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(124th General Assembly)
(Amended Substitute Senate Bill Number 163)
AN ACT
To amend sections 1547.11, 1547.111, and 4511.19 and to enact sections 2909.09, 2909.10, and 2909.101
of
the Revised Code to
prohibit
knowingly
dropping
or
throwing any object
at, onto, or in the
path of
any
vehicle on a
highway or any vessel on a
waterway,
to prohibit knowingly dropping or throwing any
object in the path of a railroad, to enact other
new offenses relating to railroad property and
operations and railroad grade crossing warning
signals and other protective devices, to create
the Highway, Bridge,
and
Overpass Vandal Fence
Task
Force and to make amendments relative to the use, in a vehicle or watercraft OMVI or OMVUAC prosecution and in a "having physical control of a vehicle while under the influence" prosecution, of the results of field sobriety tests and to clarifications in the watercraft OMVI and OMVUAC law and implied consent law and to amend the versions of sections 1547.11, 1547.111, 4511.19, and 4511.194 of the Revised Code that are scheduled to take effect January 1, 2004, to continue the provisions of this act on and after that effective date.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 1547.11, 1547.111, and 4511.19 be amended and sections 2909.09, 2909.10, and 2909.101
of
the
Revised Code be
enacted to read as follows:
Sec. 1547.11. (A) No person shall operate or be in
physical
control of any vessel underway or shall manipulate any
water
skis,
aquaplane, or similar device on the waters in this
state if
any
of
the following applies: (1) The person is under the influence of alcohol or a drug
of abuse, or the combined influence of alcohol and a drug of
abuse; (2) The person has a concentration of ten-hundredths of
one
per cent or more by weight of alcohol in the person's
blood; (3) The person has a concentration of fourteen-hundredths
of
one gram or more by weight of alcohol per one hundred
milliliters
of the person's urine; (4) The person has a concentration of ten-hundredths of
one
gram or more by weight of alcohol per two hundred ten liters
of
the person's breath. (B) No person under twenty-one years of age shall operate or
be in
physical control of any vessel underway or shall manipulate
any water skis,
aquaplane, or similar device on the waters in this
state if any of the
following applies: (1) The person has a concentration of at least
two-hundredths of one per
cent, but less than ten-hundredths of
one per cent by weight of alcohol in the
person's blood; (2) The person has a concentration of at least twenty-eight
one-thousandths of one gram, but less than fourteen-hundredths of
one gram by
weight of alcohol per one hundred milliliters of the
person's urine; (3) The person has a concentration of at least
two-hundredths of one gram,
but less than ten-hundredths of one
gram by weight of alcohol per two hundred
ten liters of the
person's breath. (C) In any proceeding arising out of one incident, a person
may
be charged with a violation of division (A)(1) and a violation
of
division (B)(1), (2), or (3) of this section, but the person
shall
not be convicted of more than one violation of those
divisions. (D)(1) In any criminal prosecution
or juvenile court
proceeding for a violation of
division (A) or (B) of this
section
or, of
an ordinance of any
a municipal
corporation
ordinance
relating
to operating
or being in physical control of a vessel
underway or
using
manipulating any water skis, aquaplane, or
similar device while under the influence of alcohol
or, a drug of
abuse,
or the combined influence of alcohol and a drug of abuse,
or of a municipal ordinance relating to operating or being in
physical control of a vessel underway or manipulating any water
skis, aquaplane, or similar device with a prohibited concentration
of alcohol in the blood, breath, or urine, the court may admit
evidence on the concentration of
alcohol
or a drug, drugs of
abuse, or alcohol and drugs of abuse in the defendant's blood,
urine, or
breath at the time of the alleged violation as shown by
chemical
analysis of the defendant's blood, urine, or breath taken
within
two hours of the time of the alleged violation. When a person submits to a blood test, only a physician,
registered nurse, or qualified technician or chemist shall
withdraw blood for the purpose of determining its alcohol or drug
of abuse content. This limitation does not apply to the taking
of
breath or urine specimens. A physician, registered nurse, or
qualified technician or chemist may refuse to withdraw blood for
the purpose of determining its alcohol or drug of abuse content
if
in the opinion of the physician, nurse, or technician
or chemist,
the physical welfare of the person would be
endangered by the
withdrawing of blood. The blood, urine, or breath shall be analyzed in accordance
with methods approved by the director of health by an individual
possessing a valid permit issued by the director
pursuant to
section 3701.143 of the Revised Code. If
(2) In a criminal prosecution or juvenile court proceeding
for a violation of division (A) of this section, of a municipal
ordinance relating to operating or being in physical control of a
vessel underway or manipulating any water skis, aquaplane, or
similar device on the waters of this state while under the
influence of alcohol, a drug of abuse, or the combined influence
of alcohol and a drug of abuse, or of a municipal ordinance
substantially equivalent to division (A) of this section relating
to operating or being in physcial control of a vessel underway or
manipulating any water skis, aquaplane, or similar device on the
waters of this state with a prohibited concentration of alcohol in
the blood, breath, or urine, if there was at the time the
blood,
urine, or breath
bodily substance was
taken a concentration of
less than
ten-hundredths of one per cent
by weight of alcohol in
the
defendant's blood, less than
fourteen-hundredths of one gram
by
weight of alcohol per one
hundred
milliters of the defendant's
urine, or less
than
ten-hundredths of
one gram by weight of
alcohol per two
hundred
ten liters of the
defendant's
breath, that
fact may be
considered
with other competent evidence
in
determining the guilt
or
innocence of the defendant.
