(h) The state board of pharmacy has adopted a rule pursuant | 87 |
to section 4729.041 of the Revised Code that specifies the amount | 88 |
of salvia divinorum and the amount of salvinorin A that constitute | 89 |
concentrations of salvia divinorum and salvinorin A in a person's | 90 |
urine, in a person's whole blood, or in a person's blood serum or | 91 |
plasma at or above which the person is impaired for purposes of | 92 |
operating or being in physical control of any vessel underway or | 93 |
manipulating any water skis, aquaplane, or similar device on the | 94 |
waters of this state, the rule is in effect, and the person has a | 95 |
concentration of salvia divinorum or salvinorin A of at least that | 96 |
amount so specified by rule in the person's urine, in the person's | 97 |
whole blood, or in the person's blood serum or plasma. | 98 |
(i) The person is under the influence of alcohol, a drug of | 100 |
abuse, or a combination of them, and, as measured by gas | 101 |
chromatography mass spectrometry, the person has a concentration | 102 |
of marihuana metabolite in the person's urine of at least fifteen | 103 |
nanograms of marihuana metabolite per milliliter of the person's | 104 |
urine or has a concentration of marihuana metabolite in the | 105 |
person's whole blood or blood serum or plasma of at least five | 106 |
nanograms of marihuana metabolite per milliliter of the person's | 107 |
whole blood or blood serum or plasma. | 108 |
(b) In any criminal prosecution
or juvenile court
proceeding | 161 |
for a violation of
division (A) or (B) of this
section
or
for an | 162 |
equivalent
offense that is watercraft-related, the court
may | 163 |
admit evidence on
the concentration of
alcohol,
drugs of
abuse, | 164 |
controlled substances, metabolites of a controlled
substance,
or | 165 |
a
combination of
them in the
defendant's
or child's
whole blood, | 166 |
blood serum or
plasma, urine,
or
breath at the time
of the | 167 |
alleged violation as
shown by
chemical
analysis of the
substance | 168 |
withdrawn, or
specimen taken
within
three hours of the
time of the | 169 |
alleged
violation. The three-hour time limit specified
in this | 170 |
division regarding the admission of evidence does not
extend or | 171 |
affect the two-hour time limit specified in division (C)
of | 172 |
section 1547.111 of the Revised Code as the maximum period of | 173 |
time during which a person may consent to a chemical test or tests | 174 |
as described in that section. The court may admit evidence on the | 175 |
concentration of alcohol, drugs of abuse, or a combination of them | 176 |
as described in this division when
a person submits to a blood, | 177 |
breath, urine, or other
bodily substance test at the request of a | 178 |
law enforcement
officer under section 1547.111 of the Revised | 179 |
Code or a blood or
urine sample is obtained pursuant to a search | 180 |
warrant. Only a
physician,
a
registered nurse, an emergency | 181 |
medical technician-intermediate, an emergency medical | 182 |
technician-paramedic, or
a qualified
technician,
chemist,
or | 183 |
phlebotomist shall
withdraw blood for the
purpose of
determining
| 184 |
the alcohol, drug, controlled substance,
metabolite of
a | 185 |
controlled substance,
or combination
content
of
the whole
blood, | 186 |
blood serum, or blood plasma. This
limitation
does not
apply to | 187 |
the taking
of breath or urine specimens. A
person
authorized to | 188 |
withdraw blood
under this division may refuse
to
withdraw blood
| 189 |
under
this division
if, in
that person's
opinion, the
physical | 190 |
welfare of the
defendant or
child would be
endangered by | 191 |
withdrawing
blood. | 192 |
(2)
In a criminal prosecution or juvenile court
proceeding | 198 |
for a violation of division (A) of this section or for
an | 199 |
equivalent offense that is watercraft-related, if there
was at | 200 |
the time the
bodily substance was
taken a
concentration of
less | 201 |
than
the
applicable concentration
of
alcohol specified
for a | 202 |
violation of
division (A)(2), (3), (4),
or
(5) of this
section or | 203 |
less than the applicable concentration of a listed controlled | 204 |
substance or a listed metabolite of a controlled substance | 205 |
specified for a violation of division (A)(6) of this section,
that | 206 |
fact may
be considered with other
competent evidence
in | 207 |
determining the
guilt or innocence of the
defendant
or in making | 208 |
an
adjudication
for the child.
This
division
does not limit or | 209 |
affect a
criminal
prosecution or
juvenile court
proceeding for a | 210 |
violation of
division
(B) of this
section or for
a violation of a | 211 |
prohibition
that is
substantially
equivalent to
that division. | 212 |
If the chemical test was administered pursuant to
division | 217 |
(D)(1)(b) of this section, the person tested may have a | 218 |
physician,
a registered nurse,
or
a qualified technician, chemist, | 219 |
or
phlebotomist of the
person's own
choosing administer
a chemical | 220 |
test or tests in
addition to any administered at the
direction of | 221 |
a law enforcement
officer, and shall be so advised.
The failure or | 222 |
inability to
obtain an additional test by a person
shall not | 223 |
preclude the
admission of evidence relating to the test
or tests | 224 |
taken at the
direction of a law enforcement officer. | 225 |
(E)(1) In any criminal prosecution or juvenile court | 226 |
proceeding for a violation of division (A) or (B) of this section, | 227 |
of a municipal ordinance relating
to operating or being in | 228 |
physical control of any vessel underway
or to manipulating any | 229 |
water skis, aquaplane, or similar device on
the waters of this | 230 |
state while under the influence of alcohol, a
drug of abuse, or a | 231 |
combination of them, or of a municipal
ordinance relating to | 232 |
operating or being in physical control of
any vessel underway or | 233 |
to manipulating any water skis, aquaplane,
or similar device on | 234 |
the waters of this state with a prohibited
concentration of | 235 |
alcohol, a controlled substance, or a metabolite
of a controlled | 236 |
substance in the whole blood, blood serum or
plasma, breath, or | 237 |
urine, if a law enforcement officer has
administered a field | 238 |
sobriety test to the operator or person found
to be in physical | 239 |
control of the vessel underway involved in the
violation or the | 240 |
person manipulating the water skis, aquaplane, or
similar device | 241 |
involved in the violation and if it is shown by
clear and | 242 |
convincing evidence that the officer
administered the
test
in | 243 |
substantial compliance with the testing
standards for
reliable, | 244 |
credible, and generally accepted field
sobriety tests
for vehicles | 245 |
that were in effect at the time the
tests were
administered, | 246 |
including, but not limited to, any
testing standards
then in | 247 |
effect that have been set by the
national
highway traffic
safety | 248 |
administration, that by their
nature are not
clearly
inapplicable | 249 |
regarding the operation or
physical control
of
vessels underway or | 250 |
the manipulation of water
skis, aquaplanes,
or
similar devices, | 251 |
all of the following apply: | 252 |
(F)(1)
Subject to division
(F)(3) of this section, in
any | 271 |
criminal prosecution or juvenile court proceeding for a violation | 272 |
of division (A) or (B) of this
section or for an equivalent
| 273 |
offense that is substantially equivalent to either of
those | 274 |
divisions, the court shall
admit as prima-facie
evidence a | 275 |
laboratory report from any
laboratory
personnel issued a permit by | 276 |
the department of health authorizing an analysis as described in | 277 |
this division that
contains an analysis of
the whole blood, blood | 278 |
serum or plasma,
breath, urine, or other
bodily substance tested | 279 |
and that contains
all of the information
specified in this | 280 |
division. The laboratory
report shall contain
all of the | 281 |
following: | 282 |
(3) A report of the type described in division
(F)(1) of
this | 308 |
section shall not be prima-facie evidence of the contents, | 309 |
identity, or amount of any substance if, within seven days after | 310 |
the defendant or child to whom the report pertains or the | 311 |
defendant's
or child's attorney receives a copy of the report, the | 312 |
defendant or child or
the defendant's or child's attorney demands | 313 |
the testimony of the person who
signed the report. The judge in | 314 |
the case may extend the seven-day
time limit in the interest of | 315 |
justice. | 316 |
(G) Except as otherwise provided in this division, any | 317 |
physician, registered nurse, emergency medical | 318 |
technician-intermediate, emergency medical technician-paramedic, | 319 |
or
qualified technician,
chemist,
or
phlebotomist who withdraws | 320 |
blood
from a person
pursuant to this
section or section 1547.111 | 321 |
of the
Revised Code, and a hospital,
first-aid station, or | 322 |
clinic at
which
blood is withdrawn from a
person pursuant to | 323 |
this section
or section 1547.111 of the Revised
Code, is
immune | 324 |
from criminal
and
civil liability
based upon a
claim of
assault | 325 |
and battery or
any
other
claim that is not
a
claim of | 326 |
malpractice, for
any
act
performed in withdrawing blood
from the | 327 |
person. The immunity
provided in this division also extends to an | 328 |
emergency medical
service organization that employs an emergency | 329 |
medical technician-intermediate, an emergency medical | 330 |
technician-paramedic
who withdraws blood under this section.
