revised Code.
(c) As used in divisions (A)(10) and (13) of
this section,
"cable television service," "computer," "computer
software,"
"computer system," "computer network," "data,"
and
"telecommunications device" have the same
meanings as in section
2913.01 of the Revised Code.
(11) "Law enforcement officer" means any of the following:
(a) A sheriff, deputy sheriff, constable, police officer
of
a township or joint township police district, marshal, deputy
marshal, municipal police officer, member of a police force
employed by a metropolitan housing authority under division (D)
of
section 3735.31 of the Revised Code, or state highway patrol
trooper;
(b) An officer, agent, or employee of the state or any of
its agencies, instrumentalities, or political subdivisions, upon
whom, by statute, a duty to conserve the peace or to enforce all
or certain laws is imposed and the authority to arrest violators
is conferred, within the limits of that statutory duty and
authority;
(c) A mayor, in the mayor's capacity as chief conservator of
the
peace within the mayor's municipal corporation;
(d) A member of an auxiliary police force organized by
county, township, or municipal law enforcement authorities,
within
the scope of the member's appointment or commission;
(e) A person lawfully called pursuant to section 311.07 of
the Revised Code to aid a sheriff in keeping the peace, for the
purposes and during the time when the person is called;
(f) A person appointed by a mayor pursuant to section
737.01
of the Revised Code as a special patrolling
officer during riot or
emergency, for the purposes and during the time when
the person is
appointed;
(g) A member of the organized militia of this state or the
armed forces of the United States, lawfully called to duty to aid
civil authorities in keeping the peace or protect against
domestic
violence;
(h) A prosecuting attorney, assistant prosecuting
attorney,
secret service officer, or municipal prosecutor;
(i) A veterans' home police officer appointed under
section 5907.02 of the Revised Code;
(j) A member of a police force employed by a regional
transit authority under division (Y) of section 306.35 of the
Revised Code;
(k) A special police officer employed by a port authority
under
section 4582.04 or 4582.28 of the Revised Code;
(l) The house of representatives sergeant at arms if the house of representatives sergeant at arms
has
arrest authority pursuant to division (E)(1) of section
101.311 of the Revised Code
and an assistant house of representatives sergeant at
arms;
(m) A special police officer employed by a municipal
corporation at a municipal airport, or other municipal air
navigation facility, that has
scheduled operations, as defined in
section 119.3 of Title 14 of
the Code of Federal Regulations, 14
C.F.R. 119.3, as amended, and
that is required to be under a
security program and is governed by
aviation security rules of the
transportation security
administration of the United States
department of transportation
as provided in Parts 1542. and 1544.
of Title 49 of the Code of
Federal Regulations, as amended.
(12) "Privilege" means an immunity, license, or right
conferred by law, bestowed by express or implied grant,
arising
out of status, position, office, or relationship, or
growing out
of necessity.
(13) "Contraband" means any property described in the
following categories:
(a) Property that in and of itself is unlawful illegal for a
person
to acquire or possess;
(b) Property that is not in and of itself unlawful for a
person to acquire or possess, but that has been determined by a
court of this state, in accordance with law, to be contraband
because of its use in an unlawful activity or manner, of its
nature, or of the circumstances of the person who acquires or
possesses it, including, but not limited to, goods and personal
property described in division (D) of section 2913.34 of the
Revised Code;
(c) Property that is specifically stated to be contraband
by
a section of the Revised Code or by an ordinance, regulation,
or
resolution;
(d) Property that is forfeitable pursuant to a section of
the Revised Code, or an ordinance, regulation, or resolution,
including, but not limited to, forfeitable firearms, dangerous
ordnance, obscene materials, and goods and personal
property
described in division (D) of section 2913.34 of the Revised Code; under a statute, ordinance, or rule, or that a trier of fact lawfully determines to be illegal to possess by reason of the property's involvement in an offense. "Contraband" includes, but is not limited to, all of the following:
(e)(a) Any controlled substance, as defined in section
3719.01
of the Revised Code, or any device, or paraphernalia, money
as
defined in section 1301.01 of the Revised Code, or other means
of
exchange that has been, is being, or is intended to be used in
an
attempt or conspiracy to violate, or in a violation of,
Chapter
2925. or 3719. of the Revised Code;
(f)(b) Any unlawful gambling device, or paraphernalia, money as defined
in
section 1301.01 of the Revised Code, or other means of
exchange
that has been, is being, or is intended to be used in an
attempt
or conspiracy to violate, or in the violation of, Chapter
2915. of
the Revised Code;
(g) Any equipment, machine, device, apparatus, vehicle,
vessel, container, liquid, or substance that has been, is being,
or is intended to be used in an attempt or conspiracy to violate,
or in the violation of, any law of this state relating to alcohol
or tobacco;
(h) Any personal property that has been, is being, or is
intended to be used in an attempt or conspiracy to commit, or in
the commission of, any offense or in the transportation of the
fruits of any offense;
(i) Any property that is acquired through the sale or
other
transfer of contraband or through the proceeds of
contraband,
other than by a court or a law enforcement agency
acting within
the scope of its duties;
(j) Any computer, computer system, computer network,
computer software, or other telecommunications device that is
used
in a conspiracy to commit, an
attempt to commit, or the commission
of any offense, if the
owner of the computer, computer system,
computer network, computer
software, or other telecommunications
device is convicted of or
pleads guilty to the offense in which it
is used;
(k) Any property that is material support or resources and
that has been, is being, or is intended to be used in an attempt
or conspiracy to violate, or in the violation of, section 2909.22,
2909.23, or 2909.24 of the Revised Code or of section 2921.32 of
the Revised Code when the offense or act committed by the person
aided or to be aided as described in that section is an act of
terrorism. As used in division (A)(13)(k) of this section,
"material support or
resources" and "act of terrorism" have the
same meanings as in
section 2909.21 of the Revised Code.
(c) Any dangerous ordnance or obscene material.
(14) A person is "not guilty by reason of insanity"
relative
to a charge of an offense only if the person proves, in the
manner
specified in section 2901.05 of the Revised Code, that at
the time
of the commission of the offense, the person did not know, as a
result of a severe mental disease or defect, the wrongfulness of
the person's acts.
(B)(1)(a) Subject to division (B)(2) of this section,
as
used in any section contained in Title XXIX
of the Revised Code
that sets forth a criminal offense,
"person" includes all of the
following:
(i) An individual, corporation, business trust, estate,
trust,
partnership, and association;
(ii) An unborn human who is viable.
(b) As used in any section contained in Title
XXIX of the
Revised Code that does not set forth a
criminal offense, "person"
includes an individual, corporation, business
trust, estate,
trust, partnership, and association.
(c) As used in division (B)(1)(a) of this section:
(i) "Unborn human" means an individual organism of the
species
Homo sapiens from fertilization until live birth.
(ii) "Viable" means the stage of development of
a human
fetus at which there is a realistic possibility of maintaining and
nourishing of a life outside the womb with or without temporary
artificial
life-sustaining support.
(2) Notwithstanding division (B)(1)(a) of this section, in
no case
shall the portion of the definition of the term "person"
that is set forth in
division (B)(1)(a)(ii) of this section be
applied or construed in any section contained in Title XXIX of the
Revised
Code that sets forth a criminal offense in any of the
following manners:
(a) Except as otherwise provided in division (B)(2)(a) of
this section, in a
manner so that the offense prohibits or is
construed as
prohibiting any pregnant woman or her physician from
performing an abortion
with the consent of the pregnant woman,
with the consent of the pregnant
woman implied by law in a medical
emergency, or with the approval of one
otherwise authorized by law
to consent to medical treatment on behalf of the
pregnant woman.
An abortion that violates the conditions described in the
immediately preceding sentence may be punished as a violation of
section
2903.01, 2903.02, 2903.03, 2903.04, 2903.05, 2903.06,
2903.08,
2903.11, 2903.12, 2903.13, 2903.14, 2903.21, or 2903.22
of the Revised Code,
as applicable. An abortion that does not
violate the conditions
described in the second immediately
preceding sentence, but that does violate
section 2919.12,
division (B) of section 2919.13, or section 2919.151,
2919.17, or
2919.18 of the Revised Code, may be punished as a violation of
section 2919.12, division (B) of section 2919.13, or
section
2919.151, 2919.17, or 2919.18 of the Revised Code, as
applicable.
Consent is sufficient under this division if it is of the type
otherwise adequate to permit medical treatment to the pregnant
woman, even if
it does not comply with section 2919.12 of the
Revised Code.
(b) In a manner so that the offense is applied or
is
construed as applying to a woman based on an act or omission of
the woman
that occurs while she is or was pregnant and that
results in any of the
following:
(i) Her delivery of a stillborn baby;
(ii) Her causing, in any other manner, the death in
utero of
a viable, unborn human that she is carrying;
(iii) Her causing the death of her child who is born
alive
but who dies from one or more injuries that are sustained while
the
child is a viable, unborn human;
(iv) Her causing her child who is born alive to
sustain one
or more injuries while the child is a viable, unborn human;
(v) Her causing, threatening to cause, or attempting
to
cause, in any other manner, an injury, illness, or other
physiological
impairment, regardless of its duration or gravity,
or a mental illness or
condition, regardless of its duration or
gravity, to a viable, unborn human
that she is carrying.
(C) As used in Title XXIX of the Revised Code:
(1) "School safety zone"
consists of a school, school
building, school premises, school
activity, and school bus.
(2) "School," "school building," and "school premises" have
the same
meanings as in section 2925.01 of the Revised Code.
(3) "School activity" means any activity held under the
auspices of a board of education of a city, local,
exempted
village, joint vocational, or cooperative education
school
district; a governing authority of a community school established under Chapter 3314. of the Revised Code; a governing board of an educational service center,
or
the governing body of a school for which the
state board of
education prescribes minimum standards under
section 3301.07 of
the Revised
Code.
(4) "School bus" has the same meaning as in section
4511.01
of the Revised
Code.
Sec. 2909.08. (A) As used in this section:
(1) "Air gun" means a hand pistol or rifle that propels
its projectile by means of releasing compressed air, carbon
dioxide, or other gas.
(2) "Firearm" has the same meaning as in section 2923.11
of the Revised Code.
(3) "Spring-operated gun" means a hand pistol or rifle
that propels a projectile not less than four or more than five
millimeters in diameter by means of a spring.
(4) "Airport operational surface" means any surface of
land or water that is developed, posted, or marked so as to give
an observer reasonable notice that the surface is designed and
developed for the purpose of storing, parking, taxiing, or
operating aircraft, or any surface of land or water that is
actually being used for any of those purposes.
(B) No person shall do either of the following:
(1) Knowingly throw an object at, or drop an object upon,
any moving aircraft;
(2) Knowingly shoot with a bow and arrow, or knowingly
discharge a firearm, air gun, or spring-operated gun, at or
toward any aircraft.
(C) No person shall knowingly or recklessly shoot with a
bow and arrow, or shall knowingly or recklessly discharge a
firearm, air gun, or spring-operated gun, upon or over any
airport operational surface. This division does not apply to the
following:
(1) An officer, agent, or employee of this or any other
state or the United States, or a law enforcement officer,
authorized to discharge firearms and acting within the scope of
the officer's, agent's, or employee's duties;
(2) A person who, with the consent of the owner or
operator of the airport operational surface or the authorized
agent of either, is lawfully engaged in any hunting or sporting
activity or is otherwise lawfully discharging a firearm.
(D) Whoever violates division (B) of this section is
guilty of endangering aircraft, a misdemeanor of the first
degree. If the violation creates a risk of physical harm to any
person, endangering aircraft is a felony of the
fifth degree. If the violation creates a substantial risk of physical harm
to any person or if the aircraft that is the subject of the violation is
occupied, endangering aircraft is a felony of the fourth degree.
(E) Whoever violates division (C) of this section is
guilty of endangering airport operations, a misdemeanor of the
second degree. If the violation creates a risk of physical harm
to any person, endangering airport operations is a felony of the
fifth degree. If the violation creates a
substantial risk of
physical harm to any person, endangering airport operations is a felony of the
fourth degree. In addition to any other penalty or sanction imposed for the
violation, the hunting license or permit of a person who violates division
(C) of
this section
while hunting shall be suspended or revoked pursuant to section 1533.68 of the
Revised Code.
(F) Any bow and arrow, air gun, spring-operated gun, or
firearm that has been used in a felony violation of this section
shall be seized or forfeited, and shall be disposed of pursuant
to section 2933.41 Chapter 2981. of the Revised Code.
Sec. 2913.34. (A) No person shall knowingly do any
of the following:
(1) Attach, affix, or otherwise use a counterfeit mark in connection
with the manufacture of goods or services, whether or not the goods or
services
are intended for sale or resale;
(2) Possess, sell, or offer for sale tools, machines, instruments,
materials, articles, or other items of personal property with the knowledge
that they are designed for the production or reproduction of counterfeit
marks;
(3) Purchase or otherwise acquire goods, and keep or otherwise have the
goods in the person's possession, with the knowledge that a counterfeit mark
is attached to, affixed to, or otherwise used in connection with the goods and
with the intent to sell or otherwise dispose of the goods;
(4) Sell, offer for sale, or otherwise dispose of goods with the
knowledge that a counterfeit mark is attached to, affixed to, or otherwise
used in connection with the goods;
(5) Sell, offer for sale, or otherwise provide services with the
knowledge that a counterfeit mark is used in connection with that sale,
offer for sale, or other provision of the services.
(B)(1) Whoever violates this section is guilty of trademark counterfeiting.
(2) Except as otherwise provided in this division, a violation of
division (A)(1) of this section is a felony of
the fifth degree. Except as otherwise provided in this division, if the
cumulative sales price of the goods or services to which or in connection with
which the counterfeit mark is attached, affixed, or otherwise used in the
offense is five thousand dollars or more but less than one hundred thousand
dollars or if the number of units of goods to which or in
connection with which the counterfeit mark is attached, affixed, or otherwise
used in the offense is more than one hundred units but less than one thousand
units, a violation of division (A)(1) of this
section is a felony of the fourth degree. If the cumulative sales price of
the goods or services to which or in connection with which the counterfeit
mark is attached, affixed, or otherwise used in the offense is one hundred
thousand dollars or more or if the number of units of goods to which or in
connection with which the counterfeit mark is attached, affixed, or otherwise
used in the offense is one thousand units or more, a violation of division
(A)(1) of this section is a felony of the third degree.
(3) Except as otherwise provided in this division, a violation of
division (A)(2) of this section is a
misdemeanor of the first degree. If the circumstances of the violation
indicate that the tools, machines, instruments, materials, articles, or other
items of personal property involved in the violation were intended for use in
the commission of a felony, a violation of division (A)(2) of this
section is a felony of the fifth degree.
(4) Except as otherwise provided in this division, a violation of division
(A)(3), (4), or (5) of this section is a misdemeanor of the first
degree. Except as otherwise provided in
this division, if the cumulative sales price of the goods or services to which
or in connection with which the counterfeit mark is attached, affixed, or
otherwise used in the offense is five hundred dollars or more but less than
five thousand dollars, a violation of division
(A)(3), (4), or (5) of this section is a felony of the fifth degree. Except
as otherwise provided in this division, if the cumulative sales price of the
goods or services to which or in connection with which the counterfeit mark is
attached, affixed, or otherwise used in the offense is five thousand dollars
or more but less than one hundred thousand dollars or if the number of units
of goods to which or in connection with which the counterfeit mark is
attached, affixed, or otherwise used in the offense is more than one hundred
units but less than one thousand units,
a violation of division (A)(3), (4), or (5) of this
section is a felony of the fourth
degree. If the cumulative sales price of the goods or services to which or in
connection with which the counterfeit mark is attached, affixed, or otherwise
used in the offense is one hundred
thousand dollars or more or if the number of units of goods to which or in
connection with which the counterfeit mark is attached, affixed, or otherwise
used in the offense is one thousand units or more, a violation of division
(A)(3), (4), or (5) of this section is a felony of the third degree.
(C) A defendant may assert as an
affirmative defense to a charge of a violation of this section defenses,
affirmative defenses, and limitations on remedies that would be available in a
civil, criminal, or administrative action or proceeding under the "Lanham
Act," 60 Stat. 427-443 (1946), 15 U.S.C.
1051-1127, as amended, "The Trademark Counterfeiting
Act of 1984," 98 Stat. 2178, 18 U.S.C. 2320, as amended, Chapter 1329. or
another section of the
Revised Code, or common law.
(D)(1) Law enforcement officers may seize pursuant to
Criminal Rule 41 or Chapter 2933. or 2981. of the Revised Code either of the following:
(a) Goods to which or in connection with which a person attached,
affixed, otherwise used, or intended to attach, affix, or otherwise use a
counterfeit mark in violation of this section;
(b) Tools, machines, instruments, materials, articles, vehicles,
or other items of personal property that are possessed, sold, offered for
sale, or used in a violation of this section or in an attempt to commit or
complicity in the commission of a violation of this section.
(2) Notwithstanding any contrary provision of sections 2923.31 to 2923.35 or
2933.41 to 2933.43 Chapter 2981. of the Revised Code, if a person is convicted of or pleads
guilty to a violation of this section, an attempt to violate this section, or
complicity in a violation of this section, the court involved shall declare
that the goods described in division (D)(1)(a) of this section and the
personal property described in division (D)(1)(b) of this section
are contraband and are forfeited. Prior to the court's entry of judgment
under Criminal Rule
32, the owner of a registered trademark or service mark that is the subject of
the counterfeit mark may recommend a manner in which
the forfeited goods and forfeited personal property should be disposed of. If
that owner makes a timely recommendation of a manner of disposition, the court
is not bound by the recommendation. If
that owner makes a timely recommendation of a manner of disposition, the court
may include in its entry of judgment an order that requires appropriate
persons to dispose of the forfeited goods and forfeited personal property in
the recommended manner. If that owner fails to make a timely recommendation
of a manner of disposition or if that owner makes a timely recommendation of
the manner of disposition but the court determines to not follow the
recommendation, the court shall include in its entry of judgment an order that
requires the law enforcement agency that employs the law enforcement officer
who seized the forfeited goods or the forfeited personal property to destroy
them or cause their destruction.
(E) This section does not affect the
rights of an owner of a trademark or a service mark, or the enforcement in a
civil action or in administrative proceedings of the rights of an owner of a
trademark or a service mark, under the "Lanham
Act," 60 Stat. 427-443 (1946), 15 U.S.C. 1051-1127, as amended, "The Trademark
Counterfeiting Act of 1984," 92 Stat. 2178, 18 U.S.C. 2320, as amended,
Chapter 1329. or another section of the Revised Code, or common law.
(F) As used in this section:
(1)(a) Except as provided in division (F)(1)(b) of this section, "counterfeit
mark" means a spurious trademark or a spurious service mark that satisfies
both of the following:
(i) It is identical with or substantially indistinguishable from
a mark that is registered on the principal register in the United
States patent and trademark office for the same goods or
services as the goods or services to which or in connection with which the
spurious trademark or spurious service mark is attached, affixed, or otherwise
used or from a mark
that is registered with the secretary of state pursuant to
sections 1329.54 to 1329.67 of the Revised
Code for the same goods or services as the goods or services
to which or in connection with which the spurious trademark or spurious
service mark is attached, affixed, or otherwise used, and the owner of the
registration uses
the registered mark, whether or not the offender knows that the mark is
registered in a manner described in division (F)(1)(a)(i) of this section.
(ii) Its use is likely to cause confusion or mistake or to
deceive other persons.
(b) "Counterfeit mark" does not include a mark or other
designation that is attached to, affixed to, or otherwise used in connection
with goods or services if the holder of the right to use the mark or
other designation authorizes the manufacturer, producer, or vendor of those
goods or services to attach, affix, or otherwise use the mark or other
designation in connection with those goods or services at the time of their
manufacture, production, or sale.
(2) "Cumulative sales price" means the product of the lowest single unit
sales price charged or sought to be charged by an offender for goods to which
or in connection with which a counterfeit mark is attached, affixed, or
otherwise used or of the lowest single service transaction price charged or
sought to be charged by an offender for services in connection with which a
counterfeit mark is used, multiplied by the total number of those goods
or services, whether or not units of goods are sold or are in an offender's
possession, custody, or control.
(3) "Registered trademark or service mark" means a trademark or service
mark that is registered in a manner described in division (F)(1) of this
section.
(4) "Trademark" and "service mark" have the same meanings as in section
1329.54 of the Revised Code.
Sec. 2913.421. (A) As used in this section:
(1) "Computer," "computer network," and "computer system" have the same meanings as in section 2913.01 of the Revised Code.
(2) "Commercial electronic mail message" means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service, including content on an internet web site operated for a commercial purpose, but does not include a transactional or relationship message. The inclusion of a reference to a commercial entity or a link to the web site of a commercial entity does not, by itself, cause that message to be treated as a commercial electronic mail message for the purpose of this section, if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service.
(3) "Domain name" means any alphanumeric designation that is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the internet.
(4) "Electronic mail," "originating address," and "receiving address" have the same meanings as in section 2307.64 of the Revised Code.
(5) "Electronic mail message" means each electronic mail addressed to a discrete addressee.
(6) "Electronic mail service provider" means any person, including an internet service provider, that is an intermediary in sending and receiving electronic mail and that provides to the public electronic mail accounts or online user accounts from which electronic mail may be sent.
(7) "Header information" means the source, destination, and routing information attached to an electronic mail message, including the originating domain name, the originating address, and technical information that authenticates the sender of an electronic mail message for computer network security or computer network management purposes.
(8)
"Initiate the transmission" or "initiated" means to originate or transmit a commercial electronic mail message or to procure the origination or transmission of that message, regardless of whether the message reaches its intended recipients, but does not include actions that constitute routine conveyance of such message.
(9) "Internet" has the same meaning as in section 341.42 of the Revised Code.
(10) "Internet protocol address" means the string of numbers by which locations on the internet are identified by routers or other computers connected to the internet.
(11) "Materially falsify" means to alter or conceal in a manner that would impair the ability of a recipient of an electronic mail message, an electronic mail service provider processing an electronic mail message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to the person that initiated the electronic mail message or to investigate an alleged violation of this section.
(12) "Multiple" means more than ten commercial electronic mail messages during a twenty-four-hour period, more than one hundred commercial electronic mail messages during a thirty-day period, or more than one thousand commercial electronic mail messages during a one-year period.
(13) "Recipient" means a person who receives a commercial electronic mail message at any one of the following receiving addresses:
(a) A receiving address furnished by an electronic mail service provider that bills for furnishing and maintaining that receiving address to a mailing address within this state;
(b) A receiving address ordinarily accessed from a computer located within this state or by a person domiciled within this state;
(c) Any other receiving address with respect to which this section can be imposed consistent with the United States Constitution.
(14) "Routine conveyance" means the transmission, routing, relaying, handling, or storing, through an automated technical process, of an electronic mail message for which another person has identified the recipients or provided the recipient addresses.
(15) "Transactional or relationship message" means an electronic mail message the primary purpose of which is to do any of the following:
(a) Facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
(b) Provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
(c) Provide notification concerning a change in the terms or features of; a change in the recipient's standing or status with respect to; or, at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender;
(d) Provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled;
(e) Deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.
(B) No person, with regard to commercial electronic mail messages sent from or to a computer in this state, shall do any of the following:
(1) Knowingly use a computer to relay or retransmit multiple commercial electronic mail messages, with the intent to deceive or mislead recipients or any electronic mail service provider, as to the origin of those messages;
(2) Knowingly and materially falsify header information in multiple commercial electronic mail messages and purposely initiate the transmission of those messages;
(3) Knowingly register, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names and purposely initiate the transmission of multiple commercial electronic mail messages from one, or any combination, of those accounts or domain names;
(4) Knowingly falsely represent the right to use five or more internet protocol addresses, and purposely initiate the transmission of multiple commercial electronic mail messages from those addresses.
(C)(1) Whoever violates division (B) of this section is guilty of illegally transmitting multiple commercial electronic mail messages. Except as otherwise provided in division (C)(2) or (E) of this section, illegally transmitting multiple commercial electronic mail messages is a felony of the fifth degree.
(2) Illegally transmitting multiple commercial electronic mail messages is a felony of the fourth degree if any of the following apply:
(a) Regarding a violation of division (B)(3) of this section, the offender, using information that materially falsifies the identity of the actual registrant, knowingly registers for twenty or more electronic mail accounts or online user accounts or ten or more domain names, and purposely initiates, or conspires to initiate, the transmission of multiple commercial electronic mail messages from the accounts or domain names.
(b) Regarding any violation of division (B) of this section, the volume of commercial electronic mail messages the offender transmitted in committing the violation exceeds two hundred and fifty during any twenty-four-hour period, two thousand five hundred during any thirty-day period, or twenty-five thousand during any one-year period.
(c) Regarding any violation of division (B) of this section, during any one-year period the aggregate loss to the victim or victims of the violation is five hundred dollars or more, or during any one-year period the aggregate value of the property or services obtained by any offender as a result of the violation is five hundred dollars or more.
(d) Regarding any violation of division (B) of this section, the offender committed the violation with three or more other persons with respect to whom the offender was the organizer or leader of the activity that resulted in the violation.
(e) Regarding any violation of division (B) of this section, the offender knowingly assisted in the violation through the provision or selection of electronic mail addresses to which the commercial electronic mail message was transmitted, if that offender knew that the electronic mail addresses of the recipients were obtained using an automated means from an internet web site or proprietary online service operated by another person, and that web site or online service included, at the time the electronic mail addresses were obtained, a notice stating that the operator of that web site or online service will not transfer addresses maintained by that web site or online service to any other party for the purposes of initiating the transmission of, or enabling others to initiate the transmission of, electronic mail messages.
(f) Regarding any violation of division (B) of this section, the offender knowingly assisted in the violation through the provision or selection of electronic mail addresses of the recipients obtained using an automated means that generates possible electronic mail addresses by combining names, letters, or numbers into numerous permutations.
(D)(1) No person, with regard to commercial electronic mail messages sent from or to a computer in this state, shall knowingly access a computer without authorization and purposely initiate the transmission of multiple commercial electronic mail messages from or through the computer.
(2) Except as otherwise provided in division (E) of this section, whoever violates division (D)(1) of this section is guilty of unauthorized access of a computer, a felony of the fourth degree.
(E) Illegally transmitting multiple commercial electronic mail messages and unauthorized access of a computer in violation of this section are felonies of the third degree if the offender previously has been convicted of a violation of this section, or a violation of a law of another state or the United States regarding the transmission of electronic mail messages or unauthorized access to a computer, or if the offender committed the violation of this section in the furtherance of a felony.
(F)(1) The attorney general or an electronic mail service provider that is injured by a violation of this section may bring a civil action in an appropriate court of common pleas of this state seeking relief from any person whose conduct violated this section. The civil action may be commenced at any time within one year of the date after the act that is the basis of the civil action.
(2) In a civil action brought by the attorney general pursuant to division (F)(1) of this section for a violation of this section, the court may award temporary, preliminary, or permanent injunctive relief. The court also may impose a civil penalty against the offender, as the court considers just, in an amount that is the lesser of: (a) twenty-five thousand dollars for each day a violation occurs, or (b) not less than two dollars but not more than eight dollars for each commercial electronic mail message initiated in violation of this section.
(3) In a civil action brought by an electronic mail service provider pursuant to division (F)(1) of this section for a violation of this section, the court may award temporary, preliminary, or permanent injunctive relief, and also may award damages in an amount equal to the greater of the following:
(a) The sum of the actual damages incurred by the electronic mail service provider as a result of a violation of this section, plus any receipts of the offender that are attributable to a violation of this section and that were not taken into account in computing actual damages;
(b) Statutory damages, as the court considers just, in an amount that is the lesser of: (i) twenty-five thousand dollars for each day a violation occurs, or (ii) not less than two dollars but not more than eight dollars for each commercial electronic mail message initiated in violation of this section.
(4) In assessing damages awarded under division (F)(3) of this section, the court may consider whether the offender has established and implemented, with due care, commercially reasonable practices and procedures designed to effectively prevent the violation, or the violation occurred despite commercially reasonable efforts to maintain the practices and procedures established.
(G) Any equipment, software, or other technology of a person who violates this section that is used or intended to be used in the commission of a violation of this section, and any real or personal property that constitutes or is traceable to the gross proceeds obtained from the commission of a violation of this section, is contraband and is subject to seizure and forfeiture pursuant to sections 2933.42 and 2933.43 Chapter 2981. of the Revised Code.
(H) The attorney general may bring a civil action, pursuant to the "CAN-SPAM Act of 2003," Pub. L. No. 108-187, 117 Stat. 2699, 15 U.S.C. 7701 et seq., on behalf of the residents of the state in a district court of the United States that has jurisdiction for a violation of the CAN-SPAM Act of 2003, but the attorney general shall not bring a civil action under both this division and division (F) of this section. If a federal court dismisses a civil action brought under this division for reasons other than upon the merits, a civil action may be brought under division (F) of this section in the appropriate court of common pleas of this state.
(I) Nothing in this section shall be construed:
(1) To require an electronic mail service provider to block, transmit, route, relay, handle, or store certain types of electronic mail messages;
(2) To prevent or limit, in any way, an electronic mail service provider from adopting a policy regarding electronic mail, including a policy of declining to transmit certain types of electronic mail messages, or from enforcing such policy through technical means, through contract, or pursuant to any remedy available under any other federal, state, or local criminal or civil law;
(3) To render lawful any policy adopted under division (I)(2) of this section that is unlawful under any other law.
Sec. 2923.01. (A) No person, with purpose to commit or to
promote or facilitate the commission of aggravated murder,
murder,
kidnapping, compelling prostitution, promoting
prostitution,
aggravated arson, arson, aggravated robbery,
robbery, aggravated
burglary, burglary, engaging in a pattern of
corrupt activity,
corrupting another with drugs, a felony drug trafficking,
manufacturing, processing, or possession offense, theft of drugs,
or
illegal processing of drug documents, the commission of a
felony offense of
unauthorized use of a vehicle, illegally transmitting multiple commercial electronic mail messages or unauthorized access of a computer in violation of section 2923.421 of the Revised Code, or
the commission
of a violation of any provision of Chapter 3734.
of the Revised
Code, other than section 3734.18 of the Revised
Code, that relates
to hazardous wastes, shall do either of the
following:
(1) With another person or persons, plan or aid in
planning
the commission of any of the specified
offenses;
(2) Agree with another person or persons that one or more
of
them will engage in conduct that facilitates the commission of
any
of the specified offenses.
(B) No person shall be convicted of conspiracy unless a
substantial overt act in furtherance of the conspiracy is alleged
and proved to have been done by the accused or a person with
whom
the accused conspired, subsequent to the accused's entrance into
the
conspiracy. For purposes of this section, an overt act is
substantial when it is of a character that manifests a purpose
on
the part of the actor that the object of the conspiracy should
be
completed.
(C) When the offender knows or has reasonable cause to
believe that a person with whom the offender conspires also has
conspired
or is conspiring with another to commit the same
offense,
the offender is guilty of conspiring with that other
person, even
though the other person's identity may be unknown to
the
offender.
(D) It is no defense to a charge under this section that,
in
retrospect, commission of the offense that was the object of
the
conspiracy was impossible under the circumstances.
(E) A conspiracy terminates when the offense or offenses
that are its objects are committed or when it is abandoned by
all
conspirators. In the absence of abandonment, it is no
defense to
a charge under this section that no offense that was
the object of
the conspiracy was committed.
(F) A person who conspires to commit more than one offense
is guilty of only one conspiracy, when the offenses are the
object
of the same agreement or continuous conspiratorial
relationship.
(G) When a person is convicted of committing or attempting
to commit a specific offense or of complicity in the commission
of
or attempt to commit the specific offense, the person
shall not be
convicted of conspiracy involving the same offense.
(H)(1) No person shall be convicted of conspiracy upon the
testimony of a person with whom the defendant conspired,
unsupported by other evidence.
(2) If a person with whom the defendant allegedly has
conspired testifies against the defendant in a case in which the
defendant is charged with conspiracy and if the testimony is
supported by other evidence, the court, when it charges the jury,
shall state substantially the following:
"The testimony of an accomplice that is supported by other
evidence does not become inadmissible because of the
accomplice's
complicity,
moral turpitude, or self-interest, but the admitted or
claimed
complicity of a witness may affect the witness'
credibility
and make the witness' testimony subject to grave
suspicion,
and require that it be
weighed with great caution.
It is for you, as jurors, in the light of all the facts
presented to you from the witness stand, to evaluate such
testimony and to determine its quality and worth or its lack of
quality and worth."
(3)
"Conspiracy," as used in division (H)(1) of this
section,
does not include any conspiracy that results in an
attempt to
commit an offense or in the commission of an offense.
(I) The following are affirmative defenses to a charge of
conspiracy:
(1) After conspiring to commit an offense, the actor
thwarted the success of the conspiracy under circumstances
manifesting a complete and voluntary renunciation of the
actor's
criminal
purpose.
(2) After conspiring to commit an offense, the actor
abandoned the conspiracy prior to the commission of or attempt to
commit any offense that was the object of the conspiracy, either
by advising all other conspirators of the actor's
abandonment, or
by
informing any law enforcement authority of the existence of the
conspiracy and of the actor's participation in the
conspiracy.
(J) Whoever violates this section is guilty of conspiracy,
which is one of the following:
(1) A felony of the first degree, when one of the objects
of
the conspiracy is aggravated murder, murder, or
an offense for
which the maximum penalty is imprisonment for life;
(2) A felony of the next lesser degree than the most
serious
offense that is the object of the conspiracy, when the
most
serious offense that is the object of the conspiracy is a
felony
of the first, second, third, or
fourth degree;
(3) A felony punishable by a fine of not more
than
twenty-five thousand dollars or imprisonment for not more than
eighteen months, or both, when the offense that is the object of
the conspiracy is a violation of any provision of Chapter 3734.
of
the Revised Code, other than section 3734.18 of the Revised
Code,
that relates to hazardous wastes;
(4) A misdemeanor of the first degree, when
the most
serious
offense that is the object of the conspiracy is a felony
of the
fifth degree.
(K) This section does not define a separate conspiracy
offense or penalty where conspiracy is defined as an offense by
one or more sections of the Revised Code, other than this
section.
In such a case, however:
(1) With respect to the offense specified as the object of
the conspiracy in the other section or sections, division (A) of
this section defines the voluntary act or acts and culpable
mental
state necessary to constitute the conspiracy;
(2) Divisions (B) to (I) of this section are incorporated
by
reference in the conspiracy offense defined by the other
section
or sections of the Revised Code.
(L)(1) In addition to the penalties that otherwise are
imposed
for conspiracy, a person who is found guilty of
conspiracy
to engage in a pattern of corrupt activity is subject
to divisions
(B)(2), and (3), (4), and (5) of section 2923.32, division (A) of section 2981.04, and division (D) of section 2981.06 of the
Revised Code.
(2) If a person is convicted of or pleads guilty to
conspiracy and if the most serious offense that is the object of
the
conspiracy is a felony drug trafficking, manufacturing,
processing, or
possession offense, in addition to the penalties or
sanctions that may be
imposed for the conspiracy under division
(J)(2) or (4) of this section and
Chapter 2929. of the Revised
Code, both of the following apply:
(a) The provisions of divisions (D), (F), and (G) of section
2925.03,
division (D) of section 2925.04, division (D) of section
2925.05, division (D)
of section 2925.06, and division (E) of
section 2925.11 of the Revised Code
that pertain to mandatory and
additional fines, driver's or commercial
driver's license or
permit
suspensions, and
professionally
licensed
persons
and that
would apply under the appropriate
provisions of
those
divisions to
a person who is convicted of or
pleads guilty to the felony drug
trafficking, manufacturing,
processing, or possession offense that
is the most
serious offense
that is the basis of the conspiracy
shall apply to
the person who
is convicted of or pleads guilty to
the conspiracy as if the
person had been convicted of or pleaded
guilty to the felony drug
trafficking,
manufacturing, processing,
or possession offense that
is the most serious
offense that is the
basis of the conspiracy.
(b) The court that imposes sentence upon the person
who is
convicted of or pleads guilty to the conspiracy shall comply with
the
provisions identified as being applicable under division
(L)(2) of this section, in addition to any
other penalty or
sanction that it imposes for the conspiracy under division
(J)(2)
or (4) of this section and Chapter 2929. of the Revised Code.
(M) As used in this section:
(1)
"Felony drug trafficking, manufacturing,
processing, or
possession offense" means any of the following that
is a
felony:
(a) A violation of section 2925.03, 2925.04, 2925.05, or
2925.06 of
the Revised Code;
(b) A violation of section 2925.11 of the Revised Code
that
is not a minor drug possession offense.
(2)
"Minor drug possession offense" has the same meaning as
in
section 2925.01 of the Revised Code.
Sec. 2923.31. As used in sections 2923.31 to 2923.36 of
the
Revised Code:
(A) "Beneficial interest" means any of the following:
(1) The interest of a person as a beneficiary under a
trust
in which the trustee holds title to personal or real
property;
(2) The interest of a person as a beneficiary under any
other trust arrangement under which any other person holds title
to personal or real property for the benefit of such person;
(3) The interest of a person under any other form of
express
fiduciary arrangement under which any other person holds
title to
personal or real property for the benefit of such person.
"Beneficial interest" does not include the interest of a
stockholder in a corporation or the interest of a partner in
either a general or limited partnership.
(B) "Costs of investigation and prosecution" and "costs of
investigation and litigation" mean all of the costs incurred by
the state or a county or municipal corporation under sections
2923.31 to 2923.36 of the Revised Code in the prosecution and
investigation of any criminal action or in the litigation and
investigation of any civil action, and includes, but is not
limited to, the costs of resources and personnel.
(C) "Enterprise" includes any individual, sole
proprietorship, partnership, limited partnership, corporation,
trust, union, government agency, or other legal entity, or any
organization, association, or group of persons associated in fact
although not a legal entity. "Enterprise" includes illicit as
well as licit enterprises.
(D) "Innocent person" includes any bona fide purchaser of
property that is allegedly involved in a violation of section
2923.32 of the Revised Code, including any person who establishes
a valid claim to or interest in the property in accordance with
division (E) of section 2923.32 2981.04 of the Revised Code, and any
victim of an alleged violation of that section or of any
underlying offense involved in an alleged violation of that
section.
(E) "Pattern of corrupt activity" means two or more
incidents of corrupt activity, whether or not there has been a
prior conviction, that are related to the affairs of the same
enterprise, are not isolated, and are not so closely related to
each other and connected in time and place that they constitute a
single event.
At least one of the incidents forming the pattern shall
occur
on or after January 1, 1986. Unless any incident was an
aggravated murder or murder, the last of the incidents forming
the
pattern shall occur within six years after the commission of
any
prior incident forming the pattern, excluding any period of
imprisonment served by any person engaging in the corrupt
activity.
For the purposes of the criminal penalties that may be
imposed pursuant to section 2923.32 of the Revised Code, at least
one of the incidents forming the pattern shall constitute a
felony
under the laws of this state in existence at the time it was
committed or, if committed in violation
of the laws of the United
States or of any other state, shall
constitute a felony under the
law of the United States or
the other state and would be a
criminal offense under the law of this
state if committed in this
state.
(F) "Pecuniary value" means money, a negotiable
instrument,
a commercial interest, or anything of value, as
defined in section
1.03 of the Revised Code, or any other
property or service that
has a value in excess of one hundred
dollars.
(G) "Person" means any person, as defined in section 1.59
of
the Revised Code, and any governmental officer, employee, or
entity.
(H) "Personal property" means any personal property, any
interest in personal property, or any right, including, but not
limited to, bank accounts, debts, corporate stocks, patents, or
copyrights. Personal property and any beneficial interest in
personal property are deemed to be located where the trustee of
the property, the personal property, or the instrument evidencing
the right is located.
(I) "Corrupt activity" means engaging in, attempting to
engage in, conspiring to engage in, or soliciting, coercing, or
intimidating another person to engage in any of the following:
(1) Conduct defined as "racketeering activity" under the
"Organized Crime Control Act of 1970," 84 Stat. 941, 18 U.S.C.
1961(1)(B), (1)(C), (1)(D), and (1)(E), as amended;
(2) Conduct constituting any of the following:
(a) A violation of section 1315.55, 1322.02, 2903.01,
2903.02,
2903.03, 2903.04, 2903.11, 2903.12, 2905.01, 2905.02,
2905.11,
2905.22, 2907.321, 2907.322, 2907.323, 2909.02, 2909.03,
2909.22, 2909.23, 2909.24, 2909.26, 2909.27, 2909.28, 2909.29, 2911.01,
2911.02, 2911.11, 2911.12,
2911.13, 2911.31, 2913.05, 2913.06,
2921.02, 2921.03,
2921.04,
2921.11, 2921.12, 2921.32, 2921.41, 2921.42, 2921.43,
2923.12, or
2923.17; division (F)(1)(a), (b), or (c) of section
1315.53;
division (A)(1) or (2) of section 1707.042; division (B),
(C)(4),
(D), (E), or (F) of section 1707.44; division
(A)(1) or (2) of
section 2923.20; division (J)(1) of
section 4712.02; section
4719.02, 4719.05, or 4719.06; division (C), (D), or
(E) of section
4719.07; section 4719.08; or division (A) of section 4719.09 of
the Revised Code.
(b) Any violation of section 3769.11, 3769.15, 3769.16, or
3769.19 of the
Revised Code as it existed prior to July 1, 1996,
any violation of section 2915.02 of the Revised Code that occurs
on or after
July 1, 1996, and that, had it occurred prior to that
date, would have been a
violation of section 3769.11 of the
Revised Code
as it existed prior to that date, or any violation of
section 2915.05 of the
Revised Code that occurs on or after July
1, 1996, and
that, had it occurred prior to that date, would
have
been a violation of section 3769.15, 3769.16, or 3769.19 of the
Revised
Code as it existed prior to that date.
(c) Any violation of section 2907.21, 2907.22, 2907.31,
2913.02, 2913.11, 2913.21, 2913.31, 2913.32, 2913.34, 2913.42,
2913.47, 2913.51, 2915.03, 2925.03, 2925.04, 2925.05, or 2925.37
of the
Revised Code, any violation of section 2925.11 of the
Revised Code that is a
felony of the first, second, third, or
fourth degree and that occurs on or
after July 1, 1996, any
violation of section 2915.02 of the Revised Code
that occurred
prior to July 1, 1996, any violation of section 2915.02 of the
Revised Code that occurs on or after July 1, 1996, and that, had
it occurred
prior to that date, would not
have been a violation of
section 3769.11 of the Revised Code as it existed
prior to that
date, any violation of section 2915.06 of the Revised Code as it
existed prior to July 1, 1996, or any violation of
division (B) of
section 2915.05 of the Revised Code as it
exists on and after July
1, 1996, when the proceeds of the violation, the
payments made in
the violation, the amount of a claim for payment or for
any other
benefit that is false or deceptive and that is involved
in the
violation, or the value of the contraband or other
property
illegally possessed, sold, or purchased in the violation
exceeds
five hundred dollars, or any combination of violations described
in
division (I)(2)(c) of this section when the total proceeds of
the combination
of violations, payments made in the combination of
violations,
amount of the claims for payment or for other benefits
that is
false or deceptive and that is involved in the combination
of
violations, or value of the contraband or other property
illegally possessed, sold, or purchased in the combination of
violations exceeds five hundred dollars;
(d) Any violation of section 5743.112 of the Revised Code
when the amount of unpaid tax exceeds one hundred dollars;
(e) Any violation or combination of violations of section
2907.32 of the Revised Code involving any material or performance
containing a display of bestiality or of sexual conduct, as
defined in section 2907.01 of the Revised Code, that is explicit
and depicted with clearly visible penetration of the genitals or
clearly visible penetration by the penis of any orifice when the
total proceeds of the violation or combination of violations, the
payments made in the violation or combination of violations, or
the value of the contraband or other property illegally
possessed,
sold, or purchased in the violation or combination of
violations
exceeds five hundred dollars;
(f) Any combination of violations described in division
(I)(2)(c) of this
section and violations of section
2907.32 of the
Revised Code involving any material or performance
containing a
display of bestiality or of sexual conduct, as
defined in section
2907.01 of the Revised Code, that is explicit
and depicted with
clearly visible penetration of the genitals or
clearly visible
penetration by the penis of any orifice when the
total proceeds of
the combination of violations, payments made in
the combination of
violations, amount of the claims for payment
or for other benefits
that is false or deceptive and that is
involved in the combination
of violations, or value of the
contraband or other property
illegally possessed, sold, or
purchased in the combination of
violations exceeds five hundred
dollars.
(3) Conduct constituting a violation of any law of any
state
other than this state that is substantially similar to the
conduct
described in division (I)(2) of this section, provided
the
defendant was convicted of the conduct in a criminal
proceeding in
the other state;
(4) Animal or ecological terrorism.
(J) "Real property" means any real property or any
interest
in real property, including, but not limited to, any
lease of, or
mortgage upon, real property. Real property and any
beneficial
interest in it is deemed to be located where the real
property is
located.
(K) "Trustee" means any of the following:
(1) Any person acting as trustee under a trust in which
the
trustee holds title to personal or real property;
(2) Any person who holds title to personal or real
property
for which any other person has a beneficial interest;
(3) Any successor trustee.
"Trustee" does not include an assignee or trustee for an
insolvent debtor or an executor, administrator, administrator
with
the will annexed, testamentary trustee, guardian, or
committee,
appointed by, under the control of, or accountable
to a court.
(L) "Unlawful debt" means any money or other thing of
value
constituting principal or interest of a debt that is
legally
unenforceable in this state in whole or in part because
the debt
was incurred or contracted in violation of any federal
or state
law relating to the business of gambling activity or
relating to
the business of lending money at an usurious rate
unless the
creditor proves, by a preponderance of the evidence,
that the
usurious rate was not intentionally set and that it
resulted from
a good faith error by the creditor, notwithstanding
the
maintenance of procedures that were adopted by the creditor
to
avoid an error of that nature.
(M) "Animal activity" means any activity that involves the use of animals or animal parts, including, but not limited to, hunting, fishing, trapping, traveling, camping, the production, preparation, or processing of food or food products, clothing or garment manufacturing, medical research, other research, entertainment, recreation, agriculture, biotechnology, or service activity that involves the use of animals or animal parts.
(N) "Animal facility" means a vehicle, building, structure, nature preserve, or other premises in which an animal is lawfully kept, handled, housed, exhibited, bred, or offered for sale, including, but not limited to, a zoo, rodeo, circus, amusement park, hunting preserve, or premises in which a horse or dog event is held.
(O) "Animal or ecological terrorism" means the commission of any felony that involves causing or creating a substantial risk of physical harm to any property of another, the use of a deadly weapon or dangerous ordnance, or purposely, knowingly, or recklessly causing serious physical harm to property and that involves an intent to obstruct, impede, or deter any person from participating in a lawful animal activity, from mining, foresting, harvesting, gathering, or processing natural resources, or from being lawfully present in or on an animal facility or research facility.
(P) "Research facility" means a place, laboratory, institution, medical care facility, government facility, or public or private educational institution in which a scientific test, experiment, or investigation involving the use of animals or other living organisms is lawfully carried out, conducted, or attempted.
Sec. 2923.32. (A)(1) No person employed by, or associated
with, any enterprise shall conduct or participate in, directly or
indirectly, the affairs of the enterprise through a pattern of
corrupt activity or the collection of an unlawful debt.
(2) No person, through a pattern of corrupt activity or
the
collection of an unlawful debt, shall acquire or maintain,
directly or indirectly, any interest in, or control of, any
enterprise or real property.
(3) No person, who knowingly has received any proceeds
derived, directly or indirectly, from a pattern of corrupt
activity or the collection of any unlawful debt, shall use or
invest, directly or indirectly, any part of those proceeds, or
any
proceeds derived from the use or investment of any of those
proceeds, in the acquisition of any title to, or any right,
interest, or equity in, real property or in the establishment or
operation of any enterprise.
A purchase of securities on the open market with intent to
make an investment, without intent to control or participate in
the control of the issuer, and without intent to assist another
to
do so is not a violation of this division, if the securities
of
the issuer held after the purchase by the purchaser, the
members
of the purchaser's immediate family, and
the purchaser's or the
immediate family
members' accomplices in
any pattern of corrupt
activity or the collection of an unlawful
debt do not aggregate
one per cent of the outstanding securities
of any one class of the
issuer and do not confer, in law or in
fact, the power to elect
one or more directors of the issuer.
(B)(1) Whoever violates this section is guilty of engaging
in a pattern of corrupt activity.
Except as otherwise provided in
this division, engaging in corrupt activity
is a felony of the
second degree. If at least one of the incidents of corrupt
activity is a felony of the first, second, or third degree,
aggravated
murder, or murder, if at least one of the incidents was
a felony
under the law of this state that was committed prior to
the
effective date of this amendment
July 1, 1996, and that would
constitute a
felony of the first, second, or third degree,
aggravated murder,
or murder if committed on or after
the
effective date of this
amendment
July 1, 1996, or if at least one
of the incidents of corrupt
activity
is a felony under the law of
the
United States or of another state
that, if committed in this
state on or after
the effective date
of
this amendment
July 1,
1996, would constitute a felony of the first,
second, or
third
degree, aggravated murder, or murder under the
law of this
state,
engaging in a pattern of corrupt activity is a
felony of
the first
degree. Notwithstanding any other provision of
law, a
person may
be convicted of violating the provisions of
this
section as well
as of a conspiracy to violate one or more of those
provisions
under section 2923.01 of the Revised Code.
