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(123rd General Assembly)(Substitute House Bill Number 202)
AN ACT
To amend sections 2919.271, 2925.01, 2937.23,
and 2951.041, to enact section 2925.24 of the Revised Code, and to amend
section 2903.211 of the Revised Code contingent on Am. Sub. H.B. 137 of the
123rd General Assembly becoming law, as concurred in on June 24, 1999, to
prohibit substituting, adulterating, or altering any dangerous drug or
any package or receptacle containing dangerous drugs,
to prohibit in certain circumstances treatment in lieu of conviction
for a person charged with violating the new prohibition, to make changes in
the law relative to the offense of menacing by stalking, and to declare an
emergency.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1 . That sections 2919.271,
2925.01, 2937.23, and 2951.041 be amended and section 2925.24 of the Revised
Code be enacted to read as follows:
Sec. 2919.271. (A)(1)(a) If a defendant is charged with a
violation of section 2919.27 of the Revised Code or of a
municipal ordinance that is substantially similar to that
section, the court may order an evaluation of the mental
condition of the defendant if the court determines that either of the
following criteria apply: (a)(i) If the alleged violation is a violation of a
protection order
issued or consent agreement approved pursuant to section 2919.26
or 3113.31 of the Revised Code, that the violation allegedly involves conduct
by the defendant that caused physical harm to the person or
property of a family or household member covered by the order or
agreement, or conduct by the defendant that caused a family or
household member to believe that the defendant would cause
physical harm to that member or that member's property.
(b)(ii) If the alleged violation is a violation of
a protection order issued pursuant to section 2903.213 or
2903.214 of the Revised
Code or a protection order issued by a court of another state, that the
violation
allegedly involves conduct by the defendant that caused physical harm to the
person or property of the person covered by the order, or conduct by
the defendant that caused the person covered by the order to believe that the
defendant would cause physical harm to that person or that person's property.
(b) If a defendant is charged with a violation of section
2903.211 of the Revised Code or of a municipal ordinance
that is substantially similar to that section, the court may order an
evaluation of the mental condition of the defendant. (2) The An evaluation ordered under division (A)(1)
of this section shall be completed no later than thirty days from
the date the order is entered pursuant to that division (A)(1) of
this
section. In that order, the court shall do either of the
following: (a) Order that the evaluation of the mental condition of
the defendant be preceded by an examination conducted either by a
forensic center that is designated by the department of mental
health to conduct examinations and make evaluations of defendants
charged with violations of section 2903.211 or 2919.27 of the
Revised Code or
of substantially similar municipal ordinances in the area in
which the court is located, or by any other program or facility
that is designated by the department of mental health or the
department of mental retardation and developmental disabilities
to conduct examinations and make evaluations of defendants
charged with violations of section 2903.211 or 2919.27 of the
Revised Code or
of substantially similar municipal ordinances, and that is
operated by either department or is certified by either
department as being in compliance with the standards established
under division (J) of section 5119.01 of the Revised Code or
division (C) of section 5123.04 of the Revised Code. (b) Designate a center, program, or facility other than
one designated by the department of mental health or the
department of mental retardation and developmental disabilities,
as described in division (A)(2)(a) of this
section, to conduct the evaluation and preceding examination of
the mental condition of the defendant. Whether the court acts pursuant to division (A)(2)(a) or (b)
of this section, the court may designate examiners other than the
personnel of the center, program, facility, or department
involved to make the evaluation and preceding examination of the
mental condition of the defendant. (B) If the court considers that additional evaluations of
the mental condition of a defendant are necessary following the
evaluation authorized by division (A) of this section, the court
may order up to two additional similar evaluations. These
evaluations shall be completed no later than thirty days from the
date the applicable court order is entered. If more than one
evaluation of the mental condition of the defendant is ordered
under this division, the prosecutor and the defendant may
recommend to the court an examiner whom each prefers to perform
one of the evaluations and preceding examinations. (C)(1) The court may order a defendant who has been
released on bail to submit to an examination under division (A)
or (B) of this section. The examination shall be conducted
either at the detention facility in which the defendant would
have been confined if the defendant had not been released on
bail, or, if so specified by the center, program, facility, or examiners
involved, at the premises of the center, program, or facility. Additionally,
the examination shall be conducted at the times
established by the examiners involved. If such a defendant
refuses to submit to an examination or a complete examination as
required by the court or the center, program, facility, or
examiners involved, the court may amend the conditions of the
bail of the defendant and order the sheriff to take the defendant into
custody and deliver the defendant to the detention facility in
which the defendant would have been confined if the defendant had
not been released on bail,
or, if so specified by the center, program, facility, or examiners
involved, to the premises of the center, program, or facility,
