As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 385

Representative Williams 

Cosponsors: Representatives Boyd, Fedor, Letson, Weddington 

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A BILL

To amend sections 2909.07 and 2929.13 and to enact

1

section 2923.05 of the Revised Code to expand the

2

"criminal mischief" prohibition that relates to

3

the use of a computer contaminant, to increase the

4

penalty for that offense when the offense involves

5

a computer or a computer system, network,

6

software, or program, and to create the offense of

7

"criminal use of a computer."

8

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

Section 1. That sections 2909.07 and 2929.13 be amended and	9
section 2923.05 of the Revised Code be enacted to read as follows:	10

Sec. 2909.07.  (A) No person shall:

11

(1) Without privilege to do so, knowingly move, deface,	12
damage, destroy, or otherwise improperly tamper with the property	13
of another;	14

(2) With purpose to interfere with the use or enjoyment of	15
property of another, employ a tear gas device, stink bomb, smoke	16
generator, or other device releasing a substance that is harmful	17
or offensive to persons exposed or that tends to cause public	18
alarm;	19

(3) Without privilege to do so, knowingly move, deface,	20
damage, destroy, or otherwise improperly tamper with a bench mark,	21
triangulation station, boundary marker, or other survey station,	22
monument, or marker;	23

(4) Without privilege to do so, knowingly move, deface,	24
damage, destroy, or otherwise improperly tamper with any safety	25
device, the property of another, or the property of the offender	26
when required or placed for the safety of others, so as to destroy	27
or diminish its effectiveness or availability for its intended	28
purpose;	29

(5) With purpose to interfere with the use or enjoyment of	30
the property of another, set a fire on the land of another or	31
place personal property that has been set on fire on the land of	32
another, which fire or personal property is outside and apart from	33
any building, other structure, or personal property that is on	34
that land;	35

(6) Without privilege to do so, and with intent to impair the	36
functioning of any computer, computer system, computer network,	37
computer software, or computer program or with intent to acquire,	38
alter, damage, delete, disrupt, or destroy property or otherwise	39
use the services of any computer, computer system, computer	40
network, computer software, or computer program, knowingly do any	41
of the following:	42

(a) In any manner or by any means, including, but not limited	43
to, computer hacking, alter, damage, destroy, or modify a	44
computer, computer system, computer network, computer software, or	45
computer program or data contained in a computer, computer system,	46
computer network, computer software, or computer program;	47

(b) Introduce, insert, or attach a computer contaminant into,	48
or create the opportunity for an unknowing and unwanted	49
introduction, insertion, or attachment of a computer contaminant	50
into, a computer, computer system, computer network, computer	51
software, or computer program.	52

(B) As used in this section, "safety device" means any fire	53
extinguisher, fire hose, or fire axe, or any fire escape,	54
emergency exit, or emergency escape equipment, or any life line,	55
life-saving ring, life preserver, or life boat or raft, or any	56
alarm, light, flare, signal, sign, or notice intended to warn of	57
danger or emergency, or intended for other safety purposes, or any	58
guard railing or safety barricade, or any traffic sign or signal,	59
or any railroad grade crossing sign, signal, or gate, or any first	60
aid or survival equipment, or any other device, apparatus, or	61
equipment intended for protecting or preserving the safety of	62
persons or property.	63

(C)(1) Whoever violates this section is guilty of criminal	64
mischief, and shall be punished as provided in division (C)(2) or	65
(3) of this section.	66

(2) Except as otherwise provided in this division, criminal	67
mischief committed in violation of division (A)(1), (2), (3), (4),	68
or (5) of this section is a misdemeanor of the third degree.	69
Except as otherwise provided in this division, if the violation of	70
division (A)(1), (2), (3), (4), or (5) of this section creates a	71
risk of physical harm to any person, criminal mischief committed	72
in violation of division (A)(1), (2), (3), (4), or (5) of this	73
section is a misdemeanor of the first degree. If the property	74
involved in the violation of division (A)(1), (2), (3), (4), or	75
(5) of this section is an aircraft, an aircraft engine, propeller,	76
appliance, spare part, fuel, lubricant, hydraulic fluid, any other	77
equipment, implement, or material used or intended to be used in	78
the operation of an aircraft, or any cargo carried or intended to	79
be carried in an aircraft, criminal mischief committed in	80
violation of division (A)(1), (2), (3), (4), or (5) of this	81
section is one of the following:	82