(2) Notwithstanding the financial sanctions
authorized by
section 2929.18 of the Revised Code, the court
may do all of the
following with
respect to any person who derives pecuniary value
or causes
property damage, personal injury other than pain and
suffering,
or other loss through or by the violation of this
section:
(a) In lieu of the fine authorized by that section,
impose a
fine not exceeding the greater of three times
the gross value
gained or three times the gross loss caused and
order the clerk of
the court to pay the fine into the state treasury to the credit of the corrupt
activity investigation
and prosecution fund, which is hereby created in section
2923.35 of the Revised
Code;
(b) In addition to the fine described in division
(B)(2)(a)
of this section and the financial sanctions
authorized by section
2929.18 of the Revised Code, order the person to pay
court costs;
(c) In addition to the fine described in division
(B)(2)(a)
of this section and the financial sanctions
authorized by section
2929.18 of the Revised Code, order the person to pay to
the state,
municipal, or county law enforcement agencies that handled the
investigation and prosecution the costs of investigation and
prosecution that
are reasonably incurred.
The court shall hold a hearing to determine the amount of
fine, court costs, and other costs to be imposed under this
division.
(3) In addition to any other penalty or disposition
authorized or required by law, the court shall order any person
who is convicted of or pleads guilty to a violation of this
section or who is adjudicated delinquent by reason of a violation
of this section to criminally forfeit to the state under Chapter 2981. of the Revised Code any personal
or
real property in which the person has an interest and that
was
used in
the course of or intended for use in the course of a
violation of
this section, or that was derived from or realized
through
conduct in violation of this section, including any
property
constituting an interest in, means of control over, or
influence
over the enterprise involved in the violation and any
property
constituting proceeds derived from the violation,
including all
of the following:
(a) Any position, office, appointment, tenure, commission,
or employment contract of any kind acquired or maintained by the
person in violation of this section, through which the
person, in
violation of this section, conducted or participated in the
conduct of an enterprise, or that afforded the person a
source of
influence or control over an enterprise that the
person exercised
in violation of this section;
(b) Any compensation, right, or benefit derived from a
position, office, appointment, tenure, commission, or employment
contract described in division (B)(3)(a) of this section that
accrued to the person in violation of this section during
the
period of the pattern of corrupt activity;
(c) Any interest in, security of, claim against, or
property
or contractual right affording the person a source
of influence or
control over the affairs of an enterprise that the person
exercised in violation of this section;
(d) Any amount payable or paid under any contract for
goods
or services that was awarded or performed in violation of
this
section.
(4)(a) A sentence or disposition of criminal forfeiture
pursuant to division (B)(3) of this section shall not be entered
unless either of the following applies:
(i) The indictment, count in the indictment, or
information
charging the offense, or the complaint, indictment, or
information
filed in juvenile court charging the violation as a delinquent
act
alleges
the extent of the property subject to forfeiture;
(ii) The criminal sentence or delinquency disposition
requires the forfeiture of property that was not reasonably
foreseen to be subject to forfeiture at the time of the
indictment, count in the indictment, or information charging the
offense, or the complaint, indictment, or information filed in
juvenile court charging the
violation as a delinquent act,
provided that the prosecuting
attorney gave prompt notice to the
defendant or the alleged or
adjudicated delinquent child of such
property not reasonably
foreseen to be subject to forfeiture when
it is discovered to be
forfeitable.
(b) A special verdict shall be returned as to the extent
of
the property, if any, subject to forfeiture. When the special
verdict is returned, a judgment of forfeiture shall be entered.
(5) If any property included in a special verdict of
forfeiture returned pursuant to division (B)(4) of this section
cannot be located, has been sold to a bona fide purchaser for
value, placed beyond the jurisdiction of the court, substantially
diminished in value by the conduct of the defendant or
adjudicated
delinquent child, or commingled with other property
that cannot be
divided without difficulty or undue injury to
innocent persons, or
otherwise is unreachable without undue
injury to innocent persons,
the court shall order forfeiture of
any other reachable property
of the defendant or adjudicated
delinquent child up to the value
of the property that is
unreachable.
(6) All property ordered forfeited pursuant to this
section
shall be held by the law enforcement agency that seized
it for
distribution or disposal pursuant to section 2923.35 of
the
Revised Code. The agency shall maintain an accurate record
of
each item of property so seized and held, which record shall
include the date on which each item was seized, the manner and
date of disposition by the agency, and if applicable, the name of
the person who received the item; however, the record shall not
identify or enable the identification of the individual officer
who seized the property. The record is a public record open for
inspection under section 149.43 of the Revised Code. Each law
enforcement agency that seizes and holds in any calendar year any
item of property that is ordered forfeited pursuant to this
section shall prepare a report covering the calendar year that
cumulates all of the information contained in all of the records
kept by the agency pursuant to this division for that calendar
year, and shall send the cumulative report, no later than the
first day of March in the calendar year following the calendar
year covered by the report, to the attorney general. Each such
report so received by the attorney general is a public record
open
for inspection under section 149.43 of the Revised Code. Not
later
than the fifteenth day of April in the calendar year in
which the reports were
received, the attorney general shall send
to the
president of the senate and the speaker of the house of
representatives a written notification that does all of the
following:
(a) Indicates that the attorney general has received from
law enforcement agencies reports
of the type described in this
division that cover the previous calendar year
and indicates that
the reports were received under this division;
(b) Indicates that the reports
are open for inspection under
section 149.43 of the
Revised Code;
(c) Indicates that the attorney general
will provide a copy
of any or all of the reports to the
president of the senate or the
speaker of the house of
representatives upon request.
(C) Notwithstanding the notice and procedure prescribed by
division (E) of this section, an order of criminal forfeiture
entered under division (B)(3) of this section shall authorize an
appropriate law enforcement agency to seize the property declared
forfeited under this section upon the terms and conditions,
relating to the time and manner of seizure, that the court
determines proper.
(D) Criminal penalties under this section are not mutually
exclusive, unless otherwise provided, and do not preclude the
application of any other criminal or civil remedy under this or
any other section of the Revised Code. A disposition of criminal
forfeiture ordered pursuant to division (B)(3) of this section in
relation to a child who was adjudicated delinquent by reason of a
violation of this section does not preclude the application of
any
other order of disposition under
Chapter 2152. of the
Revised
Code or any other civil remedy under this or any other
section of
the Revised Code.
(E)(1) Upon the entry of a judgment of forfeiture pursuant
to division (B)(3) of this section, the court shall cause notice
of the judgment to be sent by certified mail, return receipt
requested, to all persons known to have, or appearing to have, an
interest in the property that was acquired prior to the filing of
a corrupt activity lien notice or a lis pendens as authorized by
section 2923.36 of the Revised Code. If the notices cannot be
given to those persons in that manner, the court shall cause
publication of the notice of the judgment of forfeiture pursuant
to the Rules of Civil Procedure.
(2) Within thirty days after receipt of a notice or after
the date of publication of a notice under division (E)(1) of this
section, any person, other than the defendant or the adjudicated
delinquent child, who claims an interest in the property that is
subject to forfeiture may petition the court for a hearing to
determine the validity of the claim. The petition shall be
signed
and sworn to by the petitioner and shall set forth the
nature and
extent of the petitioner's interest in the property,
the date and
circumstances of the petitioner's acquisition of the
interest, any
additional allegations supporting the claim, and
the relief
sought. The petitioner shall furnish the prosecuting
attorney
with a copy of the petition.
(3) The court, to the extent practicable and consistent
with
the interests of justice, shall hold the hearing described
under
division (E)(2) of this section within thirty days from the
filing
of the petition. The court may consolidate the hearings
on all
petitions filed by third party claimants under this
section. At
the hearing, the petitioner may testify and present
evidence on
the petitioner's own behalf and cross-examine
witnesses. The
prosecuting attorney may present evidence and witnesses in
rebuttal and in defense of the claim of the state to the property
and cross-examine witnesses. The court, in making its
determination, shall consider the testimony and evidence
presented
at the hearing and the relevant portions of the record
of the
criminal proceeding that resulted in the judgment of
forfeiture.
(4) If at a hearing held under division (E)(3) of this
section, the court, by a preponderance of the evidence,
determines
either that the petitioner has a legal right, title,
or interest
in the property that, at the time of the commission
of the acts
giving rise to the forfeiture of the property, was
vested in the
petitioner and not in the defendant or the
adjudicated delinquent
child or was superior to the right, title,
or interest of the
defendant or the adjudicated delinquent child,
or that the
petitioner is a bona fide purchaser for value of the
right, title,
or interest in the property and was at the time of
the purchase
reasonably without cause to believe that the
property was subject
to forfeiture under this section, it shall
amend, in accordance
with its determination, the judgment of
forfeiture to protect the
rights of innocent persons.
(F) Except as provided in division (E) of this section, no
person claiming an interest in property that is subject to
forfeiture under this section shall do either of the following:
(1) Intervene in a trial or appeal of a criminal case or a
delinquency case that involves the forfeiture of the property;
(2) File an action against the state concerning the
validity
of the person's alleged interest in the property
subsequent to
the
filing of the indictment, count in the indictment, or
information,
or the filing of the complaint, indictment, or
information in
juvenile court,
that alleges that the property is subject to
forfeiture under
this section.
(G) As used in this section, "law enforcement agency"
includes, but is not limited to, the state board of pharmacy.
Sec. 2923.34. (A) The prosecuting attorney of the county
in
which a violation of section 2923.32 of the Revised Code, or a
conspiracy to violate that section, occurs may institute a civil
proceeding as authorized by this section in an appropriate court
seeking relief from any person whose conduct violated section
2923.32 of the Revised Code or who conspired to violate that
section.
(B) Any person who is injured or threatened with injury by
a
violation of section 2923.32 of the Revised Code may institute
a
civil proceeding in an appropriate court seeking relief from
any
person whose conduct violated or allegedly violated section
2923.32 of the Revised Code or who conspired or allegedly
conspired to violate that section, except that the pattern of
corrupt activity alleged by an injured person or person
threatened
with injury shall include at least one incident other
than a
violation of division (A)(1) or (2) of section 1707.042 or
division (B), (C)(4), (D), (E), or (F) of section 1707.44 of the
Revised Code, of 18 U.S.C. 1341, 18 U.S.C. 1343, 18 U.S.C. 2314,
or any other offense involving fraud in the sale of securities.
(C)(B) If the plaintiff in a civil action instituted pursuant
to this section proves the violation by a preponderance of the
evidence, the court, after making due provision for the rights of
innocent persons, may grant relief by entering any appropriate
orders to ensure that the violation will not continue or be
repeated. The orders may include, but are not limited to, orders
that:
(1) Require
the divestiture of the defendant's interest in
any enterprise or in any
real property;
(2) Impose reasonable restrictions upon the future
activities or investments of any defendant in the action,
including, but not limited to, restrictions that prohibit the
defendant from engaging in the same type of endeavor as the
enterprise in which the defendant was engaged in violation of
section 2923.32 of the Revised Code;
(3) Order the dissolution or reorganization of any
enterprise;
(4) Order the suspension or revocation of a license,
permit,
or prior approval granted to any enterprise by any
department or
agency of the state;
(5) Order the dissolution of a corporation organized under
the laws of this state, or the revocation of the authorization of
a foreign corporation to conduct business within this state, upon
a finding that the board of directors or an agent acting on
behalf
of the corporation, in conducting the affairs of the
corporation,
has authorized or engaged in conduct in violation of
section
2923.32 of the Revised Code, and that, for the prevention
of
future criminal conduct, the public interest requires the
corporation to be dissolved or its license revoked.
(D)(C) Relief pursuant to division (C)(B)(3), (4), or (5) of
this
section shall not be granted in any civil proceeding
instituted by
an injured person unless the attorney general
intervenes in the
civil action pursuant to this division.
Upon the filing of a civil proceeding for relief under
division (C)(B)(3), (4), or (5) of this section by an allegedly
injured person other than a prosecuting attorney, the allegedly
injured person immediately shall notify the attorney general of
the filing. The attorney general, upon timely application, may
intervene in any civil proceeding for relief under division
(C)(B)(3), (4), or (5) if the attorney general certifies that, in
the attorney general's opinion, the proceeding is of general
public interest. In any proceeding brought by an injured person
under
division (C)(B)(3), (4), or (5) of this section, the attorney
general is
entitled to the same relief as if the attorney general
instituted
the proceeding.
(E)(D) In a civil proceeding under division (C)(B) of this
section, the court may grant injunctive relief without a showing
of special or irreparable injury.
Pending final determination of a civil proceeding initiated
under this section, the court may issue a temporary restraining
order or a preliminary injunction upon a showing of immediate
danger or significant injury to the plaintiff, including the
possibility that any judgment for money damages might be
difficult
to execute, and, in a proceeding initiated by an
aggrieved person,
upon the execution of proper bond against
injury for an
improvidently granted injunction.
(F)(E) In a civil proceeding under division (B)(A) of this
section, any person directly or indirectly injured by conduct in
violation of section 2923.32 of the Revised Code or a conspiracy
to violate that section, other than a violator of that section or
a conspirator to violate that section, in addition to relief
under
division (C)(B) of this section, shall have a cause of action
for
triple the actual damages the person sustained. To
recover
triple damages, the plaintiff shall prove the violation or
conspiracy
to
violate that section and actual damages by clear and
convincing
evidence. Damages under this division may include, but
are not
limited to, competitive injury and injury distinct from
the
injury inflicted by corrupt activity.
(G)(F) In a civil action in which the plaintiff prevails
under
division (C)(B) or (F)(E) of this section, the plaintiff
shall recover
reasonable attorney fees in the trial and appellate courts, and
the court shall order the defendant to pay to the state,
municipal, or county law enforcement agencies that handled the
investigation and litigation the costs of investigation and
litigation that reasonably are incurred and that are not ordered
to be paid pursuant to division (B)(2) of section 2923.32 of the
Revised Code or division (I)(H) of this section.
(H)(G) Upon application, based on the evidence presented in
the
case by the plaintiff, as the interests of justice may
require,
the trial court may grant a defendant who prevails in a
civil
action brought pursuant to this section all or part of the
defendant's costs, including the costs of investigation and
litigation
reasonably incurred, and all or part of the
defendant's
reasonable attorney fees, unless the court finds that
special circumstances,
including the relative economic position of
the parties, make an
award unjust.
(I)(H) If a person, other than an individual, is not
convicted
of a violation of section 2923.32 of the Revised Code,
the
prosecuting attorney may institute proceedings against the
person
to recover a civil penalty for conduct that the
prosecuting
attorney proves by clear and convincing evidence is
in violation
of section 2923.32 of the Revised Code. The civil
penalty shall
not exceed one hundred thousand dollars and shall
be paid into the
state treasury to the credit of the corrupt
activity investigation
and prosecution fund created in section
2923.35 2923.32 of the Revised
Code. If a civil penalty is ordered
pursuant to this division,
the court shall order the defendant to
pay to the state,
municipal, or county law enforcement agencies
that handled the
investigation and litigation the costs of
investigation and
litigation that are reasonably incurred and
that are not ordered
to be paid pursuant to this section.
(J)(I) A final judgment, decree, or delinquency adjudication
rendered against the defendant or the adjudicated delinquent
child
in a civil action under this section or in a criminal or
delinquency action or proceeding for a violation of section
2923.32 of the Revised Code shall estop the defendant or the
adjudicated delinquent child in any subsequent civil proceeding
or
action brought by any person as to all matters as to which the
judgment, decree, or adjudication would be an estoppel as between
the parties to the civil, criminal, or delinquency proceeding or
action.
(K)(J) Notwithstanding any other provision of law providing a
shorter period of limitations, a civil proceeding or action under
this section may be commenced at any time within five years after
the unlawful conduct terminates or the cause of action accrues or
within any longer statutory period of limitations that may be
applicable. If a criminal proceeding, delinquency proceeding,
civil action, or other proceeding is brought or intervened in by
the state to punish, prevent, or restrain any activity that is
unlawful under section 2923.32 of the Revised Code, the running
of
the period of limitations prescribed by this division with
respect
to any civil action brought under this section by a
person who is
injured by a violation or threatened violation of
section 2923.32
of the Revised Code, based in whole or in part
upon any matter
complained of in the state prosecution, action,
or proceeding,
shall be suspended during the pendency of the
state prosecution,
action, or proceeding and for two years
following its termination.
(L)(K) Personal service of any process in a proceeding under
this section may be made upon any person outside this state if
the
person was involved in any conduct constituting a violation
of
section 2923.32 of the Revised Code in this state. The person
is
deemed by the person's conduct in violation of section
2923.32 of
the Revised Code to have submitted to
the jurisdiction of the
courts of this state for the purposes of this section.
(M)(L) The application of any civil remedy under this section
shall not preclude the application of any criminal remedy or
criminal forfeiture under section 2923.32 of the Revised Code or
any other provision of law, or the application of any delinquency
disposition under Chapter
2152. of the Revised Code or any
other
provision of law.
(M)(1) Any person who prevails in a civil action pursuant to
this section has a right to any property,
or the proceeds of any property, criminally forfeited to the
state pursuant to section 2981.04 of the Revised Code or against
which any fine under section 2923.32 of the Revised Code or civil penalty under division
(H) of this section may be imposed.
The right of any person who prevails in a civil action
pursuant to this section, other than a
prosecuting attorney performing official duties under that
section, to forfeited property, property against which fines and
civil penalties may be imposed, and the proceeds of that property
is superior to any right of the state, a municipal corporation,
or a county to the property or the proceeds of the property, if
the civil action is brought within one hundred eighty days after
the entry of a sentence of forfeiture or a fine pursuant to
sections 2923.32 and 2981.04 of the Revised Code or the entry of a civil
penalty pursuant to division (H) of this section.
The right is limited to the total value of the treble
damages, civil penalties, attorney's fees, and costs awarded to
the prevailing party in an action pursuant to this section, less any restitution received by the person.
(2) If the aggregate amount of claims of persons who have
prevailed in a civil action pursuant to this section against any one defendant is greater than the total
value of the treble fines, civil penalties, and forfeited
property paid by the person against whom the actions were
brought, all of the persons who brought their actions within one
hundred eighty days after the entry of a sentence or disposition
of forfeiture or a fine pursuant to section 2923.32 of the
Revised Code or the entry of a civil penalty pursuant to division
(H) of this section, first shall receive a
pro rata share of the total amount of the fines, civil penalties,
and forfeited property. After the persons who brought their
actions within the specified one-hundred-eighty-day period have
satisfied their claims out of the fines, civil penalties, and
forfeited property, all other persons who prevailed in civil
actions pursuant to this section shall
receive a pro rata share of the total amount of the fines, civil
penalties, and forfeited property that remains in the custody of
the law enforcement agency or in the corrupt activity
investigation and prosecution fund.
(N) As used in this section, "law enforcement agency"
includes, but is not limited to, the state board of pharmacy.
Sec. 2923.36. (A) Upon the institution of any criminal
proceeding charging a violation of section 2923.32 of the Revised
Code, the filing of any complaint, indictment, or information in
juvenile court
alleging a
violation of that section as a
delinquent act, or the institution
of any civil proceeding under
section 2923.32 or 2923.34 or 2981.05 of the
Revised Code, the state, at any
time during the pendency of the
proceeding, may file a corrupt
activity lien notice with the
county recorder of any county in
which property subject to
forfeiture may be located. No fee shall
be required for filing
the notice. The recorder immediately shall
record the notice
pursuant to section 317.08 of the Revised Code.
(B) A corrupt activity lien notice shall be signed by the
prosecuting attorney who files the lien. The notice shall set
forth all of the following information:
(1) The name of the person against whom the proceeding has
been brought. The prosecuting attorney may specify in the notice
any aliases, names, or fictitious names under which the person
may
be known. The prosecuting attorney also may specify any
corporation, partnership, or other entity in which the person has
an interest subject to forfeiture under section 2923.32 Chapter 2981. of the
Revised Code and shall describe in the notice the person's
interest in the corporation, partnership, or other entity.
(2) If known to the prosecuting attorney, the present
residence and business addresses of the person or names set forth
in the notice;
(3) A statement that a criminal or delinquency proceeding
for a violation of section 2923.32 of the Revised Code or a civil
proceeding under section 2923.32 or 2923.34 or 2981.05 of the Revised Code
has been brought against the person named in the notice, the name
of the county in which the proceeding has been brought, and the
case number of the proceeding;
(4) A statement that the notice is being filed pursuant to
this section;
(5) The name and address of the prosecuting attorney
filing
the notice;
(6) A description of the real or personal property subject
to the notice and of the interest in that property of the person
named in the notice, to the extent the property and the interest
of the person in it reasonably is known at the time the
proceeding
is instituted or at the time the notice is filed.
(C) A corrupt activity lien notice shall apply only to one
person and, to the extent applicable, any aliases, fictitious
names, or other names, including names of corporations,
partnerships, or other entities, to the extent permitted in this
section. A separate corrupt activity lien notice is required to
be filed for any other person.
(D) Within seven days after the filing of each corrupt
activity lien notice, the prosecuting attorney who files the
notice shall furnish to the person named in the notice by
certified mail, return receipt requested, to the last known
business or residential address of the person, a copy of the
recorded notice with a notation on it of any county in which the
notice has been recorded. The failure of the prosecuting
attorney
to furnish a copy of the notice under this section shall
not
invalidate or otherwise affect the corrupt activity lien
notice
when the prosecuting attorney did not know and could not
reasonably ascertain the address of the person entitled to
notice.
After receipt of a copy of the notice under this division,
the person named in the notice may petition the court to
authorize
the person to post a surety bond in lieu of the lien or
to
otherwise modify the lien as the interests of justice may
require.
The bond shall be in an amount equal to the value of
the property
reasonably known to be subject to the notice and
conditioned on
the payment of any judgment and costs ordered in
an action
pursuant to section 2923.32 or 2923.34 Chapter 2981. of the Revised
Code up to
the value of the bond.
(E) From the date of filing of a corrupt activity lien
notice, the notice creates a lien in favor of the state on any
personal or real property or any beneficial interest in the
property located in the county in which the notice is filed that
then or subsequently is owned by the person named in the notice
or
under any of the names set forth in the notice.
The lien created in favor of the state is superior and
prior
to the interest of any other person in the personal or real
property or beneficial interest in the property, if the interest
is acquired subsequent to the filing of the notice.
(F)(1) Notwithstanding any law or rule to the contrary, in
conjunction with any civil proceeding brought pursuant to section
2923.34 2981.05 of the Revised Code, the prosecuting attorney may file in
any county, without prior court order, a lis pendens pursuant to
sections 2703.26 and 2703.27 of the Revised Code. In such a
case,
any person acquiring an interest in the subject property or
beneficial interest in the property, if the property interest is
acquired subsequent to the filing of the lis pendens, shall take
the property or interest subject to the civil proceeding and any
subsequent judgment.
(2) If a corrupt activity lien notice has been filed, the
prosecuting attorney may name as a defendant in the lis pendens,
in addition to the person named in the notice, any person
acquiring an interest in the personal or real property or
beneficial interest in the property subsequent to the filing of
the notice. If a judgment of forfeiture is entered in the
criminal or delinquency proceeding pursuant to section 2923.32 2981.04 of
the Revised Code in favor of the state, the interest of any
person
in the property that was acquired subsequent to the filing
of the
notice shall be subject to the notice and judgment of
forfeiture.
(G) Upon a final judgment of forfeiture in favor of the
state pursuant to section 2923.32 Chapter 2981. of the Revised Code, title of
the state to the forfeited property shall do either of the
following:
(1) In the case of real property, or a beneficial interest
in it, relate back to the date of filing of the corrupt activity
lien notice in the county where the property or interest is
located. If no corrupt activity lien notice was filed, title of
the state relates back to the date of the filing of any lis
pendens under division (F) of this section in the records of the
county recorder of the county in which the real property or
beneficial interest is located. If no corrupt activity lien
notice or lis pendens was filed, title of the state relates back
to the date of the recording of the final judgment of forfeiture
in the records of the county recorder of the county in which the
real property or beneficial interest is located.
(2) In the case of personal property or a beneficial
interest in it, relate back to the date on which the property or
interest was seized by the state, or the date of filing of a
corrupt activity lien notice in the county in which the property
or beneficial interest is located. If the property was not
seized
and no corrupt activity lien notice was filed, title of
the state
relates back to the date of the recording of the final
judgment of
forfeiture in the county in which the personal
property or
beneficial interest is located.
(H) If personal or real property, or a beneficial interest
in it, that is subject to forfeiture pursuant to section 2923.32
of the Revised Code is conveyed, alienated, disposed of, or
otherwise rendered unavailable for forfeiture after the filing of
either a corrupt activity lien notice, or a criminal or
delinquency proceeding for a violation of section 2923.32 or a
civil proceeding under section 2923.32 or 2923.34 2981.05 of the Revised
Code, whichever is earlier, the state may bring an action in any
court of common pleas against the person named in the corrupt
activity lien notice or the defendant in the criminal,
delinquency, or civil proceeding to recover the value of the
property or interest. The court shall enter final judgment
against the person named in the notice or the defendant for an
amount equal to the value of the property or interest together
with investigative costs and attorney's fees incurred by the
state
in the action. If a civil proceeding is pending, an action
pursuant to this section shall be filed in the court in which the
proceeding is pending.
(I) If personal or real property, or a beneficial interest
in it, that is subject to forfeiture pursuant to section 2923.32
Chapter 2981. of the Revised Code is alienated or otherwise transferred or
disposed of after either the filing of a corrupt activity lien
notice, or the filing of a criminal or delinquency proceeding for
a violation of section 2923.32 or a civil proceeding under
section
2923.32 or 2923.34 2981.05 of the Revised Code, whichever is
earlier, the
transfer or disposal is fraudulent as to the state
and the state
shall have all the rights granted a creditor under
Chapter 1336.
of the Revised Code.
(J) No trustee, who acquires actual knowledge that a
corrupt
activity lien notice, a criminal or delinquency
proceeding for a
violation of section 2923.32 or a civil
proceeding under section
2923.32 or 2923.34 2981.05 of the Revised Code
has been filed against any
person for whom the trustee holds
legal or record title to
personal or real property, shall recklessly fail
to furnish
promptly to the prosecuting attorney all of the
following:
(1) The name and address of the person, as known to the
trustee;
(2) The name and address, as known to the trustee, of all
other persons for whose benefit the trustee holds title to the
property;
(3) If requested by the prosecuting attorney, a copy of
the
trust agreement or other instrument under which the trustee
holds
title to the property.
Any trustee who fails to comply with this division is
guilty
of failure to provide corrupt activity lien information, a
misdemeanor of the first degree.
(K) If a trustee transfers title to personal or real
property after a corrupt activity lien notice is filed against
the
property, the lien is filed in the county in which the
property is
located, and the lien names a person who holds a
beneficial
interest in the property, the trustee, if the
trustee has actual
notice of the notice, shall be liable to the state for
the greater
of the following:
(1) The proceeds received directly by the person named in
the notice as a result of the transfer;
(2) The proceeds received by the trustee as a result of
the
transfer and distributed to the person named in the notice;
(3) The fair market value of the interest of the person
named in the notice in the property transferred.
However, if the trustee transfers property for at least its
fair market value and holds the proceeds that otherwise would be
paid or distributed to the beneficiary, or at the direction of
the
beneficiary or the beneficiary's designee, the liability
of the
trustee shall not exceed the amount of the proceeds held by the
trustee.
(L) The filing of a corrupt activity lien notice does not
constitute a lien on the record title to personal or real
property
owned by the trustee, except to the extent the trustee
is named in
the notice.
The prosecuting attorney for the county may bring a civil
action in any court of common pleas to recover from the trustee
the amounts set forth in division (H) of this section. The
county
may recover investigative costs and attorney's fees
incurred by
the prosecuting attorney.
(M)(1) This section does not apply to any transfer by a
trustee under a court order, unless the order is entered in an
action between the trustee and the beneficiary.
(2) Unless the trustee has actual knowledge that a person
owning a beneficial interest in the trust is named in a corrupt
activity lien notice or otherwise is a defendant in a civil
proceeding brought pursuant to section 2923.34 or 2981.05 of the Revised
Code, this section does not apply to either of the following:
(a) Any transfer by a trustee required under the terms of
any trust agreement, if the agreement is a matter of public
record
before the filing of any corrupt activity lien notice;
(b) Any transfer by a trustee to all of the persons who
own
a beneficial interest in the trust.
(N) The filing of a corrupt activity lien notice does not
affect the use to which personal or real property, or a
beneficial
interest in it, that is owned by the person named in
the notice
may be put or the right of the person to receive any
proceeds
resulting from the use and ownership, but not the sale,
of the
property, until a judgment of forfeiture is entered.
(O) The term of a corrupt activity lien notice is five
years
from the date the notice is filed, unless a renewal notice
has
been filed by the prosecuting attorney of the county in which
the
property or interest is located. The term of any renewal of
a
corrupt activity lien notice granted by the court is five years
from the date of its filing. A corrupt activity lien notice may
be renewed any number of times while a criminal or civil
proceeding under section 2923.32 or 2923.34, 2981.04, or 2981.05 of the Revised Code,
or an appeal from either type of proceeding, is pending.
(P) The prosecuting attorney who files the corrupt
activity
lien notice may terminate, in whole or part, any corrupt
activity
lien notice or release any personal or real property or
beneficial
interest in the property upon any terms that the
prosecuting
attorney determines are appropriate. Any termination or
release
shall be
filed by the prosecuting attorney with each county
recorder with
whom the notice was filed. No fee shall be imposed
for the
filing.
(Q)(1) If no civil proceeding has been brought by the
prosecuting attorney pursuant to section 2923.34 of the Revised
Code against the person named in the corrupt activity lien
notice,
the acquittal in a criminal or delinquency proceeding for
a
violation of section 2923.32 of the Revised Code of the person
named in the notice or the dismissal of a criminal or delinquency
proceeding for such a violation against the person named in the
notice terminates the notice. In such a case, the filing of the
notice has no effect.
(2) If a civil proceeding has been brought pursuant to
section 2923.34 or 2981.05 of the Revised Code with respect to any property
that is the subject of a corrupt activity lien notice and if the
criminal or delinquency proceeding brought against the person
named in the notice for a violation of section 2923.32 of the
Revised Code has been dismissed or the person named in the notice
has been acquitted in the criminal or delinquency proceeding for
such a violation, the notice shall continue for the duration of
the civil proceeding and any appeals from the civil proceeding,
except that it shall not continue any longer than the term of the
notice as determined pursuant to division (O) of this section.
(3) If no civil proceeding brought pursuant to section
2923.34 2981.05 of the Revised Code then is pending against the person
named in a corrupt activity lien notice, any person so named may
bring an action against the prosecuting attorney who filed the
notice, in the county where it was filed, seeking a release of
the
property subject to the notice or termination of the notice.
In
such a case, the court of common pleas promptly shall set a
date
for hearing, which shall be not less than five nor more than
ten
days after the action is filed. The order and a copy of the
complaint shall be served on the prosecuting attorney within
three
days after the action is filed. At the hearing, the court
shall
take evidence as to whether any personal or real property,
or
beneficial interest in it, that is owned by the person
bringing
the action is covered by the notice or otherwise is
subject to
forfeiture. If the person bringing the action shows
by a
preponderance of the evidence that the notice does not apply
to
the person or that any personal or real property, or
beneficial
interest in it, that is owned by the person is
not subject to
forfeiture, the court shall enter a judgment terminating the
notice or releasing the personal or real property or beneficial
interest from the notice.
At a hearing, the court may release from the notice any
property or beneficial interest upon the posting of security, by
the person against whom the notice was filed, in an amount equal
to the value of the property or beneficial interest owned by the
person.
(4) The court promptly shall enter an order terminating a
corrupt activity lien notice or releasing any personal or real
property or beneficial interest in the property, if a sale of the
property or beneficial interest is pending and the filing of the
notice prevents the sale. However, the proceeds of the sale
shall
be deposited with the clerk of the court, subject to the
further
order of the court.
(R) Notwithstanding any provision of this section, any
person who has perfected a security interest in personal or real
property or a beneficial interest in the property for the payment
of an enforceable debt or other similar obligation prior to the
filing of a corrupt activity lien notice or a lis pendens in
reference to the property or interest may foreclose on the
property or interest as otherwise provided by law. The
foreclosure, insofar as practical, shall be made so that it
otherwise will not interfere with a forfeiture under section
2923.32 Chapter 2981. of the Revised Code.
Sec. 2923.41. As used in sections 2923.41 to 2923.47 2923.44 of the Revised Code:
(A) "Criminal gang" means an ongoing formal or informal
organization, association, or group of three or more persons to which all
of the following apply:
(1) It has as one
of its primary activities the commission of one or more of the offenses listed
in division (B) of this section.
(2) It has a common name or one or more common,
identifying signs, symbols, or colors.
(3) The persons in the organization, association, or group individually or
collectively engage in or have engaged in a pattern of criminal gang activity.
(B)(1) "Pattern of criminal gang activity" means, subject to
division (B)(2) of this section,
that persons in the criminal gang have committed,
attempted to commit, conspired to commit, been complicitors in the commission
of, or solicited, coerced, or
intimidated another to commit, attempt to commit, conspire to commit, or
be in complicity in the commission of
two or more of any of the following offenses:
(a) A felony or an act committed by a juvenile that would be a
felony if committed by an adult;
(b) An offense of violence or an act committed by a juvenile that
would be an offense of violence if committed by an adult;
(c) A violation of section
2907.04,
2909.06, 2911.211, 2917.04, 2919.23, or 2919.24 of the Revised Code,
section
2921.04 or 2923.16 of the Revised Code,
section 2925.03 of the Revised Code if the offense is
trafficking
in marihuana, or section 2927.12 of the
Revised Code.
(2) There is a "pattern of criminal gang activity" if all
of the following apply with respect to the offenses that are listed in
division
(B)(1)(a), (b), or (c) of this
section and that
persons in the criminal gang committed, attempted to commit, conspired to
commit,
were in complicity in committing, or solicited, coerced, or
intimidated another to commit, attempt to commit, conspire to
commit, or be in complicity in committing:
(a) At least one of the two or more offenses is a felony.
(b) At least one of those two or more offenses occurs on or after
the effective date of this section January 1,
1999.
(c) The last of those two or more offenses occurs within five
years after at least one of those offenses.
(d) The two or more offenses are committed on separate occasions
or by two or more persons.
(C) "Criminal conduct" means the commission of, an attempt to
commit, a conspiracy to
commit, complicity in the commission of, or solicitation, coercion, or
intimidation of another to commit, attempt to commit, conspire to commit, or
be in complicity in the commission of an offense
listed in division (B)(1)(a), (b), or
(c) of this section or an act that is committed
by a
juvenile and that would be an offense, an attempt to commit an offense, a
conspiracy to commit an offense, complicity in the commission of, or
solicitation, coercion, or intimidation of another to commit, attempt to
commit, conspire to commit, or be in complicity in the commission of an
offense
listed in division (B)(1)(a), (b), or
(c) of this section if committed by an adult.
(D) "Juvenile" means a person who is under eighteen years of age.
(E) "Law enforcement agency" includes, but is not limited to, the
state board of pharmacy and the office of a prosecutor.
(F) "Prosecutor" has the same meaning
as in section 2935.01 of the Revised
Code.
(G) "Financial institution" means a bank, credit union, savings
and loan
association, or a licensee or registrant under
Chapter 1321. of the Revised Code.
(H) "Property" includes both of the following:
(1) Real property, including, but not limited to, things growing on,
affixed
to, and found in the real property;
(2) Tangible and intangible personal property, including, but not limited
to,
rights, privileges, interests, claims, and securities.
(I) "Firearms" and "dangerous ordnance" have the same meanings as
in section 2923.11 of the Revised Code.
(J) "Computers," "computer networks," "computer systems," and
"computer software" have the same meanings as in section 2913.01 of the Revised Code.
(K) "Vehicle" has the same meaning as in section 4501.01 of the Revised Code.
Sec. 2923.42. (A) No person who actively participates
in a criminal gang, with knowledge that the criminal gang
engages in or has engaged in a pattern of criminal gang activity,
shall purposely promote, further, or assist any criminal conduct, as defined
in division (C) of section 2923.41 of the Revised Code,
or shall purposely commit or engage in any act
that constitutes criminal conduct, as defined in division (C) of
section 2923.41 of the Revised Code.
(B) Whoever violates this section
is guilty of participating in a criminal gang,
a felony of the second
degree.
(C)(1) Notwithstanding any contrary provision of any section
of the Revised Code, the clerk of the court shall pay any fine imposed
for a violation of this section pursuant to division (A) of section
2929.18 of the Revised Code to the
county, township, municipal corporation, park district, as
created pursuant to section 511.18 or 1545.04 of the Revised
Code, or state law enforcement agencies in this state that
primarily were responsible for or involved in making the arrest
of, and in prosecuting, the offender. However, the clerk shall not pay a fine
so imposed to a law enforcement agency unless the
agency has adopted a written internal control policy under
division (C)(2) of this section that addresses the use of the
fine moneys that it receives. Each agency shall use the fines so paid
in accordance with the written internal
control policy adopted by the recipient agency under division
(C)(2) of this section
to subsidize the agency's law enforcement efforts that
pertain to criminal gangs.
(2)(a) Prior to receiving any fine moneys under division
(C)(1) of this section or division (B)(5) of section 2923.44
of
the Revised Code, a law enforcement agency shall adopt a
written
internal control policy that addresses the agency's use and
disposition of all fine moneys so received and that provides for
the keeping of detailed financial records of the receipts of
those fine moneys, the general types of expenditures made out of
those fine moneys, and the specific amount of each general type
of expenditure. The policy shall not provide for or permit the
identification of any specific expenditure that is made in an
ongoing investigation. All financial records of the receipts of
those fine moneys, the general types of expenditures made out of
those fine moneys, and the specific amount of each general type
of expenditure by an agency are public records open for
inspection under section 149.43 of the Revised Code.
Additionally, a written internal control policy adopted under
division (C)(2)(a) of this section is a public
record open for inspection under section 149.43
of the Revised Code, and the agency that
adopted the policy shall comply with it.
(b) Each law enforcement agency that receives in any
calendar year any fine moneys under division (C)(1) of this
section or division (B)(5) of section 2923.44 of the Revised Code
shall prepare a report covering the calendar year that cumulates
all of the information contained in all of the public financial
records kept by the agency pursuant to division
(C)(2)(a) of
this
section for that calendar year and shall send a copy of the
cumulative report, no later than the first day of March in the
calendar year following the calendar year covered by the report,
to the attorney general. Each report received by the attorney
general is a public record open for inspection under section
149.43 of the Revised Code. Not later than the fifteenth day of April in the
calendar year in which the reports are received, the attorney general shall
send the president of the senate and the speaker of the house of
representatives a written notice that does all of the following:
(i) Indicates that the attorney general has received from law
enforcement agencies reports of the type described in division
(C)(2)(b) of this section that cover the previous
calendar year and indicates that the reports were received under division
(C)(2)(b) of this section;
(ii) Indicates that the reports are open for inspection under
section 149.43 of the Revised Code;
(iii) Indicates that the attorney general will provide a copy of
any or all reports to the president of the senate or the speaker of the house
upon request.
(D) A prosecution for a violation of this section
does not preclude a prosecution of a violation of any other section of the
Revised Code.
One or more acts, a series of acts, or a course of behavior that can be
prosecuted under this section or any other section of the
Revised Code
may be prosecuted under this section, the other section of the
Revised Code,
or both sections.
Sec. 2923.44. (A)(1) In accordance with division (B) of
this section, a person who is convicted of or pleads guilty to a
violation of section 2923.42 of the Revised Code,
and a juvenile
who is found by a
juvenile court to be a delinquent child for an
act
committed in violation of section 2923.42 of the Revised Code,
loses any right to the possession of property and forfeits to the
state any right, title, and interest the person may have in that
property if either of the following applies:
(a) The property constitutes, or is derived directly or
indirectly from, any proceeds that the person obtained directly
or
indirectly from the commission of the
violation of section 2923.42
of the Revised Code.
(b) The property was used or intended to be used in any
manner to commit, or to facilitate the commission of, the
violation of section 2923.42 of the Revised Code.
(2) All right, title, and interest of a person in property
described in division (A)(1) of this section vests in the state
upon the person's commission of the violation
of section 2923.42
of the Revised Code of
which the person is convicted or to which
the person pleads guilty and that is
the basis of the forfeiture,
or upon the juvenile's commission of
the act that
is a violation
of section 2923.42 of the Revised Code, that is the basis of
the
juvenile
being found to be a delinquent child, and that is the
basis of the forfeiture.
Subject to
divisions (F)(3)(b) and
(5)(b) and
(G)(2) of this
section, if any right, title, or
interest in property is vested
in this state under division (A)(2)
of this section and subsequently
is transferred to a person other
than the adult offender or the delinquent
child who forfeits the
right,
title, or interest in the property under division (A)(1) of
this
section, then,
in accordance with division (B) of this
section, the right,
title, or interest in the property may be the
subject of a
special verdict of forfeiture and, after any special
verdict of
forfeiture, shall be ordered forfeited to this state,
unless the
transferee establishes in a hearing held pursuant to
division (F)
of this section that the transferee is a bona fide
purchaser for
value of the right, title, or interest in the
property and that, at the time
of its purchase, the transferee was
reasonably without cause to
believe that it was subject to
forfeiture under this section.
(3) The provisions of section 2923.45 of the Revised Code
that relate to the forfeiture of any right, title, or interest in
property associated with a violation of section 2923.42 of the
Revised Code pursuant to
a civil action to obtain a civil
forfeiture do not apply to the
forfeiture of any right, title, or
interest in property described
in division (A)(1) of this section
that occurs pursuant to
division (B) of this section upon a
person's conviction of or
guilty plea to a violation of section
2923.42
of the Revised Code or upon a juvenile
being found by a
juvenile court to be a delinquent child for an
act that is a
violation of section 2923.42 of the Revised Code.
(4) Nothing in this section precludes a financial
institution that has or purports to have a security interest in
or
lien on property described in division (A)(1) of this section
from
commencing a civil action or taking other appropriate legal
action
in connection with the property prior to its disposition
in
accordance with section 2923.46 of the Revised Code for the
purpose of obtaining possession of the property in order to
foreclose or otherwise enforce the security interest or lien. A
financial institution may commence a civil action or take other
appropriate legal action for that purpose prior to the
disposition
of the property in accordance with section 2923.46
of the Revised
Code, even if a prosecution
for a violation of section 2923.42 of
the Revised Code
or a delinquent child proceeding for an act that
is a violation of section 2923.42 of the Revised Code has been or
could
be commenced, even if the property is or could be the
subject of
an order of forfeiture issued under division (B)(5) of
this
section, and even if the property has been seized or is
subject
to seizure pursuant to division (D) or (E) of this
section.
If a financial institution commences a civil action or
takes
any other appropriate legal action as described in
division (A)(4)
of this section, if the financial institution
subsequently causes
the
sale of the property prior to its seizure pursuant to division
(D) or (E) of this section and its disposition pursuant to
section
2923.46 of the Revised Code, and if the person
responsible for the
conduct of the sale has actual knowledge of
the commencement of a
prosecution for a violation of
section 2923.42 of the Revised Code
or
of a delinquent child proceeding for an act that
is a violation
of section 2923.42 of the Revised Code, actual knowledge of
a
pending forfeiture proceeding under division (B) of this
section,
or actual knowledge of an order of forfeiture issued
under
division (B)(5) of this section, then the person
responsible for
the conduct of the sale shall dispose of the
proceeds of the sale
in the following order:
(a) First, to the payment of the costs of the sale and to
the payment of the costs incurred by law enforcement agencies and
financial institutions in connection with the seizure of, storage
of, maintenance of, and provision of security for the property.
As used in this division, "costs" of a financial institution do
not include attorney's fees incurred by that institution in
connection with the property.
(b) Second, the remaining proceeds of the sale after
compliance with division (A)(4)(a) of this section,
to the
payment
in the order of priority of the security interests and liens of
valid
security interests and liens pertaining to the
property
that, at the time of the vesting in the state under division
(A)(2) of this section of the right, title, or interest of the
adult
or juvenile, are held by known secured parties and
lienholders;
(c) Third, the remaining proceeds of the sale after
compliance with division (A)(4)(b) of this section,
to the court
that has or would have jurisdiction in a prosecution for a
violation of
section 2923.42 of the Revised Code or a delinquent
child proceeding for an
act
that is a violation of section 2923.42
of the Revised Code for disposition in accordance
with section
2923.46 of the Revised Code.
(B)(1) A criminal forfeiture of any right, title, or
interest in property described in division (A)(1) of this section
is precluded unless one of the following applies:
(a) The indictment, count in the indictment, or
information
charging the violation of section 2923.42 of the Revised Code
specifies the
nature of the right, title, or interest of the
alleged offender
in the property described in division (A)(1) of
this section that
is potentially subject to forfeiture under this
section, or a
description of the property of the alleged offender
that is
potentially subject to forfeiture under this section, to
the
extent the right, title, or interest in the property or the
property reasonably is known at the time of the filing of the
indictment or information; or the complaint, indictment, or
information charging a juvenile with being a
delinquent child for
the commission of an act that
is a violation of section 2923.42 of
the
Revised Code specifies the nature of the right,
title, or
interest of the
juvenile in the property described in division
(A)(1) of this
section that is potentially subject to forfeiture
under this
section, or a description of the property of the
juvenile that is
potentially subject to forfeiture under this
section, to the
extent the right, title, or interest in the
property or the
property reasonably is known at the time of the
filing of the
complaint, indictment, or information.
(b) The property in question was not reasonably foreseen
to
be subject to forfeiture under this section at the time of the
filing of the indictment, information, or complaint, the
prosecuting attorney gave prompt notice to the alleged offender
or
juvenile of that property when it was discovered to be subject
to
forfeiture under this section, and a verdict of forfeiture
described in division (B)(3) of this section requires the
forfeiture of that property.
(2) The specifications described in division (B)(1) of
this
section shall be stated at the end of the body of the
indictment,
count in the indictment, information, or complaint.
(3)(a) If a person is convicted of or pleads guilty to a
violation of section 2923.42 of the Revised Code or a juvenile is
found to be
a
delinquent child for an act that is a violation
of
section 2923.42 of the Revised Code, then
a special proceeding
shall
be conducted in accordance with division (B)(3) of this
section to
determine
whether any property described in division
(B)(1)(a)
or (b) of
this section will be the subject of an order
of forfeiture under
this section. Except as otherwise provided in
division
(B)(3)(b)
of this section, the jury in the criminal
action, the judge in the
delinquent child
action, or, if the
criminal
action was a nonjury action, the judge in that action
shall hear
and consider testimony and other evidence in the
proceeding
relative to whether any property described in division
(B)(1)(a)
or (b) of this section is subject to forfeiture under
this
section. If the jury or judge determines that the
prosecuting
attorney has established by a preponderance of the
evidence
that any property so described is subject to forfeiture
under
this section, the judge or juvenile judge shall render a
verdict
of forfeiture that specifically describes the right,
title, or
interest in property or the property that is subject to
forfeiture under this section. The Rules of Evidence shall
apply
in the proceeding.
(b) If the trier of fact in a
criminal action for a
violation of section
2923.42 of the Revised Code was a jury, then,
upon the filing of a motion by the person who was convicted of or
pleaded guilty to the violation of section 2923.42 of the Revised
Code, the
determinations in the
proceeding described in division
(B)(3) of this section instead shall
be made by the judge in the
criminal action.
(4) In a criminal action
for a violation of section 2923.42
of the Revised Code, if the trier
of fact is a jury, the jury
shall not be informed of any specification described in division
(B)(1)(a) of this section or of any property described in
that
division or division (B)(1)(b) of this section
prior to the
alleged offender being convicted of or pleading guilty to the
violation of
section 2923.42 of the Revised Code.
(5)(a) If a verdict of forfeiture is entered pursuant to
division (B)(3) of this section, then the court that imposes
sentence upon a person who is convicted of or pleads guilty to a
violation of
section 2923.42 of the Revised Code, or the juvenile
court that finds a
juvenile to be a delinquent child for an act
that is a violation of section
2923.42 of the Revised Code, in
addition to
any other sentence imposed upon the offender or order
of
disposition imposed upon the delinquent child, shall order that
the offender or delinquent child forfeit to the state all of
the
offender's or delinquent child's right, title, and interest in
the
property described in division (A)(1) of this section. If a
person is convicted of or pleads guilty to a violation of section
2923.42
of the Revised Code, or a juvenile is found by a juvenile
court to be a
delinquent child for an act that is a violation
of
section 2923.42 of the Revised Code, and
derives profits or other
proceeds from the offense or act, the court that imposes sentence
or an order of disposition upon the offender or delinquent child,
in lieu of any fine that the
court is otherwise authorized or
required to impose, may impose upon
the offender or delinquent
child a fine of not
more than twice the gross profits or other
proceeds so derived.
(b)(B) Notwithstanding any contrary provision
of the Revised
Code, the clerk of the court shall pay all
fines imposed
pursuant
to division (B)(5) of this section to the county,
municipal
corporation, township, park district created
pursuant to section
511.18 or 1545.01 of the Revised Code,
or
state law enforcement
agencies in this state that were primarily
responsible for or
involved in making the arrest of, and in
prosecuting, the
offender. However, the clerk shall not pay a fine so
imposed to a
law enforcement agency unless the agency has adopted a
written
internal control policy pursuant to division
(C)(2) of section
2923.42 of the Revised Code that addresses the use of the fine
moneys that it receives under division (B)(5) of this section and
division
(C)(1)
of section 2923.42 of the Revised Code. The law
enforcement agencies shall
use the fines imposed and
paid pursuant
to division (B)(5) of this section to subsidize their
efforts
pertaining to criminal gangs, in accordance with the written
internal control policy adopted by the recipient agency pursuant
to division
(C)(2) of section 2923.42 of the Revised Code.
(6) If any of the property that is described in division
(A)(1) of this section and that is the subject of an order of
forfeiture issued under division (B)(5) of this section, because
of an act of the person who is convicted of or pleads
guilty to
the violation of section 2923.42
of the Revised Code that is the
basis of the
order of forfeiture or an act of the juvenile found
by a juvenile court to be a delinquent child for an act that
is a
violation of section 2923.42 of the Revised Code and
that is the
basis of the forfeiture, cannot be located upon the
exercise of
due diligence, has been transferred to, sold to, or
deposited with
a third party, has been placed beyond the
jurisdiction of the
court, has been substantially diminished in
value, or has been
commingled with other property that cannot be
divided without
difficulty, the court that issues the order of
forfeiture shall
order the forfeiture of any other property of
the offender or the
delinquent child up to the value of any forfeited property
described
in division (B)(6) of this section.