The | 331 |
immunity
provided in
this division is not
available to
a person | 332 |
who
withdraws blood if
the person engages in
willful or
wanton | 333 |
misconduct. | 334 |
(b) A violation of a municipal ordinance prohibiting a person | 368 |
from operating or being in physical control of any vessel underway | 369 |
or from manipulating any water skis, aquaplane, or similar device | 370 |
on the waters of this state while under the influence of alcohol, | 371 |
a drug of abuse, or a combination of them or prohibiting a person | 372 |
from operating or being in physical control of any vessel underway | 373 |
or from manipulating any water skis, aquaplane, or similar device | 374 |
on the waters of this state with a prohibited concentration of | 375 |
alcohol, a controlled substance, or a metabolite of a controlled | 376 |
substance in the whole blood, blood serum or plasma, breath, or | 377 |
urine; | 378 |
(3) Except as otherwise provided in division (D)(4) of this | 401 |
section, if the offender
previously
has
pleaded guilty to or been | 402 |
convicted of domestic
violence, a violation of
an existing or | 403 |
former municipal ordinance or law of this or any other state or | 404 |
the United States that is
substantially similar to domestic | 405 |
violence,
a violation of
section 2903.14,
2909.06, 2909.07, | 406 |
2911.12, 2911.211,
or 2919.22 of the Revised Code if the victim of | 407 |
the violation was a
family or
household member at the time of the | 408 |
violation, a violation of
an existing or former municipal | 409 |
ordinance or law of this or any other state or the United States | 410 |
that is substantially similar to any of those sections if the | 411 |
victim of the violation was a family or household member at the | 412 |
time of the commission of the violation, or any offense of | 413 |
violence if the victim of the offense was a family or household | 414 |
member at the time of the commission of the offense,
a violation | 415 |
of
division (A) or (B) of this section is a felony of
the
fourth | 416 |
degree, and, if the offender knew that the victim of the violation | 417 |
was pregnant at the time of the violation, the court shall impose | 418 |
a mandatory prison term on the offender pursuant to division | 419 |
(A)(D)(6) of this section, and a violation of division (C) of this | 420 |
section
is a
misdemeanor of the second degree. | 421 |
(4) If the offender previously has pleaded guilty to or been | 422 |
convicted of two or more offenses of domestic violence or two or | 423 |
more violations or offenses of the type described in division | 424 |
(D)(3) of this section involving a person who was a family or | 425 |
household member at the time of the violations or offenses, a | 426 |
violation of division (A) or (B) of this section is a felony of | 427 |
the third degree, and, if the offender knew that the victim of the | 428 |
violation was pregnant at the time of the violation, the court | 429 |
shall impose a mandatory prison term on the offender pursuant to | 430 |
division (A)(D)(6) of this section, and a violation of division | 431 |
(C)
of this section
is a misdemeanor of the first degree. | 432 |
(e) If the violation of division (A) or (B) of this section | 472 |
is a felony of the third degree and the offender, in committing | 473 |
the violation, caused serious physical harm to the pregnant | 474 |
woman's unborn or caused the termination of the pregnant
woman's | 475 |
pregnancy, notwithstanding the range of prison terms
prescribed | 476 |
in section 2929.14 of the Revised Code for a felony of
the third | 477 |
degree, the court shall impose a mandatory prison term
on the | 478 |
offender of either a definite term of one year or one of
the | 479 |
prison terms prescribed in section 2929.14 of the Revised Code | 480 |
for felonies of the third degree. | 481 |
(4) "Termination of the pregnant woman's pregnancy"
has the | 517 |
same meaning as "unlawful termination of another's
pregnancy," as | 518 |
set forth in section 2903.09 of the Revised Code,
as it relates | 519 |
to the pregnant woman. Division (C) of that section
applies | 520 |
regarding the use of the term in this section, except that
the | 521 |
second and third sentences of division (C)(1) of that section | 522 |
shall be construed for purposes of this section as if they | 523 |
included a reference to this section in the listing of Revised | 524 |
Code sections they contain. | 525 |
(a) The collection of any bodily substance of a person by a | 531 |
law enforcement officer, or by another person pursuant to the | 532 |
direction or advice of a law enforcement officer, for purposes of | 533 |
a chemical test or tests of the substance under division (A)(1) of | 534 |
section 1547.111 or division (A)(2) of section 4511.191 of the | 535 |
Revised Code to determine the alcohol, drug, controlled substance, | 536 |
metabolite of a controlled substance, or combination content of | 537 |
the bodily substance; | 538 |
If the offender is eligible to be sentenced to community | 567 |
control sanctions,
the court shall consider the
appropriateness of | 568 |
imposing a financial sanction pursuant to
section 2929.18 of the | 569 |
Revised Code or
a sanction of community service
pursuant to | 570 |
section 2929.17 of the Revised Code
as the sole sanction for the | 571 |
offense. Except as otherwise provided in this
division, if the | 572 |
court is required
to impose a mandatory prison term for the | 573 |
offense for which
sentence is being imposed, the court also shall | 574 |
impose any financial
sanction pursuant to section 2929.18 of the | 575 |
Revised
Code that is required for the offense and may impose any | 576 |
other financial sanction pursuant to that section but may not | 577 |
impose any additional sanction or
combination of sanctions under | 578 |
section 2929.16 or 2929.17 of the
Revised Code. | 579 |
(1) For a fourth degree felony OVI offense for which
sentence | 588 |
is
imposed under division (G)(1) of this section, an
additional | 589 |
community control sanction
or combination of community
control | 590 |
sanctions under section 2929.16 or 2929.17
of the Revised
Code. If | 591 |
the court imposes upon the offender a community control sanction | 592 |
and the offender violates any condition of the community control | 593 |
sanction, the court may take any action prescribed in division (B) | 594 |
of section 2929.15 of the Revised Code relative to the offender, | 595 |
including imposing a prison term on the offender pursuant to that | 596 |
division. | 597 |
(2)(a) If the court makes a finding
described in division | 635 |
(B)(1)(a), (b), (c), (d), (e), (f), (g),
(h), or (i) of this | 636 |
section and if the court, after
considering the factors set forth | 637 |
in section 2929.12 of the
Revised Code, finds that a prison term | 638 |
is consistent with the purposes and principles of sentencing set | 639 |
forth in section 2929.11 of the Revised
Code and finds that the | 640 |
offender is not amenable to an available
community control | 641 |
sanction, the court shall impose a
prison term upon the offender. | 642 |
(b) Except as provided in division (E), (F), or (G) of this | 643 |
section, if the
court does not make a
finding described in | 644 |
division (B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or
(i) of | 645 |
this section and if the court, after
considering the factors set | 646 |
forth in section 2929.12 of the
Revised
Code, finds that a | 647 |
community
control sanction or combination of community control | 648 |
sanctions
is consistent with the purposes and principles of | 649 |
sentencing set
forth in section 2929.11 of the
Revised
Code, the | 650 |
court shall impose a
community control sanction or combination of | 651 |
community control
sanctions upon the offender. | 652 |
(C) Except as provided in division (D), (E), (F), or (G) of | 653 |
this
section, in
determining whether to impose a prison
term as a | 654 |
sanction for a felony of the
third degree or a felony drug offense | 655 |
that is a
violation of a provision of
Chapter 2925. of the
Revised | 656 |
Code and that is specified as
being subject to this division for | 657 |
purposes of sentencing, the
sentencing court shall comply with the | 658 |
purposes and principles
of sentencing under section 2929.11 of the | 659 |
Revised
Code and with section 2929.12
of the Revised Code. | 660 |
(D)(1) Except as provided in division (E)
or (F) of this | 661 |
section, for a felony of the first or
second degree, for a
felony | 662 |
drug offense that is a violation
of any provision of
Chapter | 663 |
2925., 3719., or 4729. of the
Revised Code for which a
presumption | 664 |
in favor of
a prison term is specified as being
applicable, and | 665 |
for a violation of division (A)(4) or (B) of section 2907.05 of | 666 |
the Revised Code for which a presumption in favor of a prison term | 667 |
is specified as being applicable, it is presumed
that a prison | 668 |
term is necessary in
order to comply
with the purposes and | 669 |
principles of sentencing
under section 2929.11 of the
Revised | 670 |
Code. Division (D)(2) of this section does not apply to a | 671 |
presumption established under this division for a violation of | 672 |
division (A)(4) of section 2907.05 of the Revised Code. | 673 |
(2) Notwithstanding the
presumption established
under | 674 |
division (D)(1) of this section for the offenses listed in that | 675 |
division other than a violation of division (A)(4) or (B) of | 676 |
section 2907.05 of the Revised Code, the sentencing court
may | 677 |
impose a community control sanction or a combination of
community | 678 |
control
sanctions instead of a prison term on an
offender for a | 679 |
felony of the first or
second degree or for a
felony drug offense | 680 |
that is a violation of any
provision of
Chapter 2925., 3719., or | 681 |
4729. of the Revised Code for which a
presumption in favor of a | 682 |
prison term is specified as being
applicable if
it makes both of | 683 |
the following findings: | 684 |
(E)(1) Except as provided in division
(F) of this section, | 699 |
for any drug offense that is a
violation of any provision of | 700 |
Chapter 2925.