(a) If the violation creates a risk of physical harm to any	83
person, except as otherwise provided in division (C)(2)(b) of this	84
section, criminal mischief committed in violation of division	85
(A)(1), (2), (3), (4), or (5) of this section is a felony of the	86
fifth degree.	87

(b) If the violation creates a substantial risk of physical	88
harm to any person or if the property involved in a violation of	89
this section is an occupied aircraft, criminal mischief committed	90
in violation of division (A)(1), (2), (3), (4), or (5) of this	91
section is a felony of the fourth degree.	92

(3) Except as otherwise provided in this division, criminal	93
mischief committed in violation of division (A)(6) of this section	94
is a misdemeanor of the first degree. Except as otherwise provided	95
in this division, if the value of the computer, computer system,	96
computer network, computer software, computer program, or data	97
involved in the violation of division (A)(6) of this section or	98
the loss to the victim resulting from the violation is one	99
thousand dollars or more and less than ten thousand dollars, or if	100
the computer, computer system, computer network, computer	101
software, computer program, or data involved in the violation of	102
division (A)(6) of this section is used or intended to be used in	103
the operation of an aircraft and the violation creates a risk of	104
physical harm to any person, criminal mischief committed in	105
violation of division (A)(6) of this section is a felony of the	106
fifth degree. If the value of the computer, computer system,	107
computer network, computer software, computer program, or data	108
involved in the violation of division (A)(6) of this section or	109
the loss to the victim resulting from the violation is ten	110
thousand dollars or more, or if the computer, computer system,	111
computer network, computer software, computer program, or data	112
involved in the violation of division (A)(6) of this section is	113
used or intended to be used in the operation of an aircraft and	114
the violation creates a substantial risk of physical harm to any	115
person or the aircraft in question is an occupied aircraft,	116
criminal mischief committed in violation of division (A)(6) of	117
this section is a felony of the fourth degreefelony of the third	118
degree or, if the offender previously has been convicted of or	119
pleaded guilty to a violation of this section or a violation of an	120
existing or former municipal ordinance or law of this or any other	121
state or the United States that is substantially equivalent to	122
this section, a felony of the first degree.	123

Sec. 2923.05.  (A) As used in this section:

124

(1) "Computer," "computer program," "computer system," and	125
"computer network" have the same meanings as in section 2913.01 of	126
the Revised Code.	127

(2) "Underlying offense" means an offense that a person	128
commits, attempts to commit, conspires to commit, or solicits	129
another to commit in engaging in conduct in violation of division	130
(B) of this section.	131

(B) No person shall use a computer, computer program,	132
computer system, or computer network to commit, attempt to commit,	133
conspire to commit, or solicit another to commit any offense.	134

(C) Division (B) of this section does not prohibit a person	135
from being charged with, convicted of, or punished for any other	136
violation of law committed by that person while violating or	137
attempting to violate division (B) of this section, including an	138
underlying offense.	139

Notwithstanding any other provision of law, a person may be	140
convicted at the same trial or proceeding of a violation of	141
division (B) of this section and an underlying offense that is the	142
basis of the violation of division (B) of this section. If a	143
person is convicted at the same trial or proceeding of a violation	144
of division (B) of this section and an underlying offense that is	145
the basis of the violation of division (B) of this section, the	146
offender shall be sentenced for the violation of division (B) of	147
this section in accordance with division (E) of this section and	148
also shall be sentenced for the underlying offense in accordance	149
with the section of the Revised Code that sets forth that offense.	150

(D) Division (B) of this section applies regardless of	151
whether a person who uses a computer, computer program, computer	152
system, or computer network as described in that division is	153
convicted of or pleads guilty to committing, attempting to commit,	154
conspiring to commit, or soliciting another to commit the	155
underlying offense.	156