(C) There shall be a rebuttable presumption that any
right,
title, or interest of a person in property described in
division
(A)(1) of this section is subject to forfeiture under
division (B)
of this section, if the state proves both of the
following by a
preponderance of the evidence:
(1) The right, title, or interest in the property was
acquired by the offender or delinquent child during the period of
the
commission of the violation of section 2923.42 of the Revised
Code, or within
a
reasonable time after that period.
(2) There is no likely source for the right, title, or
interest in the property other than proceeds obtained from the
commission of the violation of section 2923.42 of the Revised
Code.
(D)(1) Upon the application of the prosecuting attorney
who
is prosecuting or has jurisdiction to prosecute the
violation of
section 2923.42 of the Revised Code,
the court of common pleas or
juvenile
court of the county in which property subject to
forfeiture under
division (B) of this section is located,
whichever is applicable,
may issue a restraining order or
injunction, an order requiring
the execution of a satisfactory
performance bond, or an order
taking any other reasonable action
necessary to preserve the
availability of the property, at either
of the following times:
(a) Upon the filing of an indictment, complaint, or
information charging a person who has any right, title, or
interest in the property with the commission of a violation of
section 2923.42
of the Revised Code and alleging that the property
with respect to
which the order is sought will be subject to
forfeiture under
division (B) of this section if the person is
convicted of or
pleads guilty to the offense, or upon the filing
of a complaint,
indictment, or information alleging that a
juvenile who has any right,
title, or interest in the property is
a delinquent child because of the
commission of
an act that is a
violation of section 2923.42
of the Revised Code and alleging that
the
property with respect to
which the order is sought will be
subject to forfeiture under
division (B) of this section if the
juvenile is found to be a
delinquent child because of the
commission of that act;
(b) Except as provided in division (D)(3) of this
section,
prior to the filing of an indictment, complaint, or information
charging a person who has any right, title, or interest in the
property with the commission of a violation of
section 2923.42 of
the Revised Code, or
prior to the filing of a complaint,
indictment or information
alleging that a
juvenile who
has any
right, title, or interest in the property is a delinquent
child
because of the commission of an act that is a violation of section
2923.42 of the Revised Code, if, after notice
is given to all
persons known to have any right, title, or
interest in the
property and an opportunity to have a hearing on
the order is
given to those persons, the court determines both of
the
following:
(i) There is a substantial probability that the state will
prevail on the issue of forfeiture and that failure to enter the
order will result in the property subject to forfeiture being
destroyed, removed from the jurisdiction of the court, or
otherwise being made unavailable for forfeiture.
(ii) The need to preserve the availability of the property
subject to forfeiture through the entry of the requested order
outweighs the hardship on any party against whom the order is to
be entered.
(2) Except as provided in division (D)(3) of this section,
an order issued under division (D)(1) of this section is
effective
for not more than ninety days, unless extended by the
court for
good cause shown or unless an indictment, complaint, or
information charging the commission of
a violation of section
2923.42 of the Revised Code or
a complaint, indictment, or
information alleging that a juvenile
is a delinquent child because
of the commission of an act that
is a violation of section 2923.42
of the Revised Code, is filed against
any alleged adult offender
or alleged delinquent child with any
right, title, or interest in
the property that is the subject of
the order.
(3) A court may issue an order under division
(D)(1)(b) of
this section without giving notice or an opportunity for a
hearing
to persons known to have any right, title, or interest in
property
if the prosecuting attorney who is prosecuting or has
jurisdiction
to prosecute the violation of section 2923.42 of the Revised Code
demonstrates that there is probable cause to believe that the
property will be subject to forfeiture under division (B) of this
section if a person with any right, title, or interest in the
property is convicted of or pleads guilty to a violation of
section 2923.42
of the Revised Code or a juvenile with any right,
title, or interest in the
property is found by a juvenile court to
be a delinquent child
for an act that is a violation of section
2923.42 of the Revised Code and that giving notice
or an
opportunity for a
hearing to persons with any right, title, or
interest in the
property will jeopardize its availability for
forfeiture. The
order shall be a temporary order and shall expire
not more than ten
days after the date on which it is entered,
unless it is extended
for good cause shown or unless a person with
any right, title, or
interest in the property that is the subject
of the order
consents to an extension for a longer period. A
hearing
concerning an order issued under division (D)(3) of this
section may
be requested,
and, if it is requested, the court shall
hold the hearing at the
earliest possible time prior to the
expiration of the order.
(4) At any hearing held under division (D) of this
section,
the court may receive and consider evidence and
information that
is inadmissible under the Rules of
Evidence.
Each hearing held
under division (D) of this section
shall be recorded by shorthand,
by stenotype, or by any other
mechanical, electronic, or video
recording device. If, as a
result of a hearing under division (D)
of this section, property
would be seized, the recording of and
any transcript of the
recording of that hearing shall not be a
public record for
purposes of section 149.43 of the Revised Code
until that
property has been seized pursuant to division (D) of
this
section. Division (D)(4) of this section
does not require,
authorize, or permit the making available for inspection, or the
copying, under section 149.43 of the Revised Code of any
confidential law enforcement investigatory record or trial
preparation record, as defined in that section.
(5) A prosecuting attorney or other law enforcement
officer
may request the court of common pleas of the county in
which
property subject to forfeiture under this section is
located to
issue a warrant authorizing the seizure of that
property. The
request shall be made in the same manner as
provided for a search
warrant. If the court determines that
there is probable cause to
believe that the property to be seized
will be subject to
forfeiture under this section when a person
with any right, title,
or interest in the property is convicted
of or pleads guilty to a
violation of
section 2923.42 of the Revised Code or when a
juvenile with any right, title, or interest in the property is
found by a juvenile court to be a delinquent child for an act
that
is a violation of section 2923.42 of the Revised Code and if the
court
determines that
any order issued under
division (D)(1), (2),
or (3) of this section may not be
sufficient to ensure the
availability of the property for
forfeiture, the court shall issue
a warrant authorizing the
seizure of the property.
(E)(1) Upon the entry of an order of forfeiture under this
section, the court shall order an appropriate law enforcement
officer to seize all of the forfeited property upon the terms and
conditions that the court determines are proper. In addition,
upon the request of the prosecuting attorney who prosecuted the
offense or act in violation of section 2923.42
of the Revised
Code, the court shall enter any
appropriate restraining orders or
injunctions, require the
execution of satisfactory performance
bonds, appoint receivers,
conservators, appraisers, accountants,
or trustees, or take any
other action to protect the interest of
the state in the
forfeited property. Any income accruing to or
derived from
property ordered forfeited under this section may be
used to
offset ordinary and necessary expenses related to the
property
that are required by law or that are necessary to protect
the
interest of the state or third parties.
After forfeited property is seized, the prosecuting
attorney
who prosecuted the offense or act in violation of section 2923.42
of the Revised Code shall direct its disposition
in accordance
with section 2923.46
of the Revised Code, making due provision for
the rights of
any innocent persons. Any right, title, or interest
in property not
exercisable by, or transferable for value to, the
state shall
expire and shall not revert to the offender whose
conviction or
plea of guilty or act as a delinquent child is the
basis of the
order of forfeiture. Neither the adult offender or
delinquent
child nor any person acting in concert with or on
behalf
of the adult offender or delinquent child
is eligible to
purchase forfeited property at any sale held
pursuant to section
2923.46 of the Revised Code.
Upon the application of any person other than the adult
offender or delinquent child whose right, title, or interest in
the property is the subject of the order of forfeiture or any
person acting in concert with or on behalf of the adult offender
or delinquent
child, the court may
restrain or stay the sale or
other disposition of the property
pursuant to section 2923.46 of
the Revised Code pending the
conclusion of any appeal of the
conviction or of the delinquent child
adjudication that is the
basis of the order of forfeiture, if the applicant demonstrates
that proceeding with the sale or other disposition of the
property
will result in irreparable injury or loss to the applicant.
(2) With respect to property that is the subject of an
order
of forfeiture issued under this section, the court that
issued the
order, upon the petition of the prosecuting attorney
who
prosecuted the offense or act in
violation of section 2923.42 of
the Revised Code, may do
any
of the following:
(a) Grant petitions for mitigation or remission of
forfeiture, restore forfeited property to victims of a violation
of section
2923.42 of the Revised Code, or take any other action
to protect the
rights of innocent persons that is in the interest
of justice and
that is not inconsistent with this section;
(b) Compromise claims that arise under this section;
(c) Award compensation to persons who provide information
resulting in a forfeiture under this section;
(d) Direct the disposition by the prosecuting attorney who
prosecuted the offense or act in violation of section 2923.42
of
the Revised Code, in
accordance with section 2923.46 of the
Revised Code, of all
property ordered forfeited under this
section, making due provision for the
rights
of innocent persons;
(e) Pending the disposition of any property that is the
subject of an order of forfeiture under this section, take any
appropriate measures that are necessary to safeguard and maintain
the property.
(3) To facilitate the identification and location of
property that is the subject of an order of forfeiture under this
section and to facilitate the disposition of petitions for
remission or mitigation issued under division (E)(2) of this
section, after the issuance of an order of forfeiture under this
section and upon application by the prosecuting attorney who
prosecuted the offense or act in violation of
section 2923.42 of
the Revised Code, the court
may
order that the testimony of any
witness relating to the forfeited
property be taken by deposition,
and that any designated book,
paper, document, record, recording,
or other material that is not
privileged be produced at the same
time and place as the
testimony, in the same manner as provided
for the taking of
depositions under the Rules of Civil Procedure.
(F)(1) Except as provided in divisions (F)(2) to (5) of
this
section, no person claiming any right, title, or interest in
property subject to forfeiture under this section or section
2923.45 of the Revised Code may intervene in a criminal
trial or
appeal, or a delinquent child proceeding or appeal, involving the
forfeiture of the property under this section or in a civil
action
for a civil forfeiture under section 2923.45 of the
Revised Code
or may commence an action at law or equity
against the state
concerning the validity of the person's alleged right,
title, or
interest in the property subsequent to the filing of an
indictment, complaint, or information alleging that the property
is subject to forfeiture under this section or subsequent to the
filing of a complaint, indictment, or information alleging that
a
juvenile who has any right,
title, or interest in the property is
a delinquent child because
of the commission of an act that is a
violation of
section 2923.42 of the Revised Code and
alleging that
the property is
subject to forfeiture under this section.
(2) After the entry of an order of forfeiture under this
section, the prosecuting attorney who prosecuted the offense or
act in
violation of section 2923.42 of the Revised Code shall
conduct or cause to be conducted a
search of the appropriate
public records that relate to the
property and shall make or cause
to be made reasonably diligent
inquiries for the purpose of
identifying persons who have any
right, title, or interest in the
property. The prosecuting
attorney then shall cause a notice of
the order of forfeiture, of
the prosecuting attorney's intent to
dispose of the property in
accordance with section 2923.46 of the
Revised Code, and of
the manner of the proposed
disposal to be
given by certified mail, return receipt requested, or by
personal
service to each person who is known, because of the
conduct of the
search, the making of the inquiries, or otherwise,
to have any
right, title, or interest in the property.
Additionally, the
prosecuting attorney shall cause a similar
notice to be published
once a week for two consecutive weeks in a
newspaper of general
circulation in the county in which the
property was seized.
(3)(a) Any person, other than the adult offender whose
conviction or guilty plea or the delinquent child whose
adjudication is the basis of the order of forfeiture, who asserts
a legal right, title, or interest in the property that is the
subject of the order may petition the court that issued the
order,
within thirty days after the earlier of the final
publication of
notice or the person's receipt of notice under
division (F)(2) of
this section, for a hearing to adjudicate the
validity
of the
person's alleged right, title, or interest in the property.
The
petition shall be signed by the petitioner under the penalties
for
falsification as specified in section 2921.13 of the Revised
Code
and shall set forth the nature and extent of the
petitioner's
right, title, or interest in the property, the time
and
circumstances of the petitioner's acquisition of that right,
title, or interest, any additional facts supporting the
petitioner's claim,
and the relief sought.
(b) In lieu of filing a petition as described in division
(F)(3)(a) of this section, a secured party or other
lienholder of
record that asserts a legal right, title, or interest in the
property that is the subject of the order, including, but not
limited to, a mortgage, security interest, or other type of lien,
may file an affidavit as described in division (F)(3)(b)
of this
section to establish
the validity of the alleged right, title, or
interest in the
property. The secured party or lienholder shall
file the affidavit within
thirty days after
the earlier of the
final publication of notice or the receipt of
notice under
division (F)(2) of this section and, except as
otherwise provided
in this section, the affidavit shall constitute prima-facie
evidence of the validity of the secured party's or other
lienholder's alleged right, title, or interest in the property.
Unless the prosecuting attorney files a motion challenging the
affidavit within ten days after its filing and unless the
prosecuting attorney establishes by a preponderance of the
evidence at a subsequent hearing before the court that issued
the
forfeiture order, that the secured party or other lienholder
does
not possess the alleged right, title, or interest in the
property
or that the secured party or other lienholder had actual
knowledge
of facts pertaining to the violation that was the basis of the
forfeiture order, the affidavit
shall constitute conclusive
evidence of the validity of the
secured party's or other
lienholder's right, title, or interest
in the property and shall
have the legal effect described in
division (G)(2) of this
section. To the extent practicable and
consistent with the
interests of justice, the court shall hold any hearing
held
pursuant to division (F)(3)(b) of this section
within thirty days
after the prosecuting attorney files
the motion. At any such
hearing, the prosecuting attorney and
the secured party or other
lienholder may present evidence and
witnesses and may
cross-examine witnesses.
In order to be valid for the purposes of this division and
division (G)(2) of this section, the affidavit of a secured party
or other lienholder shall contain averments that the secured
party
or other lienholder acquired its alleged right, title, or
interest
in the property in the regular course of its business,
for a
specified valuable consideration, without actual knowledge
of any
facts pertaining to the violation that was the basis of the
forfeiture
order, in good faith and
without the intent to prevent
or otherwise impede the state from
seizing or obtaining a
forfeiture of the property under sections
2923.44 to 2923.47 of
the Revised Code, and prior to the
seizure or forfeiture of the
property under those sections.
(4) Upon receipt of a petition filed under division (F)(3)
of this section, the court shall hold a hearing to determine the
validity of the petitioner's right, title, or interest in the
property that is the subject of the order of forfeiture. To the
extent practicable and consistent with the interests of justice,
the court shall hold the hearing within thirty days after the
filing of
the petition. The court may consolidate the hearing on
the
petition with a hearing on any other petition filed by a
person
other than the offender whose conviction or guilty plea or
adjudication as a delinquent child is the basis of the order of
forfeiture. At the hearing, the petitioner may testify, present
evidence and witnesses on the petitioner's behalf, and
cross-examine witnesses
for the state. The state may present
evidence and witnesses in
rebuttal and in defense of its claim to
the property and
cross-examine witnesses for the petitioner. In
addition to
evidence and testimony presented at the hearing, the
court shall
consider the relevant portions of the record in the
case that resulted in the
order
of forfeiture.
(5)(a) The court shall amend its order of forfeiture in
accordance with its determination if it determines at the
hearing
that the petitioner has established either of the
following by a
preponderance of the evidence:
(i) The petitioner has a legal right, title, or interest
in
the property that renders the order of forfeiture completely
or
partially invalid because it was vested in the petitioner,
rather
than the adult offender whose conviction or guilty plea or
the
delinquent child whose adjudication is the basis of the
order, or
was superior to any right, title, or interest of that
adult
offender or delinquent child, at the time of the commission of the
violation that is the basis of the order.
(ii) The petitioner is a bona fide purchaser for value of
the right, title, or interest in the property and was at the time
of the purchase reasonably without cause to believe that it was
subject to forfeiture under this section.
(b) The court also shall amend its order of forfeiture to
reflect any right, title, or interest of a secured party or other
lienholder of record in the property subject to the order that
was
established pursuant to division (F)(3)(b) of
this section by
means of an affidavit, or that was established pursuant to
that
division by the failure of a prosecuting attorney to establish,
in
a hearing as described in that division, that the secured
party or
other lienholder did not possess the alleged right,
title, or
interest in the property or that the secured party or
other
lienholder had actual knowledge of facts pertaining to the
violation that was the basis of the order.
(G)(1) Subject to division (G)(2) of this section, if
the
court has disposed of all petitions filed under division (F) of
this section or if no petitions are filed under that division and
the time for filing petitions under that division has expired,
the
state shall have clear title to all property that is the
subject
of an order of forfeiture issued under this section and
may
warrant good title to any subsequent purchaser or other
transferee.
(2) If an affidavit as described in division
(F)(3)(b) of
this section is filed in accordance with that division, if the
affidavit constitutes under the circumstances described in that
division conclusive evidence of the validity of the right,
title,
or interest of a secured party or other lienholder of
record in
the property subject to a forfeiture order, and if any
mortgage,
security interest, or other type of lien possessed by
the secured
party or other lienholder in connection with the
property is not
satisfied prior to a sale or other disposition of
the property
pursuant to section 2923.46 of the Revised
Code,
then the right,
title, or interest of the secured party or other
lienholder in the
property remains valid for purposes of sections
2923.44 to 2923.47
of the Revised Code and any subsequent
purchaser or other
transferee of the property pursuant to section
2923.46 of the
Revised Code shall take the property subject
to the continued
validity of the right, title, or interest of the
secured party or
other lienholder in the property.
Sec. 2925.03. (A) No person shall knowingly do any of the
following:
(1) Sell or offer to sell a
controlled substance;
(2) Prepare for shipment, ship, transport, deliver, prepare
for distribution, or distribute a controlled substance, when the
offender knows or has reasonable cause to believe that the
controlled substance is intended for sale or resale by the
offender or another person.
(B) This section does not apply to any of the following:
(1) Manufacturers, licensed health professionals
authorized
to prescribe drugs, pharmacists, owners of
pharmacies, and other
persons whose conduct is in accordance with
Chapters 3719., 4715.,
4723., 4729., 4730., 4731., and
4741. of the Revised Code;
(2) If the offense involves an anabolic steroid, any
person
who is conducting or participating in a research project
involving
the use of an anabolic steroid if the project has been
approved by
the United States food and drug administration;
(3) Any person who sells, offers for sale, prescribes,
dispenses, or administers for livestock or other nonhuman species
an anabolic steroid that is expressly intended for administration
through implants to livestock or other nonhuman species and
approved for that purpose under the
"Federal Food, Drug, and
Cosmetic Act," 52 Stat. 1040 (1938), 21 U.S.C.A. 301, as amended,
and is sold, offered for sale, prescribed, dispensed, or
administered for that purpose in accordance with that act.
(C) Whoever violates division (A) of this section is guilty
of one of the
following:
(1) If the drug involved in the violation is any
compound,
mixture, preparation, or substance included in schedule
I or
schedule II, with the exception of
marihuana, cocaine, L.S.D.,
heroin, and hashish,
whoever
violates division (A) of this section
is guilty of
aggravated trafficking in drugs. The penalty for the
offense
shall be determined as follows:
(a) Except as otherwise provided in division
(C)(1)(b), (c),
(d), (e),
or (f) of this section, aggravated trafficking in drugs
is
a felony of the fourth degree,
and division (C) of section
2929.13 of the Revised Code applies in determining
whether
to
impose a prison term on the offender.
(b) Except as otherwise provided in division
(C)(1)(c), (d),
(e), or (f) of
this section, if the offense was committed in the
vicinity of a school or in
the vicinity of a juvenile, aggravated
trafficking in drugs is a felony of the
third degree, and division
(C) of section 2929.13 of the Revised Code applies
in determining
whether to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
the bulk amount but
is less than five times the
bulk amount, aggravated
trafficking in
drugs
is a felony of the third degree, and the court shall impose
as a
mandatory prison term one of the prison terms prescribed for
a
felony of the third degree. If the amount of the drug involved
is within that range and if the offense was committed in the
vicinity of a school or in the vicinity of a juvenile, aggravated
trafficking in drugs is a felony of the second degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the second degree.
(d) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
five times the bulk
amount but is less than
fifty times the bulk amount,
aggravated
trafficking in drugs is a felony of the second degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the second degree. If the
amount
of the drug involved is within that range and if the
offense was
committed in the vicinity of a school or in the
vicinity of a
juvenile, aggravated trafficking in drugs is a
felony of the first
degree, and the court shall impose as a
mandatory prison term one
of the prison terms prescribed for a
felony of the first degree.
(e) If the amount of the drug involved equals or exceeds
fifty times the bulk amount but is less than one
hundred times
the
bulk amount and regardless of whether the offense was
committed in
the vicinity of a school or in the vicinity of a
juvenile,
aggravated trafficking in drugs is a felony of the
first degree,
and the court shall impose as a mandatory prison
term one of the
prison terms prescribed for a felony of the first
degree.
(f) If the amount of the drug involved equals or exceeds
one
hundred times the bulk amount and regardless of whether the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, aggravated trafficking in drugs is a
felony of the first degree, the offender is a major drug
offender,
and the court shall impose as a
mandatory prison term the maximum
prison term prescribed for a
felony of the first degree and may
impose an additional prison
term prescribed for a major drug
offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(2) If the drug involved in the violation is any
compound,
mixture, preparation, or substance included in schedule
III, IV,
or V, whoever violates division
(A) of this section is guilty of
trafficking in
drugs. The penalty for the offense shall be
determined as
follows:
(a) Except as otherwise provided in division
(C)(2)(b), (c),
(d), or
(e) of
this section, trafficking in drugs is a felony of
the fifth degree, and
division (C) of section 2929.13 of the
Revised Code applies in determining
whether to impose a prison
term on the offender.
(b) Except as otherwise provided in division
(C)(2)(c), (d),
or (e) of this section,
if the offense was committed in the
vicinity of a
school or in the vicinity of a juvenile, trafficking
in drugs is
a felony of the fourth degree, and
division (C) of
section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
the bulk amount but
is less than five times the
bulk amount, trafficking in
drugs is a
felony of the fourth degree, and there is a presumption for a
prison term for the offense. If the amount of the drug involved
is within that range and if the offense was committed in the
vicinity of a school or in the vicinity of a juvenile,
trafficking
in drugs is a felony of the third degree, and there
is a
presumption for a prison term for the offense.
(d) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
five times the bulk
amount but is less than
fifty times the
bulk amount, trafficking
in drugs is a felony of the third degree, and there
is a
presumption
for a prison term for the offense. If the amount of
the drug
involved is within that range and if the offense was
committed in
the vicinity of a school or in the vicinity of a
juvenile,
trafficking in drugs is a felony of the second degree,
and there
is a presumption for a prison term for the offense.
(e) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
fifty times the bulk
amount, trafficking in drugs is a felony of the second
degree, and
the
court shall impose as a mandatory prison term one of the
prison
terms prescribed for a felony of the second degree. If the
amount of the drug involved equals or exceeds fifty times the bulk
amount
and if the offense was committed in the vicinity of a
school or
in the vicinity of a juvenile, trafficking in drugs is a
felony
of the first degree, and the court shall impose as a
mandatory
prison term one of the prison terms prescribed for a
felony of
the first degree.
(3) If the drug involved in the violation is marihuana or a
compound,
mixture, preparation, or substance containing marihuana
other than
hashish,
whoever violates division (A) of this section
is guilty
of trafficking in marihuana. The penalty for the
offense shall
be determined as follows:
(a) Except as otherwise provided in division
(C)(3)(b), (c),
(d), (e),
(f), or (g) of this section, trafficking in marihuana is
a felony of the
fifth degree, and
division (C) of section 2929.13
of the Revised Code applies in determining
whether to impose a
prison term on the offender.
(b) Except as otherwise provided in division
(C)(3)(c), (d),
(e), (f), or
(g) of
this section, if the offense was committed in
the vicinity of
a school or in the vicinity of a juvenile,
trafficking in
marihuana is a felony of the fourth degree, and
division (C) of section 2929.13 of the Revised Code applies in
determining
whether to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
two hundred grams
but is less than one thousand
grams, trafficking in
marihuana is a
felony
of the fourth degree, and division (C) of section 2929.13
of the Revised Code
applies in determining whether
to impose a
prison term on the offender. If the amount of the drug
involved
is within that range and if the offense was committed in
the
vicinity of a school or in the vicinity of a juvenile,
trafficking
in marihuana is a felony of the third degree, and
division (C) of
section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(d) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
one thousand grams
but is less than five
thousand grams, trafficking in
marihuana is
a felony
of the third degree, and division (C) of section 2929.13
of the Revised Code
applies
in determining whether to impose a
prison term on the offender. If the amount
of the drug involved
is within that range and if the offense was committed in the
vicinity of a school or in the vicinity of a juvenile,
trafficking
in marihuana is a felony of the second degree, and
there is a
presumption that a prison term shall be imposed for the offense.
(e) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
five thousand grams
but is less than twenty
thousand grams, trafficking in
marihuana
is a
felony of the third degree, and there is a presumption that a
prison term shall be imposed for the offense. If the amount of
the drug involved is within that range and if the offense was
committed in the vicinity of a school or in the vicinity of a
juvenile, trafficking in marihuana is a felony of the second
degree, and there is a presumption that a prison term shall be
imposed for the offense.
(f) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
twenty thousand
grams, trafficking in marihuana is a felony of the second
degree,
and
the court shall impose as a mandatory prison term the maximum
prison term prescribed for a felony of the second degree. If the
amount of the drug involved equals or exceeds twenty thousand
grams and
if
the offense was committed in the vicinity of a school
or in the
vicinity of a juvenile, trafficking in marihuana is a
felony of
the first degree, and the court shall impose as a
mandatory
prison term the maximum prison term prescribed for a
felony of
the first degree.
(g) Except as otherwise provided in this division, if
the
offense involves a gift of twenty grams or less of
marihuana,
trafficking in marihuana is a minor misdemeanor upon
a first
offense and a misdemeanor of the third degree upon a
subsequent
offense. If the offense involves a gift of twenty
grams or less
of marihuana and if the offense was committed in
the vicinity of a
school or in the vicinity of a juvenile,
trafficking in marihuana
is a misdemeanor of the third degree.
(4) If the drug involved in the violation is cocaine or a
compound,
mixture, preparation, or substance containing cocaine,
whoever violates
division (A) of this section is guilty
of
trafficking in cocaine. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(4)(b), (c),
(d), (e),
(f), or (g) of this section, trafficking in cocaine is a
felony of the fifth degree, and
division (C) of section 2929.13 of
the Revised Code applies in determining
whether
to impose a prison
term on the offender.
(b) Except as otherwise provided in division
(C)(4)(c), (d),
(e), (f), or
(g) of this section, if the offense was committed in
the
vicinity of a
school or in the vicinity of a juvenile,
trafficking in cocaine
is a felony of the fourth degree, and
division (C) of section 2929.13 of the Revised Code applies in
determining
whether
to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds five grams but is
less than
ten grams of
cocaine
that is not crack cocaine or equals
or exceeds one gram
but is less than five
grams of crack cocaine,
trafficking in cocaine is a felony of the
fourth degree, and there
is a presumption for a prison term for the
offense. If the amount
of the drug involved is within one of those ranges and
if the
offense was committed in the vicinity of a school or
in the
vicinity of a juvenile, trafficking in cocaine is a felony
of the
third degree, and there is a presumption for a prison term
for the
offense.
(d) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds ten grams but is
less than
one hundred grams
of cocaine that is not crack cocaine
or
equals or exceeds five grams but is less than ten grams of
crack
cocaine, trafficking in
cocaine is a felony of
the third
degree, and the court shall impose as a mandatory prison
term one
of the prison terms prescribed for a felony of the third
degree.
If the amount of the drug involved is within one of those ranges
and
if the
offense was committed in the vicinity of a school or
in
the vicinity of a juvenile,
trafficking in cocaine is a
felony
of
the second degree, and the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of
the
second degree.
(e) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds one hundred grams
but is less
than five
hundred grams of cocaine that is not crack
cocaine or equals or exceeds ten grams
but is less than
twenty-five grams of crack
cocaine,
trafficking in cocaine is a
felony of
the second degree, and the court shall impose as a
mandatory
prison term one of the prison terms prescribed for a
felony of
the second degree. If the amount of the drug involved
is within
one of those ranges and
if the offense was committed in
the vicinity of a
school or in the vicinity of a juvenile,
trafficking in
cocaine
is a felony of the first degree, and the
court shall impose as a
mandatory prison term one of the prison
terms prescribed for a
felony of the first degree.
(f) If the amount of the drug involved equals or exceeds
five hundred grams but is less than one thousand
grams
of cocaine
that is not crack cocaine or equals or
exceeds twenty-five grams
but is less than one hundred grams of crack
cocaine and
regardless
of whether the
offense was committed in the vicinity of a school
or in the vicinity of a
juvenile,
trafficking in
cocaine is a
felony of the first degree, and the court shall
impose as a
mandatory prison term one of the prison terms
prescribed for a
felony of the first degree.
(g) If the amount of the drug involved equals or exceeds
one
thousand grams of cocaine that is not crack
cocaine or equals or
exceeds one
hundred grams of crack cocaine
and regardless of
whether the offense was committed in the vicinity of a
school or
in the vicinity of a juvenile, trafficking in cocaine
is a felony
of the first degree, the offender is a major drug
offender,
and
the court shall impose as a mandatory prison term the maximum
prison term prescribed for a felony of the first degree and may
impose an additional mandatory prison term prescribed for a major
drug offender under division (D)(3)(b)
of section 2929.14 of the
Revised Code.
(5) If the drug involved in the violation is
L.S.D. or a
compound, mixture, preparation, or substance containing
L.S.D.,
whoever violates division
(A) of this section is guilty of
trafficking in
L.S.D. The penalty for the offense
shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(5)(b), (c),
(d), (e), (f), or (g) of this
section, trafficking in
L.S.D. is a
felony of the fifth degree, and
division (C) of section 2929.13 of
the Revised Code applies in determining
whether
to impose a prison
term on the offender.
(b) Except as otherwise provided in division
(C)(5)(c), (d),
(e), (f), or
(g) of this section, if the offense was committed in
the
vicinity of a school or in the vicinity of a juvenile,
trafficking in L.S.D. is a felony of the fourth
degree, and
division (C) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
ten unit doses but
is less than fifty unit doses
of L.S.D. in a solid form or equals
or exceeds one gram
but is less than five grams of L.S.D. in a
liquid
concentrate, liquid
extract, or liquid distillate form,
trafficking in
L.S.D. is a felony of the fourth degree,
and there
is a presumption for a prison term for the offense. If
the amount
of the drug involved is within that range and if the
offense was
committed in the vicinity of a school or in the
vicinity of a
juvenile, trafficking in
L.S.D. is a felony of the third degree,
and there is a presumption for a prison term for the offense.
(d) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
fifty unit doses but
is less than two hundred
fifty unit doses
of L.S.D. in a solid
form or equals or exceeds five grams
but is less than twenty-five
grams of L.S.D. in a liquid
concentrate,
liquid extract, or liquid
distillate form,
trafficking
in
L.S.D. is a felony of the third
degree,
and the court shall impose as a mandatory prison term one
of the
prison terms prescribed for a felony of the third degree.
If the
amount of the drug involved is within that range and if the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in
L.S.D. is a felony of the
second degree,
and the court shall impose as a mandatory prison
term one of the
prison terms prescribed for a felony of the second
degree.
(e) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
two hundred fifty
unit doses but is less than
one thousand
unit doses
of L.S.D. in a
solid form or equals or exceeds twenty-five
grams but
is less than
one hundred grams of L.S.D. in a
liquid
concentrate, liquid
extract, or liquid distillate form,
trafficking in
L.S.D. is a
felony of the second degree,
and the court shall impose as a
mandatory prison term one of the
prison terms prescribed for a
felony of the second degree. If
the amount of the drug involved
is within that range and if the
offense was committed in the
vicinity of a school or in the
vicinity of a juvenile, trafficking
in
L.S.D. is a felony of the first degree,
and the court shall
impose as a mandatory prison term one of the
prison terms
prescribed for a felony of the first degree.
(f) If the amount of the drug involved equals or exceeds
one
thousand unit doses but is less than five
thousand unit
doses
of
L.S.D. in a solid form or equals or exceeds one hundred
grams but
is less than five hundred grams of L.S.D. in a
liquid
concentrate,
liquid extract, or liquid distillate form
and regardless of
whether the offense was committed in the vicinity of a
school or
in the vicinity of a juvenile, trafficking in
L.S.D. is a felony
of the
first degree, and the court shall impose as a mandatory
prison
term one of the prison terms prescribed for a felony of the
first
degree.
(g) If the amount of the drug involved equals or exceeds
five thousand unit doses
of L.S.D. in a solid form or equals or
exceeds five
hundred grams of
L.S.D. in a liquid concentrate,
liquid extract, or
liquid
distillate form
and regardless of
whether the offense was committed
in the vicinity of a school or
in the vicinity of a juvenile, trafficking in
L.S.D. is
a
felony
of the first degree, the offender is a major drug
offender, and
the court shall impose as a
mandatory prison term the maximum
prison term prescribed for a
felony of the first degree and may
impose an additional mandatory
prison term prescribed for a major
drug offender under
division (D)(3)(b) of section 2929.14 of
the
Revised Code.
(6) If the drug involved in the violation is heroin or a
compound,
mixture, preparation, or substance containing heroin,
whoever violates division (A) of this section is guilty
of
trafficking in heroin. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in
division (C)(6)(b), (c),
(d),
(e), (f), or (g) of this section,
trafficking in heroin is a
felony of the fifth degree, and division
(C) of section 2929.13 of
the Revised Code applies in determining whether to
impose
a prison
term on the offender.
(b) Except as otherwise provided in
division (C)(6)(c), (d),
(e),
(f), or (g) of this section, if the offense was committed
in
the vicinity
of a school
or in the vicinity of a juvenile,
trafficking in heroin is a
felony of the fourth degree, and
division (C) of section 2929.13 of the
Revised Code
applies in
determining whether to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds ten unit doses but
is less than
fifty unit doses or equals or exceeds
one gram but is
less than five grams,
trafficking in heroin is a felony of
the
fourth degree,
and there is a presumption for a prison term for
the offense. If
the amount of the drug involved is within that
range and if the
offense was committed in the vicinity of a school
or in the
vicinity of a juvenile, trafficking in heroin is a
felony of the
third degree, and there is a presumption for a
prison term for
the offense.
(d) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds fifty unit doses but
is less than
one hundred unit doses or equals or exceeds five
grams but is less than ten grams, trafficking in
heroin is a
felony of the
third degree,
and there is a presumption for a
prison term for the offense.
If the amount of the drug involved
is within that range and if
the offense was committed in the
vicinity of a school or in the
vicinity of a juvenile, trafficking
in heroin is a felony of the
second degree, and there is a
presumption for a prison term for
the offense.
(e) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds one hundred unit
doses but is less
than five hundred unit doses or equals or
exceeds
ten grams but is less than fifty grams,
trafficking in
heroin is a felony
of the second degree,
and the court shall
impose as a mandatory prison term one of the
prison terms
prescribed for a felony of the second degree. If
the amount of
the drug involved is within that range and if the
offense was
committed in the vicinity of a school or in the
vicinity of a
juvenile, trafficking in heroin is a felony of the
first degree,
and the court shall impose as a mandatory prison
term one of the
prison terms prescribed for a felony of the first
degree.
(f) If the amount of the drug involved equals or exceeds
five hundred unit
doses but is less than two thousand five hundred
unit doses or equals or
exceeds
fifty grams but is less than two
hundred fifty
grams and regardless of
whether the offense was
committed in the vicinity of a school or in the
vicinity of a
juvenile, trafficking in
heroin is a felony of the first degree,
and the court shall
impose as a mandatory prison term one of the
prison terms
prescribed for a felony of the first degree.
(g) If the amount of the drug involved equals or exceeds two
thousand five
hundred unit doses or equals or exceeds
two hundred
fifty grams and regardless of whether the offense was committed in
the vicinity of a school or in the vicinity of a juvenile,
trafficking in
heroin is a felony of the first
degree, the
offender is a major drug offender,
and the court shall impose as a
mandatory prison term the
maximum prison term prescribed for a
felony of the first degree
and may impose an additional mandatory
prison term prescribed for
a major drug offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(7) If the drug involved in the violation is hashish or a
compound,
mixture, preparation, or substance containing hashish,
whoever violates division (A) of this section is guilty
of
trafficking in hashish. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(7)(b), (c),
(d), (e), or
(f) of this section,
trafficking in hashish is a
felony of the fifth degree, and division
(C) of section 2929.13 of
the Revised Code applies in determining whether to
impose
a prison
term on the offender.
(b) Except as otherwise provided in division
(C)(7)(c), (d),
(e), or (f)
of this section, if the offense was committed in the
vicinity
of a
school or in the vicinity of a juvenile, trafficking
in hashish
is a felony of the fourth degree, and division (C) of
section 2929.13
of the Revised Code applies in determining whether
to impose a prison term on
the offender.
(c) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds ten grams but is
less than
fifty grams of
hashish in a solid form or equals or
exceeds two grams but is less
than ten grams of
hashish in a
liquid concentrate, liquid extract, or liquid distillate form,
trafficking in hashish is a felony of the fourth
degree, and
division (C) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender. If
the amount of
the drug involved is within that range
and if the
offense was committed in the vicinity of a school or
in the
vicinity of a juvenile, trafficking in hashish is a felony
of the
third degree, and division (C) of section 2929.13 of the Revised
Code
applies
in determining whether to impose a prison term on the
offender.
(d) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds fifty grams but is
less
than two hundred fifty
grams of hashish in a solid form or
equals or exceeds ten grams but
is less than
fifty grams of
hashish in a liquid concentrate, liquid extract, or liquid
distillate form, trafficking in hashish is a
felony of the
third
degree, and division (C) of section 2929.13 of the Revised Code
applies
in
determining whether to impose a prison term on the
offender. If the amount of
the drug involved is within that range
and if the offense was committed in the vicinity of a school or
in
the vicinity of a juvenile, trafficking in hashish is a felony
of
the second degree, and
there is a presumption that a prison term
shall be imposed for the offense.
(e) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds two hundred fifty
grams but
is less than one
thousand grams of hashish in a solid
form or equals or exceeds fifty
grams but is less than two hundred
grams of hashish in a liquid
concentrate, liquid extract,
or
liquid distillate form, trafficking in hashish is a felony of
the
third degree, and there is a presumption that a prison term shall
be
imposed for the offense. If the amount of the drug involved is
within
that range and if the offense was committed in the vicinity
of a
school or in the vicinity of a juvenile, trafficking in
hashish
is a felony of the second degree, and there is a
presumption that a prison
term shall be imposed for the offense.
(f) Except as otherwise provided in this division, if the
amount
of the drug involved equals or exceeds
one thousand grams
of hashish in a solid form or equals or exceeds two
hundred grams
of
hashish in a liquid concentrate, liquid extract, or liquid
distillate form,
trafficking in
hashish is a felony of the second
degree, and the court shall
impose as a mandatory prison term the
maximum prison term
prescribed for a felony of the second degree.
If the amount of the drug
involved
is within that range
and if the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in hashish is a felony of
the
first degree,
and the court shall impose as a mandatory prison
term the maximum
prison term prescribed for a felony of the first
degree.
(D) In addition to any prison term authorized
or required by
division (C) of this section and sections
2929.13 and 2929.14 of
the Revised Code, and in
addition to any other sanction imposed
for the offense under this
section or sections 2929.11 to 2929.18
of the Revised
Code, the court that sentences an offender who is
convicted of or pleads guilty to a violation of division
(A) of
this section shall do all of the following that
are applicable
regarding the offender:
(1) If the violation of division (A) of this
section is a
felony of the first, second, or third degree, the
court shall
impose upon the offender the mandatory fine specified
for the
offense under division (B)(1) of section 2929.18
of the Revised
Code unless, as specified in that
division, the court determines
that the offender is indigent. Except as
otherwise provided in
division (H)(1) of this section, a
mandatory fine or any other
fine imposed for a violation of this
section is subject to
division (F) of this
section. If a person is charged with a
violation of this section
that is a felony of the first, second,
or third degree, posts
bail, and forfeits the bail, the clerk of
the court shall pay the
forfeited bail
pursuant to divisions
(D)(1) and
(F) of this section, as if the forfeited bail was a
fine
imposed for a violation of this section. If any amount of
the forfeited bail
remains after that payment and if a fine is
imposed under division (H)(1) of
this section, the clerk of the
court shall pay the remaining amount of the
forfeited bail
pursuant to divisions (H)(2) and (3) of this section, as if
that
remaining amount was a fine imposed under division (H)(1) of this
section.
(2) The court shall
suspend the driver's or
commercial
driver's license or permit of the offender in
accordance with
division (G) of this section.
(3) If the offender is a professionally licensed person,
the
court
immediately shall comply with section 2925.38 of
the
Revised Code.
(E) When a person is charged with the
sale of or offer to
sell a bulk amount
or a multiple of a bulk amount of a controlled
substance, the jury, or the
court trying the
accused, shall
determine the amount of the controlled substance
involved at the
time of the offense and, if a guilty verdict is
returned, shall
return the findings as part of the verdict. In
any such case, it
is unnecessary to find and return the exact
amount of the
controlled substance involved, and it is sufficient if the
finding
and return is to the effect that the amount of the
controlled
substance involved is the requisite
amount, or that the amount of
the controlled
substance involved is less than the requisite
amount.
(F)(1) Notwithstanding any contrary provision of section
3719.21 of the Revised Code and except as provided in division (H)
of this
section, the clerk of the court shall pay any mandatory
fine imposed pursuant
to division (D)(1) of this section and any
fine other than a
mandatory fine that is imposed for
a violation
of this section pursuant to division (A) or (B)(5) of section
2929.18 of the Revised Code to the
county, township, municipal
corporation, park district, as
created pursuant to section 511.18
or 1545.04 of the Revised
Code, or state law enforcement agencies
in this state that
primarily were responsible for or involved in
making the arrest
of, and in prosecuting, the offender. However,
the clerk shall not
pay a mandatory fine
so imposed to a law
enforcement agency unless the
agency has adopted a written
internal control policy under
division (F)(2) of this section that
addresses the use of
the
fine moneys that it receives. Each
agency shall use
the mandatory fines so paid to subsidize the
agency's law enforcement
efforts that
pertain to drug offenses, in
accordance with the written internal
control policy adopted by the
recipient agency under division
(F)(2) of this section.
(2)(a) Prior to receiving any fine moneys under division
(F)(1) of this section or division (B)(5) of section 2925.42 of
the Revised Code, a law enforcement agency shall adopt a written
internal control policy that addresses the agency's use and
disposition of all fine moneys so received and that provides for
the keeping of detailed financial records of the receipts of
those
fine moneys, the general types of expenditures made out of
those
fine moneys, and the specific amount of each general type
of
expenditure. The policy shall not provide for or permit the
identification of any specific expenditure that is made in an
ongoing investigation. All financial records of the receipts of
those fine moneys, the general types of expenditures made out of
those fine moneys, and the specific amount of each general type
of
expenditure by an agency are public records open for
inspection
under section 149.43 of the Revised Code.
Additionally, a written
internal control policy adopted under
this division is such a
public record, and the agency that
adopted it shall comply with
it.
(b) Each law enforcement agency that receives in any
calendar year any fine moneys under division (F)(1) of this
section or division (B)(5) of section 2925.42 of the Revised Code
shall prepare a report covering the calendar year that cumulates
all of the information contained in all of the public financial
records kept by the agency pursuant to division (F)(2)(a) of this
section for that calendar year, and shall send a copy of the
cumulative report, no later than the first day of March in the
calendar year following the calendar year covered by the report,
to the attorney general. Each report received by the attorney
general is a public record open for inspection under section
149.43 of the Revised Code. Not later than the fifteenth
day of
April in the calendar year in which the reports
are received, the
attorney general shall send
to the president of the senate
and the
speaker of the house of representatives
a written notification
that does all of the following:
(i) Indicates that the attorney general has received from
law enforcement agencies reports of the type described in this
division that
cover
the previous
calendar year and indicates that
the reports were received under this
division;
(ii) Indicates that the reports
are open for inspection
under section 149.43 of the
Revised Code;
(iii) Indicates that the attorney general
will provide a
copy of any or all of the reports to the
president of the senate
or the speaker of the house of
representatives upon request.
(3) As used in division
(F) of this section:
(a)
"Law enforcement agencies" includes, but is not
limited
to, the state board of pharmacy and the office of a
prosecutor.
(b)
"Prosecutor" has the same meaning as in section
2935.01
of the Revised Code.
(G) When required under division
(D)(2) of
this section
or
any other provision of this chapter, the court
shall suspend for
not less than six months
or
more than five years the driver's or
commercial driver's license
or permit
of any person who is
convicted of or pleads guilty to
any
violation of this section
or
any other specified
provision of this chapter. If an offender's
driver's or
commercial driver's license or permit is
suspended
pursuant to this
division,
the offender, at any time after the
expiration of two years from
the day on which the offender's
sentence was imposed or from the
day on
which the offender finally
was released from a
prison
term under the
sentence, whichever is
later, may file a motion with the
sentencing court requesting
termination of the
suspension; upon
the filing of such
a motion
and the court's finding of good cause
for the
termination, the
court may terminate the
suspension.
(H)(1) In addition to any prison term
authorized or required
by division (C) of this section and
sections 2929.13 and 2929.14
of the
Revised Code, in addition to any other
penalty or sanction
imposed for the offense under this section
or sections 2929.11 to
2929.18 of the
Revised Code, and in addition to the
forfeiture of
property in connection with the offense as
prescribed in sections
2925.42 to 2925.45 Chapter 2981. of the
Revised Code, the court that sentences
an offender who is convicted of or pleads guilty to a violation
of
division (A) of this section may impose upon the offender an
additional fine specified for the offense in
division (B)(4) of
section
2929.18 of the Revised Code. A fine imposed under
division (H)(1) of this section
is not subject to division (F) of
this section and shall
be used solely for the support of one or
more eligible alcohol
and drug addiction programs in accordance
with divisions
(H)(2) and (3) of this section.
(2) The court that imposes a fine under division
(H)(1) of
this section shall
specify in the judgment that imposes the fine
one or more
eligible alcohol and drug addiction programs for the
support of
which the fine money is to be used. No alcohol and
drug
addiction program shall receive or use money paid or
collected
in satisfaction of a fine imposed under division
(H)(1)
of this section unless
the program is specified in the judgment
that imposes the fine.
No alcohol and drug addiction program
shall be specified in the
judgment unless the program is an
eligible alcohol and drug
addiction program and, except as
otherwise provided in division
(H)(2) of this section, unless
the
program is located in the county in which the court that
imposes
the fine is located or in a county that is immediately
contiguous
to the county in which that court is located. If no
eligible
alcohol and drug addiction program is located in any
of those
counties, the judgment may specify an eligible alcohol
and drug
addiction program that is located anywhere within this
state.
(3) Notwithstanding any contrary provision of section
3719.21 of the Revised Code, the clerk of the court
shall pay any
fine imposed under division
(H)(1) of this section to the eligible
alcohol and drug addiction
program specified pursuant to division
(H)(2) of this section in the
judgment. The eligible alcohol and
drug addiction program that receives the
fine moneys shall use the
moneys only for the
alcohol and drug addiction services identified
in the
application for certification under section 3793.06 of the
Revised Code or in the application for a
license under section
3793.11 of the Revised Code filed with
the department of alcohol
and drug addiction services by the alcohol and drug
addiction
program specified in the judgment.
(4) Each alcohol and drug addiction program that receives
in
a calendar year any fine moneys under division
(H)(3) of this
section shall
file an annual report covering that calendar year
with the court
of common pleas and the board of county
commissioners of the
county in which the program is located, with
the court of common pleas and the
board of county commissioners of
each county from which the program received
the moneys if that
county is different from the county in which the program is
located, and with the attorney general. The alcohol and drug
addiction
program shall file the report no later than the first
day of March in
the calendar year
following the calendar year in
which the program received the
fine moneys. The report shall
include statistics on the number
of persons served by the alcohol
and drug addiction program,
identify the types of alcohol and drug
addiction services
provided to those persons, and include a
specific accounting of
the purposes for which the fine moneys
received were used. No
information contained in the report shall
identify, or enable a
person to determine the identity of, any
person served by the
alcohol and drug addiction program. Each
report received by a
court of common pleas, a board of county
commissioners, or the
attorney general is a public record open for
inspection under
section 149.43 of the Revised Code.
(5) As used in divisions (H)(1) to (5) of this section:
(a)
"Alcohol and drug addiction
program" and
"alcohol and
drug addiction services" have the same
meanings as in section
3793.01 of the Revised Code.
(b)
"Eligible alcohol and drug
addiction program" means an
alcohol and drug addiction program
that is certified under section
3793.06 of the
Revised Code or licensed under section
3793.11 of
the Revised Code by the department of
alcohol and drug addiction
services.
Sec. 2925.14. (A) As used in this section,
"drug
paraphernalia" means any equipment, product, or material of any
kind that is used by the offender, intended by the offender for
use, or designed for use, in propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packaging,
repackaging,
storing, containing, concealing, injecting,
ingesting, inhaling,
or otherwise introducing into the human
body, a controlled
substance in violation of this chapter.