of the Revised Code and that is a felony of the | 701 |
third, fourth, or fifth degree, the applicability of a
presumption | 702 |
under division (D) of this section in favor of a prison
term or of | 703 |
division (B) or (C) of this section in
determining
whether to | 704 |
impose a prison term for the offense shall be
determined as | 705 |
specified in section 2925.02, 2925.03, 2925.04,
2925.05, 2925.06, | 706 |
2925.11, 2925.13, 2925.22, 2925.23,
2925.36, or
2925.37
of the | 707 |
Revised Code,
whichever is applicable regarding the
violation. | 708 |
(3) A court
that sentences an offender for a drug abuse | 723 |
offense that is a
felony of the third, fourth, or fifth degree | 724 |
may require that the
offender be assessed by a properly | 725 |
credentialed professional
within a specified period of time. The | 726 |
court shall require the
professional to file a written assessment | 727 |
of the offender with the
court. If the offender is eligible for a | 728 |
community control sanction and after considering the written | 729 |
assessment, the court may
impose a community control sanction | 730 |
that includes treatment and recovery support services
authorized | 731 |
by section 3793.02 of the Revised Code. If the court imposes | 732 |
treatment and recovery support services as
a community control | 733 |
sanction, the court shall direct the level and
type of treatment | 734 |
and recovery support services after considering the assessment and | 735 |
recommendation of treatment and recovery support services | 736 |
providers. | 737 |
(F) Notwithstanding divisions (A) to
(E) of this section,
the | 738 |
court shall impose a prison
term or terms under sections
2929.02 | 739 |
to 2929.06, section 2929.14, section 2929.142, or section
2971.03 | 740 |
of the
Revised Code and except as specifically provided in
section | 741 |
2929.20 or 2967.191 of the Revised Code or when parole is | 742 |
authorized for the offense under section 2967.13 of the Revised | 743 |
Code shall not reduce the term or terms pursuant to section | 744 |
2929.20,
section
2967.193, or any other provision of
Chapter 2967. | 745 |
or
Chapter 5120. of
the Revised Code for any of the following | 746 |
offenses: | 747 |
(5) A first, second, or third degree felony drug
offense for | 778 |
which section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06, | 779 |
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, 2925.37, 3719.99, or | 780 |
4729.99 of the Revised Code, whichever is
applicable regarding the | 781 |
violation, requires the imposition of a
mandatory prison term; | 782 |
(6) Any offense that is a first or second degree felony
and | 783 |
that is not set forth in division (F)(1), (2), (3), or (4)
of this | 784 |
section, if the offender previously was convicted of or
pleaded | 785 |
guilty to aggravated murder, murder, any first or
second degree | 786 |
felony, or an offense under an existing or former law
of this | 787 |
state, another state, or the United States that is
or was | 788 |
substantially equivalent to one of those offenses; | 789 |
(16) Kidnapping, abduction, compelling prostitution, | 850 |
promoting prostitution, engaging in a pattern of corrupt activity, | 851 |
illegal use of a minor in a
nudity-oriented material or | 852 |
performance in violation of division (A)(1) or (2) of section | 853 |
2907.323 of the Revised Code, or endangering children in violation | 854 |
of division (B)(1), (2), (3), (4), or (5) of section 2919.22 of | 855 |
the Revised Code, if the offender is
convicted of or pleads | 856 |
guilty to a specification as described in
section 2941.1422 of | 857 |
the Revised Code that was included in the
indictment, count in | 858 |
the indictment, or information charging the
offense; | 859 |
(1) If the offender is being sentenced for a fourth degree | 875 |
felony
OVI offense and if the offender has not been convicted of | 876 |
and has not pleaded guilty to a specification of the type | 877 |
described in section 2941.1413 of the Revised Code, the court may | 878 |
impose upon the offender a
mandatory term
of local incarceration | 879 |
of sixty days or one hundred
twenty days as specified
in division | 880 |
(G)(1)(d) of section 4511.19
of
the Revised Code. The court
shall | 881 |
not reduce the term pursuant
to
section 2929.20, 2967.193, or any | 882 |
other provision of the
Revised
Code. The court that imposes a | 883 |
mandatory term of local
incarceration
under this division shall | 884 |
specify whether the term
is to be served in a
jail, a | 885 |
community-based correctional
facility, a halfway house, or an | 886 |
alternative residential facility,
and the
offender shall serve the | 887 |
term in the type of facility
specified
by the court. A mandatory | 888 |
term of local incarceration
imposed
under division (G)(1) of this | 889 |
section is not subject to
any other Revised Code
provision that | 890 |
pertains to a prison
term except as provided in
division (A)(1) | 891 |
of this section. | 892 |
(2) If the offender is being sentenced for a third
degree | 893 |
felony OVI offense,
or if the offender is being sentenced for a | 894 |
fourth degree felony OVI
offense and the court does not impose a | 895 |
mandatory term of local incarceration
under division (G)(1) of | 896 |
this section, the court shall impose upon the
offender a mandatory | 897 |
prison term of one, two, three, four, or five years if the | 898 |
offender also is convicted of or also pleads guilty to a | 899 |
specification of the type described in section 2941.1413 of the | 900 |
Revised Code or shall impose upon the offender a mandatory
prison | 901 |
term of sixty days or one hundred twenty days as specified
in | 902 |
division (G)(1)(d) or (e)
of
section 4511.19 of the Revised Code | 903 |
if the offender has not been convicted of and has not pleaded | 904 |
guilty to a specification of that type. The
court shall not reduce | 905 |
the term pursuant
to section
2929.20,
2967.193, or any other | 906 |
provision of the Revised Code. The offender shall serve the one-, | 907 |
two-, three-, four-, or five-year mandatory prison term | 908 |
consecutively to and prior to the prison term imposed for the | 909 |
underlying offense and consecutively to any other mandatory prison | 910 |
term imposed in relation to the offense. In
no case
shall an | 911 |
offender who once has been sentenced to a
mandatory term
of local | 912 |
incarceration pursuant to division (G)(1)
of this section
for a | 913 |
fourth degree felony OVI offense be
sentenced to another
mandatory | 914 |
term of local incarceration under
that division for any
violation | 915 |
of division
(A) of section 4511.19
of the Revised Code.
In | 916 |
addition to the mandatory prison term described in division (G)(2) | 917 |
of this section, the court may sentence the
offender to
a | 918 |
community control
sanction under section 2929.16 or 2929.17 of
the | 919 |
Revised
Code, but the offender shall serve the prison term prior | 920 |
to serving the community control sanction.
The department of | 921 |
rehabilitation and correction
may place an
offender
sentenced to a | 922 |
mandatory prison term under
this division
in an intensive
program | 923 |
prison established pursuant
to section
5120.033 of the Revised | 924 |
Code if the department gave the
sentencing
judge prior notice of | 925 |
its intent to
place the offender
in an
intensive program prison | 926 |
established under that
section and
if the
judge did not notify the | 927 |
department that the judge
disapproved the
placement. Upon the | 928 |
establishment of the initial
intensive
program prison pursuant to | 929 |
section 5120.033 of the
Revised Code
that is privately operated | 930 |
and managed by a
contractor pursuant to
a contract entered into | 931 |
under section
9.06
of the Revised Code,
both of the following | 932 |
apply: | 933 |
(I) If an offender is being sentenced
for a sexually
oriented | 950 |
offense or a child-victim oriented offense committed on or
after | 951 |
January 1,
1997, the judge
shall
include in the sentence a | 952 |
summary of the
offender's duties imposed under sections 2950.04, | 953 |
2950.041, 2950.05, and
2950.06 of the Revised Code and the | 954 |
duration of the duties. The
judge shall inform the offender, at | 955 |
the
time of sentencing, of
those duties and of their duration. If | 956 |
required
under division
(A)(2) of section 2950.03 of
the
Revised | 957 |
Code, the judge shall perform the
duties specified in that | 958 |
section, or, if required under division (A)(6) of section 2950.03 | 959 |
of the Revised Code, the judge shall perform the duties specified | 960 |
in that division. | 961 |
(2) When considering sentencing factors under this
section
in | 970 |
relation to an offender who is convicted of or pleads
guilty to
an | 971 |
attempt to commit a drug abuse offense for which
the penalty is | 972 |
determined by the amount or number of unit doses
of the controlled | 973 |
substance involved in the drug abuse offense,
the sentencing court | 974 |
shall consider the factors applicable to
the felony category that | 975 |
the drug abuse offense attempted would
be if that drug abuse | 976 |
offense had been committed and had
involved an amount or number of | 977 |
unit doses of the controlled
substance that is within the next | 978 |
lower range of controlled substance amounts
than was involved in | 979 |
the attempt. | 980 |
(L) At the time of sentencing an offender for any sexually | 983 |
oriented offense, if the offender is a
tier III sex | 984 |
offender/child-victim offender relative to that
offense and the | 985 |
offender does not serve a prison term or jail
term, the court may | 986 |
require that the offender be monitored by
means of a global | 987 |
positioning device. If the court requires such
monitoring, the | 988 |
cost of monitoring shall be borne by the offender.
If the | 989 |
offender is indigent, the cost of compliance shall be paid
by the | 990 |
crime victims reparations fund. | 991 |
(B) A test or tests as provided in division (A) of this | 1000 |
section may be administered at the direction of a peace officer | 1001 |
having reasonable ground to stop or detain the person and, after | 1002 |
investigating the circumstances surrounding the operation of the | 1003 |
commercial motor vehicle, also having reasonable ground to
believe | 1004 |
the person was driving the commercial vehicle
while having a | 1005 |
measurable or detectable amount of alcohol or of a
controlled | 1006 |
substance or a metabolite of a controlled substance in the | 1007 |
person's
whole blood,
blood serum or plasma,
breath, or urine.
Any | 1008 |
such test
shall be
given within two hours
of the time of the | 1009 |
alleged
violation. | 1010 |
(D) If a person refuses to submit to a test after being | 1019 |
warned as provided in division (C) of this section or submits to
a | 1020 |
test that discloses the presence of a controlled substance or a | 1021 |
metabolite of a controlled substance,
an
alcohol concentration of | 1022 |
four-hundredths of one per cent or
more by whole blood or breath, | 1023 |
an alcohol concentration of forty-eight-thousandths of one per | 1024 |
cent or more by blood serum or blood plasma, or an alcohol | 1025 |
concentration of fifty-six-thousandths of one per cent or more by | 1026 |
urine,
the person immediately
shall surrender the person's | 1027 |
commercial
driver's
license to the
peace officer.