(E)(1) Whoever violates division (B) of this section is	157
guilty of criminal use of a computer.	158

(2) If the most serious underlying offense involved in the	159
violation is a misdemeanor, a felony of the fifth degree, or any	160
other felony with a maximum term of imprisonment not exceeding one	161
year, criminal use of a computer is a first degree misdemeanor,	162
and, notwithstanding section 2929.24 of the Revised Code, the jail	163
term authorized for the offense shall be a definite jail term of	164
not more than one year.	165

(2) If the most serious underlying offense involved in the	166
violation is a felony of the fourth degree or any other felony	167
with a maximum term of imprisonment not exceeding two years,	168
criminal use of a computer is a felony of the fourth degree.	169

(3) If the most serious underlying offense involved in the	170
violation is a felony of the third degree or any other felony with	171
a maximum term of imprisonment not exceeding four years, criminal	172
use of a computer is a felony of the third degree.	173

(4) If the most serious underlying offense involved in the	174
violation is a felony of the second degree or any other felony	175
with a maximum term of imprisonment not exceeding ten years,	176
criminal use of a computer is a felony of the second degree.	177

(5) If the most serious underlying offense involved in the	178
violation is a felony of the first degree or any other felony with	179
a maximum term of imprisonment not exceeding twenty years,	180
criminal use of a computer is a felony of the first degree.	181

(6) If the most serious underlying offense involved in the	182
violation is aggravated murder, murder, or any other offense that	183
is punishable by death or life imprisonment, criminal use of a	184
computer is a felony of the first degree, and the court shall	185
impose as a mandatory prison term one of the prison terms	186
prescribed for a felony of the first degree.	187

Sec. 2929.13.  (A) Except as provided in division (E), (F),	188
or (G) of this section and unless a specific sanction is required	189
to be imposed or is precluded from being imposed pursuant to law,	190
a court that imposes a sentence upon an offender for a felony may	191
impose any sanction or combination of sanctions on the offender	192
that are provided in sections 2929.14 to 2929.18 of the Revised	193
Code. The sentence shall not impose an unnecessary burden on state	194
or local government resources.	195

If the offender is eligible to be sentenced to community	196
control sanctions, the court shall consider the appropriateness of	197
imposing a financial sanction pursuant to section 2929.18 of the	198
Revised Code or a sanction of community service pursuant to	199
section 2929.17 of the Revised Code as the sole sanction for the	200
offense. Except as otherwise provided in this division, if the	201
court is required to impose a mandatory prison term for the	202
offense for which sentence is being imposed, the court also shall	203
impose any financial sanction pursuant to section 2929.18 of the	204
Revised Code that is required for the offense and may impose any	205
other financial sanction pursuant to that section but may not	206
impose any additional sanction or combination of sanctions under	207
section 2929.16 or 2929.17 of the Revised Code.	208

If the offender is being sentenced for a fourth degree felony	209
OVI offense or for a third degree felony OVI offense, in addition	210
to the mandatory term of local incarceration or the mandatory	211
prison term required for the offense by division (G)(1) or (2) of	212
this section, the court shall impose upon the offender a mandatory	213
fine in accordance with division (B)(3) of section 2929.18 of the	214
Revised Code and may impose whichever of the following is	215
applicable:	216

(1) For a fourth degree felony OVI offense for which sentence	217
is imposed under division (G)(1) of this section, an additional	218
community control sanction or combination of community control	219
sanctions under section 2929.16 or 2929.17 of the Revised Code. If	220
the court imposes upon the offender a community control sanction	221
and the offender violates any condition of the community control	222
sanction, the court may take any action prescribed in division (B)	223
of section 2929.15 of the Revised Code relative to the offender,	224
including imposing a prison term on the offender pursuant to that	225
division.	226

(2) For a third or fourth degree felony OVI offense for which	227
sentence is imposed under division (G)(2) of this section, an	228
additional prison term as described in division (D)(4) of section	229
2929.14 of the Revised Code or a community control sanction as	230
described in division (G)(2) of this section.	231

(B)(1) Except as provided in division (B)(2), (E), (F), or	232
(G) of this section, in sentencing an offender for a felony of the	233
fourth or fifth degree, the sentencing court shall determine	234
whether any of the following apply:	235