"Drug
paraphernalia"
includes, but is not limited to, any of the
following equipment,
products, or materials that are used by the
offender, intended by
the offender for use, or designed by the
offender for use, in any
of the following manners:
(1) A kit for propagating, cultivating, growing, or
harvesting any species of a plant that is a controlled substance
or from which a controlled substance can be derived;
(2) A kit for manufacturing, compounding, converting,
producing, processing, or preparing a controlled substance;
(3)
Any object, instrument, or device for manufacturing,
compounding, converting, producing, processing, or preparing
methamphetamine;
(4) An isomerization device for increasing the potency of
any species of a plant that is a controlled substance;
(5) Testing equipment for identifying, or analyzing the
strength, effectiveness, or purity of, a controlled substance;
(6) A scale or balance for weighing or measuring a
controlled substance;
(7) A diluent or adulterant, such as quinine
hydrochloride,
mannitol, mannite, dextrose, or lactose, for
cutting a controlled
substance;
(8) A separation gin or sifter for removing twigs and
seeds
from, or otherwise cleaning or refining, marihuana;
(9) A blender, bowl, container, spoon, or mixing device
for
compounding a controlled substance;
(10) A capsule, balloon, envelope, or container for
packaging small quantities of a controlled substance;
(11) A container or device for storing or concealing a
controlled substance;
(12) A hypodermic syringe, needle, or instrument for
parenterally injecting a controlled substance into the human
body;
(13) An object, instrument, or device for ingesting,
inhaling, or otherwise introducing into the human body,
marihuana,
cocaine, hashish, or hashish oil, such as a
metal,
wooden,
acrylic, glass, stone, plastic, or ceramic pipe, with or
without a
screen, permanent screen, hashish head, or punctured
metal bowl;
water pipe; carburetion tube or device; smoking or
carburetion
mask; roach clip or similar object used to hold
burning material,
such as a marihuana cigarette, that has become
too small or too
short to be held in the hand; miniature cocaine
spoon, or cocaine
vial; chamber pipe; carburetor pipe; electric
pipe; air driver
pipe; chillum; bong; or ice pipe or chiller.
(B) In determining if
any equipment, product, or
material
is drug paraphernalia, a
court or law enforcement officer
shall
consider, in addition to
other relevant factors, the
following:
(1) Any statement by the owner, or by anyone in control,
of
the
equipment, product, or material, concerning its use;
(2) The proximity in time or space of the
equipment,
product, or material, or of
the act relating to the
equipment,
product, or material, to a violation of any provision
of this
chapter;
(3) The proximity of the
equipment, product, or
material to
any controlled substance;
(4) The existence of any residue of a controlled substance
on the
equipment, product, or material;
(5) Direct or circumstantial evidence of the intent of the
owner, or of
anyone in control, of the
equipment, product,
or
material, to deliver it to any person whom the owner
or person
in
control of the
equipment, product, or material knows
intends to
use the object to
facilitate a violation of any
provision of this
chapter. A finding that the
owner, or anyone in
control, of the
equipment, product, or material, is not
guilty of a
violation of
any other provision of this chapter does
not
prevent a finding
that the
equipment, product, or
material was intended or designed
by the
offender for use as drug
paraphernalia.
(6) Any oral or written instruction provided with the
equipment, product, or material concerning its use;
(7) Any descriptive material accompanying the
equipment,
product, or material and
explaining or depicting its
use;
(8) National or local advertising concerning the use of
the
equipment, product, or material;
(9) The manner and circumstances in which the
equipment,
product, or material is
displayed for sale;
(10) Direct or circumstantial evidence of the ratio of the
sales of the
equipment, product, or material to the total
sales
of the business
enterprise;
(11) The existence and scope of legitimate uses of the
equipment, product, or material in the community;
(12) Expert testimony concerning the use of the
equipment,
product, or material.
(C)(1) No person shall knowingly use, or possess with
purpose to use, drug paraphernalia.
(2) No person shall knowingly sell, or possess or
manufacture with purpose to sell, drug paraphernalia, if the
person knows or
reasonably should know that the equipment,
product, or material will be used
as drug paraphernalia.
(3) No person shall place an advertisement in any
newspaper,
magazine, handbill, or other publication that is
published and
printed and circulates primarily within this state,
if the person
knows that the purpose of the advertisement is to
promote the
illegal sale in this state of the equipment, product, or material
that the offender intended or designed for use as drug
paraphernalia.
(D) This section does not apply to manufacturers,
licensed
health professionals authorized to prescribe
drugs, pharmacists,
owners of pharmacies, and other
persons whose conduct is in
accordance with Chapters 3719., 4715.,
4723., 4729., 4730., 4731., and
4741. of
the Revised Code. This section shall not be construed to
prohibit the possession or use of a hypodermic as authorized by
section 3719.172 of the Revised Code.
(E) Notwithstanding sections 2933.42 and 2933.43 Chapter 2981. of the
Revised Code, any drug paraphernalia that was used, possessed,
sold, or manufactured in a violation of this section shall be
seized, after a conviction for that violation shall be forfeited,
and upon forfeiture shall be disposed of pursuant to division
(D)(8) (B) of section 2933.41 2981.12 of the Revised Code.
(F)(1) Whoever violates division (C)(1) of this section is
guilty of illegal use or possession of drug paraphernalia, a
misdemeanor of the fourth degree.
(2) Except as provided in division (F)(3) of this section,
whoever violates division (C)(2) of this section is guilty of
dealing in drug paraphernalia, a misdemeanor of the second
degree.
(3) Whoever violates division (C)(2) of this section by
selling drug paraphernalia to a juvenile is guilty of selling
drug
paraphernalia to juveniles, a misdemeanor of the first
degree.
(4) Whoever violates division (C)(3) of this section is
guilty of illegal advertising of drug paraphernalia, a
misdemeanor
of the second degree.
(G) In addition to any other sanction imposed
upon an
offender for a
violation of this section, the court shall suspend
for not less
than six months or more than five years the
offender's driver's or
commercial
driver's license or permit. If
the
offender is a professionally
licensed person, in addition
to
any other sanction imposed for a
violation of this section, the
court
immediately shall
comply with section 2925.38 of the
Revised
Code.
Sec. 2925.42. (A)(1) In accordance with division (B) of
this section, a person who is convicted of or pleads guilty to a
felony drug abuse offense, and any juvenile who is found by a
juvenile court to be a delinquent child for an act that, if
committed by an adult, would be a felony drug abuse offense,
loses
any right to the possession of property and forfeits to the
state
any right, title, and interest the person may have in that
property if either of the following applies:
(a) The property constitutes, or is derived directly or
indirectly from, any proceeds that the person obtained directly
or
indirectly from the commission of the felony drug abuse
offense or
act.
(b) The property was used or intended to be used in any
manner to commit, or to facilitate the commission of, the felony
drug abuse offense or act.
(2) All right, title, and interest of a person in property
described in division (A)(1) of this section vests in the state
upon the person's commission of the felony drug abuse offense of
which the person is convicted or to which the person pleads guilty
and that is
the basis of the forfeiture, or upon the juvenile's
commission of
the act that, if committed by an adult, would be a
felony drug
abuse offense, that is the basis of the juvenile being
found to be a
delinquent child, and that is the basis of the
forfeiture. Subject to
divisions (F)(3)(b) and (5)(b) and (G)(2)
of this
section, if any right, title, or interest in property is
vested
in this state under this division and subsequently is
transferred
to a person other than the offender who forfeits the
right,
title, or interest under division (A)(1) of this section,
then,
in accordance with division (B) of this section, the right,
title, or interest in the property may be the subject of a
special
verdict of forfeiture and, after any special verdict of
forfeiture, shall be ordered forfeited to this state, unless the
transferee establishes in a hearing held pursuant to division (F)
of this section that the transferee is a bona fide purchaser for
value of the right, title, or interest in the property and that,
at the time
of its purchase, the transferee was reasonably without
cause to
believe that it was subject to forfeiture under this
section.
(3) The provisions of section 2925.43 of the Revised Code
that relate to the forfeiture of any right, title, or interest in
property associated with a felony drug abuse offense pursuant to
a
civil action to obtain a civil forfeiture do not apply to the
forfeiture of any right, title, or interest in property described
in division (A)(1) of this section that occurs pursuant to
division (B) of this section upon a person's conviction of or
guilty plea to a felony drug abuse offense or upon a juvenile
being found by a juvenile court to be a delinquent child for an
act that, if committed by an adult, would be a felony drug abuse
offense.
(4) Nothing in this section precludes a financial
institution that has or purports to have a security interest in
or
lien on property described in division (A)(1) of this section
from
commencing a civil action or taking other appropriate legal
action
in connection with the property, prior to its disposition
in
accordance with section 2925.44 of the Revised Code, for the
purpose of obtaining possession of the property in order to
foreclose or otherwise enforce the security interest or lien. A
financial institution may commence a civil action or take other
appropriate legal action for that purpose prior to the
disposition
of the property in accordance with section 2925.44 of
the Revised
Code, even if a felony drug abuse offense prosecution
or a
delinquent child proceeding for an act that, if committed by
an
adult, would be a felony drug abuse offense has been or could
be
commenced, even if the property is or could be the subject of
an
order of forfeiture issued under division (B)(5) of this
section,
and even if the property has been seized or is subject
to seizure
pursuant to division (D) or (E) of this section.
If a financial institution commences a civil action or
takes
any other appropriate legal action as described in this
division,
if the financial institution subsequently causes the
sale of the
property prior to its seizure pursuant to division
(D) or (E) of
this section and its disposition pursuant to
section 2925.44 of
the Revised Code, and if the person
responsible for the conduct of
the sale has actual knowledge of
the commencement of a felony drug
abuse offense prosecution or of
a delinquent child proceeding for
an act that, if committed by an
adult, would be a felony drug
abuse offense, actual knowledge of
a pending forfeiture proceeding
under division (B) of this
section, or actual knowledge of an
order of forfeiture issued
under division (B)(5) of this section,
then the person
responsible for the conduct of the sale shall
dispose of the
proceeds of the sale in the following order:
(a) First, to the payment of the costs of the sale and to
the payment of the costs incurred by law enforcement agencies and
financial institutions in connection with the seizure of, storage
of, maintenance of, and provision of security for the property.
As
used in this division, "costs" of a financial institution do
not
include attorney's fees incurred by that institution in
connection
with the property.
(b) Second, the remaining proceeds of the sale after
compliance with division (A)(4)(a) of this section, to the
payment
of valid security interests and liens pertaining to the
property
that, at the time of the vesting of the right, title, or
interest
of the adult or juvenile in the state under division
(A)(2) of
this section, are held by known secured parties and
lienholders,
in the order of priority of those security interests
and liens;
(c) Third, the remaining proceeds of the sale after
compliance with division (A)(4)(b) of this section, to the court
that has or would have jurisdiction in a felony drug abuse
offense
prosecution or a delinquent child proceeding for an act
that, if
committed by an adult, would be a felony drug abuse
offense, for
disposition in accordance with section 2925.44 of
the Revised
Code.
(B)(1) A criminal forfeiture of any right, title, or
interest in property described in division (A)(1) of this section
is precluded unless one of the following applies:
(a) The indictment, count in the indictment, or
information
charging the felony drug abuse offense specifies the
nature of the
right, title, or interest of the alleged offender
in the property
described in division (A)(1) of this section that
is potentially
subject to forfeiture under this section, or a
description of the
property of the alleged offender that is
potentially subject to
forfeiture under this section, to the
extent the right, title, or
interest in the property or the
property reasonably is known at
the time of the filing of the
indictment or information; or the
complaint, indictment, or
information charging a
juvenile
with
being a delinquent child for the commission of an act that,
if
committed by an adult, would be a felony drug abuse offense
specifies the nature of the right, title, or interest of the
juvenile in the property described in division (A)(1) of this
section that is potentially subject to forfeiture under this
section, or a description of the property of the juvenile that is
potentially subject to forfeiture under this section, to the
extent the right, title, or interest in the property or the
property reasonably is known at the time of the filing of the
complaint, indictment, or information.
(b) The property in question was not reasonably foreseen
to
be subject to forfeiture under this section at the time of the
filing of the indictment, information, or complaint, the
prosecuting attorney gave prompt notice to the alleged offender
or
juvenile of that property when it was discovered to be subject
to
forfeiture under this section, and a verdict of forfeiture
described in division (B)(3) of this section requires the
forfeiture of that property.
(2) The specifications described in division (B)(1) of
this
section shall be stated at the end of the body of the
indictment,
count in the indictment, information, or complaint.
(3)(a) If a person is convicted of or pleads guilty to a
felony drug abuse offense, or a juvenile is found to be a
delinquent child for an act that, if committed by an adult, would
be a felony drug abuse offense, then a special proceeding shall
be
conducted in accordance with this division to determine
whether
any property described in division (B)(1)(a) or (b) of
this
section will be the subject of an order of forfeiture under
this
section. Except as otherwise provided in division (B)(3)(b)
of
this section, the jury in the felony drug abuse offense
criminal
action or in the delinquent child action or, if that
action was a
nonjury action, the judge in that action shall hear
and consider
testimony and other evidence in the proceeding
relative to whether
any property described in division (B)(1)(a)
or (b) of this
section is subject to forfeiture under this
section. If the jury
or judge determines that the prosecuting
attorney has established,
by a preponderance of the evidence,
that any property so described
is subject to forfeiture under
this section, the judge or juvenile
judge shall render a verdict
of forfeiture that specifically
describes the right, title, or
interest in property or the
property that is subject to
forfeiture under this section. The
Rules of Evidence shall apply
in the proceeding.
(b) If the trier of fact in a felony drug abuse offense
criminal action or in a delinquent child action was a jury, then,
upon the filing of a motion by the person who was convicted of or
pleaded guilty to the felony drug abuse offense or upon the
filing
of a motion by the juvenile who was found to be a
delinquent child
for an act that, if committed by an adult, would
be a felony drug
abuse offense, the determinations in the
proceeding described in
this division instead shall be made by
the judge in the felony
drug abuse offense criminal action or the
juvenile judge.
(4) In a felony drug abuse offense criminal action or in a
delinquent child action, if the trier of fact is a jury, the jury
shall not be informed of any specification described in division
(B)(1)(a) of this section or of any property described in that
division or division (B)(1)(b) of this section prior to the
alleged offender being convicted of or pleading guilty to the
felony drug abuse offense or prior to the juvenile being found to
be a delinquent child for the commission of an act that, if
committed by an adult, would be a felony drug abuse offense.
(5)(a) If a verdict of forfeiture is entered pursuant to
division (B)(3) of this section, then the court that imposes
sentence upon a person who is convicted of or pleads guilty to a
felony drug abuse offense, or the juvenile court that finds a
juvenile to be a delinquent child for an act that, if committed
by
an adult, would be a felony drug abuse offense, in addition to
any
other sentence imposed upon the offender or order of
disposition
imposed upon the delinquent child, shall order that
the offender
or delinquent child forfeit to the state all of
the offender's or
delinquent child's right, title, and interest in
the property
described in division (A)(1) of this section. If a
person is
convicted of or pleads guilty to a felony drug abuse
offense, or a
juvenile is found by a juvenile court to be a
delinquent child for
an act that, if committed by an adult, would
be a felony drug
abuse offense, and derives profits or other
proceeds from the
offense or act, the court that imposes sentence
or an order of
disposition upon the offender or delinquent child,
in lieu of any
fine that the
court is otherwise authorized or required to impose,
may impose upon
the offender or delinquent child a fine of not
more than twice the gross profits or other
proceeds so derived.
(b)(B) Notwithstanding any contrary provision of section
3719.21 of the Revised Code, all fines imposed pursuant to this
division section shall be paid by the clerk of the court to the county,
municipal corporation, township, park district, as created
pursuant to section 511.18 or 1545.01 of the Revised Code, or
state law enforcement agencies in this state that were primarily
responsible for or involved in making the arrest of, and in
prosecuting, the offender. However, no fine so imposed shall be
paid to a law enforcement agency unless the agency has adopted a
written internal control policy under division
(F)(2) of section
2925.03 of the Revised Code that addresses the use of the fine
moneys that it receives under this division and division
(F)(1)
of
section 2925.03 of the Revised Code. The fines imposed and
paid
pursuant to this division shall be used by the law
enforcement
agencies to subsidize their efforts pertaining to
drug offenses,
in accordance with the written internal control
policy adopted by
the recipient agency under division
(F)(2) of
section 2925.03 of
the Revised Code.
(c)(C) As used in division (B)(5) of this section:
(i)(1) "Law enforcement agencies" includes, but is not
limited
to, the state board of pharmacy and the office of a
prosecutor.
(ii)(2) "Prosecutor" has the same meaning as in section
2935.01
of the Revised Code.
(6) If any of the property that is described in division
(A)(1) of this section and that is the subject of an order of
forfeiture issued under division (B)(5) of this section, because
of an act or omission of the person who is convicted of or pleads
guilty to the felony drug abuse offense that is the basis of the
order of forfeiture, or an act or omission of the juvenile found
by a juvenile court to be a delinquent child for an act that, if
committed by an adult, would be a felony drug abuse offense and
that is the basis of the forfeiture, cannot be located upon the
exercise of due diligence, has been transferred to, sold to, or
deposited with a third party, has been placed beyond the
jurisdiction of the court, has been substantially diminished in
value, or has been commingled with other property that cannot be
divided without difficulty, the court that issues the order of
forfeiture shall order the forfeiture of any other property of
the
offender up to the value of any forfeited property described
in
this division.
(C) There shall be a rebuttable presumption that any
right,
title, or interest of a person in property described in
division
(A)(1) of this section is subject to forfeiture under
division (B)
of this section, if the state proves both of the
following by a
preponderance of the evidence:
(1) The right, title, or interest in the property was
acquired by the offender during the period of the commission of
the felony drug abuse offense or act that, if committed by an
adult, would be a felony drug abuse offense, or within a
reasonable time after that period.
(2) There is no likely source for the right, title, or
interest in the property other than proceeds obtained from the
commission of the felony drug abuse offense or act.
(D)(1) Upon the application of the prosecuting attorney
who
is prosecuting or has jurisdiction to prosecute the felony
drug
abuse offense or act, the court of common pleas or juvenile
court
of the county in which property subject to forfeiture under
division (B) of this section is located, whichever is applicable,
may issue a restraining order or injunction, an order requiring
the execution of a satisfactory performance bond, or an order
taking any other reasonable action necessary to preserve the
availability of the property, at either of the following times:
(a) Upon the filing of an indictment, complaint, or
information charging a person who has any right, title, or
interest in the property with the commission of a felony drug
abuse offense and alleging that the property with respect to
which
the order is sought will be subject to forfeiture under
division
(B) of this section if the person is convicted of or
pleads guilty
to the offense, or upon the filing of a complaint,
indictment, or
information alleging that a juvenile who has any right,
title, or
interest in the property is a delinquent child because of the
commission of
an act that, if committed by an adult, would be a
felony drug
abuse offense and alleging that the property with
respect to
which the order is sought will be subject to forfeiture
under
division (B) of this section if the juvenile is found to be
a
delinquent child because of the commission of that act;
(b) Except as provided in division (D)(3) of this section,
prior to the filing of an indictment, complaint, or information
charging a person who has any right, title, or interest in the
property with the commission of a felony drug abuse offense, or
prior to the filing of a complaint, indictment, or information
alleging that a juvenile who
has any right, title, or interest in
the property is a delinquent
child because of the commission of an
act that, if committed by
an adult, would be a felony drug abuse
offense, if, after notice
is given to all persons known to have
any right, title, or
interest in the property and an opportunity
to have a hearing on
the order is given to those persons, the
court determines both of
the following:
(i) There is a substantial probability that the state will
prevail on the issue of forfeiture and that failure to enter the
order will result in the property subject to forfeiture being
destroyed, removed from the jurisdiction of the court, or
otherwise being made unavailable for forfeiture.
(ii) The need to preserve the availability of the property
subject to forfeiture through the entry of the requested order
outweighs the hardship on any party against whom the order is to
be entered.
(2) Except as provided in division (D)(3) of this section,
an order issued under division (D)(1) of this section is
effective
for not more than ninety days, unless extended by the
court for
good cause shown or unless an indictment, complaint, or
information charging the commission of a felony drug abuse
offense
or a complaint, indictment, or information alleging that
a
juvenile is a
delinquent
child because of the commission of an act
that, if committed by
an adult, would be a felony drug abuse
offense, is filed against
any alleged adult offender or alleged
delinquent child with any
right, title, or interest in the
property that is the subject of
the order.
(3) A court may issue an order under division (D)(1)(b) of
this section without giving notice or an opportunity for a
hearing
to persons known to have any right, title, or interest in
property, if the prosecuting attorney who is prosecuting or has
jurisdiction to prosecute the felony drug abuse offense or act
demonstrates that there is probable cause to believe that the
property will be subject to forfeiture under division (B) of this
section if a person with any right, title, or interest in the
property is convicted of or pleads guilty to a felony drug abuse
offense or a juvenile with any right, title, or interest in the
property is found by a juvenile court to be a delinquent child
for
an act that, if committed by an adult, would be a felony drug
abuse offense, and that giving notice or an opportunity for a
hearing to persons with any right, title, or interest in the
property will jeopardize its availability for forfeiture. The
order shall be a temporary order and expire not more than ten
days
after the date on which it is entered, unless it is extended
for
good cause shown or unless a person with any right, title, or
interest in the property that is the subject of the order
consents
to an extension for a longer period. A hearing
concerning an
order issued under this division may be requested,
and, if it is
requested, the court shall hold the hearing at the
earliest
possible time prior to the expiration of the order.
(4) At any hearing held under division (D) of this
section,
the court may receive and consider evidence and
information that
is inadmissible under the Rules of Evidence.
However, each hearing
held under division (D) of this section
shall be recorded by
shorthand, by stenotype, or by any other
mechanical, electronic,
or video recording device. If, as a
result of a hearing under
division (D) of this section, property
would be seized, the
recording of and any transcript of the
recording of that hearing
shall not be a public record for
purposes of section 149.43 of the
Revised Code until that
property has been seized pursuant to
division (D) of this
section. Division (D)(4) of this section
shall not be construed
as requiring, authorizing, or permitting,
and does not require,
authorize, or permit, the making available
for inspection, or the
copying, under section 149.43 of the
Revised Code of any
confidential law enforcement investigatory
record or trial
preparation record, as defined in that section.
(5) A prosecuting attorney or other law enforcement
officer
may request the court of common pleas of the county in
which
property subject to forfeiture under this section is
located to
issue a warrant authorizing the seizure of that
property. The
request shall be made in the same manner as
provided for a search
warrant. If the court determines that
there is probable cause to
believe that the property to be seized
will be subject to
forfeiture under this section when a person
with any right, title,
or interest in the property is convicted
of or pleads guilty to a
felony drug abuse offense or when a
juvenile with any right,
title, or interest in the property is
found by a juvenile court to
be a delinquent child for an act
that, if committed by an adult,
would be a felony drug abuse
offense, and if the court determines
that any order issued under
division (D)(1), (2), or (3) of this
section may not be
sufficient to ensure the availability of the
property for
forfeiture, the court shall issue a warrant
authorizing the
seizure of the property.
(E)(1) Upon the entry of an order of forfeiture under this
section, the court shall order an appropriate law enforcement
officer to seize all of the forfeited property upon the terms and
conditions that the court determines are proper. In addition,
upon the request of the prosecuting attorney who prosecuted the
felony drug abuse offense or act, the court shall enter any
appropriate restraining orders or injunctions, require the
execution of satisfactory performance bonds, appoint receivers,
conservators, appraisers, accountants, or trustees, or take any
other action to protect the interest of the state in the
forfeited
property. Any income accruing to or derived from
property ordered
forfeited under this section may be used to
offset ordinary and
necessary expenses related to the property
that are required by
law or that are necessary to protect the
interest of the state or
third parties.
After forfeited property is seized, the prosecuting
attorney
who prosecuted the felony drug abuse offense or act
shall direct
its disposition in accordance with section 2925.44
of the Revised
Code, making due provision for the rights of any
innocent persons.
Any right, title, or interest in property not
exercisable by, or
transferable for value to, the state shall
expire and shall not
revert to the offender whose conviction or
plea of guilty or act
as a delinquent child is the basis of the
order of forfeiture.
Neither the adult offender or delinquent
child nor any person
acting in concert with or on behalf
of the adult offender or
delinquent child
is eligible to purchase forfeited property at any
sale held
pursuant to section 2925.44 of the Revised Code.
Upon the application of any person other than the adult
offender or delinquent child whose right, title, or interest in
the property is the subject of the order of forfeiture or any
person acting in concert with or on behalf of the adult offender
or delinquent
child, the court may
restrain or stay the sale or
other disposition of the property
pursuant to section 2925.44 of
the Revised Code pending the
conclusion of any appeal of the
felony drug abuse offense
conviction or of the delinquent child
adjudication that is the
basis of the order of forfeiture, if the
applicant demonstrates
that proceeding with the sale or other
disposition of the
property will result in irreparable injury or
loss to the applicant.
(2) With respect to property that is the subject of an
order
of forfeiture issued under this section, the court that
issued the
order, upon the petition of the prosecuting attorney
who
prosecuted the felony drug abuse offense or act, may do any
of the
following:
(a) Grant petitions for mitigation or remission of
forfeiture, restore forfeited property to victims of a felony
drug
abuse offense, or take any other action to protect the
rights of
innocent persons that is in the interest of justice and
that is
not inconsistent with this section;
(b) Compromise claims that arise under this section;
(c) Award compensation to persons who provide information
resulting in a forfeiture under this section;
(d) Direct the disposition by the prosecuting attorney who
prosecuted the felony drug abuse offense or act, in accordance
with section 2925.44 of the Revised Code, of all property ordered
forfeited under this section, making due provision for the rights
of innocent persons;
(e) Pending the disposition of any property that is the
subject of an order of forfeiture under this section, take any
appropriate measures that are necessary to safeguard and maintain
the property.
(3) To facilitate the identification and location of
property that is the subject of an order of forfeiture under this
section and to facilitate the disposition of petitions for
remission or mitigation issued under division (E)(2) of this
section, after the issuance of an order of forfeiture under this
section and upon application by the prosecuting attorney who
prosecuted the felony drug abuse offense or act, the court may
order that the testimony of any witness relating to the forfeited
property be taken by deposition, and that any designated book,
paper, document, record, recording, or other material that is not
privileged be produced at the same time and place as the
testimony, in the same manner as provided for the taking of
depositions under the Rules of Civil Procedure.
(F)(1) Except as provided in divisions (F)(2) to (5) of
this
section, no person claiming any right, title, or interest in
property subject to forfeiture under this section or section
2925.43 of the Revised Code may intervene in a criminal trial or
appeal, or a delinquent child proceeding or appeal, involving the
forfeiture of the property under this section or in a civil
action
for a civil forfeiture under section 2925.43 of the
Revised Code,
or may commence an action at law or equity against
the state
concerning the validity of the person's alleged right,
title, or
interest in the property subsequent to the filing of an
indictment, complaint, or information alleging that the property
is subject to forfeiture under this section or subsequent to the
filing of a complaint, indictment, or information alleging that
a
juvenile who has any right,
title, or interest in the property is
a delinquent child because
of the commission of an act that, if
committed by an adult, would
be a felony drug abuse offense and
alleging that the property is
subject to forfeiture under this
section.
(2) After the entry of an order of forfeiture under this
section, the prosecuting attorney who prosecuted the felony drug
abuse offense or act shall conduct or cause to be conducted a
search of the appropriate public records that relate to the
property, and make or cause to be made reasonably diligent
inquiries, for the purpose of identifying persons who have any
right, title, or interest in the property. The prosecuting
attorney then shall cause a notice of the order of forfeiture, of
the prosecuting attorney's intent to dispose of the property in
accordance with section 2925.44 of the Revised Code, and of the
manner of the
proposed
disposal, to be given to each person who is
known, because of the
conduct of the search, the making of the
inquiries, or otherwise,
to have any right, title, or interest in
the property, by
certified mail, return receipt requested, or by
personal service.
Additionally, the prosecuting attorney shall
cause a similar
notice to be published once a week for two
consecutive weeks in a
newspaper of general circulation in the
county in which the
property was seized.
(3)(a) Any person, other than the adult offender whose
conviction or guilty plea or the delinquent child whose
adjudication is the basis of the order of forfeiture, who asserts
a legal right, title, or interest in the property that is the
subject of the order may petition the court that issued the
order,
within thirty days after the earlier of the final
publication of
notice or the person's receipt of notice under
division (F)(2) of
this section, for a hearing to adjudicate the validity
of the
person's alleged right, title, or interest in the property.
The
petition shall be signed by the petitioner under the penalties
for
falsification as specified in section 2921.13 of the Revised
Code
and shall set forth the nature and extent of the
petitioner's
right, title, or interest in the property, the time
and
circumstances of the petitioner's acquisition of that right,
title, or interest, any additional facts supporting the
petitioner's claim,
and the relief sought.
(b) In lieu of filing a petition as described in division
(F)(3)(a) of this section, a secured party or other lienholder of
record that asserts a legal right, title, or interest in the
property that is the subject of the order, including, but not
limited to, a mortgage, security interest, or other type of lien,
may file an affidavit as described in this division to establish
the validity of the alleged right, title, or interest in the
property. The affidavit shall be filed within thirty days after
the earlier of the final publication of notice or the receipt of
notice under division (F)(2) of this section and, except as
otherwise provided in this section, shall constitute prima-facie
evidence of the validity of the secured party's or other
lienholder's alleged right, title, or interest in the property.
Unless the prosecuting attorney files a motion challenging the
affidavit within ten days after its filing and unless the
prosecuting attorney establishes, by a preponderance of the
evidence, at a subsequent hearing before the court that issued
the
forfeiture order, that the secured party or other lienholder
does
not possess the alleged right, title, or interest in the
property
or that the secured party or other lienholder had actual
knowledge
of facts pertaining to the felony drug abuse offense or
act that
was the basis of the forfeiture order, the affidavit
shall
constitute conclusive evidence of the validity of the
secured
party's or other lienholder's right, title, or interest
in the
property and shall have the legal effect described in
division
(G)(2) of this section. To the extent practicable and
consistent
with the interests of justice, any such hearing shall
be held
within thirty days after the prosecuting attorney files
the
motion. At any such hearing, the prosecuting attorney and
the
secured party or other lienholder may present evidence and
witnesses and cross-examine witnesses.
In order to be valid for the purposes of this division and
division (G)(2) of this section, the affidavit of a secured party
or other lienholder shall contain averments that the secured
party
or other lienholder acquired its alleged right, title, or
interest
in the property in the regular course of its business,
for a
specified valuable consideration, without actual knowledge
of any
facts pertaining to the felony drug abuse offense or act
that was
the basis of the forfeiture order, in good faith and
without the
intent to prevent or otherwise impede the state from
seizing or
obtaining a forfeiture of the property under sections
2925.41 to
2925.45 of the Revised Code, and prior to the seizure
or
forfeiture of the property under those sections.
(4) Upon receipt of a petition filed under division (F)(3)
of this section, the court shall hold a hearing to determine the
validity of the petitioner's right, title, or interest in the
property that is the subject of the order of forfeiture. To the
extent practicable and consistent with the interests of justice,
the hearing shall be held within thirty days after the filing of
the petition. The court may consolidate the hearing on the
petition with a hearing on any other petition filed by a person
other than the offender whose conviction or guilty plea or
adjudication as a delinquent child is the basis of the order of
forfeiture. At the hearing, the petitioner may testify, present
evidence and witnesses on the petitioner's behalf, and
cross-examine witnesses
for the state. The state may present
evidence and witnesses in
rebuttal and in defense of its claim to
the property and
cross-examine witnesses for the petitioner. In
addition to
evidence and testimony presented at the hearing, the
court shall
consider the relevant portions of the record in the
felony drug
abuse offense or delinquent child case that resulted
in the order
of forfeiture.
(5)(a) The court shall amend its order of forfeiture in
accordance with its determination if it determines, at the
hearing, that the petitioner has established either of the
following by a preponderance of the evidence:
(i) The petitioner has a legal right, title, or interest
in
the property that renders the order of forfeiture completely
or
partially invalid because it was vested in the petitioner,
rather
than the adult offender whose conviction or guilty plea or
the
delinquent child whose adjudication is the basis of the
order, or
was superior to any right, title, or interest of that
offender, at
the time of the commission of the felony drug abuse
offense or act
that is the basis of the order.
(ii) The petitioner is a bona fide purchaser for value of
the right, title, or interest in the property and was at the time
of the purchase reasonably without cause to believe that it was
subject to forfeiture under this section.
(b) The court also shall amend its order of forfeiture to
reflect any right, title, or interest of a secured party or other
lienholder of record in the property subject to the order that
was
established pursuant to division (F)(3)(b) of this section by
means of an affidavit, or that was established pursuant to that
division by the failure of a prosecuting attorney to establish,
in
a hearing as described in that division, that the secured
party or
other lienholder did not possess the alleged right,
title, or
interest in the property or that the secured party or
other
lienholder had actual knowledge of facts pertaining to the
felony
drug abuse offense or act that was the basis of the order.
(G)(1) Subject to division (G)(2) of this section, if the
court has disposed of all petitions filed under division (F) of
this section or if no petitions are filed under that division and
the time for filing petitions under that division has expired,
the
state shall have clear title to all property that is the
subject
of an order of forfeiture issued under this section and
may
warrant good title to any subsequent purchaser or other
transferee.
(2) If an affidavit as described in division (F)(3)(b) of
this section is filed in accordance with that division, if the
affidavit constitutes, under the circumstances described in that
division, conclusive evidence of the validity of the right,
title,
or interest of a secured party or other lienholder of
record in
the property subject to a forfeiture order, and if any
mortgage,
security interest, or other type of lien possessed by
the secured
party or other lienholder in connection with the
property is not
satisfied prior to a sale or other disposition of
the property
pursuant to section 2925.44 of the Revised Code,
then the right,
title, or interest of the secured party or other
lienholder in the
property remains valid for purposes of sections
2925.41 to 2925.45
of the Revised Code and any subsequent
purchaser or other
transferee of the property pursuant to section
2925.44 of the
Revised Code shall take the property subject to
the continued
validity of the right, title, or interest of the
secured party or
other lienholder in the property.
Sec. 2927.02. (A) As used in this section and section
2927.021 of the Revised Code:
(1)
"Child" has the same meaning as in section 2151.011 of
the Revised Code.
(2)
"Cigarette" includes
clove cigarettes and hand-rolled
cigarettes.
(3)
"Distribute" means
to furnish, give, or provide
cigarettes, other tobacco products,
or papers used to roll
cigarettes to the ultimate consumer of
the cigarettes, other
tobacco products, or papers used to roll
cigarettes.
(4)
"Proof of age" means
a driver's license, a commercial
driver's license, a military
identification card, a passport, or
an identification card issued under
sections 4507.50 to 4507.52 of
the Revised
Code that shows that a person is eighteen years of age
or older.
(5)
"Tobacco product"
means any product that is made from
tobacco, including, but not
limited to, a cigarette, a cigar, pipe
tobacco, chewing tobacco,
or snuff.
(6)
"Vending machine"
has the same meaning as
"coin machine"
in section
2913.01 of the Revised Code.
(B) No manufacturer, producer, distributor,
wholesaler, or
retailer of cigarettes, other tobacco
products, or papers used
to
roll cigarettes, no agent,
employee, or representative of a
manufacturer,
producer, distributor, wholesaler, or retailer of
cigarettes,
other tobacco
products, or papers used to roll
cigarettes, and no other
person shall do any of the following:
(1) Give, sell, or otherwise distribute cigarettes,
other
tobacco products, or papers used to roll cigarettes to any
child;
(2) Give away, sell, or distribute cigarettes, other
tobacco
products, or papers used to roll cigarettes in any place
that does
not have posted in a
conspicuous place a sign stating
that giving,
selling, or
otherwise distributing cigarettes, other
tobacco
products, or papers used to roll cigarettes to
a person
under
eighteen years of age is prohibited by law;
(3) Knowingly furnish any false information regarding the
name, age, or other identification of any child with
purpose to
obtain cigarettes, other tobacco products, or papers
used to roll
cigarettes for that child;
(4) Manufacture, sell, or distribute in this state any pack
or other container of cigarettes containing fewer than twenty
cigarettes or any package of roll-your-own tobacco containing less
than six-tenths of one ounce of tobacco;
(5) Sell cigarettes in a smaller quantity than that placed
in the pack or other container by the manufacturer.
(C) No person shall sell or offer to sell cigarettes or
other tobacco products by or from a vending machine, except in the
following locations:
(1) An area
within a factory, business, office, or other
place
not
open
to the general public;
(2) An area to which children are
not generally permitted
access;
(3) Any other place not identified in
division (C)(1)
or (2)
of this section, upon all of the following conditions:
(a) The vending machine is located within the immediate
vicinity, plain view, and control of the person who owns or
operates the place, or an employee of that person, so that
all
cigarettes and other tobacco product purchases from the vending
machine will be readily observed by the person who owns or
operates the place or an employee of that person. For the
purpose of this section, a vending machine located in any
unmonitored area, including an unmonitored coatroom, restroom,
hallway, or outer waiting area, shall not be considered located
within the immediate vicinity, plain view, and control of the
person who owns or operates the place, or an employee of
that
person.
(b) The vending machine is inaccessible to the public when
the place is closed.
(D) The following are affirmative defenses to a
charge under
division (B)(1)
of this section:
(1) The child was accompanied by a parent,
spouse who is
eighteen years of age or older, or legal guardian of the
child.
(2) The person who gave, sold, or distributed cigarettes,
other tobacco products, or papers used to roll cigarettes to a
child under division (B)(1) of this section
is a parent, spouse
who is eighteen years of age or older, or legal guardian
of the
child.
(E)
It is not a violation of division (B)(1) or (2) of this
section for a person to give or otherwise distribute to a child
cigarettes, other tobacco products, or papers used to roll
cigarettes while the child is participating in a research protocol
if all of the following apply:
(1) The parent, guardian, or legal custodian of the child has
consented in writing to the child participating in the research
protocol.
(2) An institutional human subjects protection review board,
or an equivalent entity, has approved the research protocol.
(3) The child is participating in the research protocol at
the facility or location specified in the research protocol.
(F)(1) Whoever violates division (B)(1), (2), (4), or (5)
or
(C) of
this section is guilty of illegal
distribution of
cigarettes or
other tobacco products, a
misdemeanor of the fourth
degree. If
the offender previously has
been convicted of a
violation of
division (B)(1), (2), (4), or (5) or
(C) of this
section, illegal
distribution of cigarettes or other tobacco
products is a
misdemeanor of the third degree.
(2) Whoever violates division (B)(3) of
this section is
guilty of permitting children to use cigarettes or other
tobacco
products, a misdemeanor of the fourth degree. If the offender
previously has been convicted of a violation of division (B)(3)
of
this section, permitting children to use cigarettes or other
tobacco products is a misdemeanor of the third degree.
(G) Any cigarettes,
other tobacco products, or papers
used
to roll cigarettes that
are given, sold, or otherwise
distributed
to a child
in violation of this section and that are
used,
possessed,
purchased, or received by a child in violation of
section 2151.87 of the Revised
Code are subject to seizure and
forfeiture as contraband under sections 2933.42 and 2933.43 Chapter 2981. of
the
Revised Code.
Sec. 2929.18. (A) Except as otherwise provided in this
division and in addition to imposing court costs pursuant to
section 2947.23
of the Revised Code, the court imposing a sentence
upon an offender for a
felony may sentence the offender to any
financial sanction or combination of
financial
sanctions
authorized under this section or, in the circumstances specified
in section
2929.32 of the Revised Code, may impose upon
the
offender a fine in accordance with that section.
Financial
sanctions
that may be imposed pursuant to this section
include,
but are
not limited to, the following:
(1) Restitution by the offender to the victim of the
offender's crime or any survivor of the victim, in an amount
based
on the victim's economic loss. If the court imposes restitution, the court shall order that the
restitution be made
to the victim in open court, to the adult
probation department that serves
the county
on behalf of the
victim, to the clerk of courts, or to
another agency
designated by
the court. If the court imposes restitution, at sentencing, the court shall determine
the
amount of
restitution to be made by the offender.
If the court imposes restitution, the court may
base the amount of restitution it orders on an amount recommended
by the victim, the offender, a presentence investigation report,
estimates or receipts indicating the cost of repairing or
replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense. If the court decides to impose restitution, the court shall hold a
hearing on restitution if the offender, victim, or survivor
disputes the amount. All
restitution payments
shall be credited
against any recovery of
economic loss in a
civil action brought by
the victim or any
survivor of the victim
against the offender.
If the court imposes restitution, the court may order that the offender pay a surcharge of not
more than five per cent of the amount of the restitution otherwise
ordered to the entity responsible for collecting and processing
restitution payments.
The victim or survivor may request that the prosecutor in the case file a motion, or the offender may file a motion, for
modification of the payment terms of any restitution ordered. If
the court grants the motion, it may modify the payment terms as it
determines appropriate.
(2) Except as provided in division (B)(1), (3), or (4) of
this section, a fine payable by the offender to the state, to a
political subdivision, or as described in division (B)(2)
of this
section to one or more law enforcement agencies, with the
amount
of the fine based on a standard percentage of the
offender's daily
income over a period of time determined by the
court and based
upon the seriousness of the offense. A fine
ordered under this
division shall not exceed the
maximum conventional fine
amount authorized for
the level of the offense under division
(A)(3) of this section.
(3) Except as provided in division (B)(1), (3), or (4) of
this section, a fine payable by the offender to the state, to a
political subdivision when appropriate for a felony, or as
described in division (B)(2) of this section to one or
more law
enforcement agencies, in the following amount:
(a) For a felony of the first degree, not more
than twenty
thousand dollars;
(b) For a felony of the second degree, not more
than fifteen
thousand dollars;
(c) For a felony of the third degree, not more
than ten
thousand dollars;
(d) For a felony of the fourth degree, not more
than five
thousand dollars;
(e) For a felony of the fifth degree, not more
than two
thousand five hundred dollars.
(4)
A state fine or costs as defined in section 2949.111 of
the Revised Code.
(5)(a)
Reimbursement by the
offender of any or
all of the
costs of
sanctions incurred by the government,
including the
following:
(i) All or part of the costs of implementing
any community
control sanction, including a supervision fee under section
2951.021 of the Revised Code;
(ii) All or part of the costs of confinement
under a
sanction imposed pursuant to section 2929.14 or 2929.16
of the
Revised Code, provided that the amount of
reimbursement ordered
under this division shall not exceed
the total amount of
reimbursement the
offender is able to pay as determined at a
hearing and shall not exceed the
actual cost of the confinement.
(b) If the offender is sentenced to a sanction of
confinement pursuant to
section 2929.14 or 2929.16 of the Revised
Code that is to be served in a facility
operated by a board of
county commissioners, a legislative authority of a
municipal
corporation, or another local governmental entity,
if, pursuant to
section 307.93, 341.14, 341.19,
341.23,
753.02, 753.04, 753.16,
2301.56, or 2947.19 of the Revised
Code
and section 2929.37 of the
Revised Code,
the
board,
legislative
authority, or other local
governmental
entity requires
prisoners
to
reimburse
the county, municipal
corporation,
or other entity
for
its expenses incurred
by reason
of the
prisoner's confinement,
and if the
court
does not impose a
financial
sanction under
division (A)(5)(a)(ii)
of this
section,
confinement
costs may be
assessed pursuant to section
2929.37 of
the Revised Code. In
addition, the offender may be
required to pay
the fees specified
in section 2929.38 of the
Revised Code in
accordance with that
section.
(c) Reimbursement by the offender for costs
pursuant to
section
2929.71 of the Revised Code.
(B)(1) For a first, second, or third degree
felony violation
of any provision of Chapter 2925.,
3719., or 4729. of the Revised
Code, the
sentencing court shall impose upon the offender a
mandatory fine
of at least one-half of, but not more than, the
maximum statutory
fine amount authorized for the level of the
offense pursuant to
division (A)(3) of this section. If an
offender alleges in an affidavit filed
with the court prior
to
sentencing that the offender is indigent and unable to pay the
mandatory fine and if the court determines the offender is an
indigent person and is unable to pay the mandatory fine described
in this
division, the court shall not impose the mandatory fine
upon the offender.
(2) Any mandatory fine imposed upon an offender under
division (B)(1) of this section and any fine imposed upon
an
offender under division (A)(2) or (3) of this section
for any
fourth or fifth degree felony violation of any provision
of
Chapter 2925., 3719., or 4729. of the Revised
Code shall be paid
to law enforcement agencies pursuant
to division (F) of section
2925.03 of the Revised
Code.
(3) For a fourth degree felony
OVI
offense and for a third
degree felony OVI offense, the sentencing
court shall impose upon
the offender a mandatory fine
in the amount specified in division
(G)(1)(d) or (e) of section 4511.19
of the Revised
Code, whichever
is applicable. The
mandatory fine
so imposed shall be
disbursed
as provided in
the division pursuant to which it is imposed.
(4) Notwithstanding any fine
otherwise authorized or
required to be imposed under division
(A)(2) or (3) or (B)(1) of
this section or section 2929.31
of the Revised Code for a
violation of section 2925.03 of the Revised Code, in
addition to
any
penalty or sanction imposed for that offense under section
2925.03 or sections 2929.11 to 2929.18 of the
Revised Code and in
addition to the
forfeiture of property in connection with the
offense as
prescribed in sections 2925.42 to 2925.45 Chapter 2981. of the
Revised Code, the court that sentences
an offender for a violation
of section 2925.03 of
the Revised Code may impose upon the
offender a fine in addition to any fine imposed under division
(A)(2) or (3) of this section
and in addition to any mandatory
fine imposed under division
(B)(1) of this section. The fine
imposed under division
(B)(4) of this section shall be used as
provided in division
(H) of section 2925.03 of the Revised Code.
A
fine
imposed under division (B)(4) of this section shall not
exceed
whichever of the following is applicable:
(a) The total value of any personal
or real property in
which the offender has an interest and that
was used in the course
of, intended for use in the course of,
derived from, or realized
through conduct in violation of
section 2925.03 of the Revised
Code, including any
property that constitutes proceeds derived
from that offense;
(b) If the offender has no interest
in any property of the
type described in division
(B)(4)(a) of this section or if it is
not possible to
ascertain whether
the offender has an interest in
any property of that type in
which the offender may have an
interest, the amount of the
mandatory fine for the offense imposed
under division
(B)(1) of this section or, if no mandatory fine is
imposed under
division (B)(1) of this section, the amount of the
fine authorized
for the level of the offense
imposed under
division (A)(3) of this section.
(5) Prior to imposing a fine under division
(B)(4) of this
section, the
court shall determine whether the offender has an
interest in
any property of the type described in division
(B)(4)(a) of this section. Except as provided in
division (B)(6)
or (7) of this section,
a fine that is authorized and imposed
under division
(B)(4) of this section does not
limit or affect the
imposition of the penalties and sanctions
for a violation of
section 2925.03 of the Revised Code
prescribed under
those
sections
or sections 2929.11 to 2929.18 of the
Revised Code and
does not limit or
affect a forfeiture of property in connection
with the offense
as prescribed in sections 2925.42 to 2925.45 Chapter 2981. of
the
Revised Code.
(6) If the sum total of a mandatory fine amount imposed
for
a first, second, or third degree felony violation of section
2925.03
of the Revised Code under division
(B)(1) of this section
plus the
amount of any fine imposed under division
(B)(4) of this
section does not
exceed the maximum statutory fine amount
authorized for the
level of the offense under division (A)(3) of
this section or
section 2929.31 of the Revised Code, the court may
impose a
fine for the offense in addition to the mandatory fine
and the
fine imposed under division (B)(4) of this section. The
sum total of the amounts of the mandatory fine, the fine imposed
under division (B)(4) of this
section, and the additional fine
imposed under division
(B)(6) of this section shall
not exceed the
maximum statutory fine amount authorized for the
level of the
offense under division (A)(3) of this section or
section 2929.31
of the Revised Code. The clerk of the court
shall pay any fine
that is imposed under division
(B)(6) of this section to the
county, township, municipal
corporation, park district as
created
pursuant to section 511.18 or 1545.04 of the
Revised Code, or
state law enforcement
agencies in this state that primarily were
responsible for or
involved in making the arrest of, and in
prosecuting, the
offender pursuant to division (F) of section
2925.03 of the
Revised Code.
(7) If the sum total of the amount of a mandatory fine
imposed for a first, second, or third degree felony violation of
section 2925.03 of the Revised Code plus the amount of any
fine
imposed under division (B)(4) of this section exceeds
the maximum
statutory fine amount authorized for the level of
the offense
under division (A)(3) of this section or
section 2929.31 of the
Revised Code, the court shall not
impose a fine under division
(B)(6) of this section.
(C)(1) The offender shall pay reimbursements
imposed upon
the offender pursuant to division
(A)(5)(a) of this
section to
pay
the costs incurred by the department of rehabilitation and
correction in operating a
prison or other facility used to confine
offenders pursuant to sanctions
imposed under section 2929.14 or
2929.16 of the Revised
Code to the treasurer of state. The
treasurer of state
shall deposit the reimbursements in the
confinement cost
reimbursement fund that is hereby created in the
state
treasury. The department of rehabilitation and correction
shall
use the amounts deposited in the fund to fund the operation
of
facilities used to confine offenders pursuant to sections
2929.14
and 2929.16 of the Revised Code.
(2) Except as provided in section 2951.021 of the Revised
Code, the offender
shall pay reimbursements imposed upon the
offender pursuant to division
(A)(5)(a) of this
section to pay
the
costs incurred by a county pursuant to any
sanction imposed
under
this section or section 2929.16 or 2929.17
of the Revised
Code or
in operating a facility
used to confine offenders pursuant
to a
sanction imposed under
section 2929.16 of the Revised Code to
the
county
treasurer. The county treasurer shall deposit the
reimbursements in the sanction cost reimbursement fund that each
board of county commissioners shall create in its county
treasury.
The county shall use the amounts deposited in the fund
to pay the
costs incurred by the county pursuant to any sanction
imposed
under this section or section 2929.16 or 2929.17 of the
Revised
Code or in operating a facility used to
confine offenders pursuant
to a sanction imposed under section
2929.16 of the Revised Code.