for purposes of the examination. (2) A defendant who has not been released on bail shall be
examined at the detention facility in which the defendant is
confined or, if so specified by the
center, program, facility, or examiners involved, at the premises
of the center, program, or facility. (D) The examiner of the mental condition of a defendant
under division (A) or (B) of this section shall file a written
report with the court within thirty days after the entry of an
order for the evaluation of the mental condition of the
defendant. The report shall contain the findings of the
examiner; the facts in reasonable detail on which the findings
are based; the opinion of the examiner as to the mental condition
of the defendant; the opinion of the examiner as to whether the
defendant represents a substantial risk of physical harm to other
persons as manifested by evidence of recent homicidal or other
violent behavior, evidence of recent threats that placed other
persons in reasonable fear of violent behavior and serious
physical harm, or evidence of present dangerousness; and the
opinion of the examiner as to the types of treatment or
counseling that the defendant needs. The court shall provide
copies of the report to the prosecutor and defense counsel. (E) The costs of any evaluation and preceding examination
of a defendant that is ordered pursuant to division (A) or (B) of
this section shall be taxed as court costs in the criminal case. (F) If the examiner considers it necessary in order to make
an accurate evaluation of the mental condition of a defendant, an
examiner under division (A) or (B) of this section may request
any family or household member of the defendant to provide the
examiner with information. A family or household member may, but
is not required to, provide information to the examiner upon
receipt of the request. (G) As used in this section: (1) "Bail" includes a recognizance. (2) "Examiner" means a psychiatrist, a licensed independent social
worker who is employed by a
forensic center that is certified as being in compliance with the
standards established under division (J) of section 5119.01 or
division (C) of section 5123.04 of the Revised Code, a licensed
professional clinical counselor who is employed at a forensic
center that is certified as being in compliance with such
standards, or a licensed clinical psychologist, except that in
order to be an examiner, a licensed clinical psychologist shall
meet the criteria of division (I)(1) of section 5122.01 of the
Revised Code or be employed to conduct examinations by the
department of mental health or by a forensic center certified as
being in compliance with the standards established under division
(J) of section 5119.01 or division (C) of section 5123.04 of the
Revised Code that is designated by the department of mental
health. (3) "Family or household member" has the same meaning as
in section 2919.25 of the Revised Code. (4) "Prosecutor" has the same meaning as in section
2935.01 of the Revised Code. (5) "Psychiatrist" and "licensed clinical
psychologist" have the same meanings as in section
5122.01 of the Revised Code. (6) "Protection order issued by a court of another state" has the
same meaning as in section 2919.27 of the Revised Code. Sec. 2925.01. As used in this chapter: (A) "Administer," "controlled substance," "dispense,"
"distribute," "hypodermic,"
"manufacturer," "official written order," "person,"
"pharmacist," "pharmacy," "sale,"
"schedule I," "schedule II," "schedule III," "schedule IV,"
"schedule V," and "wholesaler" have the same meanings as in
section 3719.01 of the Revised Code. (B) "Drug dependent person" and "drug of abuse" have the
same meanings as in section 3719.011 of the Revised Code. (C) "Drug," "dangerous drug," "licensed health professional authorized to
prescribe
drugs," and "prescription" have the same meanings as in section
4729.01 of the Revised Code. (D) "Bulk amount" of a controlled substance means any of
the following: (1) For any compound, mixture, preparation, or substance
included in schedule I, schedule II, or schedule III,
with the exception of marihuana, cocaine, L.S.D., heroin, and hashish and
except as provided in division (D)(2) or (5) of this
section, whichever of the following is applicable: (a) An amount equal to or exceeding ten grams or
twenty-five unit doses of a compound, mixture, preparation, or
substance that is or contains any amount of a schedule I opiate
or opium derivative; (b) An amount equal to or exceeding ten grams
of a
compound, mixture, preparation, or substance that is or contains
any amount of raw or gum opium; (c) An amount equal to or exceeding thirty
grams or ten
unit doses of a compound, mixture, preparation, or substance that
is or contains any amount of a schedule I hallucinogen other than
tetrahydrocannabinol or
lysergic acid
amide, or a schedule I stimulant or
depressant; (d) An amount equal to or exceeding twenty
grams or five
times the maximum daily dose in the usual dose range specified in
a standard pharmaceutical reference manual of a compound,
mixture, preparation, or substance that is or contains any amount
of a schedule II opiate or opium derivative; (e) An amount equal to or exceeding five grams or ten unit
doses of a compound, mixture, preparation, or substance that is
or contains any amount of phencyclidine; (f) An amount equal to or exceeding one hundred twenty
grams or thirty times the maximum daily dose in the usual dose
range specified in a standard pharmaceutical reference manual of
a compound, mixture, preparation, or substance that is or
contains any amount of a schedule II stimulant that is in a final
dosage form manufactured by a person authorized by the "Federal
Food, Drug, and Cosmetic Act," 52 Stat. 1040 (1938), 21
U.S.C.A. 301, as amended, and the federal drug abuse control
laws, as defined in section 3719.01 of the Revised Code, that is or contains
any amount of a schedule II depressant
substance or a schedule II hallucinogenic substance; (g) An amount equal to or exceeding three
grams of a
compound, mixture, preparation, or substance that is or contains
any amount of a schedule II stimulant, or any of its salts or