This division
does not limit or affect a criminal prosecution or juvenile court
proceeding for a violation of division (B) of this section or of a
municipal ordinance substantially equivalent to division (B) of
this section relating to operating or being in physical control of
a vessel underway or manipulating any water skis, aquaplane, or
similar device on the waters of this state with a prohibited
concentration of alcohol in the blood, breath, or urine.
(3) Upon the request of the person who was tested, the
results
of
the test shall be made available to the person or the
person's
attorney or
agent immediately upon the completion of the
test
analysis. The person tested may have a physician, registered nurse,
or
qualified technician or chemist of the person's own
choosing
administer
a chemical test or tests in addition to any
administered at the
direction of a law enforcement officer, and
shall be so advised.
The failure or inability to obtain an
additional test by a person
shall not preclude the admission of
evidence relating to the test
or tests taken at the direction of a
law enforcement officer. A physician, registered nurse, or qualified technician or
chemist who withdraws blood from a person pursuant to this
section, and a hospital, first-aid station, or clinic at which
blood is withdrawn from a person pursuant to this section, is
immune from criminal liability, and from civil liability that is
based upon a claim of assault and battery or based upon any other
claim that is not in the nature of a claim of malpractice, for
any
act performed in withdrawing blood from the person. (E)(1) In any criminal prosecution or juvenile court
proceeding for a violation of division (A) or (B) of this section,
of a municipal ordinance relating to operating or being in
physical control of any vessel underway or manipulating any water
skis, aquaplane, or similar device on the waters of this state
while under the influence of alcohol, a drug of abuse, or the
combined influence of alcohol and a drug of abuse, or of a
municipal ordinance relating to operating or being in physical
control of any vessel underway or manipulating any water skis,
aquaplane, or similar device on the waters of this state with a
prohibited concentration of alcohol in the blood, breath, or
urine, if a law enforcement officer has administered a field
sobriety test to the operator or person found to be in physical
control of the vessel underway involved in the violation or the
person manipulating the water skis, aquaplane, or similar device
involved in the violation and if it is shown by clear and
convincing evidence that the officer administered the test
in
substantial compliance with the testing standards for reliable,
credible and generally accepted field sobriety tests for vehicles
that were in effect at the time the tests were administered,
including, but not limited to, any testing standards then in
effect that have been set by the national highway traffic safety
administration, that by their nature are not clearly inapplicable
regarding the operation or physical control of vessels underway or
the manipulation of water skis, aquaplanes, or similar devices,
all of the following apply:
(a) The officer may testify concerning the results of the
field sobriety test so administered.
(b) The prosecution may introduce the results of the field
sobriety test so administered as evidence in any proceedings in
the criminal prosecution or juvenile court proceeding. (c) If testimony is presented or evidence is introduced under
division (E)(1)(a) or (b) of this section and if the testimony or
evidence is admissible under the Rules of Evidence, the court
shall admit the testimony or evidence, and the trier of fact shall
give it whatever weight the trier of fact considers to be
appropriate.
(2) Division (E)(1) of this section does not limit or
preclude a court, in its determination of whether the arrest of a
person was supported by probable cause or its determination of any
other matter in a criminal prosecution or juvenile court
proceeding of a type described in that division, from considering
evidence or testimony that is not otherwise disallowed by division
(E)(1) of this section. (F)(1) As used in division (E) of this section, "national
highway traffic safety administration" has the same meaning as in
section 4511.19 of the Revised Code. (2) For the purposes of this section,
"operate" means that a
vessel is being used on the waters in this state when the vessel
is not
securely affixed to a dock or to shore or to any permanent
structure to which
the vessel has the right to affix or that a
vessel is not anchored in a
designated anchorage area or boat
camping area that is established by the
United States coast guard,
this state, or a political
subdivision and in which the vessel has
the right to anchor.