(3) Except as provided in section 2951.021 of the Revised
Code, the offender
shall pay reimbursements imposed upon the
offender pursuant to division
(A)(5)(a) of this
section to pay
the
costs incurred by a municipal corporation
pursuant to any
sanction
imposed under this section or section
2929.16 or 2929.17
of the
Revised Code or in
operating a facility used to confine
offenders
pursuant to a
sanction imposed under section 2929.16 of
the
Revised
Code to the treasurer of the municipal
corporation.
The
treasurer shall deposit the reimbursements
in a special fund
that
shall be established in the
treasury of each municipal
corporation. The municipal
corporation shall use the amounts
deposited in the fund to pay
the costs incurred by the municipal
corporation pursuant to any
sanction imposed under this section or
section 2929.16 or 2929.17
of the Revised Code or in operating a
facility
used to confine offenders pursuant to a sanction imposed
under
section 2929.16 of the Revised Code.
(4) Except as provided in section 2951.021 of the Revised
Code, the offender
shall pay reimbursements imposed pursuant to
division
(A)(5)(a) of this section for the costs incurred by a
private provider pursuant to a sanction imposed under this section
or section
2929.16 or 2929.17 of the Revised Code to the provider.
(D)
Except as otherwise provided in this division, a
financial sanction imposed pursuant to division (A) or
(B) of this
section is a judgment in favor of the state or a
political
subdivision in which the court that imposed the
financial
sanction
is located, and the offender subject to the financial sanction is the judgment debtor. A financial sanction of
reimbursement
imposed pursuant to division
(A)(5)(a)(ii) of this
section upon
an
offender who is incarcerated in a state facility
or a municipal
jail is a judgment in favor of the state or the
municipal
corporation, and the offender subject to the financial sanction is the judgment debtor. A financial sanction of reimbursement
imposed
upon an
offender pursuant to this section for costs
incurred by a
private provider of
sanctions is a judgment in favor
of the
private provider, and the offender subject to the financial sanction is the judgment debtor. A
financial sanction of restitution
imposed
pursuant to this section is an order in favor of the
victim of
the offender's criminal act that can be collected through execution as described in division (D)(1) of this section or through an order as described in division (D)(2) of this section, and the offender shall be considered for purposes of the collection as the judgment debtor. Imposition of a financial
sanction and execution on the
judgment does not preclude any other
power of the court to impose or enforce
sanctions on the offender.
Once the financial sanction is
imposed as a judgment or order under this division, the victim,
private provider, state, or
political subdivision may bring an
action to do any of the following:
(1) Obtain execution of the judgment or order through any
available
procedure, including:
(a) An execution against the property of the
judgment debtor
under Chapter 2329. of the
Revised Code;
(b) An execution against the person of the
judgment debtor
under Chapter 2331. of the
Revised Code;
(c) A proceeding in aid of execution under
Chapter 2333. of
the Revised Code,
including:
(i) A proceeding for the examination of the
judgment debtor
under sections 2333.09 to 2333.12 and sections
2333.15 to 2333.27
of the Revised Code;
(ii) A proceeding for attachment of the person
of the
judgment debtor under section 2333.28 of the
Revised Code;
(iii) A creditor's suit under section 2333.01
of the Revised
Code.
(d) The attachment of the property of the
judgment debtor
under Chapter 2715. of the
Revised Code;
(e) The garnishment of the property of the
judgment debtor
under Chapter 2716. of the Revised Code.
(2) Obtain an order for the assignment of wages of the
judgment debtor under section 1321.33 of the Revised
Code.
(E) A court that imposes a financial sanction upon an
offender may hold a
hearing if necessary to determine whether the
offender is able to pay the
sanction or is likely in the future to
be able to pay it.
(F) Each court imposing a financial sanction
upon an
offender under this section or under section
2929.32 of
the
Revised
Code may designate
the clerk of the court
or another person to collect
the financial sanction. The
clerk or other person authorized by law or the court to collect
the financial sanction may
enter into contracts with one or more
public agencies or private
vendors for the collection of, amounts
due under the financial
sanction imposed pursuant to this
section
or section
2929.32 of
the Revised Code. Before entering
into a
contract for the
collection of
amounts due from an offender
pursuant to any
financial sanction imposed
pursuant to this
section or section
2929.32 of the Revised Code,
a court
shall comply with sections
307.86 to 307.92 of the
Revised Code.
(G) If a court that imposes a financial
sanction under
division (A) or (B) of this section
finds that an offender
satisfactorily
has completed all other sanctions imposed upon the
offender and that all
restitution that has been ordered has been
paid as ordered, the
court may suspend any financial sanctions
imposed pursuant to this section
or section
2929.32 of the
Revised
Code that have not been
paid.
(H) No financial sanction imposed under this
section or
section
2929.32 of the Revised Code shall preclude a
victim from
bringing a civil action against the offender.
Sec. 2930.11. (A) Except as otherwise provided in
this section or in sections 2933.41 to 2933.43 Chapter 2981. of the Revised Code, the law
enforcement agency responsible for investigating a crime or specified
delinquent act shall
promptly return to
the victim of the crime or specified delinquent act any property of the
victim that was taken
in the course of the investigation. In accordance with Criminal Rule 26 or
an applicable Juvenile Rule, the
law enforcement agency may take photographs of the property for use
as evidence. If the ownership of the property is in dispute, the agency shall
not return the property until the dispute is resolved.
(B) The law enforcement agency responsible for
investigating a crime or specified delinquent act shall retain any
property of the victim of
the crime or specified delinquent act that is needed as evidence in the
case, including any
weapon used in the commission of the crime or specified delinquent act,
if the prosecutor certifies to the
court a need to retain the property in lieu of a
photograph of the property or of another evidentiary substitute
for the property itself.
(C) If the defendant or alleged juvenile offender in a case files a
motion
requesting the court to order the law
enforcement agency to retain property of the victim
because the property is needed for the defense in the case, the agency shall
retain the property until the court rules on the motion. The
court, in making a determination on the motion, shall weigh the
victim's need for the property against the defendant's or alleged juvenile
offender's assertion that the property has evidentiary value for the
defense. The
court shall rule on the motion in a timely fashion.
Sec. 2933.75. (A) Upon the institution of any criminal
proceeding charging a medicaid fraud offense, the state, at any
time during the pendency of the proceeding, may file a medicaid
fraud lien notice with the county recorder of any county in which
forfeitable property subject to forfeiture may be located. No
fee shall be required for filing the notice. The recorder
immediately shall record the notice pursuant to section 317.08 of
the Revised Code.
(B) A medicaid fraud lien notice shall be signed by the
prosecuting attorney or attorney general who will prosecute the
case and who files the lien. The notice shall set forth all of
the following information:
(1) The name of the person against whom the proceeding has
been brought. The prosecuting attorney or attorney general who
will prosecute the case may specify in the notice any aliases,
names, or fictitious names under which the person may be known.
(2) If known to the prosecuting attorney or attorney
general who will prosecute the case, the present residence and
business addresses of the person or names set forth in the
notice;
(3) A statement that a criminal proceeding for a medicaid
fraud offense has been brought against the person named in the
notice, the name of the county in which the proceeding has been
brought, and the case number of the proceeding;
(4) A statement that the notice is being filed pursuant to
this section;
(5) The name and address of the prosecuting attorney or
attorney general filing the notice;
(6) A description of the real or personal property subject
to the notice and of the interest in that property of the person
named in the notice, to the extent the property and the interest
of the person in it reasonably is known at the time the
proceeding is instituted or at the time the notice is filed.
(C) A medicaid fraud lien notice shall apply only to one
person and, to the extent applicable, any aliases, fictitious
names, or other names, including names of corporations,
partnerships, or other entities, to the extent permitted in this
section. A separate medicaid fraud lien notice is required to be
filed for any other person.
(D) Within seven days after the filing of each medicaid
fraud lien notice, the prosecuting attorney or attorney general
who files the notice shall furnish to the person named in the
notice by certified mail, return receipt requested, to the last
known business or residential address of the person, a copy of
the recorded notice with a notation on it of any county in which
the notice has been recorded. The failure of the prosecuting
attorney or attorney general to furnish a copy of the notice
under this section shall not invalidate or otherwise affect the
medicaid fraud lien notice when the prosecuting attorney or
attorney general did not know and could not reasonably ascertain
the address of the person entitled to notice.
After receipt of a copy of the notice under this division,
the person named in the notice may petition the court to
authorize the person to post a surety bond in lieu of the lien or
to otherwise modify the lien as the interests of justice may
require. The bond shall be in an amount equal to the value of
the property reasonably known to be subject to the notice and
conditioned on the payment of any judgment and costs ordered in
an action pursuant to section 2933.73 Chapter 2981. of the Revised Code up to
the value of the bond.
(E) From the date of filing of a medicaid fraud lien
notice, the notice creates a lien in favor of the state on any
personal or real property or any beneficial interest in the
property located in the county in which the notice is filed that
then or subsequently is owned by the person named in the notice
or under any of the names set forth in the notice.
The lien created in favor of the state is superior and
prior to the interest of any other person in the personal or real
property or beneficial interest in the property, if the interest
is acquired subsequent to the filing of the notice.
(F) If a medicaid fraud lien notice has been filed, and if
a forfeiture order is entered subsequent to a conviction or
guilty plea in the criminal proceeding pursuant to section
2933.73 Chapter 2981. of the Revised Code in favor of the state, the interest
of any person in the property that was acquired subsequent to the
filing of the notice shall be subject to the notice and order of forfeiture.
(G) Upon the issuance of an order of forfeiture in favor of the
state pursuant to section 2933.73 Chapter 2981. of the Revised Code, title of
the state to the forfeited property shall do either of the
following:
(1) In the case of real property, or a beneficial interest
in it, relate back to the date of filing of the medicaid fraud lien notice in
the county where the property or interest is
located. If no medicaid fraud lien notice was filed, title of
the state relates back to the date of the recording of the order of forfeiture
in the records of the county recorder of
the county in which the real property or beneficial interest is
located.
(2) In the case of personal property or a beneficial
interest in it, relate back to the date on which the property or
interest was seized by the state, or the date of filing of a
medicaid fraud lien notice in the county in which the property
or beneficial interest is located. If the property was not
seized and no medicaid fraud lien notice was filed, title of
the state relates back to the date of the recording of the order of forfeiture
in the county in which the personal
property or beneficial interest is located.
(H) If personal or real property, or a beneficial interest
in it, that is forfeitable property and is subject to forfeiture
pursuant to section 2933.73 Chapter 2981. of the Revised Code is conveyed,
alienated, disposed of, or otherwise rendered unavailable for
forfeiture after the filing of either a medicaid fraud lien
notice, or a criminal proceeding for a medicaid fraud offense,
whichever is earlier, the state may bring an action in any court
of common pleas against the person named in the medicaid fraud
lien notice or the defendant in the criminal proceeding to
recover the value of the property or interest. The court shall
enter final judgment against the person named in the notice or
the defendant for an amount equal to the value of the property or
interest together with investigative costs and attorney's fees
incurred by the state in the action.
(I) If personal or real property, or a beneficial interest
in it, that is forfeitable property and is subject to forfeiture
pursuant to section 2933.73 Chapter 2981. of the Revised Code is alienated or
otherwise transferred or disposed of after either the filing of a
medicaid fraud lien notice, or the filing of a criminal
proceeding for a medicaid fraud offense, whichever is earlier,
the transfer or disposal is fraudulent as to the state and the
state shall have all the rights granted a creditor under Chapter
1336. of the Revised Code.
(J) No trustee, who acquires actual knowledge that a
medicaid fraud lien notice or a criminal proceeding for a
medicaid fraud offense has been filed against any person for whom
he the trustee holds legal or record title to personal or real
property, shall recklessly fail to furnish promptly to the prosecuting
attorney or attorney general who is prosecuting the case all of
the following:
(1) The name and address of the person, as known to the
trustee;
(2) The name and address, as known to the trustee, of all
other persons for whose benefit the trustee holds title to the
property;
(3) If requested by the prosecuting attorney or attorney
general who is prosecuting the case, a copy of the trust
agreement or other instrument under which the trustee holds title
to the property.
Any trustee who fails to comply with division (J) of this
section is guilty of failure to provide medicaid fraud lien
information, a misdemeanor of the first degree.
(K) If a trustee transfers title to personal or real
property after a medicaid fraud lien notice is filed against the
property, the lien is filed in the county in which the property
is located, and the lien names a person who holds a beneficial
interest in the property, the trustee, if he the trustee has
actual notice of the notice, shall be liable to the state for the greater of
the following:
(1) The proceeds received directly by the person named in
the notice as a result of the transfer;
(2) The proceeds received by the trustee as a result of
the transfer and distributed to the person named in the notice;
(3) The fair market value of the interest of the person
named in the notice in the property transferred.
However, if the trustee transfers property for at least its
fair market value and holds the proceeds that otherwise would be
paid or distributed to the beneficiary, or at the direction of
the beneficiary or his the beneficiary's designee, the liability
of the trustee shall not exceed the amount of the proceeds held by the
trustee.
(L) The filing of a medicaid fraud lien notice does not
constitute a lien on the record title to personal or real
property owned by the trustee, except to the extent the trustee
is named in the notice.
The prosecuting attorney for the county or the attorney
general may bring a civil action in any court of common pleas to
recover from the trustee the amounts set forth in division (H) of
this section. The county or state may recover investigative
costs and attorney's fees incurred by the prosecuting attorney or
the attorney general.
(M)(1) This section does not apply to any transfer by a
trustee under a court order, unless the order is entered in an
action between the trustee and the beneficiary.
(2) Unless the trustee has actual knowledge that a person
owning a beneficial interest in the trust is named in a medicaid
fraud lien notice, this section does not apply to either of the
following:
(a) Any transfer by a trustee required under the terms of
any trust agreement, if the agreement is a matter of public
record before the filing of any medicaid fraud lien notice;
(b) Any transfer by a trustee to all of the persons who
own a beneficial interest in the trust.
(N) The filing of a medicaid fraud lien notice does not
affect the use to which personal or real property, or a
beneficial interest in it, that is owned by the person named in
the notice may be put or the right of the person to receive any
proceeds resulting from the use and ownership, but not the sale,
of the property, until a judgment of forfeiture is entered.
(O) The term of a medicaid fraud lien notice is five years
from the date the notice is filed, unless a renewal notice has
been filed by the prosecuting attorney of the county in which the
property or interest is located or by the attorney general. The
term of any renewal of a medicaid fraud lien notice granted by
the court is five years from the date of its filing. A medicaid
fraud lien notice may be renewed any number of times while a
criminal proceeding for a medicaid fraud offense, or an appeal
from such a proceeding, is pending.
(P) The prosecuting attorney or attorney general who files
the medicaid fraud lien notice may terminate, in whole or part,
the notice or release any personal or real property or beneficial
interest in the property upon any terms that he the prosecuting
attorney or attorney general determines are appropriate. Any termination
or release shall be filed by the prosecuting attorney or attorney general with
each county recorder with whom the notice was filed. No fee shall be imposed
for the filing.
(Q) The acquittal in a criminal proceeding for a medicaid
fraud offense of the person named in the medicaid fraud lien
notice or the dismissal of a criminal proceeding for such an
offense against the person named in the notice terminates the
notice. In such a case, the filing of the notice has no effect.
A person named in a medicaid fraud lien notice may bring an
action against the prosecuting attorney or attorney general who
filed the notice, in the county where it was filed, seeking a
release of the property subject to the notice or termination of
the notice. In such a case, the court of common pleas promptly
shall set a date for hearing, which shall be not less than five
nor more than ten days after the action is filed. The order and
a copy of the complaint shall be served on the prosecuting
attorney or attorney general within three days after the action
is filed. At the hearing, the court shall take evidence as to
whether any personal or real property, or beneficial interest in
it, that is owned by the person bringing the action is covered by
the notice or otherwise is subject to forfeiture. If the person
bringing the action shows by a preponderance of the evidence that
the notice does not apply to him the person or that any personal
or real property, or beneficial interest in it, that is owned by him
the person is not subject to forfeiture, the court shall enter a
judgment terminating the notice or releasing the personal or real property or
beneficial interest from the notice.
At a hearing, the court may release from the notice any
property or beneficial interest upon the posting of security, by
the person against whom the notice was filed, in an amount equal
to the value of the property or beneficial interest owned by the
person.
The court promptly shall enter an order terminating a
medicaid fraud lien notice or releasing any personal or real
property or beneficial interest in the property, if a sale of the
property or beneficial interest is pending and the filing of the
notice prevents the sale. However, the proceeds of the sale
shall be deposited with the clerk of the court, subject to the
further order of the court.
(R) Notwithstanding any provision of this section, any
person who has perfected a security interest in personal or real
property or a beneficial interest in the property for the payment
of an enforceable debt or other similar obligation prior to the
filing of a medicaid fraud lien notice in reference to the
property or interest may foreclose on the property or interest as
otherwise provided by law. The foreclosure, insofar as
practical, shall be made so that it otherwise will not interfere
with a forfeiture under section 2933.73 Chapter 2981. of the Revised Code.
Sec. 2935.03. (A)(1) A sheriff, deputy sheriff, marshal,
deputy marshal, municipal police officer, township constable,
police officer of a township or joint township police district,
member of a police force employed by a metropolitan housing
authority under division (D) of section 3735.31 of the Revised
Code, member of a police force employed by a regional transit
authority
under division (Y) of section 306.35 of the Revised
Code, state university law enforcement officer appointed
under
section 3345.04 of the Revised Code, veterans' home
police
officer appointed under section 5907.02 of the Revised Code,
special police officer employed by a port authority under section
4582.04 or 4582.28 of the Revised Code, or a special police
officer employed by a municipal corporation at a municipal
airport, or other municipal air navigation facility, that has
scheduled operations, as defined in section 119.3 of Title 14 of
the Code of Federal Regulations, 14 C.F.R. 119.3, as amended, and
that is required to be under a security program and is governed by
aviation security rules of the transportation security
administration of the United States department of transportation
as provided in Parts 1542. and 1544. of Title 49 of the Code of
Federal Regulations, as amended, shall
arrest and detain,
until a
warrant can be obtained, a
person found violating, within
the
limits of the political
subdivision, metropolitan housing
authority housing project, regional
transit authority facilities
or areas of a municipal corporation that
have been agreed to by a
regional transit authority and a municipal
corporation located
within its territorial
jurisdiction, college,
university,
veterans' home operated under Chapter 5907. of the Revised Code,
port authority, or municipal airport or other
municipal air navigation facility, in
which the peace
officer is
appointed, employed, or elected, a law of this state,
an ordinance
of a municipal corporation, or a resolution of a
township.
(2) A peace officer
of the department of natural resources
or an individual
designated to perform law enforcement duties
under section
511.232, 1545.13, or 6101.75 of the Revised
Code
shall arrest and detain,
until a warrant can be obtained, a person
found violating,
within the limits of the peace officer's or
individual's
territorial jurisdiction, a law of this state.
(3) The house sergeant at arms if the house sergeant at arms
has
arrest authority pursuant to division (E)(1) of section
101.311 of the Revised Code
and an assistant house sergeant at
arms shall arrest and detain, until a
warrant can be obtained, a
person found violating, within the limits of the
sergeant at
arms's or assistant sergeant at
arms's territorial
jurisdiction
specified in division (D)(1)(a) of section 101.311
of
the Revised Code or
while providing security pursuant to division
(D)(1)(f)
of section 101.311 of the Revised Code, a
law of this
state, an ordinance of a municipal corporation, or a resolution of
a township.
(B)(1) When there is reasonable ground to believe that an
offense of violence, the offense of criminal child enticement as
defined in section 2905.05 of the Revised Code, the offense of
public indecency as defined in section 2907.09 of the Revised
Code, the offense of domestic violence as defined in section
2919.25 of the Revised Code, the offense of violating a protection
order as
defined in section 2919.27 of the Revised Code, the
offense of menacing by stalking
as defined in section 2903.211 of
the Revised Code, the offense
of aggravated trespass as defined in
section 2911.211 of the
Revised Code, a theft offense as defined
in section 2913.01 of
the Revised Code, or a felony drug abuse
offense as defined in
section 2925.01 of the Revised Code, has
been committed within
the limits of the political subdivision,
metropolitan housing
authority housing project,
regional
transit
authority facilities or those areas of a municipal corporation
that have
been agreed to by a regional transit authority and a
municipal corporation
located within its territorial jurisdiction,
college, university,
veterans' home operated under Chapter 5907. of the Revised Code,
port authority, or
municipal airport or other municipal air navigation facility, in
which the peace
officer is appointed, employed, or
elected or
within the limits of the territorial jurisdiction of the peace
officer, a peace officer described in division
(A) of this section
may arrest and detain until a
warrant can be obtained any person
who the peace officer
has reasonable cause to believe is guilty of
the violation.
(2) For purposes of division (B)(1) of this section, the
execution of any of the following constitutes reasonable ground
to
believe that the offense alleged in the statement was
committed
and reasonable cause to believe that the person alleged
in the
statement to have committed the offense is guilty of the
violation:
(a) A written statement by a person alleging that an
alleged
offender has committed the offense of menacing by
stalking or
aggravated trespass;
(b) A written statement by the administrator of the
interstate compact on mental health appointed under section
5119.51 of the Revised Code alleging that a person who had been
hospitalized, institutionalized, or confined in any facility
under
an order made pursuant to or under authority of section
2945.37,
2945.371, 2945.38, 2945.39, 2945.40,
2945.401, or 2945.402 of the
Revised
Code has escaped from the facility, from confinement in a
vehicle
for transportation to or from the facility, or from
supervision
by an employee of the facility that is incidental to
hospitalization, institutionalization, or confinement in the
facility and that occurs outside of the facility, in violation of
section 2921.34 of the Revised Code;
(c) A written statement by the
administrator of any facility
in which a person has been
hospitalized, institutionalized, or
confined under an order made
pursuant to or under authority of
section 2945.37, 2945.371,
2945.38, 2945.39, 2945.40, 2945.401, or
2945.402 of the Revised Code alleging that
the person has escaped
from the facility, from confinement in a
vehicle for
transportation to or from the facility, or from
supervision by an
employee of the facility that is incidental to
hospitalization,
institutionalization, or confinement in the
facility and that
occurs outside of the facility, in violation of
section 2921.34 of
the Revised Code.
(3)(a) For purposes of division (B)(1)
of this section, a
peace officer described in division
(A) of this section has
reasonable grounds to believe that the offense of domestic
violence or the offense of violating a protection order has been
committed and
reasonable cause to
believe that a particular person
is guilty of committing the
offense if any of the following
occurs:
(i) A person executes a written statement
alleging that the
person in question has committed the offense of
domestic violence
or the offense of violating a protection order
against the person
who executes the
statement or against a child of the person who
executes the
statement.
(ii) No written statement of the type described
in division
(B)(3)(a)(i) of this
section is executed, but the peace officer,
based upon the peace
officer's own knowledge and observation of
the facts and circumstances of
the alleged incident of the offense
of domestic violence or the
alleged incident of the offense of
violating a protection order
or based upon any other information,
including, but not limited to, any reasonably trustworthy
information given to the peace officer by the alleged victim
of
the alleged incident of the offense or any witness of the alleged
incident
of the offense, concludes that there are reasonable
grounds to
believe that the offense of domestic violence or the
offense of
violating a protection order has been
committed and
reasonable cause to believe that the person in
question is guilty
of committing the offense.
(iii) No written statement of the type
described in division
(B)(3)(a)(i)
of this section is executed, but the peace officer
witnessed
the person in question commit the offense of domestic
violence or
the offense of violating a protection order.
(b) If pursuant to division
(B)(3)(a) of this section a
peace officer has
reasonable grounds to believe that the offense
of domestic
violence or the offense of violating a protection
order has been committed and
reasonable cause to
believe that a
particular person is guilty of committing the
offense, it is the
preferred course of action in this state that
the officer arrest
and detain that person pursuant to division
(B)(1) of this section
until a warrant can be obtained.
If pursuant to division (B)(3)(a)
of this section a peace
officer has reasonable grounds to
believe that the offense of
domestic violence or the offense of
violating a protection order
has been
committed and reasonable cause to believe that family or
household members have committed the offense against each other,
it is the preferred course of action in this state that the
officer, pursuant to division (B)(1) of this section,
arrest and
detain until a warrant can be obtained the family or
household
member who committed the offense and whom the officer
has
reasonable cause to believe is the primary physical
aggressor.
There is no preferred course of action in this state
regarding any
other family or household member who committed the
offense and
whom the officer does not have reasonable cause to
believe is the
primary physical aggressor, but, pursuant to
division (B)(1) of
this section, the peace officer may
arrest and detain until a
warrant can be obtained any other
family or household member who
committed the offense and whom the
officer does not have
reasonable cause to believe is the primary
physical aggressor.
(c) If a peace officer described in division
(A) of this
section does not arrest and detain a
person whom the officer has
reasonable cause to believe committed
the offense of domestic
violence or the offense of violating a
protection order when it is
the preferred
course of action in this state pursuant to division
(B)(3)(b) of this section that the officer
arrest that person, the
officer shall articulate in the
written report of the incident
required by section 2935.032 of the
Revised Code a clear statement
of the officer's reasons for not
arresting and detaining that
person until a warrant can be obtained.
(d) In determining for purposes of division
(B)(3)(b) of
this section which family or
household member is the primary
physical aggressor in a situation
in which family or household
members have committed the offense
of domestic violence or the
offense of violating a protection
order against each other, a
peace officer
described in division (A) of this section, in
addition
to any other relevant circumstances, should consider all
of the
following:
(i) Any history of domestic violence or of any
other violent
acts by either person involved in the alleged
offense that the
officer reasonably can ascertain;
(ii) If violence is alleged, whether the alleged
violence
was caused by
a person acting in self-defense;
(iii) Each person's fear of physical harm, if
any, resulting
from the other person's threatened use of force
against any person
or resulting from the other person's use or
history of the use of
force against any person, and the
reasonableness of that fear;
(iv) The comparative severity of any injuries
suffered by
the persons involved in the alleged offense.
(e)(i) A peace officer described in
division (A) of this
section shall not require, as a
prerequisite to arresting or
charging a person who has committed
the offense of domestic
violence or the offense of violating a
protection order, that the
victim of the
offense specifically consent to the filing of
charges against the
person who has committed the offense or sign a
complaint against
the person who has committed the offense.
(ii) If a person is arrested for or charged
with committing
the offense of domestic violence or the offense
of violating a
protection order and if the
victim of the offense does not
cooperate with the involved law
enforcement or prosecuting
authorities in the prosecution of the
offense or, subsequent to
the arrest or the filing of the
charges, informs the involved law
enforcement or prosecuting
authorities that the victim does not
wish the prosecution of the
offense to continue or wishes to drop
charges against the alleged
offender relative to the offense, the
involved prosecuting
authorities, in determining whether to
continue with the
prosecution of the offense or whether to dismiss
charges against
the alleged offender relative to the offense and
notwithstanding
the victim's failure to cooperate or the victim's
wishes, shall
consider all facts and circumstances that are
relevant to the
offense, including, but not limited to, the
statements and
observations of the peace officers who responded to
the incident
that resulted in the arrest or filing of the charges
and of all
witnesses to that incident.
(f) In determining pursuant to divisions (B)(3)(a) to (g) of
this section
whether to arrest a person pursuant to division
(B)(1) of
this section, a peace officer described in division
(A)
of this section shall not consider as a factor any
possible
shortage of cell space at the detention facility to
which the
person will be taken subsequent to the person's
arrest or any
possibility that the person's arrest might cause, contribute to,
or exacerbate overcrowding at that detention facility or at any
other
detention facility.
(g) If a peace officer described in division (A) of
this
section intends
pursuant to
divisions (B)(3)(a) to (g) of this
section to arrest a person pursuant to
division (B)(1) of this
section and if the officer is
unable to
do so because the person
is not present, the officer promptly shall seek a
warrant for the
arrest of the person.
(h) If a peace officer described in division
(A) of this
section responds to a report of an alleged
incident of the offense
of domestic violence or an alleged
incident of the offense of
violating a
protection order and if the circumstances
of the
incident
involved the use or threatened use of a deadly weapon or
any
person involved in the incident brandished a deadly weapon
during
or in relation to the incident, the deadly weapon that was
used,
threatened to be used, or brandished constitutes contraband,
and,
to the extent possible, the officer shall seize the deadly
weapon
as contraband pursuant to section 2933.43 Chapter 2981. of the Revised
Code. Upon the seizure of a deadly weapon pursuant to
division
(B)(3)(h) of this section, section
2933.43 2981.12 of the Revised
Code
shall apply regarding the treatment and disposition
of the deadly
weapon. For purposes of that section, the
"underlying criminal
offense" that was the basis of the
seizure of a deadly weapon
under division (B)(3)(h) of
this section and to which the
deadly
weapon had a relationship is any of the following that is
applicable:
(i) The alleged incident of the offense of
domestic violence
or the alleged incident of the offense of
violating a protection
order to which the
officer who seized the deadly weapon responded;
(ii) Any offense that arose out of the same
facts and
circumstances as the report of the alleged incident of
the offense
of domestic violence or the alleged incident of the
offense of
violating a protection order to
which the officer who seized the
deadly weapon responded.
(4) If, in the circumstances described in divisions
(B)(3)(a) to (g) of
this section, a peace officer described in
division
(A) of this section arrests and detains a person
pursuant
to division (B)(1) of this section, or if,
pursuant to division
(B)(3)(h) of this
section, a peace officer described in division
(A) of
this section seizes a deadly weapon, the officer, to the
extent
described in and in accordance with section 9.86 or 2744.03
of
the Revised Code, is immune in any civil action
for damages for
injury, death, or loss to person or property that
arises from or
is related to the arrest and detention or the
seizure.
(C) When there is reasonable ground to believe that a
violation of division (A)(1), (2), (3), (4), or (5) of section 4506.15 or a
violation of section 4511.19 of the Revised Code has been
committed by a person operating a motor vehicle subject to
regulation by the public utilities commission of Ohio under Title
XLIX of the Revised Code, a peace officer with authority to
enforce that provision of law may stop or detain the person whom
the officer has reasonable cause to believe was operating the
motor vehicle in violation of the division or section and, after
investigating the circumstances surrounding the operation of the
vehicle, may arrest and detain the person.
(D) If a sheriff, deputy sheriff, marshal, deputy marshal,
municipal police officer, member of a police force employed by a
metropolitan housing authority under division (D) of section
3735.31 of the Revised Code, member of a police force employed by
a
regional transit authority under division (Y) of section 306.35
of the Revised
Code, special police officer employed by a port
authority under section
4582.04 or 4582.28 of the Revised Code,
special police officer employed by a municipal corporation at a
municipal airport or other municipal air navigation facility
described in division (A) of this section, township constable,
police officer of a
township or joint township
police district,
state university
law enforcement officer
appointed under section
3345.04 of the
Revised Code, peace officer
of the department of
natural
resources, individual designated to
perform law
enforcement duties
under
section 511.232, 1545.13, or
6101.75 of
the Revised Code, the house
sergeant at arms if the
house sergeant
at arms has arrest authority pursuant
to division
(E)(1) of
section 101.311 of the Revised Code, or an assistant
house
sergeant at arms is authorized by
division (A) or
(B) of
this
section
to arrest and detain, within the limits of the
political
subdivision, metropolitan housing authority housing
project,
regional
transit authority facilities or those areas of a
municipal
corporation that have been agreed to by a regional
transit authority and a
municipal corporation located within its
territorial jurisdiction,
port authority,
municipal airport or
other municipal air navigation facility, college, or university
in
which the officer is
appointed,
employed, or elected or within
the
limits of the territorial jurisdiction
of the peace officer, a
person until a warrant can be obtained, the peace
officer, outside
the limits of that
territory, may pursue, arrest, and detain that
person until a warrant
can be
obtained if all of the following
apply:
(1) The pursuit takes place without unreasonable delay
after
the offense is committed;
(2) The pursuit is initiated within the limits of the
political subdivision, metropolitan housing authority housing
project, regional transit authority facilities or those areas of a
municipal corporation that have been agreed to by a regional
transit authority
and a municipal corporation located within its
territorial
jurisdiction, port authority,
municipal airport or
other municipal air navigation facility, college, or university
in
which
the peace officer is
appointed, employed, or elected or
within the limits of the
territorial jurisdiction of the peace
officer;
(3) The offense involved is a felony, a misdemeanor of the
first degree or a substantially equivalent municipal ordinance, a
misdemeanor of the second degree or a substantially equivalent
municipal ordinance, or any offense for which points are
chargeable pursuant to section 4510.036 of the
Revised Code.
(E) In addition to the authority granted under division
(A)
or (B) of this section:
(1) A sheriff or deputy sheriff may arrest and detain,
until
a warrant can be obtained, any person found violating
section
4503.11, 4503.21, or 4549.01, sections 4549.08 to
4549.12, section
4549.62, or Chapter 4511. or 4513. of the
Revised Code on the
portion of any street or highway that is
located immediately
adjacent to the boundaries of the county in
which the sheriff or
deputy sheriff is elected or appointed.
(2) A member of the police force of a township police
district created under section 505.48 of the Revised Code, a
member of the police force of a joint township police district
created under section 505.481 of the Revised Code, or a
township
constable appointed in accordance with section 509.01 of the
Revised Code, who has received a certificate from the Ohio peace
officer training commission under section 109.75 of the Revised
Code,
may arrest and detain, until a warrant can be obtained, any
person found violating any section or chapter of the Revised Code
listed in division (E)(1) of this section, other than sections
4513.33 and 4513.34 of the Revised Code, on the portion of any
street or highway that is located immediately adjacent to the
boundaries of the township police district or joint township
police district, in the case of a member of a township police
district or joint township police district police force, or the
unincorporated territory of the township, in the case of a
township constable. However, if the population of the township
that created the township police district served by the member's
police force, or the townships that created the joint township
police district served by the member's police force, or the
township that is served by the township constable, is sixty
thousand or less, the member of the township police district or
joint police district police force or the township constable may
not make an arrest under division (E)(2) of this
section on a
state highway that is
included as part of the interstate system.
(3) A police officer or village marshal appointed,
elected,
or employed by a municipal corporation may arrest and
detain,
until a warrant can be obtained, any person found
violating any
section or chapter of the Revised Code listed in
division (E)(1)
of this section on the portion of any street or
highway that is
located immediately adjacent to the boundaries of
the municipal
corporation in which the police officer or village
marshal is
appointed, elected, or employed.
(4) A peace
officer of the department of natural resources
or an individual
designated to perform law enforcement duties
under section
511.232, 1545.13, or 6101.75 of the
Revised Code may
arrest and detain,
until a warrant can be obtained, any person
found violating any
section or chapter of the Revised
Code listed
in division
(E)(1) of this section, other
than sections 4513.33
and 4513.34 of the
Revised
Code, on the portion of any
street or
highway that is located immediately adjacent to the
boundaries of
the lands and waters that constitute the
territorial jurisdiction
of the peace officer.
(F)(1) A department of mental health special police officer
or
a department of mental retardation and developmental
disabilities
special police officer may arrest without a warrant
and detain until a
warrant can be obtained any person found
committing on the
premises of any institution under the
jurisdiction of the
particular department a misdemeanor under a
law of the state.
A department of mental health special police officer or a
department of mental retardation and developmental disabilities
special police officer may arrest without a warrant and detain
until a
warrant can be obtained any person who has been
hospitalized,
institutionalized, or confined in an institution
under the
jurisdiction of the particular department pursuant to or
under
authority of section 2945.37, 2945.371, 2945.38, 2945.39,
2945.40, 2945.401, or 2945.402 of the Revised
Code and who is
found committing on the
premises of any institution under the
jurisdiction of the
particular department a violation of section
2921.34 of the
Revised Code that involves an escape from the
premises of the
institution.
(2)(a) If a department of mental health special police
officer
or a department of mental retardation and developmental
disabilities special police officer finds any person who has been
hospitalized, institutionalized, or confined in an institution
under the jurisdiction of the particular department pursuant to
or
under authority of section 2945.37, 2945.371, 2945.38,
2945.39,
2945.40, 2945.401, or
2945.402 of the Revised Code committing a
violation of
section 2921.34 of the Revised Code that involves an
escape from
the premises of the institution, or if there is
reasonable ground
to believe that a violation of section 2921.34
of the Revised
Code has been committed that involves an escape
from the premises
of an institution under the jurisdiction of the
department of
mental health or the department of mental
retardation and
developmental disabilities and if a department of
mental health
special police officer or a department of mental
retardation and
developmental disabilities special police officer
has reasonable cause
to believe that a particular person who has
been hospitalized,
institutionalized, or confined in the
institution pursuant to or
under authority of section 2945.37,
2945.371, 2945.38, 2945.39,
2945.40, 2945.401, or 2945.402 of
the
Revised Code is guilty of the violation, the
special police
officer, outside of the premises of the institution,
may pursue,
arrest, and detain that person for that violation of
section
2921.34 of the Revised Code, until a warrant can be
obtained, if
both of the following apply:
(i) The pursuit takes place without unreasonable delay
after
the offense is committed;
(ii) The pursuit is initiated within the premises of the
institution from which the violation of section 2921.34 of the
Revised Code occurred.
(b) For purposes of division (F)(2)(a) of this section,
the
execution of a written statement by the administrator of the
institution in which a person had been hospitalized,
institutionalized, or confined pursuant to or under authority of
section 2945.37, 2945.371, 2945.38, 2945.39, 2945.40,
2945.401, or
2945.402 of the
Revised Code alleging that the person has escaped
from the
premises of the institution in violation of section
2921.34 of
the Revised Code constitutes reasonable ground to
believe that the violation was committed and reasonable cause to
believe that the person alleged in the statement to have
committed
the offense is guilty of the violation.
(G) As used in this section:
(1) A "department of mental health special police officer"
means a special police officer of the department of mental health
designated under section 5119.14 of the Revised Code who is
certified by the Ohio peace officer training commission under
section 109.77 of the Revised Code as having successfully
completed an approved peace officer basic training program.
(2) A "department of mental retardation and developmental
disabilities special police officer" means a special
police
officer of the
department of mental retardation and developmental
disabilities
designated under section 5123.13 of the Revised Code
who is
certified by the Ohio peace officer training council under
section 109.77 of the Revised Code as having successfully
completed an approved peace officer basic training program.
(3) "Deadly weapon" has the same meaning as in section
2923.11 of the Revised
Code.
(4) "Family or household member" has the same meaning as in
section 2919.25
of the Revised Code.
(5) "Street" or "highway" has the same meaning as in
section
4511.01 of the Revised Code.
(6) "Interstate system" has the same meaning as in section
5516.01 of the Revised Code.
(7) "Peace officer of the department of
natural resources"
means an employee of the
department of natural resources who is
a
natural resources law enforcement staff officer designated
pursuant to
section 1501.013 of the Revised Code, a forest officer designated
pursuant
to section 1503.29 of the Revised Code, a preserve officer designated
pursuant to
section 1517.10 of the Revised Code, a wildlife officer designated
pursuant to section
1531.13 of the Revised Code, a park officer designated pursuant to section
1541.10 of the Revised Code, or
a state watercraft officer
designated pursuant to section 1547.521
of the
Revised Code.
Sec. 2941.1417. (A) Property is not subject to forfeiture in a criminal case unless the indictment, count in the indictment, or information charging the offense specifies, to the extent it is reasonably known at the time of filing, the nature and extent of the alleged offender's interest in the property, a description of the property, and, if the property is alleged to be an instrumentality, the alleged use or intended use of the property in the commission or facilitation of the offense. The specification shall be stated at the end of the body of the indictment, count, or information and shall be in substantially the following form:
"SPECIFICATION (or SPECIFICATION TO THE FIRST COUNT). The grand jurors (or insert the person's or prosecuting attorney's name when appropriate) further find and specify that (set forth the alleged offender's interest in the property, a description of the property subject to forfeiture, and any alleged use or intended use of the property in the commission or facilitation of the offense)."
(B) The trier of fact shall determine whether the property is subject to forfeiture.
(C) The specification described in division (A) of this section may be used in a delinquent child proceeding.
Sec. 2945.44. (A) In any criminal proceeding in this
state or in any criminal or civil proceeding brought pursuant to
sections 2923.31 to 2923.36 Chapter 2981. of the Revised Code, if a witness
refuses to answer or produce information on the basis of his the
witness's privilege against self-incrimination, the court of common pleas
of the county in which the proceeding is being held, unless it
finds that to do so would not further the administration of
justice, shall compel the witness to answer or produce the
information, if both of the following apply:
(1) The prosecuting attorney of the county in which the
proceedings are being held makes a written request to the court
of common pleas to order the witness to answer or produce the
information, notwithstanding his the witness's claim of
privilege;
(2) The court of common pleas informs the witness that by
answering, or producing the information he the witness will
receive immunity under division (B) of this section.
(B) If, but for this section, the witness would have been
privileged to withhold an answer or any information given in any
criminal proceeding, and he the witness complies with an order
under division
(A) of this section compelling him the witness to give an answer
or produce
any information, he the witness shall not be prosecuted or
subjected to any
criminal penalty in the courts of this state for or on account of
any transaction or matter concerning which, in compliance with
the order, he the witness gave an answer or produced any
information.
(C) A witness granted immunity under this section may be
subjected to a criminal penalty for any violation of section
2921.11, 2921.12, or 2921.13 of the Revised Code, or for contempt
committed in answering, failing to answer, or failing to produce
information in compliance with the order.
Sec. 2981.01. (A) Forfeitures under this chapter shall be governed by all of the following purposes:
(1) To provide economic disincentives and remedies to deter and offset the economic effect of offenses by seizing and forfeiting contraband, proceeds, and certain instrumentalities;
(2) To ensure that seizures and forfeitures of instrumentalities are proportionate to the offense committed;
(3) To protect third parties from wrongful forfeiture of their property;
(4) To prioritize restitution for victims of offenses.
(B) As used in this chapter:
(1) "Aircraft" has the same meaning as in section 4561.01 of the Revised Code.
(2) "Computers," "computer networks," "computer systems," "computer software," and "telecommunications device" have the same meanings as in section 2913.01 of the Revised Code.
(3) "Financial institution" means a bank, credit union, savings and loan association, or a licensee or registrant under Chapter 1321. of the Revised Code.
(4) "Firearm" and "dangerous ordnance" have the same meanings as in section 2923.11 of the Revised Code.
(5) "Innocent person" includes any bona fide purchaser of property that is subject to forfeiture, including any person who establishes a valid claim to or interest in the property in accordance with section 2923.04 of the Revised Code, and any victim of an alleged offense.
(6) "Instrumentality" means property otherwise lawful to possess that is used in or intended to be used in an offense. An "instrumentality" may include, but is not limited to, a firearm, a mobile instrumentality, a computer, a computer network, a computer system, computer software, a telecommunications device, money, and any other means of exchange.
(7) "Law enforcement agency" includes, but is not limited to, the state board of pharmacy and the office of the prosecutor.
(8) "Mobile instrumentality" means an instrumentality that is inherently mobile and used in the routine transport of persons. "Mobile instrumentality" includes, but is not limited to, any vehicle, any watercraft, and any aircraft.
(9) "Money" has the same meaning as in section 1301.01 of the Revised Code.
(10) "Offense" means any act or omission that could be charged as a criminal offense or a delinquent act, whether or not a formal criminal prosecution or delinquent child proceeding began at the time the forfeiture is initiated. Except as otherwise specified, an offense for which property may be forfeited includes any felony and any misdemeanor. The commission of an "offense" includes the commission of a delinquent act.
(11) "Proceeds" means both of the following:
(a) In cases involving unlawful goods, services, or activities, "proceeds" means any property derived directly or indirectly from an offense. "Proceeds" may include, but is not limited to, money or any other means of exchange. "Proceeds" is not limited to the net gain or profit realized from the offense.
(b) In cases involving lawful goods or services that are sold or provided in an unlawful manner, "proceeds" means the amount of money or other means of exchange acquired through the illegal transactions resulting in the forfeiture, less the direct costs lawfully incurred in providing the goods or services. The lawful costs deduction does not include any part of the overhead expenses of, or income taxes paid by, the entity providing the goods or services. The alleged offender or delinquent child has the burden to prove that any costs are lawfully incurred.
(12) "Property" means "property" as defined in section 2901.01 of the Revised Code and any benefit, privilege, claim, position, interest in an enterprise, or right derived, directly or indirectly, from the offense.
(13) "Property subject to forfeiture" includes contraband and proceeds and may include instrumentalities as provided in this chapter.
(14) "Prosecutor" has the same meaning as in section 2935.01 of the Revised Code. When relevant, "prosecutor" also includes the attorney general.
(15) "Vehicle" has the same meaning as in section 4501.01 of the Revised Code.
(16) "Watercraft" has the same meaning as in section 1547.01 of the Revised Code.
(C) The penalties and procedures under Chapters 2923., 2925., and 2933. of the Revised Code remain in effect to the extent that they do not conflict with this chapter.
Sec. 2981.02. (A) The following property is subject to forfeiture to the state or a political subdivision under either the criminal or delinquency process in section 2981.04 of the Revised Code or the civil process in section 2981.05 of the Revised Code:
(1) Contraband involved in an offense;
(2) Proceeds derived from or acquired through the commission of an offense;
(3) An instrumentality that is used in or intended to be used in the commission or facilitation of any of the following offenses when the use or intended use, consistent with division (B) of this section, is sufficient to warrant forfeiture under this chapter:
(b) A misdemeanor, when forfeiture is specifically authorized by a section of the Revised Code or by a municipal ordinance that creates the offense or sets forth its penalties;
(c) An attempt to commit, complicity in committing, or a conspiracy to commit an offense of the type described in divisions (A)(3)(a) and (b) of this section.
(B) In determining whether an alleged instrumentality was used in or was intended to be used in the commission or facilitation of an offense or an attempt, complicity, or conspiracy to commit an offense in a manner sufficient to warrant its forfeiture, the trier of fact shall consider the following factors the trier of fact determines are relevant:
(1) Whether the offense could not have been committed or attempted but for the presence of the instrumentality;
(2) Whether the primary purpose in using the instrumentality was to commit or attempt to commit the offense;
(3) The extent to which the instrumentality furthered the commission of, or attempt to commit, the offense.
(C) This chapter does not apply to or limit forfeitures under Title XLV of the Revised Code, including forfeitures relating to section 2903.06 or 2903.08 of the Revised Code.
Sec. 2981.03. (A)(1) The state or political subdivision acquires provisional title to property subject to forfeiture under this chapter upon a person's commission of an offense giving rise to forfeiture, subject to third party claims and a final adjudication under section 2981.04 or 2981.05 of the Revised Code. Provisional title authorizes the state or political subdivision to seize and hold the property, and to act to protect the property, under this section before any proceeding under this chapter. Title to the property vests with the state or political subdivision when the trier of fact renders a final forfeiture verdict or order under section 2981.04 or 2981.05 of the Revised Code, but that title is subject to third party claims adjudicated under those sections.
(2) A law enforcement officer may seize property that the officer has probable cause to believe is property subject to forfeiture. If a law enforcement officer seizes property that is titled or registered under law, the officer or the law enforcement agency that employs the officer shall notify the property owner of the seizure. The agency shall give notice to the property owner at the owner's last known address as soon as practical after the seizure and may give the notice by certified mail or orally by any means, including telephone. If the officer or agency is unable to provide the notice required by this division despite reasonable, good faith efforts, those efforts constitute fulfillment of the notice requirement.
(3) In a civil forfeiture case under this chapter in which the state or political subdivision seeks to seize real property, the property owner may request a hearing before the seizure, and in the hearing the state or political subdivision shall show probable cause that the real property is subject to forfeiture.
(4) A person aggrieved by an alleged unlawful seizure of property may seek relief from the seizure by filing a motion in the appropriate court that shows the person's interest in the property, states why the seizure was unlawful, and requests the property's return. If the motion is filed before an indictment, information, or a complaint seeking forfeiture of the property is filed, the court shall promptly schedule a hearing on the motion, and at the hearing the person shall demonstrate by a preponderance of the evidence that the seizure was unlawful and that the person is entitled to the property. If the motion is filed by a defendant after an indictment, information, or a complaint seeking forfeiture of the property has been filed, the court shall treat the motion as a motion to suppress evidence. If the motion is filed by a third party after an indictment, information, or complaint seeking forfeiture of the property has been filed, the court shall treat the motion as a petition of a person with an alleged interest in the subject property, pursuant to divisions (E) and (F) of section 2981.04 of the Revised Code.
(5)(a) In any action under section 2981.04 or 2981.05 of the Revised Code, if a property owner or third party claims lawful interest in the subject property alleged to be proceeds, the state or political subdivision has provisional title and a right to hold property if it proves both of the following by a preponderance of the evidence:
(i) The interest in the property was acquired by the alleged offender or delinquent child during the commission of the offense or within a reasonable time after that period.
(ii) There is no likely source for the interest in the property other than as proceeds derived from or acquired through the commission of the offense.
(b) The alleged offender or delinquent child shall have the burden to prove the amount of any direct costs lawfully incurred.
(B)(1) Upon application by the prosecutor who prosecutes or brings an action that allows forfeiture under this chapter, the court in which the action is prosecuted or filed may issue an order taking any reasonable action necessary to preserve the reachability of the property including, but not limited to, a restraining order or injunction, an order requiring execution of a satisfactory bond or insurance policy, an order to inspect, photograph, or inventory the property, an order placing a lien or lis pendens against the property, or an order appointing a receiver or trustee. The court may issue an order of this nature at any of the following times:
(a) Upon the filing of a complaint, indictment, or information alleging the property to be subject to forfeiture under section 2981.02 of the Revised Code;
(b) Prior to the filing of a complaint, an indictment, or information alleging the property to be subject to forfeiture under section 2981.02 of the Revised Code, if, after giving notice to all persons known to have a interest in the property and giving those persons an opportunity to be heard, the court determines that all of the following apply:
(i) There is a substantial probability the state or political subdivision will prevail on the forfeiture issue.
(ii) There is a substantial probability that failure to enter the order will result in the property being destroyed, being removed from the court's jurisdiction, or otherwise being made unavailable for forfeiture.