(a) In committing the offense, the offender caused physical	236
harm to a person.	237

(b) In committing the offense, the offender attempted to	238
cause or made an actual threat of physical harm to a person with a	239
deadly weapon.	240

(c) In committing the offense, the offender attempted to	241
cause or made an actual threat of physical harm to a person, and	242
the offender previously was convicted of an offense that caused	243
physical harm to a person.	244

(d) The offender held a public office or position of trust	245
and the offense related to that office or position; the offender's	246
position obliged the offender to prevent the offense or to bring	247
those committing it to justice; or the offender's professional	248
reputation or position facilitated the offense or was likely to	249
influence the future conduct of others.	250

(e) The offender committed the offense for hire or as part of	251
an organized criminal activity.	252

(f) The offense is a sex offense that is a fourth or fifth	253
degree felony violation of section 2907.03, 2907.04, 2907.05,	254
2907.22, 2907.31, 2907.321, 2907.322, 2907.323, or 2907.34 of the	255
Revised Code.	256

(g) The offender at the time of the offense was serving, or	257
the offender previously had served, a prison term.	258

(h) The offender committed the offense while under a	259
community control sanction, while on probation, or while released	260
from custody on a bond or personal recognizance.	261

(i) The offender committed the offense while in possession of	262
a firearm.	263

(2)(a) If the court makes a finding described in division	264
(B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this	265
section and if the court, after considering the factors set forth	266
in section 2929.12 of the Revised Code, finds that a prison term	267
is consistent with the purposes and principles of sentencing set	268
forth in section 2929.11 of the Revised Code and finds that the	269
offender is not amenable to an available community control	270
sanction, the court shall impose a prison term upon the offender.	271

(b) Except as provided in division (E), (F), or (G) of this	272
section, if the court does not make a finding described in	273
division (B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of	274
this section and if the court, after considering the factors set	275
forth in section 2929.12 of the Revised Code, finds that a	276
community control sanction or combination of community control	277
sanctions is consistent with the purposes and principles of	278
sentencing set forth in section 2929.11 of the Revised Code, the	279
court shall impose a community control sanction or combination of	280
community control sanctions upon the offender.	281

(C) Except as provided in division (D), (E), (F), or (G) of	282
this section, in determining whether to impose a prison term as a	283
sanction for a felony of the third degree or a felony drug offense	284
that is a violation of a provision of Chapter 2925. of the Revised	285
Code and that is specified as being subject to this division for	286
purposes of sentencing, the sentencing court shall comply with the	287
purposes and principles of sentencing under section 2929.11 of the	288
Revised Code and with section 2929.12 of the Revised Code.	289

(D)(1) Except as provided in division (E) or (F) of this	290
section, for a felony of the first or second degree, for a felony	291
drug offense that is a violation of any provision of Chapter	292
2925., 3719., or 4729. of the Revised Code for which a presumption	293
in favor of a prison term is specified as being applicable, and	294
for a violation of division (A)(4) or (B) of section 2907.05 of	295
the Revised Code for which a presumption in favor of a prison term	296
is specified as being applicable, it is presumed that a prison	297
term is necessary in order to comply with the purposes and	298
principles of sentencing under section 2929.11 of the Revised	299
Code. Division (D)(2) of this section does not apply to a	300
presumption established under this division for a violation of	301
division (A)(4) of section 2907.05 of the Revised Code.	302

(2) Notwithstanding the presumption established under	303
division (D)(1) of this section for the offenses listed in that	304
division other than a violation of division (A)(4) or (B) of	305
section 2907.05 of the Revised Code, the sentencing court may	306
impose a community control sanction or a combination of community	307
control sanctions instead of a prison term on an offender for a	308
felony of the first or second degree or for a felony drug offense	309
that is a violation of any provision of Chapter 2925., 3719., or	310
4729. of the Revised Code for which a presumption in favor of a	311
prison term is specified as being applicable if it makes both of	312
the following findings:	313