The peace | 1028 |
officer shall
forward the license, together with a
sworn report, | 1029 |
to the
registrar of motor vehicles certifying that
the test was | 1030 |
requested
pursuant to division (A) of this section
and that the | 1031 |
person
either refused to submit to testing or
submitted to a test | 1032 |
that
disclosed the presence of a controlled
substance or a | 1033 |
metabolite of a controlled substance or a prohibited alcohol | 1034 |
concentration. The
form and contents of the report required
by | 1035 |
this section shall be
established by the registrar by rule,
but | 1036 |
shall contain the advice
to be read to the driver and a
statement | 1037 |
to be signed by the
driver acknowledging that
the driver has been | 1038 |
read
the advice and
that the form was shown to the driver. | 1039 |
(F) A
test
of a person's whole blood or a person's
blood | 1052 |
serum or plasma given under this section shall comply
with
the | 1053 |
applicable provisions of division (D) of section
4511.19 of
the | 1054 |
Revised Code and any physician, registered nurse, emergency | 1055 |
medical technician-intermediate, emergency medical | 1056 |
technician-paramedic,
or qualified
technician, chemist,
or | 1057 |
phlebotomist who withdraws
whole blood
or
blood serum or plasma | 1058 |
from a
person under this section, and any
hospital, first-aid | 1059 |
station,
clinic,
or other facility at which
whole blood
or blood | 1060 |
serum or plasma is withdrawn
from a
person
pursuant to
this | 1061 |
section, is immune from criminal
liability, and
from civil | 1062 |
liability that is based upon a claim of
assault and
battery or | 1063 |
based upon any other claim of malpractice,
for any act
performed | 1064 |
in withdrawing
whole blood
or blood serum or plasma from
the | 1065 |
person. The immunity provided in this division also extends to an | 1066 |
emergency medical service organization that employs an emergency | 1067 |
medical technician-intermediate or emergency medical | 1068 |
technician-paramedic who withdraws blood under this section. | 1069 |
(G) When a person submits to a test under this section,
the | 1070 |
results of the test, at the person's request, shall be
made | 1071 |
available
to the person, the person's attorney, or
the
person's | 1072 |
agent, immediately upon completion
of the chemical test analysis. | 1073 |
The person also may have an
additional test administered by a | 1074 |
physician, a registered nurse,
or a qualified technician,
chemist, | 1075 |
or
phlebotomist of the person's own
choosing as
provided
in | 1076 |
division (D) of section 4511.19 of the Revised
Code for tests | 1077 |
administered under that section, and the failure
to obtain such a | 1078 |
test has the same effect as in that division. | 1079 |
(J)(1) Except for civil actions arising out of the
operation | 1088 |
of a motor vehicle and civil actions in which the state
is a | 1089 |
plaintiff, no peace officer of any law enforcement agency
within | 1090 |
this state is liable in compensatory damages in any civil
action | 1091 |
that arises under the Revised Code or common law of this
state for | 1092 |
an injury, death, or loss to person or property caused
in the | 1093 |
performance of official duties under this section and
rules | 1094 |
adopted under this section, unless the officer's actions were | 1095 |
manifestly outside the scope of the officer's employment or | 1096 |
official
responsibilities, or unless the officer acted with | 1097 |
malicious
purpose, in bad faith, or in a wanton or reckless | 1098 |
manner. | 1099 |
(2) Except for civil actions that arise out of the
operation | 1100 |
of a motor vehicle and civil actions in which the state
is a | 1101 |
plaintiff, no peace officer of any law enforcement agency
within | 1102 |
this state is liable in punitive or exemplary damages in
any civil | 1103 |
action that arises under the Revised Code or common law
of this | 1104 |
state for any injury, death, or loss to person or
property caused | 1105 |
in the performance of official duties under
this
section of the | 1106 |
Revised Code and rules adopted under this section,
unless the | 1107 |
officer's actions were manifestly outside the scope of
the | 1108 |
officer's employment or official responsibilities, or
unless the | 1109 |
officer acted with malicious purpose, in bad faith, or in a
wanton | 1110 |
or reckless manner. | 1111 |
(L) The registrar immediately shall
notify a driver who is | 1115 |
subject to disqualification of the disqualification, of
the length | 1116 |
of the disqualification, and that the driver may request a hearing | 1117 |
within thirty days of the mailing of the notice to show cause why | 1118 |
the driver
should not be disqualified from operating a commercial | 1119 |
motor vehicle. If a
request for such a hearing is not made within | 1120 |
thirty days of the mailing of
the
notice, the order of | 1121 |
disqualification is final. The registrar may designate
hearing | 1122 |
examiners who, after affording all parties reasonable notice, | 1123 |
shall
conduct a hearing to determine whether the disqualification | 1124 |
order is supported
by reliable evidence. The registrar shall
adopt | 1125 |
rules to implement this
division. | 1126 |
(I) The person is under the influence of alcohol, a drug of | 1225 |
abuse, or a combination of them, and, as measured by gas | 1226 |
chromatography mass spectrometry, the person has a concentration | 1227 |
of marihuana metabolite in the person's urine of at least fifteen | 1228 |
nanograms of marihuana metabolite per milliliter of the person's | 1229 |
urine or has a concentration of marihuana metabolite in the | 1230 |
person's whole blood or blood serum or plasma of at least five | 1231 |
nanograms of marihuana metabolite per milliliter of the person's | 1232 |
whole blood or blood serum or plasma. | 1233 |
(xi) The state board of pharmacy has adopted a rule pursuant | 1254 |
to section 4729.041 of the Revised Code that specifies the amount | 1255 |
of salvia divinorum and the amount of salvinorin A that constitute | 1256 |
concentrations of salvia divinorum and salvinorin A in a person's | 1257 |
urine, in a person's whole blood, or in a person's blood serum or | 1258 |
plasma at or above which the person is impaired for purposes of | 1259 |
operating any vehicle, streetcar, or trackless trolley within this | 1260 |
state, the rule is in effect, and the person has a concentration | 1261 |
of salvia divinorum or salvinorin A of at least that amount so | 1262 |
specified by rule in the person's urine, in the person's whole | 1263 |
blood, or in the person's blood serum or plasma. | 1264 |
(b) Subsequent to being arrested for operating the vehicle, | 1273 |
streetcar, or trackless trolley as described in division (A)(2)(a) | 1274 |
of this section, being asked by a law enforcement officer to | 1275 |
submit to a chemical test or tests under section 4511.191 of the | 1276 |
Revised Code, and being advised by the officer in accordance with | 1277 |
section 4511.192 of the Revised Code of the consequences of the | 1278 |
person's refusal or submission to the test or tests, refuse to | 1279 |
submit to the test or tests. | 1280 |
(b) In any criminal prosecution or juvenile court
proceeding | 1311 |
for a violation of
division (A) or (B) of this section
or for an | 1312 |
equivalent
offense that is vehicle-related, the court may admit | 1313 |
evidence on the
concentration of
alcohol, drugs of abuse, | 1314 |
controlled substances,
metabolites of a controlled substance, or
| 1315 |
a combination of
them in
the
defendant's
whole blood,
blood serum | 1316 |
or plasma,
breath, urine,
or
other bodily
substance at the time | 1317 |
of the
alleged violation as
shown by
chemical analysis of the
| 1318 |
substance
withdrawn within
three hours of
the time of
the alleged | 1319 |
violation. The three-hour
time limit specified in this division | 1320 |
regarding the admission of
evidence does not extend or affect the | 1321 |
two-hour time limit
specified in division (A) of section 4511.192 | 1322 |
of the Revised Code
as the maximum period of time during which a | 1323 |
person may consent to
a chemical test or tests as described in | 1324 |
that section. The court
may admit evidence on the concentration | 1325 |
of alcohol, drugs of
abuse, or a combination of them as described | 1326 |
in this division when
a person submits to a blood, breath, urine, | 1327 |
or other bodily
substance test at the request of a
law | 1328 |
enforcement officer under
section 4511.191 of the
Revised
Code or | 1329 |
a blood or urine sample is
obtained pursuant to a search warrant. | 1330 |
Only a
physician, a
registered nurse, an emergency medical | 1331 |
technician-intermediate, an emergency medical | 1332 |
technician-paramedic, or a qualified
technician,
chemist,
or | 1333 |
phlebotomist
shall withdraw a blood sample for
the
purpose of | 1334 |
determining
the
alcohol, drug, controlled substance,
metabolite | 1335 |
of
a controlled
substance, or
combination content
of
the whole | 1336 |
blood, blood
serum,
or blood plasma.