(iii) The need to preserve the availability of the property outweighs the hardship on the person against whom the order is to be entered.
(c) As a condition of releasing the property based on a determination of substantial hardship under division (D) of this section.
(2) Except as otherwise provided in division (B)(3) of this section, the court shall make an order under division (B)(1)(b) of this section effective for not more than ninety days, but the court may extend the order if the prosecutor demonstrates that the need to preserve the reachability of the property still exists or for other good cause shown and shall extend the order if an indictment, information, or a complaint is filed alleging that the property is subject to forfeiture.
(3) A court may issue an order under division (B)(1) of this section without giving notice or a hearing to a person known to have a interest in the property if the prosecutor demonstrates that the property is subject to forfeiture and that giving notice and a hearing will jeopardize the availability of the property for forfeiture. Notwithstanding the ninety-day limit described in division (B)(2) of this section, the court shall make an order under division (B)(3) of this section effective for not more than ten days, but the court may extend the order if the prosecutor again demonstrates that the property is subject to forfeiture and that a hearing will jeopardize the availability of the property or for other good cause shown or if the person subject to the order consents to a longer period. If a party requests a hearing on the order, the court shall hold the hearing at the earliest possible time before the order expires.
(4) At any hearing under division (B) of this section, the court may receive and consider evidence and information that is inadmissible under the Rules of Evidence. The court shall cause the hearing to be recorded and shall cause a transcript to be made. If property is to be seized as a result of the hearing, the recording and transcript shall not be a public record for purposes of section 149.43 of the Revised Code until the property is seized. This section does not authorize making available for inspection any confidential law enforcement investigatory record or trial preparation record, as defined in section 149.43 of the Revised Code.
(C) Except as otherwise provided in division (E) of this section,
any replevin, conversion, or other civil action brought concerning property subject to a criminal or civil forfeiture action under this chapter shall be stayed until the forfeiture action is resolved.
(D)(1) A person with an interest in property that is subject to forfeiture and that is seized under this chapter may seek conditional release of the property by requesting possession from the person with custody of the property. The request shall demonstrate how the person meets the requirements specified in divisions (D)(3)(a), (b), and (c) of this section.
(2) If the person with custody of
the property does not release the property within fifteen days after a person makes a request under division (D)(1) of this section, or within seven
days after a person makes the request if the property was seized as a mobile instrumentality or if the request is to copy records, the person who made the request may file a petition for conditional release with the court in which the complaint, indictment, or information is filed or, if no complaint, indictment, or information is filed, the court that issued the seizure warrant for the property. The petition shall demonstrate how the person meets the requirements specified in divisions (D)(3)(a), (b), and (c) of this section and the steps the person has taken to secure release of the property from the official. Unless extended for good cause shown, the petition shall be filed either within thirty days of the filing of a complaint, an indictment, or information in the forfeiture action or, if no complaint, indictment, or information is filed, within thirty days of the issuance of the seizure warrant of the property.
If the court finds that the person meets the criteria specified in divisions (D)(3)(a), (b), and (c) of this section, the court shall order the property's conditional return to the person pending completion of the forfeiture action. In issuing this order, the court shall notify the person of the prohibitions against interfering with or diminishing property in section 2981.07 of the Revised Code and may make any order necessary to ensure that the value of the property is maintained.
If personal, business, or governmental records are seized, including those contained in computer files, a person may petition the court for a prompt opportunity to copy, at the person's expense, any records that are not contraband. The court may grant the petition if the person demonstrates how the person meets the requirements specified in divisions (D)(3)(a) and (c) of this section. The court shall order a competent person to supervise the copying.
(3) Except when there is probable cause that the property is contraband, property that must be held for a reasonable time as evidence related to an offense, or property that is likely to be used in additional offenses or except when the state or political subdivision meets the burden imposed under division (A)(5) of this section regarding alleged proceeds, a court may
conditionally release property subject to forfeiture to a person who demonstrates all of the following:
(a) A possessory interest in the property;
(b) Sufficient ties to the community to provide assurance that the property will be available at the time of trial;
(c) That failure to conditionally release the property will cause a substantial hardship to the claimant.
(4) In determining whether a substantial hardship exists, the court shall weigh the claimant's likely hardship from the state's or political subdivision's continued possession of the property against the risk that the property will be destroyed, damaged, lost, concealed, or transferred if returned to the claimant. The court shall consider in favor of release the possibility that withholding the property would prevent a legitimate business from functioning, prevent the claimant's or an innocent person from maintaining employment, or leave the claimant or an innocent person homeless.
(5) If the state or political subdivision shows that the claimant's petition is frivolous, the court shall deny the petition. Otherwise, the state or political subdivision may respond to the petition by submitting evidence ex parte to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending trial.
(6) The court shall decide on the petition not more than thirty days after it is filed. If the property seized is alleged to be a mobile instrumentality, the court shall decide on the petition as soon as practicable within the thirty-day period. If personal, business, or governmental records were seized and a person files a petition to copy the records, the court shall decide on the petition as soon as practicable. In any case, the court may extend the time for deciding on the petition by consent of the parties or for good cause shown.
(E) Nothing in this section precludes a financial institution that has or purports to have a security interest in or lien on property described in section 2981.02 of the Revised Code from filing an action in connection with the property, prior to its disposition under this chapter, to obtain possession of the property in order to foreclose or otherwise enforce the security interest or lien.
If a financial institution commences a civil action or takes any other appropriate legal action to sell the property prior to its seizure or prior to its disposition under this chapter, if the person who is responsible for conducting the sale has actual knowledge of the commencement of a forfeiture action under either section 2981.04 or 2981.05 of the Revised Code, and if the property is sold, then the person shall dispose of the proceeds of the sale in the following order:
(1) First, to the payment of the costs of the sale, excluding any associated attorney's fees, and to the payment of the costs incurred by law enforcement agencies and financial institutions in connection with the seizure, storage, and maintenance of, and provision of security for, the property;
(2) Second, in the order of priority of the security interests and liens, to the payment of valid security interests and liens pertaining to the property that, at the time at which the state or political subdivision gains provisional title, are held by known secured parties and lienholders;
(3) Third, to the court that has or would have jurisdiction in a case or proceeding under section 2981.04 or section 2981.05 of the Revised Code for disposition under this chapter.
(F) A prosecutor may file a forfeiture action under section 2981.04 or 2981.05 of the Revised Code, or both. If property is seized pursuant to this section and a criminal forfeiture has not begun under section 2981.04 of the Revised Code, the prosecutor of the county in which the seizure occurred shall commence a civil action to forfeit that property under section 2981.05 of the Revised Code.
If the property seized includes property alleged to be a mobile instrumentality or includes personal, business, or governmental records, the civil forfeiture action shall be brought within thirty days of seizure. Otherwise, the action shall be brought within sixty days of seizure. In either case, the period within which the action shall be brought may be extended by agreement of the parties or by the court for good cause shown.
A prosecutor may file an appropriate charging instrument under section 2981.04 of the Revised Code to seek a criminal forfeiture after a civil forfeiture action begins. Filing a charging instrument for an offense that is also the basis of a civil forfeiture action shall stay the civil action.
A civil action to obtain civil forfeiture may be commenced as described in section 2981.05 of the Revised Code regardless of whether the offender or delinquent child has pleaded guilty to, been convicted of, or been adjudicated a delinquent child for the act that is the basis of the order.
(G) The prosecutor shall maintain an accurate record of each item disposed of under section 2981.04 or 2981.05 of the Revised Code. The record shall not identify or enable the identification of the officer who seized the property. The record is a public record open for inspection under section 149.43 of the Revised Code.
Sec. 2981.04. (A)(1) Property described in division (A) of section 2981.02 of the Revised Code may be forfeited under this section only if the complaint, indictment, or information charging the offense or municipal violation, or the complaint charging the delinquent act, contains a specification of the type described in section 2941.1417 of the Revised Code that sets forth all of the following to the extent it is reasonably known at the time of the filing:
(a) The nature and extent of the alleged offender's or delinquent child's interest in the property;
(b) A description of the property;
(c) If the property is alleged to be an instrumentality, the alleged use or intended use of the property in the commission or facilitation of the offense.
(2) If any property is not reasonably foreseen to be subject to forfeiture at the time of filing the indictment, information, or complaint, the trier of fact still may return a verdict of forfeiture concerning that property in the hearing described in division (B) of this section if the prosecutor, upon discovering the property to be subject to forfeiture, gave prompt notice of this fact to the alleged offender or delinquent child under Criminal Rule 7(E) or Juvenile Rule 10(B).
(3) For good cause shown, the court may consider issues of the guilt of the alleged offender or the delinquency of the alleged delinquent child separate from whether property specified as subject to forfeiture should be forfeited.
(B) If a person pleads guilty to or is convicted of an offense or is adjudicated a delinquent child for committing a delinquent act and the complaint, indictment, or information charging the offense or act contains a specification covering property subject to forfeiture under section 2981.02 of the Revised Code, the trier of fact shall determine whether the person's property shall be forfeited. If the state or political subdivision proves by a preponderance of the evidence that the property is in whole or part subject to forfeiture under section 2981.02 of the Revised Code, after a proportionality review under section 2981.09 of the Revised Code when relevant, the trier of fact shall return a verdict of forfeiture that specifically describes the extent of the property subject to forfeiture. If the trier of fact is a jury, on the offender's or delinquent child's motion, the court shall make the determination of whether the property shall be forfeited.
(C) If the court enters a verdict of forfeiture under this section, the court imposing sentence or disposition, in addition to any other sentence authorized by Chapter 2929. of the Revised Code or any disposition authorized by Chapter 2152. of the Revised Code, shall order that the offender or delinquent child forfeit to the state or political subdivision the offender's or delinquent child's interest in the property. The property vests with the state or political subdivision subject to the claims of third parties. The court may issue any additional order to affect the forfeiture, including, but not limited to, an order under section 2981.06 of the Revised Code.
(D) After the entry of a forfeiture order under this section, the prosecutor shall attempt to identify any person with an interest in the property subject to forfeiture by searching appropriate public records and making reasonably diligent inquiries. The prosecutor shall give notice of the forfeiture that remains subject to the claims of third parties and proposed disposal of the forfeited property to any person known to have an interest in the property. The prosecutor also shall publish notice of the forfeiture that remains subject to the claims of third parties and proposed disposal of the forfeited property once each week for two consecutive weeks in a newspaper of general circulation in the county in which the property was seized.
(E)(1) Any person, other than the offender or delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the forfeiture order, who asserts a legal interest in the property that is the subject of the order may petition the court that issued the order for a hearing under division (E)(3) of this section to adjudicate the validity of the person's alleged interest in the property. All of the following apply to the petition:
(a) It shall be filed within thirty days after the final publication of notice or the person's receipt of notice under division (D) of this section.
(b) It shall be signed by the petitioner under the penalties for falsification specified in section 2921.13 of the Revised Code.
(c) It shall describe the nature and extent of the petitioner's interest in the property, the time and circumstances of the petitioner's acquisition of that interest, any additional facts supporting the petitioner's claim, and the relief sought.
(2)(a) In lieu of filing a petition as described in division (E)(1) of this section, a person, other than the offender or delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the forfeiture order, may file an affidavit as described in this division to establish the validity of the alleged right, title, or interest in the property that is the subject of the forfeiture order if the person is a secured party or other lienholder of record that asserts a legal interest in the property, including, but not limited to, a mortgage, security interest, or other type of lien. The affidavit shall contain averments that the secured party or other lienholder acquired its alleged right, title, or interest in the property in the regular course of its business, for a specified valuable consideration, without actual knowledge of any facts pertaining to the offense that was the basis of the forfeiture order, in good faith, and without the intent to prevent or otherwise impede the state or political subdivision from seizing or obtaining a forfeiture of the property. The person shall file the affidavit within thirty days after the earlier of the final publication of notice or the receipt of notice under division (D) of this section.
(b) Except as otherwise provided in this section, the affidavit shall constitute prima-facie evidence of the validity of the affiant's alleged interest in the property.
(c) Unless the prosecutor files a motion challenging the affidavit within ten days after its filing and unless the prosecutor establishes by a preponderance of the evidence at the hearing held under division (E)(3) of this section that the affiant does not possess the alleged interest in the property or that the affiant had actual knowledge of facts pertaining to the offense or delinquent act that was the basis of the forfeiture order, the affidavit shall constitute conclusive evidence of the validity of the affiant's interest in the property.
(d) Any subsequent purchaser or other transferee of property pursuant to forfeiture under this section shall take the property subject to the continued validity of the interest of the affiant.
(3) Upon receipt of a petition or affidavit filed under division (E)(1) or (2) of this section, the court shall hold a hearing to determine the validity of the petitioner's interest in the property that is the subject of the forfeiture order or, if the affidavit was challenged, to determine the validity of the affiant's interest in the property. To the extent practicable and consistent with the interests of justice, the court shall hold the hearing within thirty days after the filing of the petition or within thirty days after the prosecutor files the motion challenging the affidavit. The court may consolidate the hearing with a
hearing on any other petition or affidavit that is filed by
a person
other than the offender or
delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the forfeiture order and that relates to the property that is the subject of the forfeiture order.
At the hearing, the petitioner or affiant may testify, present evidence and witnesses on the petitioner's or affiant's behalf, and cross-examine witnesses for the state or political subdivision. In regards to a petition, the state or political subdivision may present evidence and witnesses in rebuttal and in defense of its claim to the property and may cross-examine witnesses for the petitioner. In regards to an affidavit, the prosecutor may present evidence and witnesses and cross-examine witnesses for the affiant.
In addition to the evidence and testimony presented at the hearing, the court also shall consider the relevant portions of the record in the criminal or delinquent child case that resulted in the forfeiture order.
(F)(1) If the hearing involves a petition, the court shall amend its forfeiture order if it determines at the hearing held pursuant to division (E)(3) of this section that the petitioner has established either of the following by a preponderance of the evidence:
(a) The petitioner has a legal interest in the property that is subject to the forfeiture order that renders the order completely or partially invalid because the legal interest in the property was vested in the petitioner, rather than the offender or delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the order, or was superior to any interest of that offender or delinquent child, at the time of the commission of the offense or delinquent act that is the basis of the order.
(b) The petitioner is a bona fide purchaser for value of the interest in the property that is subject to the forfeiture order and was, at the time of the purchase, reasonably without cause to believe that it was subject to forfeiture.
(2) The court also shall amend its forfeiture order to reflect any interest of a secured party or other lienholder of
record in the property subject to forfeiture who prevails at a hearing on the petition or affidavit filed pursuant to division (E)(1) or (2) of this section.
(G) If the court disposes of all petitions or affidavits timely filed under this section in favor of the state or political subdivision, the state or political subdivision shall have clear title to the property that is the subject of a forfeiture order issued under this section, but only to the extent that other parties' lawful interests in the property are not infringed. To the extent that the state or political subdivision has clear title to the property, the state or political subdivision may warrant good title to any subsequent purchaser or other transferee.
Sec. 2981.05. (A) The prosecutor of the political subdivision in which property described in division (A) of section 2981.02 of the Revised Code is located may commence a civil forfeiture action under this section by filing in the court of common pleas of the county in which the property is located a complaint requesting an order that forfeits the property to the state or a political subdivision. The filing shall be consistent with division (F) of section 2981.03 of the Revised Code.
(B) Prior to or upon the commencement of a civil forfeiture action, the prosecutor shall attempt to identify any person with an interest in the property subject to forfeiture by searching appropriate public records and making reasonably diligent inquiries. The prosecutor shall give notice of the commencement of the civil action, together with a copy of the complaint, to each person who is reasonably known to have any interest in the property, by certified mail, return receipt requested, or by personal service. The prosecutor shall cause a similar notice to be published once each week for two consecutive weeks in a newspaper of general circulation in the county in which the property is located.
(C) A person with an interest in the property subject to forfeiture may petition the court to release the property pursuant to division (D) of section 2981.03 of the Revised Code. The court shall consider the petition as provided in that section. If a timely petition for pretrial hardship release is not filed, or if a petition is filed but not granted, the person may file a claim for the release of the property under the Rules of Civil Procedure. The court shall dispose of any petitions timely filed under this division.
(D) The court shall issue a civil forfeiture order if it determines that the prosecutor has proved by a preponderance of the evidence that the property is subject to forfeiture under section 2981.02 of the Revised Code, and, after a proportionality review under section 2981.09 of the Revised Code when relevant, the trier of fact specifically describes the extent of the property to be forfeited. A civil forfeiture order shall state that all interest in the property in question of the adult or juvenile who committed the act that is the basis of the order is forfeited to the state or political subdivision and shall make due provision for the interest in that property of any other person, when appropriate under this section. The court may issue any additional order to affect the forfeiture, including, but not limited to, one or more orders under section 2981.06 of the Revised Code.
(E) If the court disposes of all petitions timely filed under this section in favor of the state or political subdivision, the state or political subdivision shall have clear title to the property that is the subject of a forfeiture order under this section, but only to the extent that other parties' lawful interests in the property are not infringed. To the extent that the state or political subdivision has clear title to the property, the state or political subdivision may warrant good title to any subsequent purchaser or other transferee.
Sec. 2981.06. (A) Upon the entry of a forfeiture order under section 2981.04 or 2981.05 of the Revised Code, if necessary, the court shall order an appropriate law enforcement officer to seize the forfeited property on conditions that the court considers proper. If necessary, the court shall order the person in possession of the property to deliver the property by a specific date to the law enforcement agency involved in the initial seizure of the property. The court shall deliver the order by personal service or certified mail.
(B) With respect to property that is the subject of a forfeiture order issued under section 2981.04 or 2981.05 of the Revised Code, the court that issued the order, upon petition of the prosecutor who prosecuted the underlying offense or act or brought the civil forfeiture action, may do any of the following:
(1) Enter any appropriate restraining orders or injunctions; require execution of satisfactory performance bonds; appoint receivers, conservators, appraisers, accountants, or trustees; or take any other action necessary to safeguard and maintain the forfeited property;
(2) Authorize the payment of rewards to persons who provide information resulting in forfeiture of the property under this chapter from funds provided under division (F) of section 2981.12 of the Revised Code;
(3) Authorize the prosecutor to settle claims;
(4) Restore forfeited property to victims and grant petitions for mitigation or remission of forfeiture;
(5) Authorize a stay of the forfeiture order pending appeal or resolution of any claim to the property if requested by a person other than the defendant or a person acting in concert with, or on behalf of, the defendant.
(C) To facilitate the identification and location of property that is the subject of a forfeiture order and to facilitate the disposition of petitions for remission or mitigation issued under this section, after the issuance of a forfeiture order and upon application by the prosecutor, the court, consistent with the Civil Rules, may order that the testimony of any witness relating to the forfeited property be taken by deposition and that any designated material that is not privileged be produced at the same time and place as the testimony.
(D) The court shall order forfeiture of any other property of the offender or delinquent child up to the value of the unreachable property if any of the following describe any property subject to a forfeiture order under section 2981.04 or 2981.05 of the Revised Code:
(1) It cannot be located through due diligence.
(2) It has been transferred, sold, or deposited with a third party.
(3) It has been placed beyond the jurisdiction of the court.
(4) It has been substantially diminished in value or has been commingled with other property and cannot be divided without difficulty or undue injury to innocent persons.
(E) After the state or political subdivision is granted clear title under section 2981.04 or 2981.05 of the Revised Code, the prosecutor shall direct disposition of the property pursuant to this chapter, making due provisions for the rights of innocent persons.
(F) Any interest in property not exercisable by, or transferable for value to, the state or political subdivision shall expire and shall not revert to the offender or delinquent child who forfeited the property. The offender or delinquent child is not eligible to purchase the property at a sale under this chapter.
(G) Any income accruing to or derived from forfeited property may be used to offset ordinary and necessary expenses related to the property that are required by law or necessary to protect the interest of the state, political subdivision, or third parties.
Sec. 2981.07. (A) No person shall destroy, damage, remove, or transfer property that is subject to forfeiture or otherwise take any action in regard to property that is subject to forfeiture with purpose to do any of the following:
(1) Prevent or impair the state's or political subdivision's lawful authority to take the property into its custody or control under this chapter or to continue holding the property under its lawful custody or control;
(2) Impair or defeat the court's continuing jurisdiction over the person and property;
(3) Devalue property that the person knows, or has reasonable cause to believe, is subject to forfeiture proceedings under this chapter.
(B)(1) Whoever violates this section is guilty of interference with or diminishing forfeitable property.
(2) Except as otherwise provided in divisions (B)(3), (4), and (5) of this section, interference with or diminishing forfeitable property is a misdemeanor of the first degree.
(3) If the value of the property is five hundred dollars or more but less than five thousand dollars, interference with or diminishing forfeitable property is a felony of the fifth degree.
(4) If the value of the property is five thousand dollars or more but less than one hundred thousand dollars, interference with or diminishing forfeitable property is a felony of the fourth degree.
(5) If the value of the property is one hundred thousand dollars or more, interference with or diminishing forfeitable property is a felony of the third degree.
Sec. 2981.08. Parties to a forfeiture action under this chapter have a right to trial by jury as follows:
(A) In a criminal forfeiture action, the defendant has the right to trial by jury.
(B) In a civil forfeiture action, the defendant, the state or political subdivision, and third party claimants have the right to trial by jury.
Sec. 2981.09. (A) Property may not be forfeited as an instrumentality under this chapter to the extent that the amount or value of the property is disproportionate to the severity of the offense. The owner of the property shall have the burden of going forward with the evidence and the burden to prove by a preponderance of the evidence that the amount or value of the property subject to forfeiture is disproportionate to the severity of the offense.
(B) Contraband and any proceeds obtained from the offense are not subject to proportionality review under this section.
(C) In determining the severity of the offense for purposes of forfeiture of an instrumentality, the court shall consider all relevant factors including, but not limited to, the following:
(1) The seriousness of the offense and its impact on the community, including the duration of the activity and the harm caused or intended by the person whose property is subject to forfeiture;
(2) The extent to which the person whose property is subject to forfeiture participated in the offense;
(3) Whether the offense was completed or attempted.
(D) In determining the value of the property that is an instrumentality and that is subject to forfeiture, the court shall consider relevant factors including, but not limited to, the following:
(1) The fair market value of the property;
(2) The value of the property to the person whose property is subject to forfeiture, including hardship to the person or to innocent persons if the property were forfeited.
Sec. 2981.11. (A)(1) Any property that has been lost, abandoned, stolen, seized pursuant to a search warrant, or otherwise lawfully seized or forfeited and that is in the custody of a law enforcement agency shall be kept safely by the agency, pending the time it no longer is needed as evidence or for another lawful purpose, and shall be disposed of pursuant to sections 2981.12 and 2981.13 of the Revised Code.
(2) This chapter does not apply to the custody and disposal of any of the following:
(a) Vehicles subject to forfeiture under Title XLV of the Revised Code, except as provided in division (A)(6) of section 2981.12 of the Revised Code;
(b) Abandoned junk motor vehicles or other property of negligible value;
(c) Property held by a department of rehabilitation and correction institution that is unclaimed, that does not have an identified owner, that the owner agrees to dispose of, or that is identified by the department as having little value;
(d) Animals taken, and devices used in unlawfully taking animals, under section 1531.20 of the Revised Code;
(e) Controlled substances sold by a peace officer in the performance of the officer's official duties under section 3719.141 of the Revised Code;
(f) Property recovered by a township law enforcement agency under sections 505.105 to 505.109 of the Revised Code;
(g) Property held and disposed of under an ordinance of the municipal corporation or under sections 737.29 to 737.33 of the Revised Code, except that a municipal corporation that has received notice of a citizens' reward program as provided in division (F) of section 2981.12 of the Revised Code and disposes of property under an ordinance shall pay twenty-five per cent of any moneys acquired from any sale or auction to the citizens' reward program.
(B)(1) Each law enforcement agency that has custody of any property that is subject to this section shall adopt and comply with a written internal control policy that does all of the following:
(a) Provides for keeping detailed records as to the amount of property acquired by the agency and the date property was acquired;
(b) Provides for keeping detailed records of the disposition of the property, which shall include, but not be limited to, both of the following:
(i) The manner in which it was disposed, the date of disposition, detailed financial records concerning any property sold, and the name of any person who received the property. The record shall not identify or enable identification of the individual officer who seized any item of property.
(ii) The general types of expenditures made with amounts that are gained from the sale of the property and that are retained by the agency, including the specific amount expended on each general type of expenditure, except that the policy shall not provide for or permit the identification of any specific expenditure that is made in an ongoing investigation.
(c) Complies with section 2981.13 of the Revised Code if the agency has a law enforcement trust fund or similar fund created under that section.
(2) Each law enforcement agency that during any calendar year has any seized or forfeited property covered by this section in its custody, including amounts distributed under section 2981.13 of the Revised Code to its law enforcement trust fund or a similar fund created for the state highway patrol, department of public safety, or state board of pharmacy, shall prepare a report covering the calendar year that cumulates all of the information contained in all of the public records kept by the agency pursuant to this section for that calendar year. The agency shall send a copy of the cumulative report to the attorney general not later than the first day of March in the calendar year following the calendar year covered by the report.
(3) The records kept under the internal control policy shall be open to public inspection during the agency's regular business hours. The policy adopted under this section and each report received by the attorney general is a public record open for inspection under section 149.43 of the Revised Code.
(4) Not later than the fifteenth day of April in each calendar year in which reports are sent to the attorney general under division (B)(2) of this section, the attorney general shall send to the president of the senate and the speaker of the house of representatives a written notice that indicates that the attorney general received reports that cover the previous calendar year, that the reports are open for inspection under section 149.43 of the Revised Code, and that the attorney general will provide a copy of any or all of the reports to the president of the senate or the speaker of the house of representatives upon request.
(C) A law enforcement agency with custody of property to be disposed of under section 2981.12 or 2981.13 of the Revised Code shall make a reasonable effort to locate persons entitled to possession of the property, to notify them of when and where it may be claimed, and to return the property to them at the earliest possible time. In the absence of evidence identifying persons entitled to possession, it is sufficient notice to advertise in a newspaper of general circulation in the county and to briefly describe the nature of the property in custody and inviting persons to view and establish their right to it.
(D) As used in sections 2981.11 to 2981.13 of the Revised Code:
(1) "Citizens' reward program" has the same meaning as in section 9.92 of the Revised Code.
(2) "Law enforcement agency" includes correctional institutions.
(3) "Township law enforcement agency" means an organized police department of a township, a township police district, a joint township police district, or the office of a township constable.
Sec. 2981.12. (A) Unclaimed or forfeited property in the custody of a law enforcement agency, other than property described in division (A)(2) of section 2981.11 of the Revised Code, shall be disposed of by order of any court of record that has territorial jurisdiction over the political subdivision that employs the law enforcement agency, as follows:
(1) Drugs shall be disposed of pursuant to section 3719.11 of the Revised Code or placed in the custody of the secretary of the treasury of the United States for disposal or use for medical or scientific purposes under applicable federal law.
(2) Firearms and dangerous ordnance suitable for police work may be given to a law enforcement agency for that purpose. Firearms suitable for sporting use or as museum pieces or collectors' items may be sold at public auction pursuant to division (B) of this section. The agency shall destroy other firearms and dangerous ordnance or shall send them to the bureau of criminal identification and investigation for destruction by the bureau.
(3) Obscene materials shall be destroyed.
(4) Beer, intoxicating liquor, or alcohol seized from a person who does not hold a permit issued under Chapters 4301. and 4303. of the Revised Code or otherwise forfeited to the state for an offense under section 4301.45 or 4301.53 of the Revised Code shall be sold by the division of liquor control if the division determines that it is fit for sale or shall be placed in the custody of the investigations unit in the department of public safety and be used for training relating to law enforcement activities. The department, with the assistance of the division of liquor control, shall adopt rules in accordance with Chapter 119. of the Revised Code to provide for the distribution to state or local law enforcement agencies upon their request. If any tax imposed under Title XLIII of the Revised Code has not been paid in relation to the beer, intoxicating liquor, or alcohol, any moneys acquired from the sale shall first be used to pay the tax. All other money collected under this division shall be paid into the state treasury. Any beer, intoxicating liquor, or alcohol that the division determines to be unfit for sale shall be destroyed.
(5) Money received by an inmate of a correctional institution from an unauthorized source or in an unauthorized manner shall be returned to the sender, if known, or deposited in the inmates' industrial and entertainment fund of the institution if the sender is not known.
(6)(a) Any mobile instrumentality forfeited under this chapter may be given to the law enforcement agency that initially seized the mobile instrumentality for use in performing its duties, if the agency wants the mobile instrumentality. The agency shall take the mobile instrumentality subject to any security interest or lien on the mobile instrumentality.
(b) Vehicles and vehicle parts forfeited under sections 4549.61 to 4549.63 of the Revised Code may be given to a law enforcement agency for use in performing its duties. Those parts may be incorporated into any other official vehicle. Parts that do not bear vehicle identification numbers or derivatives of them may be sold or disposed of as provided by rules of the director of public safety. Parts from which a vehicle identification number or derivative of it has been removed, defaced, covered, altered, or destroyed and that are not suitable for police work or incorporation into an official vehicle shall be destroyed and sold as junk or scrap.
(7) Computers, computer networks, computer systems, and computer software suitable for police work may be given to a law enforcement agency for that purpose or disposed of under division (B) of this section.
(B) Unclaimed or forfeited property that is not described in division (A) of this section or division (A)(2) of section 2981.11 of the Revised Code, with court approval, may be used by the law enforcement agency in possession of it. If it is not used by the agency, it may be sold without appraisal at a public auction to the highest bidder for cash or disposed of in another manner that the court considers proper.
(C) Except as provided in divisions (A) and (F) of this section and after compliance with division (D) of this section when applicable, any moneys acquired from the sale of property disposed of pursuant to this section shall be placed in the general revenue fund of the state, or the general fund of the county, the township, or the municipal corporation of which the law enforcement agency involved is an agency.
(D) If the property was in the possession of the law enforcement agency in relation to a delinquent child proceeding in a juvenile court, ten per cent of any moneys acquired from the sale of property disposed of under this section shall be applied to one or more alcohol and drug addiction treatment programs that are certified by the department of alcohol and drug addiction services under section 3793.06 of the Revised Code. A juvenile court shall not specify a program, except as provided in this division, unless the program is in the same county as the court or in a contiguous county. If no certified program is located in any of those counties, the juvenile court may specify a certified program anywhere in Ohio. The remaining ninety per cent of the proceeds or cash shall be applied as provided in division (C) of this section.
Each treatment program that receives in any calendar year forfeited money under this division shall file an annual report for that year with the attorney general and with the court of common pleas and board of county commissioners of the county in which the program is located and of any other county from which the program received forfeited money. The program shall file the report on or before the first day of March in the calendar year following the calendar year in which the program received the money. The report shall include statistics on the number of persons the program served, identify the types of treatment services it provided to them, and include a specific accounting of the purposes for which it used the money so received. No information contained in the report shall identify, or enable a person to determine the identity of, any person served by the program.
(E) Each certified alcohol and drug addiction treatment program that receives in any calendar year money under this section or under section 2981.13 of the Revised Code as the result of a juvenile forfeiture order shall file an annual report for that calendar year with the attorney general and with the court of common pleas and board of county commissioners of the county in which the program is located and of any other county from which the program received the money. The program shall file the report on or before the first day of March in the calendar year following the year in which the program received the money. The report shall include statistics on the number of persons served with the money, identify the types of treatment services provided, and specifically account for how the money was used. No information in the report shall identify or enable a person to determine the identity of anyone served by the program.
As used in this division, "juvenile-related forfeiture order" means any forfeiture order issued by a juvenile court under section 2981.04 or 2981.05 of the Revised Code and any disposal of property ordered by a court under section 2981.11 of the Revised Code regarding property that was in the possession of a law enforcement agency in relation to a delinquent child proceeding in a juvenile court.
(F) Each board of county commissioners that recognizes a citizens' reward program under
section 9.92 of the Revised Code shall notify each law enforcement agency of that county and of a township or municipal corporation wholly located in that county of the
recognition by filing a copy of its resolution conferring that recognition with each of those agencies. When the board recognizes a citizens' reward program and the county includes a part, but not all, of the territory of a municipal corporation, the board shall so notify the law enforcement agency of that municipal corporation of the recognition of the citizens' reward program only if the county contains the highest percentage of the municipal corporation's population.
Upon being so notified, each law enforcement agency shall pay twenty-five per cent of any forfeited proceeds or cash derived from each sale of property disposed of pursuant to this section to the citizens' reward program for use exclusively to pay rewards. No part of the funds may be used to pay expenses associated with the program. If a citizens' reward program that operates in more than one county or in another state in addition to this state receives funds under this section, the funds shall be used to pay rewards only for tips and information to law enforcement agencies concerning offenses committed in the county from which the funds were received.
Receiving funds under this section or section 2981.11 of the Revised Code does not make the citizens' reward program a governmental unit or public office for purposes of section 149.43 of the Revised Code.
(G) Any property forfeited under this chapter shall not be used to pay any fine imposed upon a person who is convicted of or pleads guilty to an underlying criminal offense or a different offense arising out of the same facts and circumstances.
Sec. 2981.13. (A) Except as otherwise provided in this section, property ordered forfeited as contraband, proceeds, or an instrumentality pursuant to this chapter shall be disposed of, used, or sold pursuant to section 2981.12 of the Revised Code. If the property is to be sold under that section, the prosecutor shall cause notice of the proposed sale to be given in accordance with law.
(B) If the contraband or instrumentality forfeited under this chapter is sold, any moneys acquired from a sale and any proceeds forfeited under this chapter shall be applied in the following order:
(1) First, to pay costs incurred in the seizure, storage, maintenance, security, and sale of the property and in the forfeiture proceeding;
(2) Second, in a criminal forfeiture case, to satisfy any restitution ordered to the victim of the offense or, in a civil forfeiture case, to satisfy any recovery ordered for the person harmed, unless paid from other assets;
(3) Third, to pay the balance due on any security interest preserved under this chapter;
(4) Fourth, apply the remaining amounts as follows:
(a) If the forfeiture was ordered by a juvenile court, ten per cent to one or more certified alcohol and drug addiction treatment programs as provided in division (D) of section 2981.12 of the Revised Code;
(b) If the forfeiture was ordered in a juvenile court, ninety per cent, and if the forfeiture was ordered in a court other than a juvenile court, one hundred per cent to the law enforcement trust fund of the prosecutor and to the following fund supporting the law enforcement agency that substantially conducted the investigation: the law enforcement trust fund of the county sheriff, municipal corporation, township, or park district created under section 511.18 or 1545.01 of the Revised Code; the state highway patrol contraband, forfeiture, and other fund; the department of public safety investigative unit contraband, forfeiture, and other fund; the board of pharmacy drug law enforcement fund created by division (B)(1) of section 4729.65 of the Revised Code; the medicaid fraud investigation and prosecution fund; or the treasurer of state for deposit into the peace officer training commission fund if any other state law enforcement agency substantially conducted the investigation. In the case of property forfeited for medicaid fraud, any remaining amount shall be used by the attorney general to investigate and prosecute medicaid fraud offenses.
If the prosecutor declines to accept any of the remaining amounts, the amounts shall be applied to the fund of the agency that substantially conducted the investigation.
(c) If more than one law enforcement agency is substantially involved in the seizure of property forfeited under this chapter, the court ordering the forfeiture shall equitably divide the amounts, after calculating any distribution to the law enforcement trust fund of the prosecutor pursuant to division (B)(4) of this section, among the entities that the court determines were substantially involved in the seizure.
(C)(1) A law enforcement trust fund shall be established by the prosecutor of each county who intends to receive any remaining amounts pursuant to this section, by the sheriff of each county, by the legislative authority of each municipal corporation, by the board of township trustees of each township that has a township police department, township police district police force, or office of the constable, and by the board of park commissioners of each park district created pursuant to section 511.18 or 1545.01 of the Revised Code that has a park district police force or law enforcement department, for the purposes of this section.
There is hereby created in the state treasury the state highway patrol contraband, forfeiture, and other fund, the department of public safety investigative unit contraband, forfeiture, and other fund, the medicaid fraud investigation and prosecution fund, and the peace officer training commission fund, for the purposes of this section.
Amounts distributed to any municipal corporation, township, or park district law enforcement trust fund shall be allocated from the fund by the legislative authority only to the police department of the municipal corporation, by the board of township trustees only to the township police department, township police district police force, or office of the constable, and by the board of park commissioners only to the park district police force or law enforcement department.
(2)(a) No amounts shall be allocated to a fund created under this section or used by an agency unless the agency has adopted a written internal control policy that addresses the use of moneys received from the appropriate fund.
The appropriate fund shall be expended only in accordance with that policy and, subject to the requirements specified in this section, only for the following purposes:
(i) To pay the costs of protracted or complex investigations or prosecutions;
(ii) To provide reasonable technical training or expertise;
(iii) To provide matching funds to obtain federal grants to aid law enforcement, in the support of DARE programs or other programs designed to educate adults or children with respect to the dangers associated with the use of drugs of abuse;
(iv) To pay the costs of emergency action taken under section 3745.13 of the Revised Code relative to the operation of an illegal methamphetamine laboratory if the forfeited property or money involved was that of a person responsible for the operation of the laboratory;
(v) For other law enforcement purposes that the superintendent of the state highway patrol, department of public safety, prosecutor, county sheriff, legislative authority, board of township trustees, or board of park commissioners determines to be appropriate.
(b) The board of pharmacy drug law enforcement fund shall be expended only in accordance with the written internal control policy so adopted by the board and only in accordance with section 4729.65 of the Revised Code, except that it also may be expended to pay the costs of emergency action taken under section 3745.13 of the Revised Code relative to the operation of an illegal methamphetamine laboratory if the forfeited property or money involved was that of a person responsible for the operation of the laboratory.
(c) The state highway patrol contraband, forfeiture, and other fund, the department of public safety investigative unit contraband, forfeiture, and other fund, the board of pharmacy drug law enforcement fund, and a law enforcement trust fund shall not be used to meet the operating costs of the state highway patrol, of the investigative unit of the department of public safety, of the state board of pharmacy, of any political subdivision, or of any office of a prosecutor or county sheriff that are unrelated to law enforcement.
(d) Forfeited moneys that are paid into the state treasury to be deposited into the peace officer training commission fund shall be used by the commission only to pay the costs of peace officer training.
(3) Any of the following offices or agencies that receive amounts under this section during any calendar year shall file a report with the specified entity, not later than the thirty-first day of January of the next calendar year, verifying that the moneys were expended only for the purposes authorized by this section or other relevant statute and specifying the amounts expended for each authorized purpose:
(a) Any sheriff or prosecutor shall file the report with the county auditor.
(b) Any municipal corporation police department shall file the report with the legislative authority of the municipal corporation.
(c) Any township police department, township police district police force, or office of the constable shall file the report with the board of township trustees of the township.
(d) Any park district police force or law enforcement department shall file the report with the board of park commissioners of the park district.
(e) The superintendent of the state highway patrol shall file the report with the attorney general.
(f) The executive director of the state board of pharmacy shall file the report with the attorney general, verifying that cash and forfeited proceeds paid into the board of pharmacy drug law enforcement fund were used only in accordance with section 4729.65 of the Revised Code.
(g) The peace officer training commission shall file a report with the attorney general, verifying that cash and forfeited proceeds paid into the peace officer training commission fund pursuant to this section during the prior calendar year were used by the commission during the prior calendar year only to pay the costs of peace officer training.
(D) The written internal control policy of a county sheriff, prosecutor, municipal corporation police department, township police department, township police district police force, office of the constable, or park district police force or law enforcement department shall provide that at least ten per cent of the first one hundred thousand dollars of amounts deposited during each calendar year in the agency's law enforcement trust fund under this section, and at least twenty per cent of the amounts exceeding one hundred thousand dollars that are so deposited, shall be used in connection with community preventive education programs. The manner of use shall be determined by the sheriff, prosecutor, department, police force, or office of the constable after receiving and considering advice on appropriate community preventive education programs from the county's board of alcohol, drug addiction, and mental health services, from the county's alcohol and drug addiction services board, or through appropriate community dialogue.
The financial records kept under the internal control policy shall specify the amount deposited during each calendar year in the portion of that amount that was used pursuant to this division, and the programs in connection with which the portion of that amount was so used.
As used in this division, "community preventive education programs" include, but are not limited to, DARE programs and other programs designed to educate adults or children with respect to the dangers associated with using drugs of abuse.
(E) Upon the sale, under this section or section 2981.12 of the Revised Code, of any property that is required by law to be titled or registered, the state shall issue an appropriate certificate of title or registration to the purchaser. If the state is vested with title and elects to retain property that is required to be titled or registered under law, the state shall issue an appropriate certificate of title or registration.
(F) Any failure of a law enforcement officer or agency, prosecutor, court, or the attorney general to comply with this section in relation to any property seized does not affect the validity of the seizure and shall not be considered to be the basis for suppressing any evidence resulting from the seizure, provided the seizure itself was lawful.
Sec. 2981.14. (A) Nothing in this chapter precludes the head of a law enforcement agency that seizes property from seeking forfeiture under federal law. If the property is forfeitable under this chapter and federal forfeiture is not sought, the property is subject only to this chapter.
(B) Any law enforcement agency that receives moneys from a sale of forfeited property under federal law shall deposit, use, and account for the amounts, including any interest derived, in accordance with applicable federal law. If the state highway patrol or the investigative unit of the department of public safety receives such federal forfeiture moneys, the appropriate official shall deposit all interest or other earnings derived from the investment of the moneys into the contraband, forfeiture, and other fund of the highway patrol or the department, whichever is appropriate.
Sec. 3719.11. All controlled substances, the lawful
possession of which is not established or the title to which
cannot be ascertained, that have come into the custody of
a peace officer, shall be forfeited pursuant to sections 2923.44 to
2923.47, 2925.41 to 2925.45, 2933.41, or 2933.43 Chapter 2981. of the Revised Code,
and, unless any
such section provides for a different manner of disposition,
shall be disposed of as follows:
(A) The court or magistrate having jurisdiction shall
order the controlled substances forfeited and destroyed. The
agency served by the peace officer who obtained or took custody
of the controlled substances may destroy them or may send them to
the bureau of criminal identification and investigation for
destruction by it. A record of the place where the controlled
substances were seized, of the kinds and quantities of controlled
substances so destroyed, and of the time, place, and manner of
destruction, shall be kept, and a return under oath, reporting
the destruction, shall be made by the officer who destroys them
to the court or magistrate and to the United States director,
bureau of narcotics and dangerous drugs.
(B) Upon written application by the department of health,
the court or magistrate that ordered the forfeiture of the
controlled substances may order the delivery of any of them,
except heroin and its salts and derivatives, to the department
for distribution or destruction as provided in this section.
(C) Upon application by any hospital within this state
that is not operated for private gain, the department of health
may deliver any controlled substances that have come into its
custody pursuant to this section to the applicant for medicinal
use. The department may deliver excess stocks of the controlled
substances to the United States director, bureau of narcotics and
dangerous drugs, or may destroy the excess stocks.
(D) The department of health shall keep a complete record
of all controlled substances received pursuant to this section
and of all controlled substances disposed of pursuant to this
section, showing all of the following:
(1) The exact kinds, quantities, and forms of the
controlled substances;
(2) The persons from whom they were received and to whom
they were delivered;
(3) By whose authority they were received, delivered, or
destroyed;
(4) The dates of their receipt, delivery, or destruction.
(E) The record required by this section shall be open to
inspection by all federal and state officers charged with the
enforcement of federal and state narcotic and drug abuse control
laws.
Sec. 3719.141. (A) A peace officer may sell any
controlled substance in the performance of the officer's official
duties only if either of the following applies:
(1) A peace officer may sell any controlled substance in
the performance of the officer's official duties if all of the
following apply:
(a) Prior approval for the sale has been given by the
prosecuting attorney of the county in which the sale takes place,
in any manner described in division (B) of this section;
(b) The peace officer who makes the sale determines that
the sale is necessary in the performance of the officer's official
duties;
(c) Any of the following applies:
(i) The person to whom the sale is made or any other
person who is involved in the sale does not know that the officer
who makes the sale is a peace officer, and the peace officer who
makes the sale determines that the sale is necessary to prevent
the person from determining or suspecting that the officer who
makes the sale is a peace officer.
(ii) The peace officer who makes the sale determines that
the sale is necessary to preserve an identity that the peace
officer who makes the sale has assumed in the performance of the officer's
official duties.
(iii) The sale involves a controlled substance that,
during the course of another sale, was intercepted by the peace
officer who makes the sale or any other peace officer who serves
the same agency served by the peace officer who makes the sale;
the intended recipient of the controlled substance in the other
sale does not know that the controlled substance has been so
intercepted; the sale in question is made to the intended
recipient of the controlled substance in the other sale and is
undertaken with the intent of obtaining evidence of a drug abuse
offense against the intended recipient of the controlled
substance; and the sale in question does not involve the transfer
of any money or other thing of value to the peace officer who
makes the sale or any other peace officer who serves the same
agency served by the peace officer who makes the sale in exchange
for the controlled substance.
(d) If the sale is made under the circumstances described
in division (A)(1)(c)(i) or (ii) of this section, no person is
charged with any criminal offense or any delinquent act based
upon the sale unless both of the following apply:
(i) The person also is charged with a criminal offense or
a delinquent act that is based upon an act or omission that is
independent of the sale but that either is connected together
with the sale, or constitutes a part of a common scheme or plan
with the sale, or is part of a course of criminal conduct
involving the sale.
(ii) The criminal offense or delinquent act based upon the
sale and the other criminal offense or delinquent act are charged
in the same indictment, information, or complaint.
(e) The sale is not part of a continuing course of conduct
involving the sale of controlled substances by the peace officer
who makes the sale.
(f) The amount of the controlled substance sold and the
scope of the sale of the controlled substance is as limited as
possible under the circumstances.
(g) Prior to the sale, the law enforcement agency served
by the peace officer who makes the sale has adopted a written
internal control policy that does all of the following:
(i) Addresses the keeping of detailed records as to the
amount of money or other things of value obtained in the sale in
exchange for the controlled substance;
(ii) Addresses the delivery of all moneys or things of
value so obtained to the prosecuting attorney pursuant to
division (D) of this section;
(iii) Addresses the agency's use and disposition of all
such moneys or things of value that are deposited in the law
enforcement trust fund of the sheriff, municipal corporation, or
township, pursuant to division (D) of this section, and that are
used by the sheriff, are allocated to the police department of
the municipal corporation by its legislative authority, or are
allocated by the board of township trustees to the township
police department, township police district police force, or
office of the constable;
(iv) Provides for the keeping of detailed financial
records of the receipts of the proceeds, the general types of
expenditures made out of the proceeds received, and the specific
amount of each general type of expenditure. The policy shall not
provide for or permit the identification of any peace officer
involved in the sale, any information that is or may be needed in
an ongoing investigation, or any specific expenditure that is
made in an ongoing investigation.
(2) A peace officer may sell any controlled substance in
the performance of the officer's official duties if all of the
following apply:
(a) Prior approval for the sale has been given by the
prosecuting attorney of the county in which the sale takes place,
in any manner described in division (B) of this section;
(b) Prior to the sale, the law enforcement agency served
by the peace officer has adopted a written internal control
policy that does the things listed in divisions (A)(1)(g)(i) to
(iv) of this section;
(c) The purchaser of the controlled substance acquires
possession of it in the presence of the peace officer who makes
the sale.
(d) Upon the consummation of the sale, either of the
following occurs:
(i) The peace officer arrests the purchaser of the
controlled substance, recovers it and the proceeds of the sale,
and secures it and the proceeds as evidence to be used in a
subsequent prosecution.
(ii) The peace officer makes a reasonable, good faith
effort to arrest the purchaser of the controlled substance and to
recover the controlled substance and the proceeds of the sale,
but the officer is unable to make the arrest and recover all of the
controlled substance and proceeds for reasons beyond the officer's control,
and the peace officer secures all of the controlled substance
recovered and all of the proceeds recovered as evidence to be
used in a subsequent prosecution.
(B) The approval of a prosecuting attorney required by
division (A)(1)(a) or (2)(a) of this section may be in either of
the following forms:
(1) A general approval that is given by the prosecuting attorney
to the peace officer who makes the sale or to the law enforcement
agency served by that peace officer, that grants approval
only to that peace officer, and that grants approval for
any such sale that may be necessary, after the approval has been granted,
under the standards described in division (A)(1) or (2) of this section;
(2) A specific approval that is given by the prosecuting attorney
to the peace officer who makes the sale or to the law enforcement
agency served by that peace officer, and that grants approval
only to that peace officer and only for the particular sale in
question, under the standards described in division (A)(1) or (2)
of this section.
(C) If a peace officer sells a controlled substance in the
performance of the officer's official duties under division (A)(1)
or (2) of this section, the peace officer, within a reasonable time
after the sale, shall provide the prosecuting attorney who
granted approval for the sale with a written summary that
identifies the amount and type of controlled substance sold, the
circumstances of the sale, and the amount of any money or other
thing of value obtained in the sale in exchange for the
controlled substance. The summary shall not identify or enable
the identification of any peace officer involved in the sale and
shall not contain any information that is or may be needed in an
ongoing investigation.