(a) A community control sanction or a combination of	314
community control sanctions would adequately punish the offender	315
and protect the public from future crime, because the applicable	316
factors under section 2929.12 of the Revised Code indicating a	317
lesser likelihood of recidivism outweigh the applicable factors	318
under that section indicating a greater likelihood of recidivism.	319

(b) A community control sanction or a combination of	320
community control sanctions would not demean the seriousness of	321
the offense, because one or more factors under section 2929.12 of	322
the Revised Code that indicate that the offender's conduct was	323
less serious than conduct normally constituting the offense are	324
applicable, and they outweigh the applicable factors under that	325
section that indicate that the offender's conduct was more serious	326
than conduct normally constituting the offense.	327

(E)(1) Except as provided in division (F) of this section,	328
for any drug offense that is a violation of any provision of	329
Chapter 2925. of the Revised Code and that is a felony of the	330
third, fourth, or fifth degree, the applicability of a presumption	331
under division (D) of this section in favor of a prison term or of	332
division (B) or (C) of this section in determining whether to	333
impose a prison term for the offense shall be determined as	334
specified in section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06,	335
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, or 2925.37 of the	336
Revised Code, whichever is applicable regarding the violation.	337

(2) If an offender who was convicted of or pleaded guilty to	338
a felony violates the conditions of a community control sanction	339
imposed for the offense solely by reason of producing positive	340
results on a drug test, the court, as punishment for the violation	341
of the sanction, shall not order that the offender be imprisoned	342
unless the court determines on the record either of the following:	343

(a) The offender had been ordered as a sanction for the	344
felony to participate in a drug treatment program, in a drug	345
education program, or in narcotics anonymous or a similar program,	346
and the offender continued to use illegal drugs after a reasonable	347
period of participation in the program.	348

(b) The imprisonment of the offender for the violation is	349
consistent with the purposes and principles of sentencing set	350
forth in section 2929.11 of the Revised Code.	351

(3) A court that sentences an offender for a drug abuse	352
offense that is a felony of the third, fourth, or fifth degree may	353
require that the offender be assessed by a properly credentialed	354
professional within a specified period of time. The court shall	355
require the professional to file a written assessment of the	356
offender with the court. If the offender is eligible for a	357
community control sanction and after considering the written	358
assessment, the court may impose a community control sanction that	359
includes treatment and recovery support services authorized by	360
section 3793.02 of the Revised Code. If the court imposes	361
treatment and recovery support services as a community control	362
sanction, the court shall direct the level and type of treatment	363
and recovery support services after considering the assessment and	364
recommendation of treatment and recovery support services	365
providers.	366

(F) Notwithstanding divisions (A) to (E) of this section, the	367
court shall impose a prison term or terms under sections 2929.02	368
to 2929.06, section 2929.14, section 2929.142, or section 2971.03	369
of the Revised Code and except as specifically provided in section	370
2929.20 or 2967.191 of the Revised Code or when parole is	371
authorized for the offense under section 2967.13 of the Revised	372
Code shall not reduce the term or terms pursuant to section	373
2929.20, section 2967.193, or any other provision of Chapter 2967.	374
or Chapter 5120. of the Revised Code for any of the following	375
offenses:	376

(1) Aggravated murder when death is not imposed or murder;

377

(2) Any rape, regardless of whether force was involved and	378
regardless of the age of the victim, or an attempt to commit rape	379
if, had the offender completed the rape that was attempted, the	380
offender would have been guilty of a violation of division	381
(A)(1)(b) of section 2907.02 of the Revised Code and would be	382
sentenced under section 2971.03 of the Revised Code;	383

(3) Gross sexual imposition or sexual battery, if the victim	384
is less than thirteen years of age and if any of the following	385
applies:	386

(a) Regarding gross sexual imposition, the offender	387
previously was convicted of or pleaded guilty to rape, the former	388
offense of felonious sexual penetration, gross sexual imposition,	389
or sexual battery, and the victim of the previous offense was less	390
than thirteen years of age;	391

(b) Regarding gross sexual imposition, the offense was	392
committed on or after August 3, 2006, and evidence other than the	393
testimony of the victim was admitted in the case corroborating the	394
violation.	395

(c) Regarding sexual battery, either of the following	396
applies:	397

(i) The offense was committed prior to August 3, 2006, the	398
offender previously was convicted of or pleaded guilty to rape,	399
the former offense of felonious sexual penetration, or sexual	400
battery, and the victim of the previous offense was less than	401
thirteen years of age.	402

(ii) The offense was committed on or after August 3, 2006.