Sec. 1547.111. (A) Any person who operates
or is in
physical control of a vessel or
uses
manipulates any water skis,
aquaplane, or similar device upon any waters
in this state shall
be deemed to have given consent to a chemical
test or tests of the
person's blood, breath, or urine for
the purpose of determining
its alcohol or drug of abuse content if arrested
for
the offense
of operating
or being in physical control of a vessel or
using
manipulating any water skis,
aquaplane, or similar device
in
violation of section 1547.11 of
the Revised Code
while under the
influence of alcohol, a drug of abuse, or the combined influence
of alcohol and a drug of abuse or for operating or being in
physical control of a vessel or manipulating any water skis,
aquaplane, or similar device with a prohibited concentration of
alcohol in the blood, breath, or urine. The test or tests shall
be administered at the
direction of a law enforcement officer
having reasonable grounds
to believe the person to have been
so
operating
or being in physical control of a vessel or
using
so
manipulating
any
water skis, aquaplane, or similar device
in
violation of
section
1547.11 of the Revised Code. The law
enforcement agency
by which
the officer is employed shall
designate which of the
tests shall
be administered. (B) Any person who is dead, unconscious, or
otherwise in a
condition rendering the person incapable of
refusal shall
be
deemed not to have withdrawn consent provided by division (A)
of
this section and the test or tests may be administered,
subject to
sections 313.12 to 313.16 of the Revised Code. (C) Any person under arrest for
the offense of operating
or
being in physical control of a
vessel or
using
manipulating any
water skis, aquaplane, or similar device
in
violation of section
1547.11 of the Revised Code
while under the influence of alcohol,
a drug of abuse, or the combined influence of alcohol and a drug
of abuse or for operating or being in physical control of a vessel
or manipulating any water skis, aquaplane, or similar device with
a prohibited concentration of alcohol in the blood, breath, or
urine shall be advised
of the consequences of refusing to submit
to a
chemical test
designated by the law enforcement agency as
provided in division
(A) of this section. The advice shall be in
a written form
prescribed by the chief of the division of
watercraft and shall
be read to the person. The form shall
contain a statement that
the form was shown to the person under
arrest and read to the
person in the presence of the arresting
officer and either another law
enforcement officer, a civilian law
enforcement employee, or an
employee of a hospital, first-aid
station, or clinic, if any, to
which the person has been taken for
first-aid or medical
treatment. The witnesses shall certify to
this fact by signing
the form. (D) If a person under arrest
for the offense of operating
a
vessel or using any water skis, aquaplane, or similar device in
violation of section 1547.11 of the Revised Code
as described in
division (C)(1) of this section refuses upon the
request of a law
enforcement officer to submit to a chemical test
designated by the
law enforcement agency as provided in division
(A) of this
section, after first having been advised of the
consequences of
the refusal as provided in division (C) of
this section, no
chemical test shall be given, but the chief, upon receipt of
a
sworn statement of the
law enforcement officer that the law
enforcement officer had
reasonable grounds to believe the arrested
person had been operating
or in physical control of a vessel
or
using
manipulating any water skis, aquaplane, or similar device
while under the
influence of alcohol
or, a drug of abuse,
under
or
the combined influence
of alcohol and a drug of abuse, or with a
prohibited
concentration of alcohol in the person's blood, urine,
or
breath, and that the person refused to submit to the chemical
test upon the
request of the law enforcement officer, and upon
receipt of the
form as provided in division (C) of this section
certifying that
the arrested person was advised of the
consequences of the
refusal, shall inform the person by written
notice that the
person is
prohibited from operating a vessel or
using
manipulating any water skis,
aquaplane, or similar device,
and is
prohibited from registering
any watercraft in accordance
with
section 1547.54 of the Revised
Code, for one year following
the
date of the alleged violation of
section 1547.11 of the
Revised
Code. The suspension of these
operation,
use
manipulation, and registration
privileges shall continue for
the
entire one-year period, subject
to review as provided in this
section. If the person under arrest is the owner of the vessel
involved in the alleged violation, the
law enforcement officer who
arrested the person shall
seize the watercraft registration
certificate and tags from the
vessel involved in the violation and
forward them to the chief.
The chief, in addition to informing
the person by
written
notice that the person is prohibited from
operating a vessel
or
using
manipulating any water skis,
aquaplane, or similar
device, and from registering any watercraft
in accordance with
section 1547.54 of the Revised Code, for one
year following the
date of the alleged violation, shall retain the
impounded
registration certificate and tags, and shall impound
all
other
registration
certificates and tags issued to the person in
accordance with sections 1547.54 and 1547.57 of the Revised Code,
for a period of one year following the date of the alleged
violation,
subject to review as provided in this section. If the arrested person fails to surrender the
registration
certificate because it is not on the person of the
arrested person
or in the watercraft, the law enforcement
officer who made the
arrest shall order the person to
surrender it within twenty-four
hours to the law enforcement officer or the
law
enforcement agency
that employs the law enforcement officer.