(D)(1) Except as provided in division (D)(2) of this
section, if a peace officer sells a controlled substance in the
performance of the officer's official duties under division (A)(1)
or (2) of this section, the peace officer, as soon as possible after the
sale, shall deliver all money or other things of value obtained
in the sale in exchange for the controlled substance to the
prosecuting attorney who granted approval for the sale. The
prosecuting attorney shall safely keep all money and other things
of value the prosecuting attorney receives under this division for
use as evidence in
any criminal action or delinquency proceeding based upon the sale. All
money so received by a prosecuting attorney that no longer is
needed as evidence in any criminal action or delinquency proceeding
shall be deposited by the prosecuting attorney in the law
enforcement trust fund of the sheriff if the peace officer who
made the sale is the sheriff or a deputy sheriff or the law
enforcement trust fund of a municipal corporation or township if
it is served by the peace officer who made the sale, as
established pursuant to section 2933.43 2981.13 of the Revised Code, and
upon deposit shall be expended only as provided in that section. All other
things of value so received by a prosecuting attorney
that no longer are needed as evidence in any criminal action or
delinquency proceeding shall be disposed of, without appraisal,
at a public auction to the highest bidder for cash; the proceeds
of the sale shall be deposited by the prosecuting attorney in the
law enforcement trust fund of the sheriff if the peace officer
who made the sale is the sheriff or a deputy sheriff or the law
enforcement trust fund of a municipal corporation or township if
it is served by the peace officer who made the sale, as
established pursuant to section 2933.43 2981.13 of the Revised Code, and
upon deposit shall be expended only as provided in that section. Each law
enforcement agency that uses any money that was
deposited in a law enforcement trust fund pursuant to this
division shall comply with the written internal control policy
adopted by the agency, as required by division (A)(1)(g) or
(2)(b) of this section, in its use of the money.
(2) Division (D)(1) of this section does not apply in
relation to a peace officer who sells a controlled substance in
the performance of the officer's official duties under division
(A)(1) of this section in any of the following circumstances:
(a) The person to whom the sale is made or any other
person who is involved in the sale does not know that the officer
is a peace officer, and, if the officer were to retain and deliver
the money or other things of value to the prosecuting attorney,
the person would determine or suspect that the officer is a peace
officer.
(b) If the officer were to retain and deliver the money or
other things of value to the prosecuting attorney, an identity
that has been assumed in the performance of the officer's official
duties would not be preserved.
(c) The sale is made under the circumstances described in
division (A)(1)(c)(iii) of this section.
(3) If division (D)(1) of this section does not apply in
relation to a peace officer who sells a controlled substance in
the performance of the officer's official duties under division
(A)(1) of this section due to the operation of division (D)(2) of this
section, the peace officer, as soon as possible after the sale,
shall deliver to the prosecuting attorney who granted approval
for the sale a written summary that describes the circumstances
of the sale and the reason for which division (D)(1) of this
section does not apply. The summary shall not identify or enable
the identification of any peace officer involved in the sale and
shall not contain any information that is or may be needed in an
ongoing investigation.
(E)(1) A written internal control policy adopted by a law
enforcement agency that is served by a peace officer who sells a
controlled substance under division (A)(1) or (2) of this
section, as required by division (A)(1)(g) or (2)(b) of
this section, is a public record open for inspection under section
149.43 of the Revised Code. Each law enforcement agency that
adopts a written internal control policy of that
nature shall comply with it in relation to any sale
of a controlled substance under division (A)(1) or (2) of this
section. All records as to the amount of money or things of
value obtained in the sale of a controlled substance, in exchange
for the controlled substance, and all financial records of the
receipts of the proceeds, the general types of expenditures made
out of the proceeds received, and the specific amounts of each
general type of expenditure by a law enforcement agency in
relation to any sale of a controlled substance under division
(A)(1) or (2) of this section are public records open for
inspection under section 149.43 of the Revised Code.
(2) A summary required by division (C) or (D)(3) of this
section is a public record open for inspection under section
149.43 of the Revised Code.
(F)(1) Each prosecuting attorney who grants approval for a
sale of controlled substances by a peace officer and who receives
in any calendar year one or more summaries under division (C) of
this section relative to the sale of a controlled substance by a
peace officer shall prepare a report covering the calendar year
that cumulates all of the information contained in each of the
summaries so received in the calendar year and shall send the
cumulative report, no later than the first day of March in the
calendar year following the calendar year covered by the report,
to the attorney general.
(2) Each prosecuting attorney who receives any money or
any other thing of value under division (D)(1) of this section
shall keep detailed financial records of the receipts and
dispositions of all such moneys or things of value so received.
No record of that nature shall identify, or enable the identification of,
any person from whom money or another thing of value was received
as a result of the sale of a controlled substance under division
(A)(1) or (2) of this section or contain any information that is
or may be needed in an ongoing investigation. Each record of
that nature is a public record open for inspection under section 149.43 of the
Revised Code and shall include, but is not limited to, all of the following
information:
(a) The identity of each law enforcement agency that has so delivered any
money or other thing of value to the prosecuting attorney;
(b) The total amount of money or other things of value so
received from each law enforcement agency;
(c) The disposition made under this section of all money
or other things of value so received.
(G) Divisions (A) to (F) of this section do not apply to
any peace officer, or to any officer, agent, or employee of the
United States, who is operating under the management and
direction of the United States department of justice. Any peace
officer, or any officer, agent, or employee of the United States,
who is operating under the management and direction of the United
States department of justice may sell a controlled substance in
the performance of the officer's, agent's, or employee's official
duties if the sale is made in
accordance with federal statutes and regulations.
(H) As used in this section, "peace officer" has the same
meaning as in section 2935.01 of the Revised Code
and also includes a special agent of the bureau of criminal
identification and investigation.
Sec. 3719.21. Except as provided in division (C) of section
2923.42, division (B)(5) of section 2923.44, divisions
(D)(1),
(F), and (H) of section 2925.03, division (D)(1) of
section
2925.02, 2925.04, or 2925.05, division (E)(1) of section
2925.11,
division (F) of section 2925.13, division (F) of section
2925.36,
division
(D) of section 2925.22, division (H) of section
2925.23,
division (M)
of section 2925.37, division (B)(5) of
section
2925.42, division
(B) of section 2929.18, division (D) of
section
3719.99,
division (B)(1) of section 4729.65, and division
(E)(3)
of section 4729.99 of the Revised Code, the clerk of the
court
shall pay all fines or forfeited bail assessed and collected
under
prosecutions or prosecutions commenced for violations of
this
chapter,
section 2923.42 of the Revised Code, or Chapter
2925. of
the Revised Code,
within thirty days, to the executive
director of
the state board of pharmacy,
and the executive
director shall
deposit the fines into the state
treasury to the
credit of the
occupational licensing and regulatory fund.
Sec. 3729.13. (A) A campsite user who enters into a campsite
use
agreement with a camp operator for the use of a campsite at
a
recreational vehicle park, recreation camp, combined park-camp,
or
temporary park-camp, at the expiration of the campsite use
period
under
the agreement, shall remove from the campsite all of
the
campsite user's property and all property any other person
placed
on the
campsite with the permission of the campsite user.
If the
campsite user fails to
remove all of that property from the
campsite within the five-consecutive-day period
after the
expiration of that campsite use period, all of the following
apply:
(1) The camp operator shall perform an inventory of the
property that the campsite user did not remove from the campsite.
(2) The camp operator may send a letter to the campsite user
informing the campsite user that the campsite user has abandoned
the property on the campsite in violation of the campsite use
agreement and that the camp operator will commence an action for
the
seizure of the property if the campsite user does not remove
the
property from the campsite within ten days after the date on
which
the letter is mailed.
(3) If the campsite user does not remove the property from
the campsite within ten days after the date on which the letter
described in division (A)(2) of this section is mailed, the
camp
operator may file an action for the seizure of
the property that
remains on the campsite in the municipal court or
county court
that has territorial jurisdiction over the park or
camp. The
complaint shall contain all of the following:
(a) The name, address, and phone number of the campsite user
that is
in the campsite use agreement;
(b) A description of the property that the campsite user has
not
removed from the campsite;
(c) A demand that all of the property listed in the
complaint
be removed from the campsite within seven days after
service of the
complaint
upon the campsite user;
(d) A description of the procedure that will be followed if
the campsite user does not remove the listed property within the
seven-day period;
(e) A statement that the campsite user shall pay to the
clerk of the court the amount of the filing
fees
charged for the
filing of the complaint, that the campsite user shall pay those
fees prior to the campsite user's removal of the listed property
from the campsite, and that if the
campsite user
fails to pay the
amount of the filing fees the property may be
sold to pay the
filing fees.
(4) When the camp operator files an action under division
(A)(3) of this section, the clerk of the court shall issue a
summons and a copy of the complaint pursuant to the Rules of Civil
Procedure to the
campsite user
at the address provided in the
campsite use
agreement.
(5) If the campsite user does not file an answer to the
complaint
filed under division (A)(3) of this section and remove
all of the
property listed in the complaint within seven days
after service of the complaint upon the campsite user, the court
shall do
either of the following:
(a) Issue an order authorizing the sheriff, another peace
officer, or a bailiff to remove the property from the campsite and
place it in storage;
(b) Authorize the camp operator to seize the property and
cause the issuance to the camp operator of a new certificate of
title for the property if the property is a titled vehicle.
(6) Upon the removal and storage of the property, the
sheriff, peace officer, bailiff, or camp operator shall conduct
or cause to be
conducted a search of the appropriate public
records that relate
to the property and shall make or cause to be
made reasonably
diligent inquiries for the purpose of identifying
persons who have
any right, title, or interest in any of the
property. Then, the
sheriff, peace officer, bailiff, or camp
operator may commence proceedings for
the sale of the property.
The sheriff, peace officer, bailiff, or camp operator
shall send
by certified mail, return receipt requested, a written
notice of
the date, time, and place of the sale to each person
who, because
of the conduct of the search, the making of
inquiries, or
otherwise, the sheriff, peace officer, bailiff, or camp operator
believes has any right, title, or interest in the property. The
sheriff, peace officer, bailiff, or camp operator shall send the
notice to the
last known address of each of those persons.
(7) If the sheriff, peace officer, bailiff, or camp operator
sells the property, the sheriff, peace officer, bailiff, or camp
operator shall dispose of
the proceeds of the sale in the
following order:
(a) The sheriff, peace officer, bailiff, or camp operator
shall first pay
the costs for any moving or any storage of the
property, the costs
of the sale, and any unpaid court costs
assessed against the
campsite user in the underlying action.
(b) Following the payment required by division (A)(7)(a) of
this section, the sheriff, peace officer, bailiff, or camp
operator shall pay all
other outstanding security interests,
liens, or encumbrances on
the property by priority of filing or
other priority.
(c) After complying with divisions (A)(7)(a) and (b) of this
section, the sheriff, peace officer, bailiff, or camp operator
shall transfer any
remaining money to the owner of the property.
(8) If the sheriff, peace officer, bailiff, or camp operator
does not
conduct a sale of the property, the sheriff, peace
officer,
bailiff, or camp operator shall dispose of the property
in the following manner:
(a) If the property is a motor vehicle or recreational
vehicle, in accordance with the procedure in section 4513.61 or
4513.63 of the Revised Code;
(b) If the property is personal property, in accordance with
the procedure in section 2933.41 sections 2981.11 and 2981.12 of the Revised Code.
(B) Upon collection from the campsite user, the municipal
court or county court shall reimburse the
filing fees to the camp
operator.
Sec. 3743.68. (A) The fire marshal, an assistant fire
marshal, or a certified fire safety inspector may arrest, or may
cause the arrest of, any person
whom the fire marshal,
assistant
fire marshal, or certified fire safety inspector finds
in the act
of violating, or who the fire marshal, assistant fire
marshal, or
certified fire safety inspector has reasonable cause
to believe
has violated, sections 3743.60 to 3743.66 of the
Revised Code.
Any
arrest shall be made in accordance with
statutory and
constitutional provisions governing arrests by law
enforcement
officers.
(B) If the fire marshal, an assistant fire marshal, or
certified fire safety inspector has probable cause to believe
that
fireworks are being manufactured, sold, possessed,
transported, or
used in violation of this chapter, the fire
marshal, assistant
fire marshal, or certified fire safety
inspector may seize the
fireworks. Any seizure of fireworks
shall be made in accordance
with statutory and constitutional
provisions governing searches
and seizures by law enforcement
officers. The fire marshal's or
certified fire safety
inspector's office shall
impound at the site
or safely keep seized
fireworks pending the time they are no
longer needed as evidence.
A sample
of the seized fireworks is
sufficient for evidentiary purposes. The
remainder of the seized
fireworks may be disposed of pursuant to an order from
a court of
competent jurisdiction after notice and a hearing.
Fireworks manufactured, sold, possessed, transported, or
used
in violation of this chapter shall be forfeited by the
violator.
The fire marshal's or certified fire safety
inspector's office
shall dispose of seized fireworks pursuant to
the procedures
specified in section 2933.41 sections 2981.11 to 2981.13 of the Revised Code
for the disposal
of forfeited property by law enforcement
agencies,
and the fire
marshal or that office is not liable for
claims for the loss of or
damages to the seized fireworks.
(C) This section does not affect the authority of a peace
officer, as defined in section 2935.01 of the Revised Code, to
make arrests for violations of this chapter or to seize fireworks
manufactured, sold, possessed, transported, or used in violation
of this chapter.
(D) Any fines imposed for a violation of this chapter
relating to the sale, purchase, possession, or discharge of
fireworks shall be distributed in the following manner if a
municipal corporation, county, or township either filed or
enforced the complaint regarding the violation. One-half of the
amount of the fine shall be distributed to the municipal
corporation, county, or township which filed the complaint
regarding the violation and one-half of the amount of the fine
shall be distributed to the municipal corporation, county, or
township which enforced the complaint. If the same municipal
corporation, county, or township both filed the complaint
regarding the violation and enforced the complaint, the entire
amount of the fine shall be distributed to that municipal
corporation, county, or township.
Sec. 3745.13. (A) When emergency action is required to
protect
the public health or safety or the environment, any person
responsible for causing or allowing an unauthorized spill,
release, or discharge of material into or upon the environment
or
responsible for the operation of an illegal methamphetamine
manufacturing laboratory that has caused contamination of the
environment is
liable to the
municipal corporation, county,
township, countywide
emergency
management agency established under
section
5502.26 of
the Revised
Code, regional authority for
emergency
management
established
under section 5507.27 of the
Revised Code, or emergency management
program established by a
political subdivision under section
5502.271 of the Revised Code,
having
territorial jurisdiction, or
responsibility for emergency
management activities in the location
of the spill, release,
discharge,
or
contamination, for the necessary and reasonable,
additional or
extraordinary costs it incurs in investigating,
mitigating,
minimizing, removing, or abating the spill, release,
discharge, or contamination,
in the course of its
emergency
action, but, to the extent
criteria and methods for
response
actions prescribed under 40
C.F.R. 300, as amended, may
be applied
to the type of material
involved and the conditions of
the spill,
release,
discharge,
or
contamination, that person is liable for
those costs only if the
political
subdivision, countywide agency,
or regional authority
employed
those criteria and methods in its
emergency action.
The officers
of the municipal corporation, county, township,
countywide
emergency management agency, or regional authority for
emergency
management performing the emergency action shall keep a
detailed
record of its costs for investigating, mitigating,
minimizing,
removing, or abating the unauthorized spill, release,
discharge, or contamination; promptly
after the completion of
those measures, shall
certify those costs
to the city director of
law or village
solicitor, as appropriate,
of the municipal
corporation, the
prosecuting attorney of the
county in the case of
a county,
township, or countywide emergency
management agency, or
the legal
counsel retained thereby in the
case of a regional
authority for
emergency management; and may
request that the legal
officer or
counsel bring a civil action for
recovery of costs
against the
person responsible for the
unauthorized spill,
release, or
discharge
or
responsible for
the operation of
the
illegal methamphetamine
manufacturing
laboratory that caused
contamination of
the environment. If the officers request that
the legal officer
or counsel bring such a civil action regarding
emergency action
taken in relation to the operation of an illegal
methamphetamine
manufacturing laboratory that has caused
contamination of the environment, the legal
officer or
counsel
also may pursue a forfeiture proceeding against
the
responsible
person under sections 2923.31 to 2923.36, 2923.44 to 2923.47,
sections
2925.41 to
2925.45, or sections 2933.42 to 2933.43 Chapter 2981. of the
Revised
Code, or in
any other manner authorized by law.
The legal officer or counsel shall submit a written,
itemized
claim
for the total certified costs incurred by the
municipal
corporation, county, township, countywide agency, or
regional
authority for the emergency action to the responsible
party and a
written demand that those costs be paid to the
political
subdivision, countywide agency, or regional authority.
Not less
than thirty days before bringing a civil action for
recovery of
those costs, the legal officer or counsel shall mail
written
notice to the responsible party informing the responsible
party
that, unless the total certified costs are paid to the
political
subdivision, countywide agency, or regional authority
within
thirty days after the date of mailing of the notice, the
legal
officer or counsel will bring a civil action for that
amount.
Except for emergency action taken in relation to the operation of
an illegal methamphetamine manufacturing laboratory that has
caused contamination of the
environment, in making a determination
of an award for
reimbursement,
the responsible party's status as a
taxpayer to the
governmental
entity shall be taken into
consideration. Nothing in
this
section prevents a political
subdivision, countywide
emergency
management agency, or regional
authority for emergency
management
from entering into a settlement
of a claim against a
responsible
party that compromises the amount
of the claim.
Moneys
recovered
as described in this section
shall
be
credited to
the appropriate funds of
the political
subdivision,
countywide
agency, or regional
authority from which
moneys were
expended in
performing the
emergency action.
(B) As used in this section:
(1)
"Methamphetamine" means methamphetamine, any salt,
isomer, or salt of an isomer of methamphetamine, or any compound,
mixture, preparation, or substance containing methamphetamine or
any salt, isomer, or salt of an isomer of methamphetamine.
(2)
"Illegal methamphetamine manufacturing laboratory" means
any laboratory or other premises that is used for the manufacture
or production of methamphetamine in violation of section 2925.04
of the Revised Code, whether or not there has been a prior
conviction of that violation.
Sec. 4301.29. (A) Whenever the department of public safety seizes
beer or intoxicating liquor, the department
shall destroy or distribute the beer or intoxicating liquor, in accordance with division (D)(4) of section 2933.41 sections 2981.11 to 2981.13 of the Revised Code.
(B)(1) In case of any seizure of beer or intoxicating liquor under execution of any judgment rendered against the
holder of a permit, in relation to the foreclosure of any lien on
any beer or intoxicating liquor belonging to a
holder of a permit, in relation to the insolvency or bankruptcy of
a holder of a permit, or in any other case in which judicial process is
employed to subject any beer or intoxicating liquor
belonging to or in the possession of the holder of a permit to
any claim, the person seizing the beer or
intoxicating liquor or the person's designee may sell it, subject to division (B)(2) of this section, after obtaining the written consent of the division of liquor control. Proceeds from the sale of the beer or intoxicating liquor shall be paid in accordance with the applicable law and the orders of the
court issuing the process.
(2) Beer or intoxicating liquor that is sold under division (B)(1) of this section shall not be sold to or purchased by the holder of a liquor permit, an applicant for a liquor permit, or any other business.
Sec. 4301.45. When any law enforcement officer discovers any person in the
act of transporting in violation of law beer or intoxicating liquors in
any wagon, buggy, automobile, watercraft, aircraft, or other
vehicle, he the officer shall seize all beer or intoxicating
liquors found
therein being transported contrary to law. Whenever beer or
intoxicating liquors transported or possessed illegally are
seized by a law enforcement officer, the
officer shall take possession of the
vehicle and team, or automobile, boat, watercraft, aircraft, or
any other conveyance, and shall arrest any person in charge
thereof. The law enforcement officer shall at once proceed
against the person arrested under Chapters 4301. and 4303. of the Revised
Code, in any court having jurisdiction of offenses under those chapters,
but the vehicle or conveyance shall be returned to the owner
upon execution by him the owner of a valid bond with sufficient
sureties,
in a sum equal to the value of the property, which bond shall be
approved by the law enforcement officer and shall be conditioned to return
said
property to the custody of said officer on the day of trial to
abide by the judgment of the court. The court, upon conviction of
the person so arrested, shall order the beer or intoxicating
liquor that was not illegally manufactured to be forfeited to the
state and disposed of under section 2933.41 sections 2981.11 to 2981.13 of the Revised Code,
and unless good cause to the contrary is shown by the owner,
shall order a sale at public auction of the property seized, and
the officer making the sale, after deducting the expenses of
keeping the property, the fee for the seizure, and the cost of
the sale, shall pay all liens, according to their priorities,
which are established, by intervention or otherwise at said
hearing or in other proceeding brought for said purpose, as being
bona fide and as having been created without the lienor having
any notice that the carrying vehicle was being used or was to be
used for illegal transportation of beer or intoxicating liquor,
and shall distribute the balance as money arising from fines and
forfeited bonds under such chapters is distributed. The court,
upon conviction of the person so arrested, shall order the beer or
intoxicating liquor that was illegally manufactured to be
destroyed.
All liens against property sold under this section shall be
transferred from the property to the proceeds of the sale of the
property. If no claimant is found for the team, vehicle,
watercraft, aircraft, automobile, or other conveyance, the taking
of the same, with its description, shall be advertised in some
newspaper published in the city or county where taken, or if
there is no newspaper published in such city or county, in a
newspaper having circulation in the county, once a week for four
weeks and by handbills posted in three public places near the
place of seizure, and if no claimant appears within ten days
after the last publication of the advertisement, the property
shall be sold and the proceeds after deducting the expense and
costs shall be distributed as if there were a claimant for said
vehicle or conveyance.
Sec. 4301.53. The judge of a court of record may issue
warrants to search a house, building, place, vehicle, watercraft,
aircraft, or conveyance for beer, alcohol, or intoxicating liquor
manufactured, possessed, stored, concealed, sold, furnished,
given away, or transported in violation of Chapters 4301. and
4303. of the Revised Code, and the containers in which the same
is found, or machinery, tools, implements, equipment, supplies,
and materials used or kept for use in manufacturing beer or
intoxicating liquor in violation of those chapters, and to
seize
any of that property and things found in
it, together with the
vehicle, watercraft, aircraft, or conveyance in which the same is
found. The issuance of those warrants is subject in all
respects
to sections 2933.22 to 2933.27 of the Revised Code; except that
any such vehicle, watercraft, aircraft, or other conveyance shall
be returned to its owner upon execution by the owner of a
bond with
surety to the satisfaction of the
enforcement agent of the
department of public safety or other law enforcement officer making the
seizure in
an equal amount to its value, conditioned upon its return to the
custody of such agent or officer on the day of trial to abide by the
judgment of the court. Upon conviction of any violation of
Chapters 4301. and 4303. of the Revised Code, any property found
in the possession of the person convicted or the person's agent or
employee shall be disposed of as provided in section 4301.45 of
the Revised Code. If the accused is discharged by the judge or
magistrate, such vehicle, watercraft, aircraft, or other
conveyance shall be returned to its owner, and any bond given
pursuant to this section shall be canceled. If the accused is
the holder of a permit issued under Chapters 4301. and 4303. of
the Revised Code, any beer, intoxicating liquor, or alcohol
seized shall be
disposed of as provided in section 4301.29 of the Revised Code,
and any other property seized shall be returned to its owner by
the officer having the custody or possession of such property.
If the accused is not the holder of such a permit in force at the
time, any beer, intoxicating liquor, or alcohol that was not
illegally manufactured shall be forfeited to the state and shall
forthwith be disposed of under section 2933.41 sections 2981.11 to 2981.13 of the Revised
Code. Illegally manufactured beer, intoxicating liquor, or
alcohol, and other property, except as provided in this section,
shall be destroyed, and any such beer, intoxicating liquor, or
alcohol, or other property is hereby declared to be a public
nuisance.
Sec. 4305.13. (A) If the tax commissioner finds that any
permit holder, liable for tax under Chapter 4301., 4305., or
4307. of the Revised Code, is about to depart from the state,
remove the permit holder's property from the state, conceal
the permit holder's self or
property, or do any other act tending to prejudice, obstruct, or
render wholly or partially ineffectual proceedings to collect the
tax, unless the proceedings are commenced without delay, or if
the commissioner believes that the collection of the amount due
from any permit holder will be jeopardized by delay, the
commissioner may issue a jeopardy assessment against the permit
holder for the amount of the tax, plus a penalty of up to thirty per
cent. Upon issuance of a jeopardy assessment under this
division, the total amount assessed shall immediately be due and
payable unless security is provided pursuant to division (C) of
this section. Any assessment issued under this section shall
bear interest as prescribed by section
4305.131 of the
Revised Code.
(B) The commissioner immediately shall file an entry with
the clerk of the court of common pleas in the same manner and
with the same effect as provided in section 4305.131 of the
Revised Code. Notice of the jeopardy assessment shall be served
on the permit holder assessed or the permit holder's legal
representative, as provided in section 5703.37 of the Revised Code,
within
five days of the filing of the entry. The permit holder assessed
may petition for reassessment within sixty days of
receipt
of the notice of jeopardy assessment in the same manner as
provided in section 4305.131 of the Revised Code. Full or
partial payment of the assessment shall not prejudice the
commissioner's consideration of the merits of the assessment as
contested by the petition for reassessment. Upon notification of
the existence of the judgment filed pursuant to this division,
any public official having control or custody of any funds or
property of the person assessed immediately shall pay or deliver
the funds or property to the commissioner as full or partial
satisfaction of the jeopardy assessment. However, funds or
property needed as evidence in criminal proceedings or that is
expected to be forfeited pursuant to section 2923.35, 2933.41, or
2933.43 Chapter 2981. of the Revised Code need not be relinquished by the
public official. Upon disposition of criminal and forfeiture
proceedings, funds and property not needed as evidence and not
forfeited shall be delivered to the commissioner.
(C) If the permit holder subject to a jeopardy assessment
files a petition for reassessment and posts security satisfactory
to the commissioner in an amount sufficient to satisfy the unpaid
balance of the assessment, execution on the judgment shall be
stayed pending disposition of the petition for reassessment and
all appeals resulting from the petition. If the security is
sufficient to satisfy the full amount of the assessment, the
commissioner shall return any funds or property of the permit
holder previously seized. Upon satisfaction of the assessment
the commissioner shall order the security released and the
judgment vacated.
(D) The commissioner may adopt rules providing for the imposition
and remission of penalties added to assessments under this section.
Sec. 4503.233. (A)(1)
If a court is required to order the
immobilization of
a
vehicle for a specified period of time
pursuant to
section
4510.11,
4510.14,
4510.16,
4510.41,
4511.19,
4511.193,
or
4511.203
of the Revised Code, the court
shall issue
an immobilization
order
in
accordance with this division and for
the
period of time
specified
in the particular
section, and
the
immobilization
under
the order shall be in accordance with this
section. The court, at
the time of sentencing the offender for
the offense relative to
which the immobilization order is issued
or as soon thereafter as
is practicable, shall give a copy of the
order to the offender or
the offender's counsel. The court
promptly shall send a copy of
the
order
to the registrar on a form
prescribed
by the registrar
and
to the
person or agency it
designates to execute the
order.
The order shall indicate the date on which it is issued,
shall identify the vehicle that is subject to the order, and
shall
specify all of the following:
(a) The period of the immobilization;
(b) The place at which the court determines that the
immobilization shall be carried out, provided that the court
shall
not determine and shall not specify that the immobilization
is to
be carried out at any place other than a commercially
operated
private storage lot, a place owned by a law enforcement
or other
government agency, or a place to which one of the
following
applies:
(i) The place is leased by or otherwise under the control
of
a law enforcement or other government agency.
(ii) The place is owned by the offender, the offender's
spouse, or a parent or child of the offender.
(iii) The place is owned by a private person or entity,
and,
prior to the issuance of the order, the private entity or
person
that owns the place, or the authorized agent of that
private
entity or person, has given express written consent for
the
immobilization to be carried out at that place.
(iv) The place is a public street or highway on which the
vehicle is parked in accordance with the law.
(c) The person or agency designated by the court to execute
the order,
which shall be either the law enforcement agency that
employs the
law enforcement officer who seized the vehicle, a
bailiff of the court, another person the court determines to be
appropriate to execute the order, or the law enforcement agency
with jurisdiction over the place of residence of the vehicle
owner;
(d) That neither the registrar nor a deputy registrar will
be permitted to
accept an application for the license plate
registration of any motor vehicle
in the name of the vehicle owner
until the immobilization fee is paid.
(2) The person or agency the court designates to
immobilize
the vehicle shall seize or retain that vehicle's
license plates
and forward them to the bureau of motor vehicles.
(3) In all cases, the
offender
shall be
assessed
an
immobilization fee of one hundred dollars, and the
immobilization
fee shall be paid to the registrar before
the
vehicle may be
released to the
offender.
Neither the
registrar
nor a deputy
registrar shall accept an application for
the registration of any
motor vehicle in the name of the
offender until
the
immobilization fee is
paid.
(4) If the vehicle subject to the order is
immobilized
pursuant to the order and is found being operated
upon any street
or highway in this state during the
immobilization period, it
shall be seized, removed from the street
or highway, and
criminally forfeited and disposed of
pursuant to section 4503.234
of the Revised Code.
(5) The registrar shall deposit the immobilization fee
into
the law
enforcement reimbursement fund created by section
4501.19
of the Revised
Code. Money in the fund shall be expended
only as
provided in division
(A)(5) of this section. If the
court
designated in the
order a court bailiff or another
appropriate
person other than a
law enforcement officer to
immobilize the
vehicle, the amount of the
fee deposited into the
law enforcement
reimbursement fund shall
be paid out to the county
treasury if the
court that issued the order
is a county court, to
the treasury of
the municipal corporation
served by the court if
the court that
issued the order is a
mayor's court, or to the city
treasury of
the legislative
authority of the court, both as
defined in section
1901.03 of the
Revised Code, if the court that
issued the order is
a municipal
court. If the court designated a
law enforcement
agency to
immobilize the vehicle and if the law
enforcement agency
immobilizes the
vehicle, the amount of the fee
deposited into the
law enforcement
reimbursement fund shall be
paid out to the law
enforcement agency
to reimburse the agency for
the costs it incurs
in
obtaining immobilization equipment and, if
required, in sending
an officer or other person to search for and
locate the vehicle
specified in the immobilization order and to
immobilize the
vehicle.
In addition to the immobilization fee required to be paid
under division (A)(3) of this section, the
offender
may be
charged expenses or charges incurred in the
removal and storage of
the
immobilized vehicle.
(B) If a court issues an immobilization
order under division
(A)(1) of this section, the person or
agency designated by the
court to execute the immobilization order
promptly shall
immobilize or continue the immobilization of the
vehicle at the
place specified by the court in the order. The registrar shall
not authorize the release of the vehicle or authorize the issuance
of new
identification license plates for the vehicle at the
end of
the immobilization period until the immobilization
fee has been
paid.
(C) Upon receipt of the license plates for a vehicle under
this section, the
registrar shall destroy the license plates. At
the end
of the immobilization period and upon the payment of the
immobilization fee
that must be paid under this section, the
registrar shall authorize the
release of the vehicle
and authorize
the issuance, upon the payment of the same fee as
is required for
the replacement of lost, mutilated, or destroyed
license plates
and certificates of registration,
of new license plates and, if
necessary, a new
certificate of registration to the
offender for
the vehicle
in question.
(D)(1) If a court issues an immobilization order under
division (A) of this
section, the immobilization period
commences
on the day on which the vehicle in question is
immobilized. If
the
vehicle in question had been seized under section
4510.41
or
4511.195 of the Revised Code, the time between the
seizure and the
beginning of the immobilization period shall be
credited
against
the immobilization period
specified in the
immobilization order
issued under
division (A) of this section.
No
vehicle that is
immobilized
under this section is
eligible to have
restricted
license plates
under section 4503.231 of the Revised Code issued
for
that vehicle.
(2) If a court issues an immobilization order under division
(A) of this
section, if the vehicle
subject to the order is
immobilized under the order, and if the
vehicle is found being
operated upon any street or highway of
this state during the
immobilization period, it
shall be seized, removed from the street
or highway, and criminally
forfeited, and disposed of pursuant to
section
4503.234 of the Revised Code. No vehicle that is
forfeited under
this provision shall be considered contraband for
purposes of
section 2933.41, 2933.42, or 2933.43 Chapter 2981. of the Revised
Code, but
shall be held by the law enforcement agency that employs
the
officer who seized it for disposal in accordance with section
4503.234 of the Revised Code.
(3) If a court issues an immobilization order under division
(A) of this
section, and if the vehicle is not
claimed within
seven days after the end of the period of
immobilization or if the
offender has not paid the
immobilization fee, the
person or agency
that immobilized
the vehicle shall send a written
notice to the
offender at the
offender's last
known address informing
the
offender
of the date on which the period of
immobilization
ended,
that the
offender has twenty days
after the date of the
notice
to
pay the immobilization fee and
obtain the release of the
vehicle,
and that if
the
offender does not pay the
fee and obtain the
release of the vehicle within that twenty-day
period, the vehicle
will be forfeited under section 4503.234 of
the Revised
Code to
the entity that is entitled to the
immobilization fee.
(4) An
offender whose motor vehicle
is
subject to an
immobilization order issued under division (A)
of
this section
shall not sell the motor vehicle without approval
of
the court
that issued the order. If such an
offender wishes
to sell the
motor vehicle during the
immobilization
period, the
offender
shall apply to the court that
issued the
immobilization order for
permission to assign the title to the
vehicle. If the court
is
satisfied that the sale will be in good
faith and not for the
purpose of
circumventing the provisions of
division (A)(1) of this
section, it may certify its consent to
the
offender and to
the
registrar. Upon
receipt of the
court's consent, the registrar
shall enter the court's notice
in
the
offender's vehicle license
plate registration
record.
If, during a period of immobilization under an immobilization
order issued
under division (A) of this section, the title to the
immobilized motor
vehicle is transferred by the foreclosure of a
chattel mortgage, a sale upon execution, the cancellation of a
conditional sales contract, or an order of a court, the involved
court shall notify the registrar of the
action, and the registrar
shall enter the court's notice in the
offender's
vehicle
license
plate registration record.
Nothing in this section shall be construed as requiring the
registrar or the
clerk of the court of common pleas to note upon
the certificate of title
records any prohibition regarding the
sale of a motor vehicle.
(5) If the title to a motor vehicle that is subject to an
immobilization order under division (A) of this
section is
assigned or transferred without court approval between
the time of
arrest of the
offender who committed the offense for which such
an
order is to
be issued
and the time of the actual immobilization
of the
vehicle, the court
shall order that, for a period of two
years
from the date of the
order, neither the registrar nor any
deputy
registrar shall
accept an application for the registration
of any
motor vehicle
in the name of the
offender whose
vehicle
was assigned or
transferred without court approval.
The court
shall notify the
registrar of the order on a form
prescribed by
the registrar for
that purpose.
(E)(1) The court with jurisdiction over the case, after
notice to all interested parties including lienholders, and after
an opportunity for them to be heard, if the
offender
fails
to
appear in person, without good cause, or if the court
finds
that
the
offender does not intend to seek
release
of the
vehicle at
the end of the period of immobilization
or that the
offender is
not or will not be able to
pay the
expenses and
charges incurred
in its removal and storage,
may order that title
to the vehicle be
transferred, in order of
priority, first into
the name of the
entity entitled to the
immobilization fee under
division (A)(5) of
this section, next
into the name of a
lienholder, or lastly, into
the name of the
owner of the place of
storage.
A lienholder that receives title under a
court order shall do
so on the condition that it pay any expenses or
charges incurred
in the vehicle's removal and storage. If the entity that
receives
title to the vehicle is the entity that is entitled to the
immobilization fee under division (A)(5) of this section,
it
shall
receive title on the condition that it pay any lien on the
vehicle.
The court shall not order that title be transferred to
any person or entity
other than the owner of the place of storage
if the person or
entity refuses to receive the title. Any person
or entity that
receives title may either keep title to the vehicle
or may
dispose of the vehicle in any legal manner that it
considers
appropriate, including assignment of the certificate of
title to
the motor vehicle to a salvage dealer or a scrap metal
processing
facility. The person or entity shall not transfer
the
vehicle to the person who is the vehicle's
immediate previous
owner.
If the person or entity assigns the motor vehicle to a
salvage dealer or
scrap
metal processing facility, the person or
entity shall send the assigned
certificate of title to the motor
vehicle to the clerk of the court of common
pleas of the county in
which the salvage dealer or scrap metal processing
facility is
located. The person or entity shall mark the face of the
certificate of title with the words "FOR DESTRUCTION" and shall
deliver a photocopy of the certificate of title to the salvage
dealer or scrap
metal processing facility for its records.
(2) Whenever a court issues an order under division (E)(1)
of this
section, the court also shall order removal of the license
plates
from the vehicle and cause them to be sent to the registrar
if
they have not already been sent to the registrar. Thereafter,
no further
proceedings shall take place under this section, but
the
offender remains liable for payment of the
immobilization fee
described in division (A)(3) of this section
if an
immobilization
order previously had been issued by the
court.
(3) Prior to initiating a proceeding under division (E)(1)
of this section, and upon payment of the fee under division (B) of
section
4505.14 of the Revised Code, any interested party may
cause
a search to be made of the public records of the bureau of
motor vehicles or the clerk of the court of common pleas, to
ascertain the identity of any lienholder of the vehicle. The
initiating party shall furnish this information to the clerk of
the court with jurisdiction over the case,
and the clerk shall
provide notice
to the vehicle owner, the defendant, any
lienholder, and any
other interested parties listed by the
initiating party, at the
last known address supplied by the
initiating party, by certified
mail or, at the option of the
initiating party, by personal
service or ordinary mail.
As used in this section, "interested party" includes the
offender, all lienholders,
the owner
of the
place of storage, the
person or entity that caused the
vehicle to
be removed, and the
person or entity, if any, entitled
to the
immobilization fee under
division (A)(5) of this
section.
Sec. 4503.234. (A) If a court is required by section
4503.233, 4503.236,
4510.11, 4510.14, 4510.16, 4510.41, 4511.19,
4511.193,
or
4511.203 of the Revised Code to order the
criminal
forfeiture of a
vehicle, the order shall be
issued and
enforced in
accordance with
this division, subject to
division
(B) of this
section.
An
order
of criminal forfeiture issued under this
division
shall
authorize
an appropriate law enforcement agency to
seize
the
vehicle ordered
criminally forfeited upon the terms and
conditions
that the
court
determines proper. No vehicle ordered
criminally
forfeited
pursuant to this division shall be considered
contraband
for
purposes of section 2933.41, 2933.42, or 2933.43 Chapter 2981. of
the
Revised
Code, but
the law enforcement agency that
employs
the
officer who
seized it
shall hold the vehicle for
disposal in
accordance with
this
section. A forfeiture order may
be
issued
only after the
offender has been provided
with an opportunity to
be heard. The
prosecuting attorney shall
give the
offender
written
notice of
the possibility
of forfeiture by sending a copy
of the relevant
uniform traffic
ticket or other written notice to
the
offender
not
less
than seven days prior to the date of
issuance of the
forfeiture order. A
vehicle is subject to
an
order of criminal
forfeiture pursuant to this division upon
the
conviction of the
offender
of or plea of guilty by the offender to
a violation of
division (A) of section 4503.236,
section
4510.11, 4510.14,
4510.16,
or
4511.203, or division (A) of section
4511.19
of the
Revised Code,
or a municipal
ordinance that is
substantially
equivalent to
any of those sections or
divisions.
(B)(1) Prior to the issuance of an order of criminal
forfeiture pursuant to
this section, the law
enforcement agency
that employs the law enforcement officer who
seized the vehicle
shall
conduct or cause to be conducted a search
of the
appropriate
public records that relate to the vehicle and
shall
make or cause
to be made reasonably diligent inquiries to
identify any
lienholder or
any person or entity with an ownership
interest in
the
vehicle. The court that is to issue the
forfeiture
order also
shall cause a notice of the potential
order
relative to the
vehicle and of the expected
manner of disposition
of the vehicle
after its forfeiture to be
sent to any lienholder
or person who is
known to
the court to have any right, title, or
interest in the
vehicle. The court shall give the notice
by
certified mail,
return receipt requested, or by personal service.
(2) No order of criminal
forfeiture shall be issued pursuant
to
this section if
a lienholder or other person
with an ownership
interest in the
vehicle establishes to the
court, by a
preponderance of the evidence
after filing a motion
with the
court,
that the lienholder or other
person neither
knew nor
should
have known after a reasonable
inquiry that the
vehicle
would be used or involved,
or likely
would be used
or
involved, in
the violation resulting in the issuance of the
order
of criminal
forfeiture or the violation of the order of
immobilization issued
under section 4503.233 of
the Revised Code,
that the lienholder or
other
person did not
expressly or
impliedly consent
to the use or
involvement of the vehicle in that
violation, and that the
lien or
ownership interest was
perfected
pursuant
to law prior to the
seizure of the vehicle under section
4503.236,
4510.41, 4511.195,
or
4511.203 of the
Revised
Code. If the lienholder or holder of
the
ownership
interest satisfies the court that these
criteria
have been met,
the court shall preserve
the lienholder's or other
person's lien or
interest, and the court either shall return the
vehicle to the holder,
or shall order that the
proceeds of any
sale
held
pursuant to division
(C)(2)
of this section be paid to
the
lienholder or
holder of the
interest less the costs of
seizure, storage, and maintenance of
the vehicle. The court shall
not
return a vehicle to a lienholder
or a holder of an ownership
interest
unless the
lienholder or holder submits an affidavit
to
the court that states that the lienholder or holder will not
return the vehicle to the person from whom the vehicle was seized
pursuant to the order of criminal forfeiture or to any member of
that person's family and will not otherwise knowingly permit that
person or any member of that person's family to obtain
possession
of the
vehicle.
(3) No order of criminal
forfeiture shall be issued pursuant
to
this section if
a person
with an interest in
the vehicle
establishes to the court, by a
preponderance of the
evidence after
filing a motion with the court,
that the person
neither knew nor
should have known after a
reasonable
inquiry that
the vehicle had
been used or was involved in the
violation
resulting in the
issuance of the order of criminal
forfeiture or
the violation of
the order of immobilization issued under
section
4503.233 of the
Revised Code,
that the person did not expressly or
impliedly
consent to the
use or
involvement of the vehicle in that
violation, that the interest was perfected
in
good faith and for
value pursuant to law between the time of the arrest of the
offender and the final disposition of the criminal charge in
question, and that the vehicle was in the possession of the
interest holder at the time of the perfection of
the
interest. If
the court is satisfied that the interest
holder has
met these
criteria, the court shall preserve
the
interest holder's
interest, and the court either
shall return the
vehicle to the
interest holder
or order that the
proceeds of any
sale held
pursuant to division
(C) of
this section be paid
to the holder of
the interest less the costs
of seizure, storage, and maintenance
of the
vehicle. The court
shall not return a vehicle to an
interest holder
unless the holder
submits an affidavit to
the
court stating
that the holder will not return the vehicle to
the
person from
whom the holder acquired
the
holder's
interest, nor
to any member
of that person's family, and the
holder will not
otherwise
knowingly permit that person or any
member of that
person's
family to
obtain possession of the
vehicle.
(C) A vehicle ordered criminally forfeited to the state
pursuant to
this section shall
be disposed of as
follows:
(1) It shall be given to the law enforcement agency
that
employs the law enforcement officer who seized the
vehicle, if
that agency desires to have it;
(2) If a vehicle is not disposed of pursuant to division
(C)(1) of this section, the vehicle shall be sold,
without
appraisal, if the value of the vehicle is
two thousand dollars or
more as determined by publications of
the national
auto dealer's
association, at a public auction to the highest bidder for
cash.
Prior to the sale, the prosecuting attorney in the case shall
cause a notice of the proposed sale to be given in accordance
with
law. The court shall cause notice of the sale of the vehicle to
be
published in a newspaper of general circulation in the county
in which the
court is located at least seven days prior to the
date of the
sale. The proceeds of a sale under this division or
division
(F) of
this section shall be applied in the following
order:
(a) First, they shall be applied to the payment of the
costs
incurred in connection with the seizure, storage, and
maintenance
of, and provision of security for, the vehicle, any
proceeding
arising out of the forfeiture, and if any, the sale.
(b) Second, the remaining proceeds after compliance with
division
(C)(2)(a) of this section, shall be applied to the
payment of the value of any lien or ownership
interest in
the
vehicle preserved under division
(B) of this section.
(c) Third, the remaining proceeds, after compliance with
divisions
(C)(2)(a) and (b) of this section, shall be
applied
to
the appropriate funds in accordance with divisions (D)(1)(c)(B)
and
(2)(C) of section 2933.43 2981.13 of the Revised Code, provided that the
total of the amount so deposited under this division shall not
exceed one thousand dollars. The remaining proceeds deposited
under this division shall be used only for the purposes
authorized
by those divisions and division (D)(3)(a)(ii) of that
section.
(d) Fourth, the remaining proceeds after compliance with
divisions
(C)(2)(a) and (b) of this section and after
deposit
of
a
total amount of one thousand dollars under division
(C)(2)(c) of
this section shall be applied so that fifty
per
cent of those
remaining proceeds is paid into the reparation fund
established
by
section 2743.191 of the Revised Code, twenty-five
per cent is
paid
into the drug abuse resistance education programs
fund
created by
division
(F)(2)(e) of section 4511.191 of the
Revised
Code and
shall be used only for the purposes authorized by
division
(F)(2)(e) of that section, and twenty-five per
cent is
applied to
the appropriate funds in accordance with division
(D)(1)(c) divisions (B) and (C) of
section 2933.43 2981.13 of the Revised Code. The proceeds
deposited into
any fund described in section 2933.43 2981.13 of the
Revised Code shall be
used only for the purposes authorized by
division (D)(1)(c), (2),
and (3)(a)(ii) divisions (B)(4)(c), (C), and (D) of that section.
(D)
Except as provided in division
(E)
of section 4511.203 of
the Revised Code and notwithstanding any
other
provision of law,
neither
the registrar of motor vehicles
nor any deputy registrar
shall
accept an application for the
registration of any motor
vehicle
in the name of any person, or
register any motor vehicle
in the
name of any person, if both of
the following apply:
(1) Any vehicle registered in the person's name was
criminally forfeited under
this
section and
section 4503.233,
4503.236,
4510.10,
4510.11,
4510.14, 4510.16, 4510.161, 4510.41,
4511.19, 4511.193,
or
4511.203
of the Revised Code;
(2) Less than five years have expired since the issuance of
the most recent order of criminal forfeiture issued in relation
to
a vehicle registered in the person's name.
(E) If a court is required by section 4503.233,
4503.236,
4510.10, 4510.11, 4510.14,
4510.16,
4510.161,
4510.41,
4511.19,
4511.193,
or
4511.203 of the Revised
Code to
order the criminal
forfeiture to the state
of a vehicle,
and the
title to the motor
vehicle is assigned or transferred,
and
division
(B)(2) or (3) of
this section applies, in
addition to
or
independent of any other
penalty established by law, the court
may fine the
offender the
value of the vehicle as determined by
publications of the
national
auto dealer's association. The
proceeds from any fine imposed
under
this division
shall be distributed in
accordance with
division
(C)(2) of this section.
(F) As used in
this section and
divisions
(D)(1)(c),
(D)(2), and (D)(3)(a)(ii) (B)(4)(c), (C), and (D) of section 2933.43 2981.13 of the
Revised Code
in relation to proceeds of the sale of a vehicle
under division
(C) of this section, "prosecuting attorney"
includes the
prosecuting attorney, village solicitor, city
director of law, or
similar chief legal officer of a municipal
corporation who
prosecutes the case resulting in the conviction
or
guilty plea in
question.
(G) If the vehicle to
be forfeited has an average retail
value of less than two thousand dollars as
determined by
publications of the national auto dealer's
association, no public
auction is required to be held. In such
a case, the court may
direct that the vehicle be disposed of in
any manner that it
considers appropriate, including assignment
of the certificate of
title to the motor vehicle to a salvage
dealer or a scrap metal
processing facility. The court shall
not transfer the vehicle to
the person who is the vehicle's
immediate previous owner.
If the court assigns the motor vehicle to a salvage
dealer or
scrap metal processing facility and the court is in possession of
the certificate of title to the motor vehicle, it shall send the
assigned certificate of title to the motor vehicle to the clerk
of
the court of common pleas of the county in which the salvage
dealer or scrap metal processing facility is located. The court
shall mark the face of the certificate of title with the words
"FOR DESTRUCTION" and shall
deliver a photocopy of the certificate
of title to the salvage
dealer or scrap metal processing facility
for its records.
If the court is not in possession of the certificate of title
to the
motor vehicle, the court shall issue an order transferring
ownership of the
motor vehicle to a salvage dealer or scrap metal
processing facility, send the
order to the clerk of the court of
common pleas of the county in which the
salvage dealer or scrap
metal processing facility is located, and send a
photocopy of the
order to the salvage dealer or scrap metal processing
facility for
its records. The clerk shall make the proper notations or
entries
in the clerk's records concerning the disposition of the motor
vehicle.
Sec.
4510.41. (A) As used in this section:
(1) "Arrested person" means a person who is arrested for a
violation of
section
4510.14, 4510.16,
or
4511.203 of the
Revised Code,
or a municipal ordinance that is substantially
equivalent to any
of
those
sections, and whose arrest
results
in
a
vehicle being seized under division (B) of this
section.
(2) "Vehicle owner" means either of the following:
(a) The person in whose name is registered, at the time of
the seizure, a
vehicle that is seized under division (B) of this
section;
(b) A person to whom the certificate of title to a
vehicle
that is seized under division (B) of this section has been
assigned and who has not obtained a certificate of title to the
vehicle in that person's name, but who is deemed by the court as
being the
owner of the vehicle at the time the vehicle was seized
under division
(B) of this section.
(3) "Interested party" includes the owner of a vehicle
seized under this
section, all lienholders, the
arrested person,
the
owner of
the place of storage at which a
vehicle seized under
this section is
stored, and the person or
entity that caused the
vehicle to be
removed.
(B)(1) If a person is arrested for a violation of
section
4510.14,
4510.16,
or
4511.203 of the Revised
Code, or a municipal
ordinance
that is substantially equivalent to any
of those
sections, the arresting officer
or another
officer of
the law
enforcement agency that employs the arresting officer, in
addition
to any action that the arresting officer is required or
authorized
to take by any other provision of law, shall seize the
vehicle
that the person was operating at the time of,
or that was
involved
in, the alleged
offense
if the vehicle is registered in
the
arrested person's name and
its license plates.