403

(4) A felony violation of section 2903.04, 2903.06, 2903.08,	404
2903.11, 2903.12, 2903.13, or 2907.07, or 2923.04 of the Revised	405
Code if the section requires the imposition of a prison term;	406

(5) A first, second, or third degree felony drug offense for	407
which section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06,	408
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, 2925.37, 3719.99, or	409
4729.99 of the Revised Code, whichever is applicable regarding the	410
violation, requires the imposition of a mandatory prison term;	411

(6) Any offense that is a first or second degree felony and	412
that is not set forth in division (F)(1), (2), (3), or (4) of this	413
section, if the offender previously was convicted of or pleaded	414
guilty to aggravated murder, murder, any first or second degree	415
felony, or an offense under an existing or former law of this	416
state, another state, or the United States that is or was	417
substantially equivalent to one of those offenses;	418

(7) Any offense that is a third degree felony and either is a	419
violation of section 2903.04 of the Revised Code or an attempt to	420
commit a felony of the second degree that is an offense of	421
violence and involved an attempt to cause serious physical harm to	422
a person or that resulted in serious physical harm to a person if	423
the offender previously was convicted of or pleaded guilty to any	424
of the following offenses:	425

(a) Aggravated murder, murder, involuntary manslaughter,	426
rape, felonious sexual penetration as it existed under section	427
2907.12 of the Revised Code prior to September 3, 1996, a felony	428
of the first or second degree that resulted in the death of a	429
person or in physical harm to a person, or complicity in or an	430
attempt to commit any of those offenses;	431

(b) An offense under an existing or former law of this state,	432
another state, or the United States that is or was substantially	433
equivalent to an offense listed in division (F)(7)(a) of this	434
section that resulted in the death of a person or in physical harm	435
to a person.	436

(8) Any offense, other than a violation of section 2923.12 of	437
the Revised Code, that is a felony, if the offender had a firearm	438
on or about the offender's person or under the offender's control	439
while committing the felony, with respect to a portion of the	440
sentence imposed pursuant to division (D)(1)(a) of section 2929.14	441
of the Revised Code for having the firearm;	442

(9) Any offense of violence that is a felony, if the offender	443
wore or carried body armor while committing the felony offense of	444
violence, with respect to the portion of the sentence imposed	445
pursuant to division (D)(1)(d) of section 2929.14 of the Revised	446
Code for wearing or carrying the body armor;	447

(10) Corrupt activity in violation of section 2923.32 of the	448
Revised Code when the most serious offense in the pattern of	449
corrupt activity that is the basis of the offense is a felony of	450
the first degree;	451

(11) Any violent sex offense or designated homicide, assault,	452
or kidnapping offense if, in relation to that offense, the	453
offender is adjudicated a sexually violent predator;	454

(12) A violation of division (A)(1) or (2) of section 2921.36	455
of the Revised Code, or a violation of division (C) of that	456
section involving an item listed in division (A)(1) or (2) of that	457
section, if the offender is an officer or employee of the	458
department of rehabilitation and correction;	459

(13) A violation of division (A)(1) or (2) of section 2903.06	460
of the Revised Code if the victim of the offense is a peace	461
officer, as defined in section 2935.01 of the Revised Code, or an	462
investigator of the bureau of criminal identification and	463
investigation, as defined in section 2903.11 of the Revised Code,	464
with respect to the portion of the sentence imposed pursuant to	465
division (D)(5) of section 2929.14 of the Revised Code;	466