If the person fails to
do so, the law
enforcement officer shall notify the chief of that
fact in the
statement the officer submits to the chief under this
division. (E) Upon suspending a person's operation,
use
manipulation,
and
registration privileges in accordance with division (D) of
this
section, the chief shall notify the
person in writing, at the
person's last known address, and
inform the person that the person
may
petition for a hearing in accordance with division (F) of this
section. If a
person whose operation,
use
manipulation, and
registration
privileges have been suspended
petitions for a
hearing or appeals
any decision that is adverse to
the person, the
suspension of
privileges shall begin at the termination
of any
hearing or appeal
unless the hearing or appeal resulted in a
decision
favorable to
the
person. (F) Any person who has been notified by the chief that the
person is prohibited from
operating a vessel or
using
manipulating
any water
skis, aquaplane, or similar
device and
from registering
any
watercraft in accordance with section
1547.54 of the Revised
Code,
or who has had the registration
certificate and tags of the
person's watercraft impounded
pursuant to
division (D) of this
section, within twenty days of the
notification or impoundment,
may file a petition in the municipal
court or the county court, or
if the person is a minor
in
juvenile court, in whose jurisdiction
the arrest occurred,
agreeing to pay the cost of the proceedings
and alleging error in
the action taken by the chief under
division
(D) of this section or alleging one or more of the
matters within
the scope of the hearing as provided in this
section, or both.
The
petitioner shall notify the chief of the filing of the
petition
and send
the chief a copy of the petition. The scope of the hearing is limited to the issues of
whether
the law enforcement officer had reasonable grounds to
believe the
petitioner was operating
or in physical control of a vessel or
using
manipulating any water
skis, aquaplane, or similar device
while under the influence of
alcohol
or, a drug of abuse,
under
or
the combined influence of alcohol and
a drug of abuse, or with a
prohibited concentration of alcohol
or
a drug of abuse in the
person's blood, urine, or breath,
whether the
petitioner was
placed under arrest, whether the petitioner
refused to submit to
the chemical test upon request of the
officer, and whether the
petitioner was advised of the
consequences of the refusal. (G)(1) The chief shall
furnish the court a copy of the
affidavit as provided in division
(C) of this section and any
other relevant information requested
by the court. (2) In hearing the matter and in determining whether the
person has shown error in the decision taken by the chief as
provided in
division (D) of this
section, the court shall decide
the issue upon the relevant,
competent, and material evidence
submitted by the chief or the person whose
operation, use, and
registration privileges have been suspended. In the proceedings, the chief shall be represented by
the
prosecuting attorney of the county in which the petition is
filed
if the petition is filed in a county court or juvenile
court,
except that if the arrest occurred within a city or
village within
the jurisdiction of the county court in which the
petition is
filed, the city director of law or village solicitor
of that city
or village shall represent the chief. If the
petition is filed in
the municipal court, the chief shall be
represented as provided in
section 1901.34 of the
Revised
Code. (3) If the court finds from the evidence submitted that
the
person has failed to show error in the action taken by the
chief
under division (D) of this
section or in one or more of the
matters within the scope of the
hearing as provided in division
(F) of this section, or both,
the court shall assess the cost of
the proceeding against
the person and shall uphold the suspension
of the operation,
use
manipulation,
and registration privileges
provided in
division (D) of this
section. If the court finds that
the person
has shown error in
the action taken by the chief under
division
(D) of this section or in one or more of the matters
within the
scope of the hearing as provided in division (F) of
this section,
or both, the cost of the proceedings shall be paid
out of the
county treasury of the county in which the proceedings
were held,
the operation,
use
manipulation, and registration
privileges of the
person
shall be reinstated without charge, and
the registration
certificate and tags, if impounded, shall be
returned without
charge. (4) The court shall give information in writing of any
action taken under this section to the chief. (H) At the end of any period of suspension or impoundment
imposed under this section, and upon request of the person whose
operation, use, and registration privileges were suspended or
whose registration certificate and tags were impounded, the chief
shall reinstate the person's
operation,
use
manipulation, and
registration
privileges by written notice and
return the
certificate and tags. (I) No person who has received written notice from the
chief
that the person is
prohibited from operating a vessel or
using
manipulating any
water skis, aquaplane, or
similar
device, and
from registering a
watercraft, or who has had the
registration
certificate and tags
of the person's watercraft
impounded, in
accordance with division
(D) of this section, shall operate a
vessel or
use
manipulate any water skis,
aquaplane, or similar
device for a
period of one year following
the date of the person's
alleged violation of section 1547.11 of
the Revised Code.
Sec. 2909.09. (A) As used in this section:
(1) "Highway" means any highway as defined in section
4511.01 of the Revised Code or any lane, road, street, alley,
bridge, or overpass.
(2) "Alley," "street," "streetcar," "trackless trolley,"
and "vehicle" have the same meanings as in section 4511.01 of the
Revised Code.
(3) "Vessel" and "waters in this state" have the same
meanings as in section 1547.01 of the Revised Code.
(B) No person shall knowingly, and by any means, drop or
throw any object at, onto, or in the path of any of the following:
(1) Any vehicle, streetcar, or trackless trolley on a
highway;
(2) Any boat or vessel on any of the waters in this state.