A law
enforcement
agency that employs a law enforcement
officer who
makes an arrest
of a type that is described in
this
division
and that involves a
rented or
leased
vehicle
that is being rented or leased for a
period
of thirty days or less shall notify, within
twenty-four
hours
after the officer makes the arrest, the lessor or owner of
the
vehicle regarding the circumstances of
the arrest and the
location
at which the vehicle may be picked
up. At the time of
the seizure
of the vehicle, the law
enforcement officer who made
the arrest
shall give the arrested
person written notice that the
vehicle and
its
license plates have been seized; that the vehicle
either will
be
kept by the officer's law enforcement agency or
will be
immobilized at least until the person's initial appearance
on the
charge of the offense for which the arrest was made; that,
at the
initial appearance, the court in certain circumstances may
order
that the vehicle and license plates be released to
the
arrested person until the disposition of that
charge; that,
if
the
arrested person is convicted of that charge, the court
generally
must order the immobilization of the vehicle and the
impoundment
of its license plates or the forfeiture of the
vehicle; and that
the arrested person
may be charged expenses or
charges
incurred
under this section and section 4503.233 of the
Revised
Code for
the removal and storage of the vehicle.
(2) The arresting officer or a law enforcement officer of
the agency
that employs the arresting officer shall give written
notice of the seizure to
the court that will conduct the initial
appearance of the arrested person
on the
charges arising out of
the arrest.
Upon receipt
of the notice, the
court promptly shall
determine whether the
arrested person is the
vehicle owner. If
the
court determines that the
arrested person is not the vehicle
owner, it promptly shall send by regular
mail written notice of
the seizure
to the
vehicle's
registered owner. The
written
notice
shall contain all of the
information
required by
division
(B)(1) of this section to be in a notice to
be given to
the
arrested person and also shall specify the date,
time, and
place
of the arrested person's initial appearance.
The notice also
shall
inform the vehicle owner that if
title
to a motor vehicle
that is
subject to an order for
criminal
forfeiture under this
section is
assigned or
transferred and
division (B)(2) or (3) of
section
4503.234 of the Revised Code
applies, the court may fine
the
arrested person the value of the
vehicle. The notice
also
shall
state that if
the vehicle is immobilized under
division (A)
of
section 4503.233
of the Revised
Code, seven days after the end
of
the period of
immobilization a law enforcement agency will
send
the vehicle
owner a notice, informing the owner that if
the
release of the vehicle
is not
obtained in
accordance
with division
(D)(3)
of section 4503.233 of the Revised Code, the
vehicle shall
be
forfeited. The notice also shall inform the
vehicle owner that
the owner may be charged expenses or charges
incurred
under this
section and section 4503.233 of the
Revised
Code for the removal
and storage of the vehicle.
The written notice that is given
to the
arrested person
also shall state
that if the
person
is convicted of
or pleads
guilty to the
offense
and the court
issues an
immobilization and
impoundment order relative to that
vehicle, division (D)(4)
of
section 4503.233 of the Revised Code
prohibits the vehicle from
being sold
during the period of
immobilization without the prior
approval of the court.
(3) At or before the initial appearance, the vehicle
owner
may file a motion requesting the court to order that the
vehicle
and its license plates be released to the vehicle owner. Except
as
provided in this division and subject to the payment
of
expenses or charges incurred in the removal and storage of
the
vehicle, the court, in its discretion, then may issue an
order
releasing the vehicle and its license plates to the
vehicle owner.
Such an order may be conditioned upon such terms
as the court
determines appropriate, including the posting of a
bond in an
amount determined by the court. If the arrested
person is not the
vehicle owner and if the vehicle owner is not
present at the
arrested person's initial appearance, and if the
court believes
that the vehicle owner was not provided with
adequate notice of
the initial appearance, the court, in its
discretion, may allow
the vehicle owner to file a motion within
seven days of the
initial appearance. If the court allows the
vehicle owner to file
such a motion after the initial
appearance, the extension of time
granted by the court does not
extend the time within which the
initial appearance is to be
conducted. If the court issues an
order for the release of the
vehicle and its license plates, a
copy of the order shall be
made available to the vehicle owner.
If
the vehicle owner
presents a copy of the order to the law
enforcement agency that
employs the law enforcement officer who
arrested the
arrested person, the
law enforcement agency promptly
shall release the vehicle and its
license plates to the vehicle
owner upon payment by the vehicle
owner of any expenses or
charges
incurred in the removal or
storage of the vehicle.
(4) A vehicle seized under division (B)(1) of this section
either shall be towed to a place specified by the law enforcement
agency that employs the arresting officer to be safely kept by
the
agency at that place for the time and in the manner specified
in
this section or shall be otherwise immobilized for the time and in
the
manner specified in this section. A law enforcement officer
of
that agency shall remove the identification license plates of
the
vehicle, and they shall be safely kept by the agency for the
time
and in the manner specified in this section. No vehicle that
is
seized and either towed or immobilized pursuant to this
division
shall be considered contraband for purposes of section
2933.41,
2933.42, or 2933.43 Chapter 2981. of the Revised Code. The vehicle
shall not
be immobilized at any place other than a commercially
operated
private storage lot, a place owned by a law enforcement
or other
government agency, or a place to which one of the
following
applies:
(a) The place is leased by or otherwise under the control
of
a law enforcement or other government agency.
(b) The place is owned by the arrested person, the
arrested
person's spouse, or a parent or child of the arrested
person.
(c) The place is owned by a private person or entity, and,
prior to the immobilization, the private entity or person that
owns the place, or the authorized agent of that private entity or
person, has given express written consent for the immobilization
to be carried out at that place.
(d) The place is a public street or highway on which the
vehicle is parked in accordance with the law.
(C)(1) A vehicle
seized under division
(B) of this
section
shall be safely kept at the place to which it
is towed or
otherwise moved by the law enforcement agency that employs the
arresting officer until the initial appearance of the arrested
person
relative to the charge
in
question.
The
license plates of
the vehicle that are removed pursuant to
division (B) of this
section shall be safely kept by the law
enforcement agency that
employs the arresting officer until at
least the initial
appearance of the
arrested person relative to
the charge in
question.
(2)(a)
At the initial
appearance or not less than seven
days
prior to the date of final
disposition, the court
shall notify the
arrested person that, if
title to
a motor
vehicle that is subject
to an order for criminal
forfeiture under this section
is assigned
or transferred and
division (B)(2) or (3) of
section 4503.234
of
the Revised Code
applies, the court may fine the
arrested person
the value
of the
vehicle. If, at the initial appearance, the
arrested
person
pleads guilty to the violation of
section
4510.14, 4510.16,
or
4511.203
of the Revised Code, or a
municipal
ordinance that is
substantially
equivalent to any of those
sections or
pleads no contest to and is convicted of the
violation, the court
shall impose sentence upon the
person as
provided by law
or ordinance; the court shall order the
immobilization of the vehicle the
arrested person was operating at
the time of, or
that was involved
in, the offense
if registered in
the arrested person's
name and
the impoundment of its
license
plates under section 4503.233 and
section
4510.14, 4510.16,
4510.161,
or
4511.203
of
the Revised Code or the criminal
forfeiture to the
state of the vehicle
if registered in the
arrested person's name
under
section 4503.234 and
section
4510.14,
4510.16, 4510.161,
or
4511.203
of the Revised Code,
whichever is
applicable; and the
vehicle and its
license plates
shall not be
returned or released to the
arrested
person.
(b) If, at any time, the charge that the
arrested person
violated
section
4510.14, 4510.16,
or
4511.203 of the Revised
Code, or a
municipal
ordinance that is substantially equivalent to
any of
those
sections is dismissed
for any
reason, the court
shall order that the vehicle seized at
the time
of the arrest and
its license plates
immediately be released to
the
person.
(D) If a vehicle
and its license plates are seized under
division (B) of this section
and
are not
returned
or
released to
the
arrested
person pursuant to division (C) of this
section, the
vehicle and
its license plates shall be retained
until the final
disposition
of the charge in question. Upon the
final disposition
of that
charge, the court shall do whichever of
the following is
applicable:
(1) If the arrested person is convicted of or pleads
guilty
to the violation of
section
4510.14, 4510.16,
or
4511.203 of the
Revised
Code, or a municipal
ordinance that is substantially
equivalent to
any of those
sections, the court
shall
impose
sentence upon the
person as provided by law
or
ordinance and
shall order the immobilization of the vehicle the
person
was
operating at the time of, or that was involved in, the offense
if
it is registered in the arrested person's name and the
impoundment
of its license plates under section 4503.233
and
section
4510.14,
4510.16, 4510.161,
or
4511.203 of the Revised Code or the
criminal
forfeiture of the
vehicle
if it is registered in the arrested
person's name under
section
4503.234 and section
4510.14,
4510.16,
4510.161,
or
4511.203 of the
Revised Code,
whichever is
applicable.
(2) If the arrested person is found not guilty of the
violation of
section
4510.14, 4510.16,
or
4511.203 of the
Revised Code,
or a municipal ordinance that is substantially
equivalent to any
of
those
sections, the court shall order
that
the vehicle and its license plates immediately be
released to
the
arrested person.
(3) If the charge that the arrested person violated
section
4510.14,
4510.16,
or
4511.203 of
the Revised Code, or a municipal
ordinance
that is substantially equivalent
to any of those
sections is dismissed
for any reason, the
court shall
order that
the vehicle and its license
plates immediately be
released to the
arrested
person.
(4)
If the impoundment of the vehicle was not authorized
under
this section, the court shall order that the vehicle and its
license plates be
returned immediately to the arrested person or,
if the arrested person is not
the vehicle owner, to the vehicle
owner and shall order that the state or
political subdivision of
the law enforcement agency served by the law
enforcement officer
who seized the vehicle pay all expenses and charges
incurred in
its removal and storage.
(E) If a vehicle is seized under division (B) of this
section, the time between the seizure of the vehicle and either
its release to the
arrested person
pursuant to division (C) of
this section or the issuance of an
order of immobilization of the
vehicle under section 4503.233 of
the Revised
Code shall be
credited against the period
of
immobilization ordered by the
court.
(F)(1)
Except as provided in division
(D)(4) of this
section, the arrested person may be charged
expenses or charges
incurred in the removal and storage of the
immobilized vehicle.
The court with jurisdiction over the case,
after notice to all
interested parties, including lienholders, and
after an
opportunity for them to be heard,
if the court
finds that
the
arrested person does not intend to
seek
release of the vehicle
at
the end of the period of
immobilization under section 4503.233
of
the Revised Code or that
the
arrested person is
not or will not
be able to
pay the expenses and charges incurred in its removal
and storage,
may order that title to the vehicle be transferred,
in order of
priority, first into the name of the person or entity
that removed
it, next into the name of a lienholder, or lastly
into the name of
the owner of the place of storage.
Any lienholder that receives title under a court
order shall
do so on the condition that it pay any expenses or
charges
incurred in the vehicle's removal and storage. If the person or
entity that receives title to the vehicle is the person or entity
that removed
it, the person or entity shall receive title on the
condition that it pay any
lien on the vehicle. The court
shall
not order that title be transferred to any person or entity
other
than the owner of the place of storage if the person or
entity
refuses to receive the title. Any person or entity that
receives
title either may keep title to the vehicle or may
dispose of the
vehicle in any legal manner that it considers
appropriate,
including assignment of the certificate of title to
the motor
vehicle to a salvage dealer or a scrap metal processing
facility.
The person or entity shall not
transfer the vehicle
to the person
who is the vehicle's immediate previous
owner.
If the person or entity
that receives title assigns the motor
vehicle
to a
salvage dealer or scrap metal processing facility,
the person or
entity shall send the assigned certificate of title
to the motor
vehicle to the clerk of the court of common pleas of
the county
in which the salvage dealer or scrap metal processing
facility
is located. The person or entity shall mark the face of
the
certificate of title with the words "FOR DESTRUCTION" and
shall
deliver a photocopy of
the certificate of title to the
salvage dealer or scrap metal
processing facility for its records.
(2) Whenever a court issues an order under division (F)(1)
of this
section, the court also shall order removal of the license
plates
from the vehicle and cause them to be sent to the registrar
if
they have not already been sent to the registrar. Thereafter,
no further
proceedings shall take place under this section or
under section
4503.233 of the Revised Code.
(3) Prior to initiating a proceeding under division (F)(1)
of this section, and upon payment of the fee under division (B) of
section 4505.14, any interested party may cause a search to be
made of the public records of the bureau of motor vehicles or the
clerk of the court of common pleas, to ascertain the identity of
any lienholder of the vehicle. The initiating party shall
furnish
this information to the clerk of the
court with jurisdiction over
the case, and the clerk shall provide
notice to the
arrested
person, any lienholder, and any other
interested parties
listed by
the initiating party, at the last
known address
supplied by the
initiating party, by certified mail,
or, at the
option of the
initiating party, by personal service or
ordinary
mail.
Sec. 4511.195. (A) As used in this section:
(1) "Arrested person" means a person
who is arrested for a
violation of division
(A) of section 4511.19
of the Revised Code
or a municipal OVI ordinance
and whose arrest
results in a vehicle
being seized under division (B) of
this
section.
(2) "Vehicle owner" means either of the following:
(a) The person in whose name is
registered, at the time of
the seizure, a vehicle that is seized under
division (B) of this
section;
(b) A person to whom the certificate of title to a vehicle
that is seized
under division (B) of this section has been
assigned and who has not obtained
a certificate of title to the
vehicle in that person's name, but who is deemed
by the court as
being the owner of the vehicle at the time the vehicle was
seized
under division (B) of this section.
(3)
"Interested
party" includes the owner of a vehicle
seized
under this
section, all lienholders, the
arrested
person, the
owner of the place of storage at which a vehicle
seized under this
section is
stored, and the person or entity that
caused the
vehicle to be
removed.
(B)(1) The arresting officer or another officer of the law
enforcement
agency that employs the arresting officer, in addition
to any action
that the arresting officer is required or authorized
to take by section
4511.19
or 4511.191 of the Revised Code or by
any other
provision of
law, shall seize the vehicle that a person
was operating at the time of the
alleged offense and its license
plates if
the vehicle is registered in the
arrested person's name
and if either of the following
applies:
(a) The person is arrested for a violation of division
(A)
of section 4511.19 of the Revised Code or of a municipal
OVI
ordinance and, within six years of the alleged violation,
the
person previously has been convicted of or pleaded guilty to one
or more
violations of
division (A) or (B) of section 4511.19 of
the
Revised Code or one or
more other
equivalent offenses.
(b) The person is arrested for a violation of
division (A)
of section 4511.19 of the Revised Code or of a
municipal
OVI
ordinance and the person previously has been
convicted
of or
pleaded guilty to a violation of division (A) of section
4511.19
of the Revised Code under circumstances in which the violation was
a
felony, regardless of when the
prior felony violation of
division (A) of section 4511.19 of the Revised Code
and the
conviction or guilty plea occurred.
(2)
A law
enforcement agency that employs a law enforcement
officer who
makes an arrest of a type that is described in
division (B)(1) of
this section and that involves a rented or
leased vehicle
that is being rented or leased for a
period of
thirty days or
less shall notify, within
twenty-four hours after
the officer
makes the arrest, the lessor or owner of
the vehicle
regarding the
circumstances of the arrest and the location at
which the vehicle
may be picked
up. At the time of the seizure of
the vehicle, the
law
enforcement officer who made the arrest shall
give the
arrested person written notice that the vehicle and its
license plates have been seized; that the vehicle either will be
kept by the officer's law enforcement agency or will be
immobilized at least until the operator's initial appearance on
the charge of the offense for which the arrest was made; that, at
the initial appearance, the court in certain circumstances may
order that the vehicle and license plates be released
to the
arrested person until the disposition of
that
charge;
and that,
if
the
arrested person is
convicted of that
charge, the court
generally must order the
immobilization of the vehicle and the
impoundment of its license
plates, or the forfeiture of the
vehicle.
(3) The arresting officer or a law enforcement officer of
the agency
that employs the arresting officer shall give written
notice of the seizure to
the court that will conduct the initial
appearance of the
arrested
person on the charges arising out of
the
arrest. Upon receipt of
the notice, the court promptly
shall
determine whether the
arrested person is
the vehicle owner.
If
the court determines that the
arrested person
is not the
vehicle
owner, it promptly shall send by regular mail
written
notice of
the seizure
to the
vehicle's registered owner. The written
notice
shall contain all of the information
required by
division
(B)(2) of this section to be in a notice to be
given to
the
arrested person and also shall
specify the
date, time, and
place
of the
arrested person's
initial
appearance.
The notice also
shall inform the vehicle
owner that if title to a motor
vehicle
that is subject to an order
for criminal forfeiture
under this
section is assigned or
transferred and division
(B)(2) or (3) of
section 4503.234 of
the Revised
Code applies, the court may fine
the
arrested
person the value of the
vehicle. The notice
also
shall state that if the vehicle is immobilized
under
division (A)
of section 4503.233 of the Revised
Code, seven
days after the end
of the period of immobilization a law
enforcement agency will
send
the vehicle owner a notice, informing
the
owner
that if the
release of the vehicle is not
obtained in accordance with division
(D)(3) of section 4503.233 of
the Revised
Code, the vehicle shall
be
forfeited. The notice also
shall inform the vehicle owner that
the vehicle owner may be
charged expenses or charges incurred
under this section and
section 4503.233 of the
Revised Code for
the removal and storage
of the vehicle.
The written notice that is given to the
arrested person also
shall state that if
the
person is
convicted of
or
pleads guilty
to the offense
and the
court issues an immobilization and
impoundment
order relative to that vehicle,
division (D)(4) of
section
4503.233 of the Revised Code prohibits the vehicle
from
being sold
during the period of immobilization without the prior
approval of
the court.
(4) At or before the initial appearance, the vehicle
owner
may file a motion requesting the court to order that the
vehicle
and its license plates be released to the vehicle owner. Except
as
provided in this division and subject to the payment
of
expenses or charges incurred in the removal and storage of
the
vehicle, the court, in its discretion, then may issue an
order
releasing the vehicle and its license plates to the
vehicle owner.
Such an order may be conditioned upon such terms
as the court
determines appropriate, including the posting of a
bond in an
amount determined by the court. If the
arrested
person is not
the vehicle owner and if the
vehicle owner is
not
present at the
arrested person's initial
appearance, and if
the court believes
that the vehicle owner was
not provided with
adequate notice of
the initial appearance, the
court, in its
discretion, may allow
the vehicle owner to file a
motion within
seven days of the
initial appearance. If the court
allows the
vehicle owner to file
such a motion after the initial
appearance, the extension of time
granted by the court does not
extend the time within which the
initial appearance is to be
conducted. If the court issues an
order for the release of the
vehicle and its license plates, a
copy of the order shall be
made
available to the vehicle owner.
If
the vehicle owner
presents a
copy of the order to the law
enforcement agency that
employs the
law enforcement officer who
arrested the
arrested person, the law enforcement agency promptly
shall
release the vehicle and its license plates to the vehicle
owner
upon payment by the vehicle owner of any expenses or
charges
incurred in the removal and storage of the vehicle.
(5) A vehicle seized under division (B)(1) of this section
either shall be towed to a place specified by the law enforcement
agency that employs the arresting officer to be safely kept by
the
agency at that place for the time and in the manner specified
in
this section or shall be otherwise immobilized for the time and in
the
manner specified in this section. A law enforcement officer
of
that agency shall remove the identification license plates of
the
vehicle, and they shall be safely kept by the agency for the
time
and in the manner specified in this section. No vehicle that
is
seized and either towed or immobilized pursuant to this
division
shall be considered contraband for purposes of section
2933.41,
2933.42, or 2933.43 Chapter 2981. of the Revised Code. The vehicle
shall not
be immobilized at any place other than a commercially
operated
private storage lot, a place owned by a law enforcement
agency or other
government agency, or a place to which one of the
following
applies:
(a) The place is leased by or otherwise under the control
of
a law enforcement agency or other government agency.
(b) The place is owned by the vehicle operator, the
vehicle
operator's spouse, or a parent or child of the vehicle
operator.
(c) The place is owned by a private person or entity, and,
prior to the immobilization, the private entity or person that
owns the place, or the authorized agent of that private entity or
person, has given express written consent for the immobilization
to be carried out at that place.
(d) The place is a street or highway on which the
vehicle is
parked in accordance with the law.
(C)(1) A vehicle
seized under division
(B) of this
section
shall be safely kept at the place to which it
is towed or
otherwise moved by the law enforcement agency that employs the
arresting
officer until the initial appearance of the
arrested
person
relative to the charge in question. The
license
plates of
the vehicle that are removed pursuant to
division (B) of this
section shall be safely kept by the law
enforcement agency that
employs the
arresting officer until the
initial appearance of the
arrested person
relative to the charge in question.
(2)(a) At the initial appearance or not less than seven days
prior to the
date of final disposition, the court shall notify the
arrested person
that, if title to a motor vehicle that is subject
to an order for
criminal forfeiture under this section is assigned
or
transferred and division
(B)(2)
or (3) of section 4503.234
of
the
Revised
Code applies, the court may
fine the
arrested person
the value of the
vehicle.
If, at the
initial appearance, the
arrested
person pleads
guilty to
the violation of division (A) of
section 4511.19
of the
Revised Code or of the municipal
OVI
ordinance or pleads
no
contest to and is convicted of the
violation, the court shall
impose sentence upon the
person as
provided by
law or
ordinance; the court shall order
the
immobilization of the vehicle
the arrested person was
operating at
the time
of the offense if registered in the arrested
person's
name and the
impoundment of its
license plates under
section
4503.233 and section
4511.19
or
4511.193
of the
Revised Code or
the criminal
forfeiture
to the state of the
vehicle
if registered
in the arrested
person's name under section
4503.234 and
section
4511.19
or 4511.193
of the Revised
Code, whichever is
applicable;
and the vehicle and its license
plates
shall not be returned or
released to the
arrested person.
(b) If, at any time, the charge that the
arrested person
violated division (A) of
section 4511.19 of the
Revised Code or
the municipal
OVI ordinance is
dismissed for
any
reason, the
court shall order that the vehicle seized at the
time
of the
arrest and its license plates immediately
be released
to the
person.
(D) If a vehicle
and its license plates are seized under
division (B) of this section
and
are not returned or released
to
the
arrested person pursuant to division (C) of
this section,
the
vehicle
and its license plates shall be
retained until
the final
disposition of the charge in
question.
Upon the final disposition
of that charge, the court
shall do
whichever of the following is
applicable:
(1) If the
arrested person is convicted of
or
pleads
guilty
to the violation of division (A) of section
4511.19 of the
Revised
Code or of the municipal
OVI
ordinance, the
court shall
impose
sentence upon the
person as provided by
law or
ordinance and
shall order the
immobilization of the vehicle the
person was
operating at the time of the offense
if
it is registered in the
arrested person's name and the
impoundment
of its license plates
under section 4503.233 and
section
4511.19
or 4511.193
of the
Revised
Code, or the criminal
forfeiture of the vehicle
if it is
registered in the arrested
person's
name
under section 4503.234
and
section
4511.19
or
4511.193
of the Revised
Code, whichever is
applicable.
(2) If the
arrested person is found not
guilty
of the
violation of division (A) of section 4511.19 of the
Revised Code
or of the municipal
OVI ordinance, the court
shall
order that
the
vehicle and its license plates immediately be
released to the
arrested person.
(3) If the charge that the
arrested person
violated
division (A) of section 4511.19 of the Revised Code or
the
municipal
OVI ordinance is dismissed for any
reason, the
court
shall order that the vehicle and its license
plates
immediately be
released to the
arrested person.
(4)
If the impoundment of the vehicle was not authorized
under
this section, the court shall order that the vehicle and its
license plates be
returned immediately to
the arrested person or,
if the arrested person is not the vehicle owner, to
the vehicle
owner, and shall order that the state or political subdivision of
the
law enforcement agency
served by the law enforcement officer
who seized the vehicle pay
all expenses and charges incurred in
its removal and storage.
(E) If a vehicle is seized under division (B) of this
section, the time between the seizure of the vehicle and either
its release to the
arrested person under division
(C) of this
section or the issuance of an order of
immobilization
of the
vehicle under section 4503.233 of
the Revised Code shall be
credited against the period of
immobilization ordered by the
court.
(F)(1)
Except as provided in division
(D)(4) of this
section, the arrested person may be charged
expenses or charges
incurred in the removal and storage of the
immobilized vehicle.
The court
with jurisdiction over the case,
after notice to all
interested parties, including lienholders, and
after an
opportunity for them to be heard,
if the court
finds that
the
arrested person does not intend to
seek
release of the vehicle
at
the end of the period of
immobilization under section 4503.233
of
the Revised Code or that
the
arrested person is
not or will not
be able to
pay the expenses and charges incurred in its removal
and storage,
may order that title to the vehicle be transferred,
in order of
priority, first into the name of the person or entity
that removed
it, next into the name of a lienholder, or lastly
into the name of
the owner of the place of storage.
Any lienholder that receives title under a court
order shall
do so on the condition that it pay any expenses or
charges
incurred in the vehicle's removal and
storage. If the person or
entity that receives title to the vehicle
is the person or entity
that removed it, the person or entity
shall receive title on the
condition that it pay any lien on the
vehicle. The court
shall
not order that title be transferred to any person or entity
other
than the owner of the place of storage if the person or
entity
refuses to receive the title. Any person or entity that
receives
title either may keep title to the vehicle or may
dispose of the
vehicle in any legal manner that it considers
appropriate,
including assignment of the certificate of title to
the motor
vehicle to a salvage dealer or a scrap metal processing
facility.
The person or entity shall not
transfer the vehicle to the person
who is the
vehicle's immediate previous
owner.
If the person or entity
that receives title assigns the motor
vehicle
to a
salvage dealer or scrap metal processing facility,
the person or
entity shall send the assigned certificate of title
to the motor
vehicle to the clerk of the court of common pleas of
the county
in which the salvage dealer or scrap metal processing
facility
is located. The person or entity shall mark the face of
the
certificate of title with the words "FOR
DESTRUCTION" and
shall deliver a photocopy of
the certificate of
title to the
salvage dealer or scrap metal
processing facility for
its records.
(2) Whenever a court issues an order under division (F)(1)
of this section, the court also shall order removal of the license
plates
from the vehicle and cause them to be sent to the registrar
of motor
vehicles if they have not already been sent to the
registrar.
Thereafter, no further proceedings shall take place
under this section or
under section 4503.233 of the Revised Code.
(3) Prior to initiating a proceeding under division (F)(1)
of this
section, and upon payment of the fee under division (B) of
section 4505.14 of the Revised Code, any interested party may
cause a search to be made of the public records of the bureau of
motor vehicles or the clerk of the court of common pleas, to
ascertain the identity of any lienholder of the vehicle. The
initiating party shall furnish this information to the clerk of
the court with jurisdiction over the case,
and the clerk shall
provide notice
to the
arrested
person, any
lienholder, and any
other interested parties listed by
the initiating party, at the
last known address supplied by the
initiating party, by certified
mail or, at the option of the
initiating party, by personal
service or ordinary mail.
Sec. 4549.62. (A) No person, with purpose to
conceal
or
destroy the identity of a vehicle or vehicle part,
shall
remove,
deface, cover, alter, or destroy any vehicle
identification number
or derivative
of a vehicle
identification number on a vehicle or
vehicle part.
(B) No person, with purpose to conceal or destroy
the
identity of a vehicle or a vehicle part,
shall remove, deface,
cover, alter, or destroy any identifying number that has been
lawfully placed upon a vehicle or vehicle part by an owner of the
vehicle or vehicle part, other than the manufacturer, for the
purpose of deterring its theft and facilitating its recovery if
stolen.
(C) No person, with purpose to conceal or destroy
the
identity of a vehicle or vehicle part,
shall place a counterfeit
vehicle identification number or derivative
of a vehicle
identification number upon the
vehicle or vehicle part.
(D)(1) No person shall buy, offer to buy, sell, offer to
sell, receive, dispose of, conceal, or, except as provided in
division (D)(4) of this section, possess any vehicle or vehicle
part with knowledge that the vehicle identification number or a
derivative
of the vehicle identification number has been
removed,
defaced, covered, altered,
or destroyed in such a manner
that the
identity of the vehicle or
part cannot be determined by a
visual
examination of the number
at the site where the
manufacturer
placed the number.
(2)(a) A vehicle or vehicle part from which the vehicle
identification number or a derivative
of the vehicle
identification number has been so
removed, defaced, covered,
altered, or destroyed shall be seized
and forfeited under section
2933.41 Chapter 2981. of the Revised Code unless
division (D)(3) or (4) of this
section applies to the vehicle or
part. If a derivative of the
vehicle identification number has
been removed, defaced, covered,
altered, or destroyed in such a
manner that the identity of the
part cannot be determined, the
entire vehicle is subject to
seizure pending a determination of
the original identity and
ownership of the vehicle and parts of
the vehicle, and the rights
of innocent owners to reclaim the
remainder or any part of the
vehicle.
(b) The lawful owners of parts upon a vehicle that has
been
seized under this section and that is subject to forfeiture
under
section 2933.41 Chapter 2981. of the Revised Code are entitled to reclaim
their
respective parts upon satisfactory proof of all of the
following:
(i) That the part is not needed for evidence in pending
proceedings involving the vehicle or part and is not subject to
forfeiture under section 2933.41 Chapter 2981. of the Revised Code;
(ii) That the original identity and ownership of the part
can be determined and that the claimant is the lawful owner of
the
part;
(iii) That no vehicle identification number or derivative
of
a vehicle identification number on the part has been destroyed
or
concealed in such a manner that the identity of the part
cannot be
determined from that number;
(iv) Payment of all costs of removing the part.
(3) Divisions (A), (B), and (D)(1) and (2) of this section
do not apply to the good faith acquisition and disposition of
vehicles and vehicle parts as junk or scrap in the ordinary
course
of business by a scrap metal processing facility as
defined in
division
(D) of section 4737.05 of the Revised
Code or
by a
motor
vehicle salvage dealer licensed under Chapter 4738. of
the
Revised
Code. This division
does not create an
element of
an offense or
an affirmative defense, or affect the
burden of
proceeding with
the evidence or burden of proof in a
criminal
proceeding.
(4)(a) Divisions (D)(1) and (2) of this section do not
apply
to the possession of an owner, or the owner's insurer, who
provides satisfactory evidence of all of the following:
(i) That the vehicle identification number or derivative
thereof on the vehicle or part has been removed, defaced,
covered,
altered, or destroyed, after the owner acquired such
possession,
by another person without the consent of the owner,
by accident or
other casualty not due to the owner's purpose to
conceal or
destroy the identity of the vehicle or vehicle part,
or by
ordinary wear and tear;
(ii) That the person is the owner of the vehicle as shown
on
a valid certificate of title issued by this state or
certificate
of title or other lawful evidence of title issued in
another
state, in a clear chain of title beginning with the
manufacturer;
(iii) That the original identity of the vehicle can be
established in a manner that excludes any reasonable probability
that the vehicle has been stolen from another person.
(b) The registrar of motor vehicles shall adopt rules
under
Chapter 119. of the Revised Code to permit an owner
described in
division (D)(4)(a) of this section, upon application
and
submission of satisfactory evidence to the registrar, to obtain
authority to replace the vehicle
identification number under the
supervision of a peace officer,
trooper of the state highway
patrol, or representative of the
registrar. The rules shall be
designed to restore the
identification of the vehicle in a manner
that will deter its
theft and facilitate its marketability. Until
such rules are
adopted, the registrar shall follow the existing
procedure for
the
replacement of vehicle identification numbers
that have been
established by the registrar, with such
modifications as the
registrar determines to be necessary or
appropriate for the
administration of the laws
the registrar is
required to
administer.
The registrar may issue a temporary permit to an owner of a
motor vehicle who is described in division (D)(4)(a) of this
section to authorize the owner to retain possession of the motor
vehicle and to transfer title to the motor vehicle with the
consent of the registrar.
(c) No owner described in division (D)(4)(a) of this
section
shall
fail
knowingly to apply to the registrar
for
authority to
replace the vehicle identification number, within
thirty days
after the later of the following dates:
(i) The date of receipt by the applicant of actual
knowledge
of the concealment or destruction;
(ii) If the property has been stolen, the date thereafter
upon which the applicant obtains possession of the vehicle or has
been notified by a law enforcement agency that the vehicle has
been recovered.
The requirement of division (D)(4)(c) of this section may
be
excused by the registrar for good cause shown.
(E) Whoever violates division (A),
(B),
(C), or (D)(1) of
this
section is guilty of a felony of the fifth degree on a first
offense and a
felony of the
fourth degree on each subsequent
offense.
(F) Whoever violates division
(D)(4)(c)
of this section is
guilty of a minor misdemeanor.
Sec. 4549.63. (A) A law enforcement officer may seize and
take possession of a vehicle or vehicle part if the officer has
probable cause to believe that any vehicle identification number
or derivative thereof on the vehicle or part has been removed,
defaced, covered, altered, or destroyed in such a manner that the
identity of the vehicle or part cannot be determined by visual
examination of the number at the site where the manufacturer
placed the number. The seizure shall be pursuant to a warrant,
unless the circumstances are within one of the exceptions to the
warrant requirement that have been established by the supreme
court of the United States or of the supreme court of this state.
(B) A vehicle or vehicle part seized under division (A) of
this section shall be held in custody pursuant to section 2933.41
2981.11 of the Revised Code or any applicable municipal ordinance.
(C) A law enforcement officer who acts in good faith in
the belief that the seizure of a vehicle or vehicle part is
justified under division (A) of this section is immune from any
civil or criminal liability for such seizure.
(D) The lawful owner of a vehicle or vehicle part seized
under this section that is not needed as evidence and is not
subject to forfeiture under division (D)(2) of section 4549.62 of
the Revised Code may reclaim the property by submitting
satisfactory proof of ownership to the law enforcement agency or
court holding the property.
Sec. 4728.04. (A) The application for a license under
this chapter shall state fully
the name and
address of the person, or corporation, and of every member of the
firm, partnership, or association, authorized to do business
thereunder, the name of the individual responsible for the daily
operation of the business, and the location of the office or
place of business in which the business is conducted. In the case
of a corporation, the application also shall state the date and
place of incorporation, the name and address of the corporation's
manager, the names and addresses of corporate directors, and the
name and address of the agent, as provided in section 4728.03 of
the Revised Code.
The holder of a precious metals dealer's license
shall keep the license posted in a conspicuous place in the
office where business is transacted. No licensee shall transact
or solicit business under any other name or location. Not more
than one office or place of business shall be maintained under
the same license, except as provided under division (C) of this
section. In case of removal, the licensee shall provide written
notice in advance to the division of financial
institutions in the department of commerce of a prospective change of
address of a business location. Upon approval by the superintendent of
financial institutions, the division shall issue a new
license. If the new
location is outside the municipal corporation or county of the
original licensed location, the licensee shall pay an additional
license fee according to section 4728.03 of the Revised Code.
(B) A person licensed under this chapter shall post a conspicuous notice
in its place of
business
visible to all patrons, in a form and at places designated by
rule of the division, that the licensee has
no right to retain goods stolen from the true owner, and that the
owner may recover the goods or their value from the licensee in
an action at law or, if the chief or head of a local police department
or the chief's or head's representative takes custody of the goods, by release
pursuant to section 2933.41 2981.11 of the Revised Code.
(C)(1) The superintendent may issue to a person licensed under this chapter
or Chapter 4727. of the Revised Code a temporary exhibition
permit for a
term that coincides with that of the license of the licensee. A
person issued a permit under this division may engage in the
business of purchasing articles made of or containing gold,
silver, platinum, or other precious metals or jewels from the
public at a bona fide auction, convention, exhibition, fair, or
show, the primary purpose of which is to display, trade, and sell
articles made of or containing precious metals or jewels, for a
period not to exceed seven days for any one auction, convention,
exhibition, fair, or show.
(2) The superintendent shall determine the application
procedures for and the form of the temporary exhibition permit
described in this division, provided that a temporary permit
shall state fully the name and permanent business address of the
licensee to whom it is issued.
(3) The holder of a temporary exhibition permit shall,
when participating in any auction, convention, fair, or show,
conspicuously display the holder's permit at the location at
which the holder transacts business.
(4) A permit holder who wishes to participate in an
auction, convention, exhibition, fair, or show shall, at least
two weeks prior to its scheduled opening, submit to the
superintendent, or the chief or the head of the
local police department with jurisdiction at the location of the
event, the holder's name, the location of the auction,
convention, exhibition, fair, or show, and the holder's
permanent business address as
it appears on the holder's permit issued under division
(C)(2) of this section.
(5) All purchases of articles made of or containing gold,
silver, platinum, or other precious metals or jewels conducted
under a temporary exhibition permit are subject to sections
4728.06 to 4728.09, 4728.13, and 4728.99 of the Revised Code as
if made under a license.
Sec. 4729.65. (A) Except as provided in division (B) of
this section, all receipts of the state board of pharmacy, from
any source, shall be deposited into the state treasury to the
credit of the occupational licensing and regulatory fund. All vouchers of the
board shall be approved by the president or executive director
of the board, or both, as authorized by the board. All initial issuance
fees and renewal fees required by sections 4729.01 to 4729.54 of
the Revised Code shall be payable by the applicant at the time of
making application.
(B)(1) There is hereby created in the state treasury
the board of pharmacy drug law enforcement fund. All moneys that
are derived from any fines, mandatory fines, or forfeited
bail to which
the board may be entitled under Chapter 2925., division
(C)(1) of
section 2923.42, or division (B)(5)
of section 2925.42 of the Revised Code and all moneys that are
derived from forfeitures of property to which the board may be
entitled pursuant to Chapter 2925. or 2981. of the Revised Code, section
2923.32, 2923.35, 2923.44, 2923.45, 2923.46, or 2933.43 of the
Revised Code, any other
section provision of the Revised Code, or federal law shall be deposited
into the fund. Subject to division (B)(2) of this section,
division (D)(2)(c) of section 2923.35, division (B)(5) of section
2923.44, division (B)(7)(c) of section
2923.46,
and
divisions (D)(1)(c)
and (3)(B), (C), and (D) of section 2933.43 2981.13 of the Revised Code, the moneys in the
fund shall be used solely to subsidize the drug law enforcement
efforts of the board.
(2) Notwithstanding any contrary provision in the Revised
Code, moneys that are derived from forfeitures of property
pursuant to federal law and that are deposited into the board of
pharmacy drug law enforcement fund in accordance with division
(B)(1) of this section shall be used and accounted for in
accordance with the applicable federal law, and the board
otherwise shall comply with that law in connection with the
moneys.
(C) All fines and forfeited bonds assessed and collected
under prosecution or prosecution commenced in the enforcement of
this chapter shall be paid to the executive director of the board
within thirty days and by the executive director paid into
the state treasury to the credit of the occupational licensing and regulatory
fund. The board, subject to the approval of the controlling board and except
for fees required to be established by the board at amounts "adequate" to
cover designated expenses, may establish fees in excess of the amounts
provided by this chapter, provided that such fees do not exceed
the amounts permitted by this chapter by more than fifty per cent.
Sec. 5735.121. (A) If the tax commissioner finds that any
person liable for tax under this chapter is about to depart from the
state, remove property from the state, conceal
self, or conceal the person's property, or do
any other act tending to prejudice, obstruct, or render wholly or
partly ineffectual proceedings to collect the tax, unless
proceedings are commenced without delay, or if the commissioner
believes that the collection of the amount due from any person
will be jeopardized by delay, the commissioner may issue a
jeopardy assessment against the person for the amount of the tax,
plus a penalty of up to fifteen per cent. Upon issuance of a jeopardy
assessment under this division, the total amount assessed shall
immediately be due and payable unless security is provided
pursuant to division (C) of this section. Any assessment issued under this
section shall
bear interest in the manner
prescribed in section 5735.12 of the Revised Code.
(B) The commissioner immediately shall file an entry with
the clerk of the court of common pleas in the same manner and
with the same effect as provided in section 5735.12 of the
Revised Code. Notice of the jeopardy assessment shall be served
on the person assessed or the legal representative of the
person assessed, as provided in section 5703.37 of the Revised Code,
within five
days of the filing of the entry. The person assessed may
petition for reassessment within sixty days of receipt of
the notice of jeopardy assessment in the same manner as provided
in section 5735.12 of the Revised Code. Full or partial payment
of the assessment shall not prejudice the commissioner's
consideration of the merits of the assessment as contested by the
petition for reassessment. Upon notification of the existence of
the judgment filed pursuant to this division, any public official
having control or custody of any funds or property of the person
assessed immediately shall pay or deliver the funds or property
to the commissioner as full or partial satisfaction of the
jeopardy assessment. However, funds or property needed as
evidence in criminal proceedings or that is expected to be
forfeited pursuant to section 2923.35, 2933.41, or 2933.43 Chapter 2981. of the
Revised Code, need not be relinquished by the public official.
Upon disposition of criminal and forfeiture proceedings, funds
and property not needed as evidence and not forfeited shall be
delivered to the commissioner.
(C) If the person subject to a jeopardy assessment files a
petition for reassessment and posts security satisfactory to the
commissioner in an amount sufficient to satisfy the unpaid
balance of the assessment, execution on the judgment shall be
stayed pending disposition of the petition for reassessment and
all appeals resulting from the petition. If the security is
sufficient to satisfy the full amount of the assessment, the
commissioner shall return any funds or property of the person
that previously were seized. Upon satisfaction of the
assessment, the commissioner shall order the security released
and the judgment vacated.
(D) The commissioner may adopt rules providing for the imposition
and remission of penalties added to assessments made under this section.
Sec. 5739.15. (A) If the tax commissioner finds that a
vendor, consumer, or officer, employee, or trustee of a
corporation or business trust who is liable for any tax or charge
levied by this chapter or Chapter 5741. of the Revised Code is
about to depart from the state, remove the person's property
from the state, conceal the person's self or property, or do any other act
tending to prejudice, obstruct, or render wholly or partly
ineffectual proceedings to collect the tax unless the proceedings
are commenced without delay, or if the commissioner believes that
the collection of the amount due from any vendor, consumer, or
officer, employee, or trustee of a corporation or business trust
will be jeopardized by delay, the commissioner may issue a
jeopardy assessment against the person for the amount of the tax
or charge plus a penalty as provided by section 5739.133 of the
Revised Code. Upon issuance of a jeopardy assessment under this
division, the total amount assessed shall immediately be due and
payable unless security is provided pursuant to division (C) of
this section. Any assessment issued under this section shall bear
interest as prescribed by section 5739.13 of the Revised Code.
(B) The commissioner immediately shall file an entry with
the clerk of the court of common pleas in the same manner and
with the same effect as provided in section 5739.13 of the
Revised Code. Notice of the jeopardy assessment shall be served
on the person assessed or the person's legal representative, as
provided in section 5703.37 of the Revised Code,
within five days of the filing of the entry. The person assessed may
petition for reassessment within sixty days of receipt of
the notice of jeopardy assessment in the same manner as provided
in section 5739.13 of the Revised Code. Full or partial payment
of the assessment shall not prejudice the commissioner's
consideration of the merits of the assessment as contested by the
petition for reassessment. Upon notification of the existence of
the judgment filed pursuant to this division, any public official
having control or custody of any funds or property of the person
assessed immediately shall pay or deliver the funds or property
to the commissioner as full or partial satisfaction of the
jeopardy assessment. However, funds or property needed as
evidence in criminal proceedings or that is expected to be
forfeited pursuant to section 2923.35, 2933.41, or 2933.43 Chapter 2981. of the
Revised Code, need not be relinquished by the public official.
Upon disposition of criminal and forfeiture proceedings, funds
and property not needed as evidence and not forfeited shall be
delivered to the commissioner.
(C) If the person subject to a jeopardy assessment files a
petition for reassessment and posts security satisfactory to the
commissioner in an amount sufficient to satisfy the unpaid
balance of the assessment, execution on the judgment shall be
stayed pending disposition of the petition for reassessment and
all appeals resulting from the petition. If the security is
sufficient to satisfy the full amount of the assessment, the
commissioner shall return any funds or property of the person
previously seized. Upon satisfaction of the assessment, the
commissioner shall order the security released and the judgment
vacated.
Sec. 5743.082. (A) If the tax commissioner finds that a
wholesale dealer or retail dealer, liable for tax under sections
5743.01 to 5743.20 of the Revised Code, is about to depart from
the state, remove the wholesale or retail dealer's property
from the state, conceal the wholesale or retail dealer's
person or property, or do any other act tending to prejudice, obstruct,
or render wholly or partly ineffectual proceedings to collect the
tax, unless the proceedings are commenced without delay, or if
the commissioner believes that the collection of the amount due
from any wholesale dealer or retail dealer will be jeopardized by
delay, the commissioner may issue a jeopardy assessment against
the wholesale or retail dealer for the amount of the tax, plus a
penalty of up to thirty per cent. Upon issuance of a jeopardy
assessment under this division, the total amount assessed shall
immediately be due and payable unless security is provided
pursuant to division (C) of this section. Any assessment issued under this
section shall bear interest as prescribed by section 5743.081 of the Revised
Code.
(B) The commissioner immediately shall file an entry with
the clerk of the court of common pleas in the same manner and
with the same effect as provided in section 5743.081 of the
Revised Code. Notice of the jeopardy assessment shall be served
on the dealer assessed or the dealer's legal representative, as
provided in section 5703.37 of the Revised Code,
within five days of the filing of the entry. The dealer assessed may
petition for reassessment within sixty days of receipt of
the notice of jeopardy assessment in the same manner as provided
in section 5743.081 of the Revised Code. Full or partial payment
of the assessment shall not prejudice the commissioner's
consideration of the merits of the assessment as contested by the
petition for reassessment. Upon notification of the existence of
the judgment filed pursuant to this division, any public official
having control or custody of any funds or property of the person
assessed immediately shall pay or deliver the funds or property
to the commissioner as full or partial satisfaction of the
jeopardy assessment. However, funds or property needed as
evidence in criminal proceedings or that is expected to be
forfeited pursuant to section 2923.35, 2933.41, or 2933.43 Chapter 2981. of the
Revised Code, need not be relinquished by the public official.
Upon disposition of criminal and forfeiture proceedings, funds
and property not needed as evidence and not forfeited shall be
delivered to the commissioner.
(C) If the dealer subject to a jeopardy assessment files a
petition for reassessment and posts security satisfactory to the
commissioner in an amount sufficient to satisfy the unpaid
balance of the assessment, execution on the judgment shall be
stayed pending disposition of the petition for reassessment and
all appeals resulting from the petition. If the security is
sufficient to satisfy the full amount of the assessment, the
commissioner shall return any funds or property of the dealer
that previously were seized. Upon satisfaction of the assessment
the commissioner shall order the security released and the
judgment vacated.
(D) The commissioner may adopt rules providing for the imposition
and remission of penalties imposed under this section.
Sec. 5743.112. (A) No person shall prepare for shipment,
ship, transport, deliver, prepare for distribution, or distribute
cigarettes, or otherwise engage or participate in the wholesale
or retail business of trafficking in cigarettes, with the intent
to avoid payment of the tax imposed by this chapter, when the
total number of cigarettes in the aggregate exceeds one thousand two hundred during
any twelve-month period.
(B) Any vending machine containing cigarettes which do not
have affixed the stamps or impressions provided for by sections
5743.03 and 5743.04 of the Revised Code shall be seized and
forfeited to the state in accordance with section 2933.43 Chapter 2981. of the
Revised Code. Forfeiture shall not affect the rights of a holder
of a valid lien.
(C) A vehicle that is seized as contraband under section
2933.43 Chapter 2981. of the Revised Code because of its use in violation of
this chapter is subject to the procedures set forth in section
2933.43 of the Revised Code that chapter.
Section 2. That existing sections 9.92, 109.85, 309.08, 311.07, 1506.35, 2152.20, 2901.01, 2909.08, 2913.34, 2913.421, 2923.01, 2923.31, 2923.32, 2923.34, 2923.36, 2923.41, 2923.42, 2923.44, 2925.03, 2925.14, 2925.42, 2927.02, 2929.18, 2930.11, 2933.75, 2935.03, 2945.44, 3719.11, 3719.141, 3719.21, 3729.13, 3743.68, 3745.13, 4301.29, 4301.45, 4301.53, 4305.13, 4503.233, 4503.234, 4510.41, 4511.195, 4549.62, 4549.63, 4728.04, 4729.65, 5735.121, 5739.15, 5743.082, and 5743.112 and sections 2923.33, 2923.35, 2923.45, 2923.46, 2923.47, 2925.41, 2925.43, 2925.44, 2925.45, 2933.41, 2933.42, 2933.43, 2933.44, 2933.71, 2933.72, 2933.73, and 2933.74 of the Revised Code are hereby repealed.
Section 3. (A) Section 2901.01 of the Revised Code is presented in
this act as a composite of the section as amended by Sub. H.B. 364, Sub. H.B. 545, and H.B. 675 of the 124th General Assembly. The General Assembly, applying the
principle stated in division (B) of section 1.52 of the Revised
Code that amendments are to be harmonized if reasonably capable of
simultaneous operation, finds that the composites are the resulting
versions of the sections in effect prior to the effective date of
the sections as presented in this act.
(B) Section 2925.14 of the Revised Code is presented in
this act as a composite of the section as amended by both Am. Sub. S.B. 53 and Sub. S.B. 154 of
the 126th General Assembly. The General Assembly, applying the
principle stated in division (B) of section 1.52 of the Revised
Code that amendments are to be harmonized if reasonably capable of
simultaneous operation, finds that the composite is the resulting
version of the section in effect prior to the effective date of
the section as presented in this act.
Section 4. Sections 1, 2, and 3 of this act shall take effect on July 1, 2007. If a criminal or civil forfeiture action relating to misconduct under Title XXIX of the Revised Code was or is commenced before July 1, 2007, and is still pending on that date, the court in which the case is pending shall, to the extent practical, apply the provisions of Chapter 2981. of the Revised Code in the case.