This
limitation
does
not | 1337 |
apply to the
taking of breath or urine
specimens. A
person | 1338 |
authorized to
withdraw blood under
this
division may
refuse to | 1339 |
withdraw blood
under this division, if in
that person's
opinion, | 1340 |
the physical
welfare of
the person would
be
endangered
by the | 1341 |
withdrawing of
blood. | 1342 |
(2) In a criminal prosecution or juvenile court proceeding | 1352 |
for a violation of division (A) of this section
or for an | 1353 |
equivalent offense that is vehicle-related, if there was at the | 1354 |
time the
bodily substance
was
withdrawn a concentration of less | 1355 |
than
the
applicable
concentration of alcohol specified in | 1356 |
divisions (A)(1)(b), (c),
(d), and (e) of this section or less | 1357 |
than the applicable
concentration of a listed controlled | 1358 |
substance or a listed
metabolite of a controlled substance | 1359 |
specified for a violation of
division (A)(1)(j) of this section, | 1360 |
that fact
may be considered
with other
competent evidence
in | 1361 |
determining the guilt or
innocence of the
defendant. This
division | 1362 |
does not limit or
affect
a criminal
prosecution or
juvenile court | 1363 |
proceeding for a
violation of
division (B) of this
section or
for | 1364 |
an equivalent
offense that
is
substantially
equivalent to
that | 1365 |
division. | 1366 |
If the chemical test was obtained pursuant to division | 1371 |
(D)(1)(b) of this section, the person tested may have a physician, | 1372 |
a registered nurse,
or a qualified technician, chemist,
or | 1373 |
phlebotomist of the
person's own
choosing administer a chemical | 1374 |
test or tests,
at the
person's
expense, in addition to any | 1375 |
administered at the request
of a
law enforcement
officer.
If
the | 1376 |
person was under arrest as described in division (A)(5) of | 1377 |
section 4511.191 of the Revised Code, the arresting officer shall | 1378 |
advise the person at the time of the arrest that the person may | 1379 |
have an independent chemical test taken at the person's own | 1380 |
expense. If the person was under arrest other than described in | 1381 |
division (A)(5) of section 4511.191 of the Revised Code, the form | 1382 |
to be read to the person
to be tested, as required
under
section | 1383 |
4511.192 of the Revised
Code, shall state that the person
may have | 1384 |
an
independent test
performed at the person's expense.
The failure | 1385 |
or
inability to
obtain an additional
chemical test by
a person | 1386 |
shall not preclude
the admission of
evidence relating to
the | 1387 |
chemical test or tests
taken at the
request of a
law
enforcement | 1388 |
officer. | 1389 |
(b) In any criminal prosecution or juvenile court proceeding | 1395 |
for a violation of division (A) or (B) of this section, of a | 1396 |
municipal ordinance relating to operating a vehicle while under | 1397 |
the influence of alcohol, a drug of abuse, or alcohol and a drug | 1398 |
of abuse, or of a municipal ordinance relating to operating a | 1399 |
vehicle with a prohibited concentration of alcohol, a controlled | 1400 |
substance, or a metabolite of a controlled substance in the whole | 1401 |
blood,
blood serum or plasma, breath, or urine, if a law | 1402 |
enforcement officer has administered a
field sobriety test to the | 1403 |
operator of the vehicle involved in the
violation and if it is | 1404 |
shown by clear and convincing evidence that
the officer | 1405 |
administered the test in substantial
compliance with
the testing | 1406 |
standards for any reliable, credible,
and generally
accepted field | 1407 |
sobriety
tests that were in effect at
the time the
tests were | 1408 |
administered, including, but not limited
to, any
testing standards | 1409 |
then in effect that were set by the
national
highway traffic | 1410 |
safety administration, all
of the
following apply: | 1411 |
(E)(1)
Subject to division (E)(3) of
this section,
in any | 1430 |
criminal prosecution or juvenile court proceeding for a
violation | 1431 |
of
division (A)(1)(b), (c), (d), (e), (f), (g), (h), (i), or (j) | 1432 |
or
(B)(1), (2), (3), or
(4) of this
section or for an equivalent | 1433 |
offense that is substantially equivalent to any
of those | 1434 |
divisions, a laboratory report from any
laboratory
personnel | 1435 |
issued a permit by the department of health authorizing an | 1436 |
analysis as described in this division that
contains an analysis | 1437 |
of
the whole blood, blood serum or plasma,
breath, urine, or other | 1438 |
bodily substance tested and that contains
all of the information | 1439 |
specified in this division shall be
admitted as prima-facie | 1440 |
evidence of the information and statements
that the report | 1441 |
contains. The laboratory report shall contain all
of the | 1442 |
following: | 1443 |
(3) A report of the type described in division (E)(1) of
this | 1468 |
section shall not be prima-facie evidence of the contents, | 1469 |
identity, or amount
of any substance if, within seven days after | 1470 |
the
defendant to whom the report pertains or the defendant's | 1471 |
attorney
receives a copy of the report, the defendant or the | 1472 |
defendant's
attorney demands the testimony of the person who | 1473 |
signed the
report. The judge in the case may extend the seven-day | 1474 |
time limit
in the interest of justice. | 1475 |
(F) Except as otherwise provided in this division, any | 1476 |
physician, registered nurse, emergency medical | 1477 |
technician-intermediate, emergency medical technician-paramedic, | 1478 |
or
qualified
technician, chemist,
or
phlebotomist who
withdraws | 1479 |
blood
from a person pursuant
to this
section or section 4511.191 | 1480 |
or
4511.192 of the Revised Code, and
any hospital, first-aid | 1481 |
station, or clinic
at which
blood is
withdrawn from a person | 1482 |
pursuant to this
section or section
4511.191 or 4511.192 of the | 1483 |
Revised Code, is
immune from criminal
liability and
civil | 1484 |
liability
based upon a
claim of assault and
battery or
any other | 1485 |
claim that is not
a
claim
of malpractice, for
any
act performed | 1486 |
in withdrawing blood
from
the person. The
immunity provided in | 1487 |
this division also extends to an emergency
medical service | 1488 |
organization that employs an emergency medical | 1489 |
technician-intermediate or emergency medical technician-paramedic | 1490 |
who
withdraws blood under this section.
The
immunity
provided | 1491 |
in this division is not
available to a
person
who
withdraws blood | 1492 |
if the person engages in
willful or wanton
misconduct. | 1493 |
(G)(1) Whoever violates any provision of divisions
(A)(1)(a) | 1498 |
to
(i) or (A)(2) of this section is
guilty of
operating a vehicle | 1499 |
under the
influence of alcohol, a drug of abuse, or a
combination | 1500 |
of them.
Whoever violates division (A)(1)(j) of this section is | 1501 |
guilty of operating a vehicle while under the influence of a | 1502 |
listed controlled substance or a listed metabolite of a controlled | 1503 |
substance. The court shall sentence the offender for either | 1504 |
offense under
Chapter 2929. of the
Revised Code, except as | 1505 |
otherwise
authorized or required by
divisions (G)(1)(a)
to (e)
of | 1506 |
this section: | 1507 |
(i)
If the sentence is being imposed for a violation of | 1512 |
division
(A)(1)(a), (b), (c), (d), (e), or (j) of this section, a | 1513 |
mandatory jail term
of three consecutive days. As used in
this | 1514 |
division, three consecutive days means seventy-two consecutive | 1515 |
hours.
The court
may sentence an offender to both an
intervention | 1516 |
program and a jail term. The court may impose a jail
term in | 1517 |
addition to the three-day mandatory jail term or intervention | 1518 |
program. However,
in no case shall the cumulative jail term | 1519 |
imposed for the offense
exceed six months. | 1520 |
The court may suspend the execution of the
three-day jail | 1521 |
term under this division if the court, in lieu of that
suspended | 1522 |
term, places the offender under a community control sanction | 1523 |
pursuant to section 2929.25 of the Revised Code and requires the | 1524 |
offender
to
attend, for three consecutive days, a
drivers' | 1525 |
intervention
program certified under section 3793.10 of the | 1526 |
Revised Code.
The
court also may suspend the execution of any | 1527 |
part of the
three-day
jail term under this division if it places | 1528 |
the offender under a community control sanction pursuant to | 1529 |
section 2929.25 of the Revised Code for part of the three days, | 1530 |
requires the offender to
attend for the suspended part of the term | 1531 |
a drivers' intervention
program so certified, and sentences the | 1532 |
offender to a jail term
equal to the remainder of the three | 1533 |
consecutive days that the
offender does not spend attending the | 1534 |
program. The court may
require the offender, as a condition of | 1535 |
community control and in addition
to the required attendance at a | 1536 |
drivers' intervention program, to
attend and satisfactorily | 1537 |
complete any treatment or education
programs that comply with the | 1538 |
minimum standards adopted pursuant
to Chapter 3793. of the Revised | 1539 |
Code by the director of alcohol
and drug addiction services that | 1540 |
the operators of the drivers'
intervention program determine that | 1541 |
the offender should attend and
to report periodically to the court | 1542 |
on the offender's progress in
the programs. The court also may | 1543 |
impose on the offender any other
conditions of community control | 1544 |
that it considers necessary. | 1545 |
(ii)
If the sentence is being imposed for a violation of | 1546 |
division
(A)(1)(f), (g), (h), or (i) or division (A)(2) of this | 1547 |
section, except as
otherwise provided in
this division, a | 1548 |
mandatory jail term of at
least three consecutive
days and a | 1549 |
requirement that the offender
attend, for three
consecutive days, | 1550 |
a drivers' intervention
program that is
certified pursuant to | 1551 |
section 3793.10 of the
Revised Code. As
used in this division, | 1552 |
three consecutive days
means seventy-two consecutive
hours. If the | 1553 |
court determines that
the offender is not
conducive to treatment | 1554 |
in a drivers'
intervention program, if the
offender refuses to | 1555 |
attend a drivers'
intervention program, or if the jail at
which | 1556 |
the offender is to
serve the jail term imposed can provide a | 1557 |
driver's intervention
program, the court shall sentence the | 1558 |
offender to a mandatory jail
term of at least six consecutive | 1559 |
days. | 1560 |
The court may require the offender, under a community control | 1561 |
sanction imposed under section 2929.25 of the Revised Code,
to | 1562 |
attend and satisfactorily complete any treatment or
education | 1563 |
programs that comply with the minimum standards adopted
pursuant | 1564 |
to
Chapter 3793. of the Revised Code by the director of
alcohol | 1565 |
and drug addiction services, in addition to the required | 1566 |
attendance at
drivers' intervention program, that the operators of | 1567 |
the drivers' intervention
program determine that
the offender | 1568 |
should attend and to report periodically to the court
on the | 1569 |
offender's progress in the programs. The court also may
impose
any | 1570 |
other conditions of community control on the offender that it | 1571 |
considers necessary. | 1572 |
(i)
If the sentence is being imposed for a violation of | 1588 |
division
(A)(1)(a), (b), (c), (d), (e), or (j) of this section, a | 1589 |
mandatory jail term
of ten consecutive days. The court
shall | 1590 |
impose the ten-day mandatory jail term under this division unless, | 1591 |
subject to division (G)(3) of this section, it instead
imposes a | 1592 |
sentence under that division consisting of both a jail term and a | 1593 |
term of
house arrest with electronic monitoring, with continuous | 1594 |
alcohol monitoring, or with both electronic monitoring and | 1595 |
continuous alcohol monitoring. The court may
impose a
jail term in | 1596 |
addition to the
ten-day mandatory jail term.