(C) Whoever violates this section is guilty of vehicular
vandalism. Except as otherwise provided in this division,
vehicular vandalism is a misdemeanor of the first degree.
Except
as otherwise provided in this
division, if
the violation of
this
section creates a substantial risk of
physical harm to
any
person
or the violation of this section
causes serious physical
harm
to
property, vehicular vandalism is a felony of the fourth
degree.
Except as otherwise provided in this division, if the
violation of
this section causes physical harm to any person,
vehicular
vandalism is a felony of the third
degree. If the
violation of
this section causes serious physical
harm to any
person, vehicular
vandalism is a felony of the second
degree. Sec. 2909.10.
(A) No person shall knowingly, and by any
means, drop or throw any object at, onto, or in the path of, any
railroad rail, railroad track, locomotive, engine, railroad car,
or other vehicle of a railroad company while such vehicle is on a
railroad track.
(B) No person, without privilege to do so, shall climb upon
or into any locomotive, engine, railroad car, or other vehicle of
a railroad company when it is on a railroad track.
(C) No person, without privilege to do so, shall disrupt,
delay, or prevent the operation of any train or other vehicle of a
railroad company while such vehicle is on a railroad track.
(D) No person, without privilege to do so, shall knowingly
enter or remain on the land or premises of a railroad company.
(E) Whoever violates division (A) of this section is guilty
of railroad vandalism. Whoever violates division (B) of this
section is guilty of criminal trespass on a locomotive, engine,
railroad car, or other railroad vehicle. Whoever violates division
(C) of this section is guilty of interference with the operation
of a train.
Except as otherwise provided in this division, railroad
vandalism; criminal trespass on a locomotive, engine, railroad
car, or other railroad vehicle; and interference with the
operation of a train each is a misdemeanor of the first degree.
Except as otherwise provided in this division, if the violation of
division (A), (B), or (C) of this section causes serious physical
harm to property or creates a substantial risk of physical harm to
any person, the violation is a felony of the fourth degree. Except
as otherwise provided in this division, if the violation of
division (A), (B), or (C) of this section causes physical harm to
any person, the violation is a felony of the third degree. If the
violation of division (A), (B), or (C) of this section causes
serious physical harm to any person, the violation is a felony of
the second degree.
(F) Whoever violates division (D) of this section is guilty
of criminal trespass on the land or premises of a railroad
company, a misdemeanor of the fourth degree.
Sec. 2909.101.
(A) No person shall knowingly deface,
damage, obstruct, remove, or otherwise impair the operation of any
railroad grade crossing warning signal or other protective device,
including any gate, bell, light, crossbuck, stop sign, yield sign,
advance warning sign, or advance pavement marking.
(B) Whoever violates this section is guilty of railroad grade
crossing device vandalism. Except as otherwise provided in this
division, railroad grade crossing device vandalism is a
misdemeanor of the first degree. Except as otherwise provided in
this division, if the violation of this section causes serious
physical harm to property or creates a substantial risk of
physical harm to any person, railroad grade crossing device
vandalism is a felony of the fourth degree. Except as otherwise
provided in this division, if the violation of this section causes
physical harm to any person, railroad grade crossing device
vandalism is a felony of the third degree. If the violation of
this section causes serious physical harm to any person, railroad
grade crossing device vandalism is a felony of the second degree.
Sec. 4511.19. (A) No person shall operate any vehicle,
streetcar, or trackless trolley within this state, if any of the
following apply: (1) The person is under the influence of alcohol, a drug
of
abuse, or alcohol and a drug of abuse; (2) The person has a concentration of ten-hundredths of
one
per cent or more
but less than seventeen-hundredths of one per
cent
by weight of alcohol in the person's
blood; (3) The person has a concentration of ten-hundredths of
one
gram or more but less than seventeen-hundredths of one gram
by
weight of alcohol per two hundred ten liters
of the person's
breath; (4) The person has a concentration of fourteen-hundredths
of
one gram or more
but less than two hundred
thirty-eight-thousandths of one gram
by weight of alcohol per one
hundred
milliliters of the person's urine; (5) The person has a concentration of
seventeen-hundredths
of one per cent or more by weight of alcohol
in the person's
blood; (6) The person has a concentration of
seventeen-hundredths
of one gram or more by weight of alcohol per
two hundred ten
liters of the person's breath; (7) The person has a concentration of two hundred
thirty-eight-thousandths of one gram or more by weight of alcohol
per one hundred milliliters of the person's urine. (B) No person under twenty-one years of age shall operate
any vehicle, streetcar, or trackless trolley within this state,
if
any of the following apply: (1) The person has a concentration of at least
two-hundredths of one per cent but less than ten-hundredths of
one
per cent by weight of alcohol in the person's blood; (2) The person has a concentration of at least
two-hundredths of one gram but less than ten-hundredths of one
gram by weight of alcohol per two hundred ten liters of the
person's breath; (3) The person has a concentration of at least
twenty-eight
one-thousandths of one gram but less than
fourteen-hundredths of
one gram by weight of alcohol per one
hundred milliliters of the
person's urine. (C) In any proceeding arising out of one incident, a
person
may be charged with a violation of division (A)(1) and a
violation
of division (B)(1), (2), or (3) of this section, but
the person
may not be convicted of more than one violation of these
divisions. (D)(1) In any criminal prosecution or juvenile court
proceeding for a violation of
division (A) or (B) of this section,
of a municipal