(14) A violation of division (A)(1) or (2) of section 2903.06	467
of the Revised Code if the offender has been convicted of or	468
pleaded guilty to three or more violations of division (A) or (B)	469
of section 4511.19 of the Revised Code or an equivalent offense,	470
as defined in section 2941.1415 of the Revised Code, or three or	471
more violations of any combination of those divisions and	472
offenses, with respect to the portion of the sentence imposed	473
pursuant to division (D)(6) of section 2929.14 of the Revised	474
Code;	475

(15) Kidnapping, in the circumstances specified in section	476
2971.03 of the Revised Code and when no other provision of	477
division (F) of this section applies;	478

(16) Kidnapping, abduction, compelling prostitution,	479
promoting prostitution, engaging in a pattern of corrupt activity,	480
illegal use of a minor in a nudity-oriented material or	481
performance in violation of division (A)(1) or (2) of section	482
2907.323 of the Revised Code, or endangering children in violation	483
of division (B)(1), (2), (3), (4), or (5) of section 2919.22 of	484
the Revised Code, if the offender is convicted of or pleads guilty	485
to a specification as described in section 2941.1422 of the	486
Revised Code that was included in the indictment, count in the	487
indictment, or information charging the offense;	488

(17) A felony violation of division (A) or (B) of section	489
2919.25 of the Revised Code if division (D)(3), (4), or (5) of	490
that section, and division (D)(6) of that section, require the	491
imposition of a prison term;	492

(18) A felony violation of section 2903.11, 2903.12, or	493
2903.13 of the Revised Code, if the victim of the offense was a	494
woman that the offender knew was pregnant at the time of the	495
violation, with respect to a portion of the sentence imposed	496
pursuant to division (D)(8) of section 2929.14 of the Revised	497
Code.	498

(G) Notwithstanding divisions (A) to (E) of this section, if	499
an offender is being sentenced for a fourth degree felony OVI	500
offense or for a third degree felony OVI offense, the court shall	501
impose upon the offender a mandatory term of local incarceration	502
or a mandatory prison term in accordance with the following:	503

(1) If the offender is being sentenced for a fourth degree	504
felony OVI offense and if the offender has not been convicted of	505
and has not pleaded guilty to a specification of the type	506
described in section 2941.1413 of the Revised Code, the court may	507
impose upon the offender a mandatory term of local incarceration	508
of sixty days or one hundred twenty days as specified in division	509
(G)(1)(d) of section 4511.19 of the Revised Code. The court shall	510
not reduce the term pursuant to section 2929.20, 2967.193, or any	511
other provision of the Revised Code. The court that imposes a	512
mandatory term of local incarceration under this division shall	513
specify whether the term is to be served in a jail, a	514
community-based correctional facility, a halfway house, or an	515
alternative residential facility, and the offender shall serve the	516
term in the type of facility specified by the court. A mandatory	517
term of local incarceration imposed under division (G)(1) of this	518
section is not subject to any other Revised Code provision that	519
pertains to a prison term except as provided in division (A)(1) of	520
this section.	521

(2) If the offender is being sentenced for a third degree	522
felony OVI offense, or if the offender is being sentenced for a	523
fourth degree felony OVI offense and the court does not impose a	524
mandatory term of local incarceration under division (G)(1) of	525
this section, the court shall impose upon the offender a mandatory	526
prison term of one, two, three, four, or five years if the	527
offender also is convicted of or also pleads guilty to a	528
specification of the type described in section 2941.1413 of the	529
Revised Code or shall impose upon the offender a mandatory prison	530
term of sixty days or one hundred twenty days as specified in	531
division (G)(1)(d) or (e) of section 4511.19 of the Revised Code	532
if the offender has not been convicted of and has not pleaded	533
guilty to a specification of that type. The court shall not reduce	534
the term pursuant to section 2929.20, 2967.193, or any other	535
provision of the Revised Code. The offender shall serve the one-,	536
two-, three-, four-, or five-year mandatory prison term	537
consecutively to and prior to the prison term imposed for the	538
underlying offense and consecutively to any other mandatory prison	539
term imposed in relation to the offense. In no case shall an	540
offender who once has been sentenced to a mandatory term of local	541
incarceration pursuant to division (G)(1) of this section for a	542
fourth degree felony OVI offense be sentenced to another mandatory	543
term of local incarceration under that division for any violation	544
of division (A) of section 4511.19 of the Revised Code. In	545
addition to the mandatory prison term described in division (G)(2)	546
of this section, the court may sentence the offender to a	547
community control sanction under section 2929.16 or 2929.17 of the	548
Revised Code, but the offender shall serve the prison term prior	549
to serving the community control sanction. The department of	550
rehabilitation and correction may place an offender sentenced to a	551
mandatory prison term under this division in an intensive program	552
prison established pursuant to section 5120.033 of the Revised	553
Code if the department gave the sentencing judge prior notice of	554
its intent to place the offender in an intensive program prison	555
established under that section and if the judge did not notify the	556
department that the judge disapproved the placement. Upon the	557
establishment of the initial intensive program prison pursuant to	558
section 5120.033 of the Revised Code that is privately operated	559
and managed by a contractor pursuant to a contract entered into	560
under section 9.06 of the Revised Code, both of the following	561
apply:	562