isomers, that is not in a final dosage form manufactured by a
person authorized by the Federal Food, Drug, and Cosmetic Act and
the federal drug abuse control laws. (2) An amount equal to or exceeding one
hundred twenty
grams or thirty times the maximum daily dose in the usual dose
range specified
in a standard pharmaceutical reference manual of a compound,
mixture,
preparation, or substance that is or contains any amount of a
schedule
III or IV substance other than an anabolic
steroid or a schedule III opiate or opium derivative; (3) An amount equal to or exceeding twenty grams or five times the maximum
daily dose in the usual dose range specified in a standard pharmaceutical
reference manual of a compound, mixture,
preparation, or substance that is
or contains any amount of a schedule III opiate or opium derivative; (4) An amount equal to or exceeding two hundred fifty
milliliters or two hundred fifty grams of a compound, mixture,
preparation, or substance that is or contains any amount of a
schedule V substance; (5) An amount equal to or exceeding two
hundred solid
dosage units, sixteen grams, or sixteen milliliters of a
compound, mixture, preparation, or substance that is or contains
any amount of a schedule III anabolic steroid. (E) "Unit dose" means an amount or unit of a compound,
mixture, or preparation containing a controlled substance that is
separately identifiable and in a form that
indicates that it is the amount or unit by which
the controlled substance is separately administered to or taken by an
individual. (F) "Cultivate" includes planting, watering, fertilizing,
or tilling. (G) "Drug abuse offense" means any of the following: (1) A violation of division (A) of section 2913.02 that
constitutes theft of drugs, or a violation of section 2925.02,
2925.03, 2925.04, 2925.05, 2925.06, 2925.11, 2925.12, 2925.13,
2925.22, 2925.23, 2925.24, 2925.31,
2925.32, 2925.36, or 2925.37 of the Revised Code; (2) A violation of an existing or former law of this or
any other state or of the United States that is substantially
equivalent to any section listed in division (G)(1) of this
section; (3) An offense under an existing or former law of this or
any other state, or of the United States, of which planting,
cultivating, harvesting, processing, making, manufacturing,
producing, shipping, transporting, delivering, acquiring,
possessing, storing, distributing, dispensing, selling, inducing
another to use, administering to another, using, or otherwise
dealing with a controlled substance is an element; (4) A conspiracy to commit, attempt to commit, or complicity in
committing or attempting to commit any offense under division
(G)(1), (2), or (3) of this section. (H) "Felony drug abuse offense" means any drug abuse
offense that would constitute a felony under the laws of this
state, any other state, or the United States. (I) "Harmful intoxicant" does not include beer or
intoxicating liquor but means any compound, mixture,
preparation, or substance the gas, fumes, or vapor of which when
inhaled can induce intoxication, excitement, giddiness,
irrational behavior, depression, stupefaction, paralysis,
unconsciousness, asphyxiation, or other harmful physiological
effects, and includes, but is not limited to, any of the
following: (1) Any volatile organic solvent, plastic cement, model
cement, fingernail polish remover, lacquer thinner, cleaning
fluid, gasoline, or other preparation containing a volatile
organic solvent; (2) Any aerosol propellant; (3) Any fluorocarbon refrigerant; (4) Any anesthetic gas. (J) "Manufacture" means to plant, cultivate, harvest,
process, make, prepare, or otherwise engage in any part of the
production of a drug, by propagation, extraction, chemical
synthesis, or compounding, or any combination of the same, and
includes packaging, repackaging, labeling, and other activities
incident to production. (K) "Possess" or "possession" means having control over a
thing or substance, but may not be inferred solely from mere
access to the thing or substance through ownership or occupation
of the premises upon which the thing or substance is found. (L) "Sample drug" means a drug or pharmaceutical
preparation that would be hazardous to health or safety if used
without the supervision of a licensed health
professional authorized to prescribe drugs, or a drug of abuse,
and that, at one time, had been placed in a container plainly
marked as a sample by a manufacturer. (M) "Standard pharmaceutical reference manual" means the
current edition, with cumulative changes if any, of any of the
following reference works: (1) "The National Formulary"; (2) "The United States Pharmacopeia," prepared by
authority of the United States Pharmacopeial Convention, Inc.; (3) Other standard references that are approved by the
state board of pharmacy. (N) "Juvenile" means a person under eighteen years of age. (O) "Counterfeit controlled substance" means any of the
following: (1) Any drug that bears, or whose container or label
bears, a trademark, trade name, or other identifying mark used
without authorization of the owner of rights to that trademark,
trade name, or identifying mark; (2) Any unmarked or unlabeled substance that is
represented to be a controlled substance manufactured, processed,
packed, or distributed by a person other than the person that
manufactured, processed, packed, or distributed it; (3) Any substance that is represented to be a controlled
substance but is not a controlled substance or is a different
controlled substance; (4) Any substance other than a controlled substance that a
reasonable person would believe to be a controlled substance
because of its similarity in shape, size, and color, or its
markings, labeling, packaging, distribution, or the price for
which it is sold or offered for sale. (P) An offense is "committed in the vicinity of a school" if the
offender commits the offense on school premises, in a school building, or
within one thousand feet of the boundaries of any school premises. (Q) "School" means any school operated by a board of
education or any school for which the state board of education