The
cumulative jail | 1597 |
term imposed for the offense shall not exceed
six
months. | 1598 |
In addition to the jail term or the term of house arrest with | 1599 |
electronic monitoring or continuous alcohol monitoring or both | 1600 |
types of monitoring and jail term, the court shall require the | 1601 |
offender
to be assessed by an
alcohol and drug treatment program | 1602 |
that is
authorized by
section 3793.02 of the Revised Code, | 1603 |
subject
to division (I) of this section, and shall order the | 1604 |
offender to
follow the treatment recommendations of the program. | 1605 |
The purpose of the assessment is to determine the
degree of the | 1606 |
offender's alcohol usage and to determine whether or
not | 1607 |
treatment is warranted. Upon the request of the court, the
program | 1608 |
shall submit the results of the
assessment to the court, | 1609 |
including
all treatment recommendations
and clinical diagnoses | 1610 |
related to
alcohol use. | 1611 |
(ii)
If the sentence is being imposed for a violation of | 1612 |
division
(A)(1)(f), (g), (h), or (i) or division (A)(2) of this | 1613 |
section, except as
otherwise provided in
this division, a | 1614 |
mandatory jail term of
twenty consecutive days. The court
shall | 1615 |
impose the twenty-day
mandatory jail term under
this division | 1616 |
unless, subject to
division (G)(3) of this section,
it instead | 1617 |
imposes a sentence
under that division
consisting of both a jail | 1618 |
term and a term of
house arrest with electronic monitoring, with | 1619 |
continuous alcohol monitoring, or with both electronic monitoring | 1620 |
and continuous alcohol monitoring. The court may impose a
jail | 1621 |
term in
addition to the twenty-day
mandatory jail term. The | 1622 |
cumulative
jail term imposed for the offense shall
not exceed six | 1623 |
months. | 1624 |
In addition to the jail term or the term of house arrest with | 1625 |
electronic monitoring or continuous alcohol monitoring or both | 1626 |
types of monitoring and jail term, the court shall require the | 1627 |
offender
to be assessed by an
alcohol and drug treatment program | 1628 |
that is
authorized by
section 3793.02 of the Revised Code, | 1629 |
subject
to division (I) of this section, and shall order the | 1630 |
offender to
follow the treatment recommendations of the program. | 1631 |
The purpose of the assessment is to determine the
degree of the | 1632 |
offender's alcohol usage and to determine whether or
not | 1633 |
treatment is warranted. Upon the request of the court, the
program | 1634 |
shall submit the
results of the assessment to the court, | 1635 |
including
all treatment
recommendations and clinical diagnoses | 1636 |
related to
alcohol use. | 1637 |
(i)
If the sentence is being imposed for a violation of | 1660 |
division
(A)(1)(a), (b), (c), (d), (e), or (j) of this section, a | 1661 |
mandatory jail term
of thirty consecutive days. The court
shall | 1662 |
impose the thirty-day mandatory jail term under this division | 1663 |
unless, subject to division (G)(3) of this section, it
instead | 1664 |
imposes a sentence under that division consisting of both a jail | 1665 |
term and a term of
house arrest with electronic monitoring, with | 1666 |
continuous alcohol monitoring, or with both electronic monitoring | 1667 |
and continuous alcohol monitoring. The
court may impose a
jail | 1668 |
term in addition to the
thirty-day
mandatory jail term. | 1669 |
Notwithstanding the jail terms
set
forth in sections 2929.21 to | 1670 |
2929.28 of the Revised Code, the additional
jail
term shall not | 1671 |
exceed one year, and the cumulative jail term
imposed
for the | 1672 |
offense shall not exceed
one year. | 1673 |
(ii)
If the sentence is being imposed for a violation of | 1674 |
division
(A)(1)(f), (g), (h), or (i) or division (A)(2) of this | 1675 |
section, a mandatory
jail term of
sixty
consecutive days. The | 1676 |
court shall impose the
sixty-day mandatory jail
term under this | 1677 |
division unless, subject
to division (G)(3)
of this section, it | 1678 |
instead imposes a sentence
under that division
consisting of both | 1679 |
a jail term
and a term of
house arrest with electronic monitoring, | 1680 |
with continuous alcohol monitoring, or with both electronic | 1681 |
monitoring and continuous alcohol monitoring. The court may impose | 1682 |
a
jail term in
addition to the sixty-day mandatory jail term.
| 1683 |
Notwithstanding
the jail terms set forth in sections 2929.21 to | 1684 |
2929.28 of the
Revised Code, the additional jail term shall
not | 1685 |
exceed one year,
and the cumulative jail term imposed for the | 1686 |
offense
shall not
exceed one year. | 1687 |
(vi)
In all cases, the court shall order the
offender to | 1705 |
participate in an alcohol and drug
addiction
program
authorized | 1706 |
by section
3793.02 of the Revised
Code, subject to
division (I) | 1707 |
of this
section, and shall order the offender to
follow the | 1708 |
treatment recommendations of the program. The operator
of the | 1709 |
program shall determine and assess the degree of the
offender's | 1710 |
alcohol dependency and shall make recommendations for
treatment. | 1711 |
Upon the request of the court, the program shall submit
the | 1712 |
results of the assessment to the court, including all
treatment | 1713 |
recommendations and clinical diagnoses related to
alcohol use. | 1714 |
(d)
Except as otherwise provided in division
(G)(1)(e)
of | 1715 |
this section, an offender who, within six
years of the offense, | 1716 |
previously has been
convicted of or pleaded guilty to three or
| 1717 |
four violations of division
(A) or (B) of this section or other | 1718 |
equivalent offenses or an offender who, within twenty years of the | 1719 |
offense, previously has been convicted of or pleaded guilty to | 1720 |
five or more violations of that nature is
guilty of a felony of | 1721 |
the fourth degree.