ordinance relating to operating a vehicle while
under the
influence of alcohol, a drug of abuse, or alcohol and a
drug of
abuse, or of a municipal ordinance relating to operating a
vehicle with a prohibited concentration of alcohol in the blood,
breath, or urine, the court may admit evidence on the
concentration of alcohol, drugs of abuse, or alcohol and drugs of
abuse in the defendant's blood, breath, urine, or other bodily
substance at the time of the alleged violation as shown by
chemical analysis of the defendant's blood, urine, breath, or
other bodily substance withdrawn within two hours of the time of
the alleged violation. When a person submits to a blood test at the request of a
police officer under section 4511.191 of the Revised Code, only a
physician, a registered nurse, or a qualified technician or
chemist shall withdraw blood for the purpose of determining its
alcohol, drug, or alcohol and drug content. This limitation does
not apply to the taking of breath or urine specimens. A
physician, a registered nurse, or a qualified technician or
chemist may refuse to withdraw blood for the purpose of
determining the alcohol, drug, or alcohol and drug content of the
blood, if in the opinion of the physician, nurse,
technician, or
chemist the physical welfare of the person would
be endangered by
the withdrawing of blood. Such bodily substance shall be analyzed in accordance with
methods approved by the director of health by an individual
possessing a valid permit issued by the director of health
pursuant to section 3701.143 of the Revised Code. (2) In a criminal prosecution or juvenile court proceeding
for a violation of division (A) of this section, of a municipal
ordinance relating to operating a vehicle while under the
influence of alcohol, a drug of abuse, or alcohol and a drug of
abuse, or of a municipal ordinance substantially equivalent to
division (A) of this section relating to operating a vehicle with
a prohibited concentration of alcohol in the blood, breath, or
urine, if there was at the time the bodily substance was
withdrawn
a concentration of less than ten-hundredths of one per
cent by
weight of alcohol in the defendant's blood, less than
ten-hundredths of one gram by weight of alcohol per two hundred
ten liters of the defendant's breath, or less than
fourteen-hundredths of one
gram by weight of alcohol per one
hundred milliliters of the
defendant's
urine, such fact may be
considered with other competent evidence
in determining the guilt
or innocence of the defendant. This
division does not limit or
affect a criminal prosecution or
juvenile court proceeding for a
violation of division (B) of this
section or of a municipal
ordinance substantially equivalent to
division (B) of this section
relating to operating a vehicle with
a prohibited concentration of
alcohol in the blood, breath, or
urine. (3) Upon the request of the person who was tested, the
results of the chemical test shall be made available to the
person
or the person's
attorney or agent immediately upon the completion
of the chemical test analysis. The person tested may have a physician, a registered nurse,
or a qualified technician or chemist of the person's own
choosing
administer a chemical test or tests in addition to any
administered at the request of a police officer, and shall be so
advised. The failure or inability to obtain an additional
chemical test by a person shall not preclude the admission of
evidence relating to the chemical test or tests taken at the
request of a police officer. (4)(a) As used in divisions (D)(4)(b) and (c) of this
section, "national highway traffic safety administration" means
the national highway traffic safety administration established as
an administration of the United States department of
transportation under 96 Stat. 2415 (1983), 49 U.S.C.A. 105. (b) In any criminal prosecution or juvenile court proceeding
for a violation of division (A) or (B) of this section, of a
municipal ordinance relating to operating a vehicle while under
the influence of alcohol, a drug of abuse, or alcohol and a drug
of abuse, or of a municipal ordinance relating to operating a
vehicle with a prohibited concentration of alcohol in the blood,
breath, or urine, if a law enforcement officer has administered a
field sobriety test to the operator of the vehicle involved in the
violation and if it is shown by clear and convincing evidence that
the officer administered the test in substantial
compliance with
the testing standards for any reliable, credible,
and generally
accepted field sobriety
tests that were in effect at
the time the
tests were administered, including, but not limited
to, any
testing standards then in effect that were set by the
national
highway traffic safety administration, all
of the
following apply: (i) The officer may testify concerning the results of the
field sobriety test so administered. (ii) The prosecution may introduce the results of the field
sobriety test so administered as evidence in any proceedings in
the criminal prosecution or juvenile court proceeding. (iii) If testimony is presented or evidence is introduced
under division (D)(4)(b)(i) or (ii) of this section and if the
testimony or evidence is admissible under the Rules of Evidence,
the court shall admit the testimony or evidence and the trier of
fact shall give it whatever weight the trier of fact considers to
be appropriate. (c) Division (D)(4)(b) of this section does not limit or
preclude a court, in its determination of whether the arrest of a
person was supported by probable cause or its determination of any
other matter in a criminal prosecution or juvenile court
proceeding of a type described in that division, from considering
evidence or testimony that is not otherwise disallowed by division
(D)(4)(b) of this section. (5) Any physician, registered nurse, or qualified
technician
or chemist who withdraws blood from a person pursuant
to this
section, and any hospital, first-aid station, or clinic
at which
blood is withdrawn from a person pursuant to this
section, is
immune from criminal liability, and from civil
liability that is
based upon a claim of assault and battery or
based upon any other
claim that is not in the nature of a claim
of malpractice, for any
act performed in withdrawing blood from
the person.