prescribes minimum standards under section 3301.07 of the Revised
Code, whether or not any instruction, extracurricular activities,
or training provided by the school is being conducted at the time
a criminal offense is committed. (R) "School premises" means either of the following: (1) The parcel of real property on which any school is
situated, whether or not any instruction, extracurricular
activities, or training provided by the school is being conducted
on the premises at the time a criminal offense is committed; (2) Any other parcel of real property that is owned or
leased by a board of education of a school or the governing body
of a school for which the state board of education prescribes
minimum standards under section 3301.07 of the Revised Code and
on which some of the instruction, extracurricular activities, or
training of the school is conducted, whether or not any
instruction, extracurricular activities, or training provided by
the school is being conducted on the parcel of real property at
the time a criminal offense is committed. (S) "School building" means any building in which any of
the instruction, extracurricular activities, or training provided
by a school is conducted, whether or not any instruction,
extracurricular activities, or training provided by the school is
being conducted in the school building at the time a criminal
offense is committed. (T) "Disciplinary counsel" means the disciplinary counsel
appointed by the board of commissioners on grievances and
discipline of the supreme court under the Rules for the
Government of the Bar of Ohio. (U) "Certified grievance committee" means a duly
constituted and organized committee of the Ohio state bar
association or of one or more local bar associations of the state
of Ohio that complies with the criteria set forth in Rule V,
section 6 of the Rules for the Government of the Bar of Ohio. (V) "Professional license" means any license, permit,
certificate, registration, qualification, admission, temporary
license, temporary permit, temporary certificate, or temporary
registration that is described in divisions (W)(1) to (35) of
this section and that qualifies a person as a professionally
licensed person. (W) "Professionally licensed person" means any of the
following: (1) A person who has obtained a license as a manufacturer
of controlled substances or a wholesaler of controlled substances
under Chapter 3719. of the Revised Code; (2) A person who has received a certificate or temporary
certificate as a certified public accountant or who has
registered as a public accountant under Chapter 4701. of the
Revised Code and who holds an Ohio permit issued under that
chapter; (3) A person who holds a certificate of qualification to
practice architecture issued or renewed and registered under
Chapter 4703. of the Revised Code; (4) A person who is registered as a landscape architect
under Chapter 4703. of the Revised Code or who holds a permit as
a landscape architect issued under that chapter; (5) A person licensed as an auctioneer or apprentice
auctioneer or licensed to operate an auction company under
Chapter 4707. of the Revised Code; (6) A person who has been issued a certificate of
registration as a registered barber under Chapter 4709. of the
Revised Code; (7) A person licensed and regulated to engage in the
business of a debt pooling company by a legislative authority,
under authority of Chapter 4710. of the Revised Code; (8) A person who has been issued a cosmetologist's
license, manicurist's license, esthetician's license, managing
cosmetologist's license, managing manicurist's license, managing
esthetician's license, cosmetology instructor's license,
manicurist instructor's license, esthetician instructor's
license, or tanning facility permit under Chapter 4713. of the
Revised Code; (9) A person who has been issued a license to practice
dentistry, a general anesthesia permit, a conscious intravenous
sedation permit, a limited resident's license, a limited teaching
license, a dental hygienist's license, or a dental hygienist's
teacher's certificate under Chapter 4715. of the Revised Code; (10) A person who has been issued an embalmer's license, a
funeral director's license, a funeral home license, or a crematory license, or
who has been registered for an embalmer's or funeral director's apprenticeship
under Chapter 4717. of the Revised Code; (11) A person who has been licensed as a registered nurse
or practical nurse, or who has been issued a certificate for the
practice of nurse-midwifery under Chapter 4723. of the Revised
Code; (12) A person who has been licensed to practice optometry
or to engage in optical dispensing under Chapter 4725. of the
Revised Code; (13) A person licensed to act as a pawnbroker under
Chapter 4727. of the Revised Code; (14) A person licensed to act as a precious metals dealer
under Chapter 4728. of the Revised Code; (15) A person licensed as a pharmacist, a pharmacy
intern, a wholesale distributor of dangerous drugs, or a terminal
distributor of dangerous drugs under Chapter 4729. of the Revised
Code; (16) A person who is authorized to practice as a physician assistant under
Chapter 4730. of the Revised Code; (17) A person who has been issued a certificate to
practice medicine and surgery, osteopathic medicine and surgery,
a limited branch of medicine, or podiatry under
Chapter 4731. of the Revised Code; (18) A person licensed as a psychologist or school
psychologist under Chapter 4732. of the Revised Code; (19) A person registered to practice the profession of
engineering or surveying under Chapter 4733. of the Revised Code; (20) A person who has been issued a license to
practice chiropractic under Chapter 4734. of the Revised Code; (21) A person licensed to act as a real estate broker or
real estate salesperson under Chapter 4735. of the Revised Code; (22) A person registered as a registered sanitarian under
Chapter 4736. of the Revised Code; (23) A person licensed to operate or maintain a junkyard
under Chapter 4737. of the Revised Code; (24) A person who has been issued a motor vehicle salvage