The court shall
sentence the offender to all of | 1722 |
the following: | 1723 |
(i)
If the sentence is being imposed for a violation of | 1724 |
division
(A)(1)(a), (b), (c), (d), (e), or (j) of this section, a | 1725 |
mandatory prison term of one, two, three, four, or five years as | 1726 |
required by and in accordance with division (G)(2) of section | 1727 |
2929.13 of the Revised Code if the offender also is convicted of | 1728 |
or also pleads guilty to a specification of the type described in | 1729 |
section 2941.1413 of the Revised Code or, in the
discretion of
the | 1730 |
court, either a mandatory term of local
incarceration of sixty | 1731 |
consecutive
days in accordance with
division (G)(1) of section | 1732 |
2929.13 of the Revised Code or a
mandatory prison term of sixty | 1733 |
consecutive days in
accordance
with division (G)(2) of that | 1734 |
section if the offender is not convicted of and does not plead | 1735 |
guilty to a specification of that type. If the
court
imposes a | 1736 |
mandatory term of local incarceration, it may impose a
jail
term | 1737 |
in addition to the sixty-day mandatory term, the
cumulative total | 1738 |
of the mandatory
term and the jail term for the
offense
shall not | 1739 |
exceed one year, and, except as provided in division (A)(1) of | 1740 |
section 2929.13 of the Revised Code, no prison term is
authorized | 1741 |
for the
offense. If the court imposes a mandatory
prison term, | 1742 |
notwithstanding
division (A)(4) of section 2929.14 of
the Revised | 1743 |
Code, it also may sentence the offender to a definite
prison term | 1744 |
that shall be not less than six months and not more
than thirty | 1745 |
months and the
prison terms shall be imposed as described
in | 1746 |
division (G)(2) of
section 2929.13 of the Revised Code. If the | 1747 |
court imposes a mandatory prison term or mandatory prison term and | 1748 |
additional prison term, in addition to the term or terms so | 1749 |
imposed, the court also may sentence the offender to a community | 1750 |
control sanction for the offense, but the offender shall serve all | 1751 |
of the prison terms so imposed prior to serving the community | 1752 |
control sanction. | 1753 |
(ii)
If the sentence is being imposed for a violation of | 1754 |
division
(A)(1)(f), (g), (h), or (i) or division (A)(2) of this | 1755 |
section, a mandatory prison term of one, two, three, four, or five | 1756 |
years as required by and in accordance with division (G)(2) of | 1757 |
section 2929.13 of the Revised Code if the offender also is | 1758 |
convicted of or also pleads guilty to a specification of the type | 1759 |
described in section 2941.1413 of the Revised Code or, in the | 1760 |
discretion of the
court, either a mandatory term of local | 1761 |
incarceration of one
hundred twenty consecutive days in accordance | 1762 |
with division (G)(1)
of section 2929.13 of the Revised Code or a | 1763 |
mandatory prison
term of one hundred twenty consecutive days in | 1764 |
accordance with division
(G)(2) of that section if the offender is | 1765 |
not convicted of and does not plead guilty to a specification of | 1766 |
that type. If the court
imposes a mandatory
term of local | 1767 |
incarceration, it may impose a
jail term in addition to the one | 1768 |
hundred twenty-day mandatory
term, the cumulative total of the | 1769 |
mandatory term
and the jail term
for
the offense shall not exceed | 1770 |
one year, and, except as provided in division (A)(1) of section | 1771 |
2929.13 of the Revised Code, no prison term is
authorized for the | 1772 |
offense. If the court imposes a mandatory
prison term, | 1773 |
notwithstanding division (A)(4) of section 2929.14 of
the Revised | 1774 |
Code,
it also may sentence the offender to a definite
prison term | 1775 |
that shall be not
less than six months and not more
than thirty | 1776 |
months and the prison terms shall
be imposed as described
in | 1777 |
division (G)(2) of section 2929.13 of the Revised Code. If the | 1778 |
court imposes a mandatory prison term or mandatory prison term and | 1779 |
additional prison term, in addition to the term or terms so | 1780 |
imposed, the court also may sentence the offender to a community | 1781 |
control sanction for the offense, but the offender shall serve all | 1782 |
of the prison terms so imposed prior to serving the community | 1783 |
control sanction. | 1784 |
(vi)
In all cases, the court shall order the
offender to | 1801 |
participate in an alcohol and drug
addiction
program
authorized by | 1802 |
section 3793.02 of the Revised
Code, subject to
division (I) of | 1803 |
this section, and shall order the offender to
follow the | 1804 |
treatment recommendations of the program. The operator
of the | 1805 |
program shall determine and assess the degree of the
offender's | 1806 |
alcohol dependency and shall make recommendations for
treatment. | 1807 |
Upon the request of the court, the program shall submit
the | 1808 |
results of the assessment to the court, including all
treatment | 1809 |
recommendations and clinical diagnoses related to
alcohol use. | 1810 |
(i)
If the offender is being sentenced for a violation of | 1823 |
division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a | 1824 |
mandatory prison term of one, two, three, four, or five years as | 1825 |
required by and in accordance with division (G)(2) of section | 1826 |
2929.13 of the Revised Code if the offender also is convicted of | 1827 |
or also pleads guilty to a specification of the type described in | 1828 |
section 2941.1413 of the Revised Code or a
mandatory
prison term | 1829 |
of sixty consecutive days in
accordance with
division (G)(2) of | 1830 |
section 2929.13 of the Revised Code if the offender is not | 1831 |
convicted of and does not plead guilty to a specification of that | 1832 |
type. The court
may impose a prison term in
addition to the | 1833 |
mandatory
prison term. The cumulative
total of
a sixty-day | 1834 |
mandatory prison term
and the additional prison term for the | 1835 |
offense shall
not exceed
five years. In addition to the mandatory | 1836 |
prison term or mandatory prison term and additional prison term | 1837 |
the court imposes, the court also may sentence the offender to a | 1838 |
community
control sanction for the
offense, but the offender | 1839 |
shall serve all of the prison terms so imposed prior to serving | 1840 |
the community control sanction. | 1841 |
(ii)
If the sentence is being imposed for a violation of | 1842 |
division
(A)(1)(f), (g), (h), or (i) or division (A)(2) of this | 1843 |
section, a mandatory prison term of one, two, three, four, or five | 1844 |
years as required by and in accordance with division (G)(2) of | 1845 |
section 2929.13 of the Revised Code if the offender also is | 1846 |
convicted of or also pleads guilty to a specification of the type | 1847 |
described in section 2941.1413 of the Revised Code or a mandatory | 1848 |
prison term of
one
hundred twenty consecutive days in accordance | 1849 |
with division (G)(2)
of section 2929.13 of the Revised Code if the | 1850 |
offender is not convicted of and does not plead guilty to a | 1851 |
specification of that type. The
court may
impose a prison term in | 1852 |
addition to the mandatory
prison term. The cumulative total of a | 1853 |
one hundred twenty-day
mandatory prison term and
the additional | 1854 |
prison term for the
offense shall not exceed five
years. In | 1855 |
addition to the mandatory prison term or mandatory prison term and | 1856 |
additional prison term the court imposes, the court also may | 1857 |
sentence the offender to a community
control sanction for the | 1858 |
offense, but the offender shall serve all of the prison terms so | 1859 |
imposed prior to serving the community control sanction. | 1860 |
(vi)
In all cases, the court shall order the
offender to | 1877 |
participate in an alcohol and drug
addiction
program
authorized | 1878 |
by section 3793.02 of the Revised
Code,
subject to
division (I) | 1879 |
of this section, and shall order the offender to
follow the | 1880 |
treatment recommendations of the program. The operator
of the | 1881 |
program shall determine and assess the degree of the
offender's | 1882 |
alcohol dependency and shall make recommendations for
treatment. | 1883 |
Upon the request of the court, the program shall submit
the | 1884 |
results of the assessment to the court, including all
treatment | 1885 |
recommendations and clinical diagnoses related to
alcohol use. | 1886 |
(3) If an offender is sentenced to a jail term under
division | 1894 |
(G)(1)(b)(i)
or (ii)
or
(G)(1)(c)(i)
or (ii)
of this
section and | 1895 |
if,
within sixty days of
sentencing of the offender,
the court | 1896 |
issues a written finding on the record
that, due to the | 1897 |
unavailability of space at the
jail where the offender is required | 1898 |
to serve the term, the offender will not
be able to begin serving | 1899 |
that term within the
sixty-day period following the date of | 1900 |
sentencing, the court may
impose an alternative sentence under | 1901 |
this division that includes a
term of house arrest with electronic | 1902 |
monitoring, with continuous alcohol monitoring, or with both | 1903 |
electronic monitoring and continuous alcohol monitoring. | 1904 |
As an alternative to a mandatory jail term of ten consecutive | 1905 |
days
required by division (G)(1)(b)(i) of this
section, the court, | 1906 |
under this division, may sentence the
offender to five consecutive | 1907 |
days in jail and not less than eighteen consecutive days of house | 1908 |
arrest with electronic monitoring, with continuous alcohol | 1909 |
monitoring, or with both electronic monitoring and continuous | 1910 |
alcohol monitoring. The cumulative total of
the five consecutive | 1911 |
days in
jail and the period of house arrest with electronic | 1912 |
monitoring, continuous alcohol monitoring, or both types of | 1913 |
monitoring shall
not exceed six months. The five
consecutive days | 1914 |
in jail do not
have to be served prior to or
consecutively to the | 1915 |
period of house
arrest. | 1916 |
As an alternative to the mandatory jail term of twenty | 1917 |
consecutive
days required by division (G)(1)(b)(ii)
of
this | 1918 |
section, the
court, under this division, may sentence the offender | 1919 |
to ten consecutive days
in jail and not less than thirty-six | 1920 |
consecutive days of
house arrest with electronic monitoring, with | 1921 |
continuous alcohol monitoring, or with both electronic monitoring | 1922 |
and continuous alcohol monitoring. The
cumulative total of the ten | 1923 |
consecutive days in
jail and the
period of house arrest with | 1924 |
electronic monitoring, continuous alcohol monitoring, or both | 1925 |
types of monitoring shall
not exceed
six months. The ten | 1926 |
consecutive days in jail do not
have to be
served prior to or | 1927 |
consecutively to the period of house
arrest. | 1928 |
As an alternative to a mandatory jail term of thirty | 1929 |
consecutive
days required by division (G)(1)(c)(i) of
this | 1930 |
section, the court,
under this division, may sentence the offender | 1931 |
to fifteen consecutive days in
jail and not less than fifty-five | 1932 |
consecutive days of house arrest with electronic monitoring, with | 1933 |
continuous alcohol monitoring, or with both electronic monitoring | 1934 |
and continuous alcohol monitoring. The
cumulative total of the | 1935 |
fifteen
consecutive days in jail and the
period of house arrest | 1936 |
with electronic monitoring, continuous alcohol monitoring, or both | 1937 |
types of monitoring shall not exceed
one year. The fifteen | 1938 |
consecutive days in jail
do not have to be
served prior to or | 1939 |
consecutively to the period of house arrest. | 1940 |
As an alternative to the mandatory jail term of sixty | 1941 |
consecutive
days required by division (G)(1)(c)(ii)
of
this | 1942 |
section, the
court, under this division, may sentence the offender | 1943 |
to thirty
consecutive days in jail and not less than one hundred | 1944 |
ten
consecutive days of house arrest with electronic monitoring, | 1945 |
with continuous alcohol monitoring, or with both electronic | 1946 |
monitoring and continuous alcohol monitoring.