(a) The department of rehabilitation and correction shall	563
make a reasonable effort to ensure that a sufficient number of	564
offenders sentenced to a mandatory prison term under this division	565
are placed in the privately operated and managed prison so that	566
the privately operated and managed prison has full occupancy.	567

(b) Unless the privately operated and managed prison has full	568
occupancy, the department of rehabilitation and correction shall	569
not place any offender sentenced to a mandatory prison term under	570
this division in any intensive program prison established pursuant	571
to section 5120.033 of the Revised Code other than the privately	572
operated and managed prison.	573

(H) If an offender is being sentenced for a sexually oriented	574
offense or child-victim oriented offense that is a felony	575
committed on or after January 1, 1997, the judge shall require the	576
offender to submit to a DNA specimen collection procedure pursuant	577
to section 2901.07 of the Revised Code.	578

(I) If an offender is being sentenced for a sexually oriented	579
offense or a child-victim oriented offense committed on or after	580
January 1, 1997, the judge shall include in the sentence a summary	581
of the offender's duties imposed under sections 2950.04, 2950.041,	582
2950.05, and 2950.06 of the Revised Code and the duration of the	583
duties. The judge shall inform the offender, at the time of	584
sentencing, of those duties and of their duration. If required	585
under division (A)(2) of section 2950.03 of the Revised Code, the	586
judge shall perform the duties specified in that section, or, if	587
required under division (A)(6) of section 2950.03 of the Revised	588
Code, the judge shall perform the duties specified in that	589
division.	590

(J)(1) Except as provided in division (J)(2) of this section,	591
when considering sentencing factors under this section in relation	592
to an offender who is convicted of or pleads guilty to an attempt	593
to commit an offense in violation of section 2923.02 of the	594
Revised Code, the sentencing court shall consider the factors	595
applicable to the felony category of the violation of section	596
2923.02 of the Revised Code instead of the factors applicable to	597
the felony category of the offense attempted.	598

(2) When considering sentencing factors under this section in	599
relation to an offender who is convicted of or pleads guilty to an	600
attempt to commit a drug abuse offense for which the penalty is	601
determined by the amount or number of unit doses of the controlled	602
substance involved in the drug abuse offense, the sentencing court	603
shall consider the factors applicable to the felony category that	604
the drug abuse offense attempted would be if that drug abuse	605
offense had been committed and had involved an amount or number of	606
unit doses of the controlled substance that is within the next	607
lower range of controlled substance amounts than was involved in	608
the attempt.	609

(K) As used in this section, "drug abuse offense" has the	610
same meaning as in section 2925.01 of the Revised Code.	611

(L) At the time of sentencing an offender for any sexually	612
oriented offense, if the offender is a tier III sex	613
offender/child-victim offender relative to that offense and the	614
offender does not serve a prison term or jail term, the court may	615
require that the offender be monitored by means of a global	616
positioning device. If the court requires such monitoring, the	617
cost of monitoring shall be borne by the offender. If the offender	618
is indigent, the cost of compliance shall be paid by the crime	619
victims reparations fund.	620

Section 2.  That existing sections 2909.07 and 2929.13 of the	621
Revised Code are hereby repealed.	622