dealer's license under Chapter 4738. of the Revised Code; (25) A person who has been licensed to act as a steam
engineer under Chapter 4739. of the Revised Code; (26) A person who has been issued a license or temporary
permit to practice veterinary medicine or any of its branches, or
who is registered as a graduate animal technician under Chapter
4741. of the Revised Code; (27) A person who has been issued a hearing aid dealer's
or fitter's license or trainee permit under Chapter 4747. of the
Revised Code; (28) A person who has been issued a class A, class B, or
class C license or who has been registered as an investigator or
security guard employee under Chapter 4749. of the Revised Code; (29) A person licensed and registered to practice as a
nursing home administrator under Chapter 4751. of the Revised
Code; (30) A person licensed to practice as a speech-language
pathologist
or audiologist under Chapter 4753. of the Revised Code; (31) A person issued a license as an occupational
therapist or physical therapist under Chapter 4755. of the
Revised Code; (32) A person who is licensed as a professional clinical counselor or
professional counselor, licensed as a social worker or independent social
worker, or registered as a social work
assistant under Chapter 4757. of the Revised Code; (33) A person issued a license to practice dietetics under
Chapter 4759. of the Revised Code; (34) A person who has been issued a license or
limited permit to practice respiratory therapy under Chapter 4761. of
the
Revised Code; (35) A person who has been issued a real estate appraiser
certificate under Chapter 4763. of the Revised Code. (X) "Cocaine" means any of the following: (1) A cocaine salt, isomer, or derivative, a salt of a
cocaine isomer or derivative, or the base form of cocaine; (2) Coca leaves or a salt, compound, derivative, or
preparation of coca leaves, including ecgonine, a salt, isomer,
or derivative of ecgonine, or a salt of an isomer or derivative
of ecgonine; (3) A salt, compound, derivative, or preparation of a
substance identified in division
(X)(1) or (2) of this section
that is chemically equivalent to or identical with any of those
substances, except that the substances shall not include
decocainized coca leaves or extraction of coca leaves if the
extractions do not contain cocaine or ecgonine. (Y) "L.S.D." means
lysergic acid diethylamide. (Z) "Hashish" means the resin or a preparation of the resin
contained in marihuana, whether in solid form or in a liquid concentrate,
liquid extract, or liquid distillate form. (AA) "Marihuana" has the same meaning as in section
3719.01 of the Revised Code,
except that it does not include hashish. (BB) An offense is "committed in the vicinity of a
juvenile" if
the offender commits the offense within one hundred feet of a juvenile or
within the view of a juvenile, regardless of whether the
offender knows the age of the juvenile, whether the offender knows the offense
is being committed within one hundred feet of or within view of the juvenile,
or whether the juvenile actually views the commission of the offense. (CC) "Presumption for a prison term" or "presumption that a
prison term shall be imposed" means a presumption, as described in division
(D) of section 2929.13 of the Revised Code, that a prison term is a necessary
sanction for a felony in order to comply with the purposes and principles of
sentencing under section 2929.11 of the Revised Code. (DD) "Major drug offender" has the same meaning as in section
2929.01 of the Revised Code. (EE) "Minor drug possession offense" means either of the
following: (1) A violation of section 2925.11 of the Revised Code as
it existed prior to July 1, 1996; (2) A violation of section 2925.11 of the Revised Code as it exists on and
after July 1, 1996, that is a misdemeanor or a felony of the fifth
degree. (FF) "Mandatory prison term" has the same meaning as
in section 2929.01 of the Revised Code. (GG) "Crack cocaine" means a compound, mixture, preparation, or
substance that is or contains any amount of cocaine that is analytically
identified as the base form of cocaine or that is in a form that resembles
rocks or pebbles generally intended for individual use. (HH) "Adulterate" means to cause a drug to be adulterated as
described in section 3715.63 of the Revised Code. Sec. 2925.24. (A) No person shall knowingly adulterate
or alter any dangerous drug or substitute any dangerous drug with another
substance. (B) No person shall knowingly adulterate or alter any
package or receptacle containing any dangerous drug or substitute any package
or receptacle containing any dangerous drug with
another package or receptacle. (C) Divisions (A) and (B) of this section
do not apply to
manufacturers, practitioners, pharmacists, owners of
pharmacies, nurses, and other persons, when the conduct of the
manufacturer, practitioner, pharmacist, owner of a pharmacy, nurse, or
other person is in accordance with Chapters 3719., 4715., 4723.,
4729.,
4731., and 4741. of the Revised Code. (D) It is an affirmative defense to a charge under this section
alleging that a person altered a dangerous drug that the
dangerous drug the person allegedly altered was
lawfully prescribed for the person's personal use and that the
person did not sell or transfer or intend to sell or transfer the
dangerous drug to another person. (E) Whoever violates this section is guilty of tampering with
drugs, a felony of the third degree. if the violation results in physical
harm to any person, tampering with drugs is a felony
of the second degree. Sec. 2937.23. (A) In a case involving a felony, the
judge or magistrate shall fix the amount of bail. In a case involving a
misdemeanor or a violation of a municipal ordinance and not involving a
felony, the judge, magistrate, or clerk of the court may fix the amount
of bail and may do so in accordance with a schedule previously
fixed by the judge or
magistrate, or, in a case when the judge, magistrate, or clerk of
the court is not readily available, the
sheriff, deputy sheriff, marshal, deputy marshal, police officer,
or jailer having custody of the person charged may fix the
amount of bail in
accordance with a schedule previously fixed by the judge or