SECTION 2. That existing sections 1547.11, 1547.111, and 4511.19 are hereby repealed. SECTION 3. That the versions of sections 1547.11, 1547.111, 4511.19, and 4511.194 of the Revised Code that are scheduled to take effect January 1, 2004, be amended to read as follows:
Sec. 1547.11. (A) No person shall operate or be in physical
control of any vessel underway or shall manipulate any water
skis,
aquaplane, or similar device on the waters in this state if,
at
the time of the operation, control, or manipulation, any of
the
following
applies: (1) The person is under the influence of alcohol, a drug
of
abuse, or
a combination of them. (2) The person has a concentration of ten-hundredths of
one
per cent or more by weight of alcohol
per unit volume in the
person's
whole blood. (3)
The person has a concentration of twelve-hundredths of
one per cent or
more by weight per unit volume of alcohol in the
person's blood serum or
plasma. (4) The person has a concentration of fourteen-hundredths
of
one gram or more by weight of alcohol per one hundred
milliliters
of the person's urine. (5) The person has a concentration of ten-hundredths of
one
gram or more by weight of alcohol per two hundred ten liters
of
the person's breath. (B) No person under twenty-one years of age shall operate or
be in
physical control of any vessel underway or shall manipulate
any water skis,
aquaplane, or similar device on the waters in this
state if,
at
the time of the operation, control, or manipulation,
any of the
following applies: (1) The person has a concentration of at least
two-hundredths of one per
cent, but less than ten-hundredths of
one per cent by weight
per unit
volume of alcohol in the
person's
whole blood. (2)
The person has a concentration of at least
three-hundredths of one per
cent but less than twelve-hundredths
of one per cent by weight per unit volume
of alcohol in the
person's blood serum or plasma. (3) The person has a concentration of at least twenty-eight
one-thousandths of one gram, but less than fourteen-hundredths of
one gram by
weight of alcohol per one hundred milliliters of the
person's
urine. (4) The person has a concentration of at least
two-hundredths of one gram,
but less than ten-hundredths of one
gram by weight of alcohol per two hundred
ten liters of the
person's breath. (C) In any proceeding arising out of one incident, a person
may
be charged with a violation of division (A)(1) and a violation
of
division (B)(1), (2),
(3),
or
(4) of this
section, but the
person shall
not be convicted of more than one violation of those
divisions. (D)(1) In any criminal prosecution
or juvenile court
proceeding for a violation of
division (A) or (B) of this
section
or
for an equivalent
violation, the court may admit evidence on
the concentration of
alcohol,
drugs of abuse,
or a
combination of
them in the
defendant's
or child's whole blood,
blood serum or
plasma, urine,
or
breath at the time of the alleged violation as
shown by
chemical
analysis of the
substance
withdrawn, or
specimen taken
within
two hours of the
time of the alleged
violation. When a person submits to a blood test, only a physician,
a
registered nurse, or
a qualified technician,
chemist,
or
phlebotomist shall
withdraw blood for the purpose of determining
the alcohol, drug,
or alcohol and drug
content
of
the whole
blood,
blood serum, or blood plasma. This
limitation
does not
apply to
the taking
of breath or urine specimens. A
person
authorized to
withdraw blood
under this division may refuse
to
withdraw blood
under
this division
if, in
that person's
opinion, the
physical
welfare of the
defendant or
child would be
endangered by
withdrawing
blood. The
whole blood,
blood serum or plasma, urine, or breath
shall be analyzed in accordance
with methods approved by the
director of health by an individual
possessing a valid permit
issued by the director
pursuant to section 3701.143 of the Revised
Code. (2)
In a criminal prosecution or juvenile court
proceeding
for a violation of division (A) of this section or for
a
violation
of a prohibition that is substantially equivalent to
division
(A)
of this section, if there was at the time the
whole
blood,
blood
serum or plasma, urine, or breath
bodily substance was
taken a
concentration of
less than
the
applicable concentration
of
alcohol specified
for a
violation of
division (A)(2), (3), (4),
or
(5) of this
section,
that fact may
be considered with other
competent evidence
in
determining the
guilt or innocence of the
defendant
or in making
an
adjudication
for the child.