The
cumulative total | 1947 |
of the thirty consecutive days in jail and
the
period of house | 1948 |
arrest with electronic monitoring, continuous alcohol monitoring, | 1949 |
or both types of monitoring shall not
exceed
one year. The thirty | 1950 |
consecutive days in jail do not have
to be
served prior to or | 1951 |
consecutively to the period of house
arrest. | 1952 |
(4) If an offender's driver's or occupational driver's | 1953 |
license or
permit or nonresident operating privilege is suspended | 1954 |
under division
(G) of this
section and if section 4510.13 of the | 1955 |
Revised Code permits the
court to grant limited driving | 1956 |
privileges, the court may
grant the limited driving privileges
in | 1957 |
accordance with that section. If division (A)(7) of that section | 1958 |
requires that the court impose as a condition of the
privileges | 1959 |
that the
offender must display on the vehicle that is
driven | 1960 |
subject to the privileges
restricted license plates that
are | 1961 |
issued under section 4503.231 of the Revised Code, except
as | 1962 |
provided in division (B) of that section, the court shall impose | 1963 |
that condition as one of the conditions of the limited driving | 1964 |
privileges granted to the offender, except as provided in division | 1965 |
(B) of section 4503.231 of the Revised Code. | 1966 |
(a)
Twenty-five dollars of the fine imposed under division | 1969 |
(G)(1)(a)(iii), thirty-five
dollars of the fine imposed under | 1970 |
division
(G)(1)(b)(iii), one
hundred twenty-three dollars of the | 1971 |
fine imposed under division
(G)(1)(c)(iii),
and two hundred
ten | 1972 |
dollars of the fine imposed under division
(G)(1)(d)(iii) or | 1973 |
(e)(iii)
of this section shall be paid to an enforcement
and | 1974 |
education fund established by the legislative authority of the law | 1975 |
enforcement
agency in this state that primarily was responsible | 1976 |
for the arrest of the
offender, as determined by the court that | 1977 |
imposes the fine. The agency shall
use this share to pay only | 1978 |
those costs it incurs in
enforcing this section or a municipal OVI | 1979 |
ordinance
and in informing the public of the laws governing the | 1980 |
operation of
a vehicle while under the influence of alcohol, the | 1981 |
dangers of
the operation of a vehicle under the influence of | 1982 |
alcohol, and other
information relating to the operation of a | 1983 |
vehicle under the influence of
alcohol and the consumption of | 1984 |
alcoholic beverages. | 1985 |
(b)
Fifty dollars of the fine imposed under division | 1986 |
(G)(1)(a)(iii)
of
this section shall be paid to the political | 1987 |
subdivision that pays the cost of
housing the offender during the | 1988 |
offender's term of incarceration. If the
offender is being | 1989 |
sentenced for a violation of division (A)(1)(a), (b), (c), (d), | 1990 |
(e), or (j) of this section and was confined as a result of the | 1991 |
offense
prior to being
sentenced for the offense but is not | 1992 |
sentenced to a
term of incarceration, the
fifty dollars shall
be | 1993 |
paid to the
political subdivision that paid the cost of housing | 1994 |
the offender
during that period of confinement. The political | 1995 |
subdivision
shall use the share under this division to pay or | 1996 |
reimburse
incarceration or treatment costs it incurs in housing or | 1997 |
providing
drug and alcohol treatment to persons who violate this | 1998 |
section or
a municipal OVI ordinance, costs of any immobilizing or | 1999 |
disabling
device used on the offender's vehicle, and costs of | 2000 |
electronic
house
arrest equipment
needed for persons who violate | 2001 |
this
section. | 2002 |
(d)
One hundred fifteen dollars of the fine imposed under | 2010 |
division
(G)(1)(b)(iii),
two hundred seventy-seven
dollars of the | 2011 |
fine imposed under division
(G)(1)(c)(iii),
and four hundred forty | 2012 |
dollars of the fine imposed under division
(G)(1)(d)(iii) or | 2013 |
(e)(iii)
of this section shall be paid to the political | 2014 |
subdivision
that pays the cost of housing the offender during the | 2015 |
offender's term of
incarceration. The political subdivision shall | 2016 |
use
this share to pay or reimburse incarceration or treatment | 2017 |
costs it incurs in
housing or providing drug and alcohol treatment | 2018 |
to persons who
violate this section or a municipal OVI ordinance, | 2019 |
costs for any
immobilizing or disabling device used on the | 2020 |
offender's vehicle, and costs of electronic house arrest equipment | 2021 |
needed for
persons who violate this section. | 2022 |
(e) Fifty dollars of the fine imposed under divisions | 2023 |
(G)(1)(a)(iii),
(G)(1)(b)(iii), (G)(1)(c)(iii), (G)(1)(d)(iii), | 2024 |
and (G)(1)(e)(iii)
of this section shall be deposited into the | 2025 |
special projects fund
of the court in which the offender was | 2026 |
convicted and that is
established under division (E)(1) of | 2027 |
section 2303.201, division
(B)(1) of section 1901.26, or | 2028 |
division (B)(1) of section 1907.24 of the
Revised Code, to be | 2029 |
used
exclusively to cover the cost of
immobilizing or disabling | 2030 |
devices, including certified ignition
interlock devices, and | 2031 |
remote alcohol monitoring devices for
indigent offenders who are | 2032 |
required by a judge to use either of
these devices. If the court | 2033 |
in which
the offender was
convicted does
not have a special | 2034 |
projects fund
that is
established under
division (E)(1) of | 2035 |
section 2303.201,
division (B)(1) of section
1901.26, or | 2036 |
division (B)(1) of section
1907.24 of the Revised Code, the fifty | 2037 |
dollars shall be deposited
into the indigent drivers
interlock | 2038 |
and alcohol monitoring fund
under division (I) of
section | 2039 |
4511.191 of the Revised Code. | 2040 |
(6) If title to a motor vehicle that is subject to an order | 2052 |
of criminal forfeiture under division (G)(1)(c), (d), or (e) of | 2053 |
this section is assigned or transferred and division (B)(2) or (3) | 2054 |
of section 4503.234 of the Revised Code applies, in addition to or | 2055 |
independent of any other penalty established by law, the court may | 2056 |
fine the offender the value of the vehicle as determined by | 2057 |
publications of the national auto dealers association. The | 2058 |
proceeds of any fine so imposed shall be distributed in accordance | 2059 |
with division (C)(2) of that section. | 2060 |
(1) Except as otherwise provided in division (H)(2) of this | 2068 |
section, the offender is guilty of a misdemeanor of the fourth | 2069 |
degree. In
addition to any other sanction imposed for the
offense, | 2070 |
the court shall impose a class six suspension of the
offender's | 2071 |
driver's license, commercial driver's license,
temporary | 2072 |
instruction permit,
probationary license, or nonresident
operating | 2073 |
privilege from the range
specified in division (A)(6) of
section | 2074 |
4510.02 of the Revised Code. | 2075 |
(2) If, within one year of the offense, the offender | 2076 |
previously
has been convicted of or pleaded guilty to one or more | 2077 |
violations of
division (A) or (B) of this section or other | 2078 |
equivalent
offenses, the
offender is guilty of a
misdemeanor of | 2079 |
the third degree. In addition to any
other
sanction imposed
for | 2080 |
the offense, the court shall impose a class
four suspension of the | 2081 |
offender's driver's license, commercial
driver's license, | 2082 |
temporary
instruction permit, probationary
license, or nonresident | 2083 |
operating privilege
from the range
specified in division (A)(4) of | 2084 |
section 4510.02 of the Revised
Code. | 2085 |
(2) If communications fail during an emergency situation
or | 2166 |
the required response time prohibits communication, an
EMT-I may | 2167 |
perform any of the
services described in division (B)
of this | 2168 |
section, if, in the judgment of the EMT-I, the
life of the patient | 2169 |
is
in immediate danger. Services performed under these | 2170 |
circumstances shall be performed in accordance with the
protocols | 2171 |
for triage of adult and
pediatric trauma victims
established in | 2172 |
rules adopted under sections 4765.11 and 4765.40 of the
Revised | 2173 |
Code and any applicable protocols adopted
by the emergency medical | 2174 |
service organization with which the
EMT-I is affiliated. | 2175 |
(2) If communications fail during an emergency situation
or | 2204 |
the required response time prohibits communication, a
paramedic | 2205 |
may perform any of the services described in division
(B) of this | 2206 |
section, if, in the paramedic's judgment, the
life of the patient | 2207 |
is in immediate danger. Services performed under these | 2208 |
circumstances shall be performed in accordance with the
protocols | 2209 |
for triage of adult and
pediatric trauma victims
established in | 2210 |
rules adopted under sections 4765.11 and 4765.40 of the
Revised | 2211 |
Code and any applicable protocols adopted
by the emergency medical | 2212 |
service organization with which the
paramedic is affiliated. | 2213 |
Section 3. Section 2929.13 of the Revised Code is
presented | 2223 |
in
this act as a composite of the section as amended by
both Am. | 2224 |
Sub. H.B. 130 and Am. Sub. H.B. 280 of
the 127th General | 2225 |
Assembly. The General Assembly, applying the
principle stated in | 2226 |
division (B) of section 1.52 of the Revised
Code that amendments | 2227 |
are to be harmonized if reasonably capable of
simultaneous | 2228 |
operation, finds that the composite is the resulting
version of | 2229 |
the section in effect prior to the effective date of
the section | 2230 |
as presented in this act. | 2231 |