magistrate and shall take the bail only in the county
courthouse, the municipal or township building, or the county or municipal
jail. In all cases, the bail shall be fixed with consideration of
the seriousness of the offense charged, the previous criminal record
of the defendant, and the probability of the defendant
appearing at the trial of the case. (B) In any case involving an alleged violation of section 2903.211 of the
Revised Code or of a municipal ordinance that is
substantially similar to that section, the court shall determine whether it
will order an evaluation of the mental condition of the defendant pursuant to
section 2919.271 of the Revised Code and, if it decides to
so order, shall issue the order requiring the evaluation before it sets bail
for the person charged with the violation. In any case involving
an alleged violation of section
2919.27 of the Revised Code or of a municipal ordinance that is
substantially similar to that section and in which the court
finds that either of the following criteria applies, the court
shall determine whether it will order an evaluation of the mental condition of
the defendant pursuant to section 2919.271 of the Revised
Code and, if it decides to so order, shall issue the order requiring
that evaluation before it sets bail for the person charged with the violation: (1) Regarding an alleged violation of a protection
order issued or consent agreement approved pursuant to section
2919.26 or 3113.31 of the Revised Code, that the
violation
allegedly involves conduct by the
defendant that caused
physical harm to the person or property of a family or household
member covered by the order or agreement or conduct by that
defendant that caused a family or household member to believe
that the defendant would cause physical harm to that member or
that member's property; (2) Regarding an alleged violation of a
protection order issued pursuant to section 2903.213 or 2903.214 of the
Revised Code, or a protection order issued by a
court of another state,
as defined in section 2919.27 of the Revised Code, that the violation
allegedly
involves conduct by the defendant that caused physical
harm to the person or property of the person covered by the order
or conduct by that defendant that caused the person covered by
the order to believe that the defendant would cause physical harm
to that person or that person's property. Sec. 2951.041. (A) If the court has reason to believe
that an offender charged with a felony or misdemeanor is a drug
dependent person or is in danger of becoming a drug dependent
person, the court shall accept, prior to the entry of a plea,
that offender's request for treatment in lieu of conviction. If
the offender requests treatment in lieu of conviction, the court
shall stay all criminal proceedings pending the outcome of the
hearing to determine whether the offender is a person eligible
for treatment in lieu of conviction. At the conclusion of the
hearing, the court shall enter its findings and accept the
offender's plea. (B)(1) An offender who requests treatment in lieu of conviction
under division (A) of this section is eligible for that treatment if the court
finds that: (1)(a) The offender's drug dependence or danger of drug
dependence was a factor leading to the criminal activity with
which the offender is charged, and rehabilitation through treatment
would substantially reduce the likelihood of additional criminal
activity.
(2)(b) The offender has been accepted into a program licensed
by the department
of alcohol and drug addiction services pursuant to section 3793.11 of the
Revised
Code, a program certified by the department pursuant to section
3793.06 of the Revised Code, a public or private hospital, the
veterans administration or other agency of the federal
government, private care or treatment rendered by a physician
or a psychologist licensed in the state, or other appropriate drug
treatment facility or program.
(3)(c) If the offender is convicted of a misdemeanor, the
offender would be
eligible for probation under section 2951.02 of the Revised
Code, except that a finding of any of the criteria listed in
division (D) of that section shall cause the offender to be
conclusively ineligible for treatment in lieu of conviction.
If the offender is convicted of a felony, the offender would be eligible
for a community control sanction.
(4)(d) The offender is not a repeat offender or dangerous
offender, as defined in section 2935.36 of the
Revised Code;
(5)(e) The offender is not charged with a violation of
section 2925.02,
2925.03, 2925.04, or 2925.11 of the Revised Code that is not a minor drug
possession offense, as defined in
section 2925.01 of the Revised Code;
(f) If the offender is charged with a violation of section
2925.24 of the Revised Code, the alleged violation did
not result
in physical harm to any person, and the offender previously has not been
treated for drug abuse. (2) Upon a finding of that nature under division
(B)(1) of this section that the offender is eligible for treatment in
lieu of conviction and if the offender enters a
plea of
guilty or no contest, the court may stay all criminal proceedings
and order the offender to a period of rehabilitation. If a plea
of not guilty is entered, a trial shall precede further
consideration of the offender's request for treatment in lieu of
conviction. (C) The offender and the prosecuting attorney shall be
afforded the opportunity to present evidence to establish
eligibility or ineligibility for treatment in lieu of conviction,
and the prosecuting attorney may make a recommendation to the
court concerning whether the offender should receive treatment in
lieu of conviction. Upon the request of the offender and to aid
the offender in establishing the offender's eligibility for
treatment in lieu of conviction, the court may refer the offender for medical
and psychiatric examination to the department of mental health,
to a state facility designated by the department, to a
psychiatric clinic approved by the department, or to a facility
or program described in division (B)(2) of this section.
However, the psychiatric portion of an examination pursuant to a
referral under this division shall be performed only by a
court-appointed individual who has not previously treated the
offender or a member of the offender's immediate family. (D) An offender found to be eligible for treatment in lieu
of conviction and ordered to a period of rehabilitation shall be
placed under the control and supervision of the county probation
department or the adult parole authority as provided in this
chapter as if the offender were on probation or as if the
offender were under a community control sanction. The court shall order a
period of rehabilitation to continue for any period that the
judge or magistrate determines. The period of rehabilitation may
be extended, but the total period shall not exceed three years. The period of
rehabilitation shall be conditioned upon the
offender's voluntary entrance into an appropriate drug treatment
facility or program, faithful submission to prescribed treatment,
and any other conditions that the court orders. (E) Treatment of a person ordered to a period of
rehabilitation under this section may include hospitalization
under close supervision or otherwise, release on an outpatient
status under supervision, and other treatment or after-care
that the appropriate drug treatment facility or program considers
necessary or desirable to rehabilitate that person. Persons
released from hospitalization or treatment but still subject to
the ordered period of rehabilitation may be rehospitalized or
returned to treatment at any time it becomes necessary for their
treatment and rehabilitation. (F) If the appropriate drug treatment facility or program
reports to the probation officer that the offender has
successfully completed treatment and is rehabilitated, the court
may dismiss the charges pending against the offender. If the
facility or program reports to the probation officer that the
offender has successfully completed treatment and is
rehabilitated or has obtained maximum benefits from treatment
and that the offender has completed the period of rehabilitation
and other conditions ordered by the court, the court shall
dismiss the charges pending against the offender. If the
facility or program reports to the probation officer that the
offender has failed treatment, has failed to submit to or follow
the prescribed treatment, or has become a discipline problem, if
the offender does not satisfactorily complete the period of
rehabilitation or the other conditions ordered by the court, or
if the offender violates the conditions of the period of
rehabilitation, the offender shall be arrested as provided in
section 2951.08 of the Revised Code and removed from the facility
or program, and the court immediately shall hold a hearing to
determine if the offender failed treatment, failed to submit to
or follow the prescribed treatment, did not satisfactorily
complete the period of rehabilitation or any other condition
ordered by the court, or violated any condition of the period of
rehabilitation. If the court so determines, it immediately shall
enter an adjudication of guilt and shall impose upon the offender
a term of imprisonment. At any time and for any appropriate reason, the offender,
the offender's probation officer, the authority or department that
has the
duty to control and supervise the offender as provided for in
section 2951.05 of the Revised Code, or the facility or program
may petition the court to reconsider, suspend, or modify its
order for treatment concerning that offender. (G) The appropriate drug treatment facility or program
shall report to the authority or department that has the duty to
control and supervise the offender as provided for in section
2951.05 of the Revised Code at any periodic reporting period the
court requires and whenever the offender is changed from an
inpatient to an outpatient, is transferred to another treatment
facility or program, fails treatment, fails to submit to or
follow the prescribed treatment, becomes a discipline problem,
does not satisfactorily complete the period of rehabilitation or
other conditions ordered by the court, has violated the
conditions of the period of rehabilitation, is rehabilitated, or
obtains the maximum benefit of treatment. (H) If, on the motion of an offender ordered to a period
of rehabilitation under this section, the court finds that the
offender has successfully completed the period of rehabilitation
ordered by the court, is rehabilitated, is no longer drug
dependent or in danger of becoming drug dependent, and has
completed all other conditions, the court shall dismiss the
proceeding against the offender. Successful completion of a period of
rehabilitation under this section shall be without adjudication
of guilt and is not a criminal conviction for purposes of
disqualifications or disabilities imposed by law and upon
conviction of a crime, and the court may order the sealing of
records in the manner provided in sections 2953.31 to 2953.36 of
the Revised Code. (I) Any person ordered to treatment by the terms of this
section shall be liable for expenses incurred during the course
of treatment, and, if the offender is treated in a benevolent
institution under the jurisdiction of the department of mental health, the
offender is subject to Chapter 5121. of the Revised Code. (J) An offender who is charged with a drug abuse offense,
other
than a minor misdemeanor offense involving marihuana, and who otherwise
is eligible for treatment in lieu of conviction may request and may
be ordered to a period of rehabilitation even though the findings
required by divisions (B)(1)(a) and (2)(b) of this
section are not
made. An order to rehabilitation under this division shall be
subject to the conditions that the court requires but
shall not be conditioned upon entry into an appropriate drug treatment
facility or program. (K) As used in this section, "community control sanction"
has the
same meaning as in section 2929.01 of the Revised Code. SECTION 2 . That existing sections 2919.271, 2925.01, 2937.23,
and 2951.041 of the Revised Code are hereby repealed.
SECTION 3 . Subject to Section 6 of this act, that section
2903.211 of the Revised Code that results from Am. Sub. H.B. 137
of the 123rd General Assembly contingently be amended to read as
follows:
Sec. 2903.211. (A) No person by engaging in a pattern of
conduct shall knowingly cause another to believe that the
offender will cause physical harm to the other person or cause
mental distress to the other person. (B) Whoever violates this section is guilty of menacing by
stalking. (1) Except as otherwise provided in division (B)(2) of
this section, menacing by stalking is a misdemeanor of the first degree. (2) Menacing by stalking is a felony of the fourth degree if any of the
following applies: (a) The offender previously has been convicted of or pleaded guilty to a
violation
of this section
or a violation of section 2911.211 of the Revised Code. (b) In committing the offense, the offender made a threat of
physical harm to or against the victim. (c) In committing the offense, the offender trespassed on
the land or premises where the victim lives, is employed, or attends
school. (d) The victim of the offense is a minor. (e) The offender has a history of violence toward the victim or
any other person or a history of other violent acts toward the victim or
any other person. (f) While committing the offense, the offender had a deadly
weapon on or about the offender's person or under the offender's
control. (g) At the time of the commission of the offense, the offender
was the subject of a protection order issued under section 2903.213 or
2903.214 of the Revised Code, regardless of whether the
person to be protected under the order is the victim of the offense or
another person. (h) In committing the offense, the offender caused serious
physical harm to
the premises at which the victim resides, to the real property on which that
premises is located, or to any
personal property located on that premises. (i) The offender previously has been found to be a mentally ill
person subject to hospitalization by court order, as defined in section
5122.01 of the Revised Code, under the criteria set forth
in division (B)(1) or (2) of that section, or the offender
previously had been voluntarily admitted under section 5122.02 of the Revised
Code and, as
the basis for or subsequent to that
voluntary admission Prior to committing the offense, the offender
was had been determined to represent a risk to
self or others to the extent described in division (B)(1)
or (2) of section 5122.01 of the Revised Code substantial
risk of physical harm to others as manifested by evidence of then-recent
homicidal or other violent behavior, evidence of then-recent threats that
placed another in reasonable fear of violent behavior and serious physical
harm, or other evidence of then-present dangerousness. (C) Section 2919.271 of the Revised Code applies in
relation to a defendant charged with a violation of this section. (D) As used in this section: (1) "Pattern of conduct" means two or more actions or
incidents closely related in time, whether or not there has been
a prior conviction based on any of those actions or incidents. Actions or
incidents that prevent, obstruct, or delay the performance by a public
official, firefighter, rescuer, or emergency medical services person of any
authorized act within the public official's, firefighter's, rescuer's, or
emergency medical services person's official capacity
may constitute a "pattern of conduct." (2) "Mental distress" means any mental illness or
condition that involves some temporary substantial incapacity or
mental illness or condition that would normally require
psychiatric treatment. (3) "Emergency medical services person" is the singular of
"emergency medical services personnel" as defined in section 2133.21 of the Revised Code. (4) "Public official" has the same meaning as in section 2921.01
of the Revised Code. SECTION 4 . Subject to Section 6 of this act, that existing
section 2903.211 of the Revised Code that results from Am. Sub.
H.B. 137 of the 123rd General Assembly contingently is hereby
repealed.
SECTION 5 . Subject to Section 6 of this act, Sections 3 and 4 of
this act shall take effect on the effective date of Am. Sub. H.B.
137 of the 123rd General Assembly or the earliest date permitted
by law, whichever is later.
SECTION 6 . The amendments by this act to divisions (B)(2)(i) and
(C) of section 2903.211 of the Revised Code and Sections 3, 4, and
5 of this act are contingent on Am. Sub. H.B. 137 of the 123rd
General Assembly becoming law, as concurred in on June 24, 1999,
pages 929 and 930 of the House Journal. If the contingency
occurs, the version of section 2903.211 of the Revised Code in
Sections 3 and 4 of this act that was contingent on the enactment
of Am. Sub. H.B. 137 of the 123rd General Assembly supersedes the
version of section 2903.211 of the Revised Code in effect prior to
the effective date of Am. Sub. H.B. 137 of the 123rd General
Assembly.
SECTION 7 . This act is hereby declared to be an emergency measure
necessary for the immediate preservation of the public peace,
health, and safety. The reason for such necessity is that
immediate action is crucial to adjust the language of certain of
the menacing by stalking provisions enacted in Am. Sub. H.B. 137
of the 123rd General Assembly to increase the provisions'
effectiveness. Therefore, this act shall go into immediate
effect.
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