This
division
does not limit or
affect a
criminal
prosecution or
juvenile court
proceeding for a
violation of
division
(B) of this
section or for
a violation of a
prohibition
that is
substantially
equivalent to
that division. (3) Upon the request of the person who was tested, the
results
of the
chemical test shall be made available to the person
or the
person's attorney
immediately upon
completion
of the test
analysis. The person tested may have a physician,
a registered nurse,
or
a qualified technician, chemist,
or
phlebotomist of the
person's own
choosing administer
a chemical test or tests in
addition to any administered at the
direction of a law enforcement
officer, and shall be so advised.
The failure or inability to
obtain an additional test by a person
shall not preclude the
admission of evidence relating to the test
or tests taken at the
direction of a law enforcement officer. (E)(1) In any criminal prosecution or juvenile court
proceeding for a violation of division (A) or (B) of this section
or for an equivalent violation, if a law enforcement officer has
administered a field
sobriety test to the operator or person found
to be in physical
control of the vessel underway involved in the
violation or the
person manipulating the water skis, aquaplane, or
similar device
involved in the violation and if it is shown by
clear and convincing evidence that the officer
administered the
test
in substantial compliance with the testing
standards for
reliable, credible, and generally accepted field
sobriety tests
for vehicles that were in effect at the time the
tests were
administered, including, but not limited to, any
testing standards
then in effect that have been set by the
national
highway traffic
safety administration, that by their
nature are not
clearly
inapplicable regarding the operation or
physical control
of
vessels underway or the manipulation of water
skis, aquaplanes,
or
similar devices, all of the following apply:
(a) The officer may testify concerning the results of the
field sobriety test so administered.
(b) The prosecution may introduce the results of the field
sobriety test so administered as evidence in any proceedings in
the criminal prosecution or juvenile court proceeding. (c) If testimony is presented or evidence is introduced under
division (E)(1)(a) or (b) of this section and if the testimony or
evidence is admissible under the Rules of Evidence, the court
shall admit the testimony or evidence, and the trier of fact shall
give it whatever weight the trier of fact considers to be
appropriate.
(2) Division (E)(1) of this section does not limit or
preclude a court, in its determination of whether the arrest of a
person was supported by probable cause or its determination of any
other matter in a criminal prosecution or juvenile court
proceeding of a type described in that division, from considering
evidence or testimony that is not otherwise disallowed by division
(E)(1) of this section. (F)(1)
Subject to division
(E)(F)(3) of this section, in
any
criminal prosecution or juvenile court proceeding for a violation
of this
section or for an equivalent violation, the court shall
admit as prima-facie
evidence a laboratory report from any
forensic laboratory
certified by the department of health that
contains an analysis of
the whole blood, blood serum or plasma,
breath, urine, or other
bodily substance tested and that contains
all of the information
specified in this division. The laboratory
report shall contain
all of the following: (a) The signature, under oath, of any person who performed
the
analysis; (b) Any findings as to the identity and quantity of alcohol,
a
drug of abuse, or a combination of them that was found; (c) A copy of a notarized statement by the laboratory
director or
a designee of the director that contains the name of
each certified analyst or
test performer involved with the
report,
the analyst's or test performer's employment relationship
with the
laboratory that issued the report, and a notation that
performing
an analysis of the type involved is part of the
analyst's or test
performer's regular duties; (d) An outline of the analyst's or test performer's
education,
training, and experience in performing the type of
analysis involved and a
certification that the laboratory
satisfies appropriate quality control standards in general and, in
this particular analysis, under rules of the department of health. (2) Notwithstanding any other provision of law regarding the
admission of
evidence, a report of
the type described in division
(E)(F)(1) of this section is not
admissible against the
defendant
or
child to whom it pertains in any proceeding, other than a
preliminary
hearing or a grand jury proceeding, unless the
prosecutor has served a copy of the report on the
defendant's or
child's attorney or, if the defendant or child has no attorney,
on
the defendant or child. (3) A report of the type described in division
(E)(F)(1) of
this
section shall not be prima-facie evidence of the contents,
identity, or amount of any substance if, within seven days after
the defendant or child to whom the report pertains or the
defendant's
or child's attorney receives a copy of the report, the
defendant or child or
the defendant's or child's attorney demands
the testimony of the person who
signed the report. The judge in
the case may extend the seven-day
time limit in the interest of
justice. (F)(G) Except as otherwise provided in this division, any
physician, registered nurse, or qualified technician,
chemist,
or
phlebotomist who withdraws blood from a person
pursuant to this
section, and a hospital, first-aid station, or clinic at which
blood is withdrawn from a person pursuant to this section, is
immune from criminal
and
civil liability
based upon a claim of
assault and battery or
any
other
claim that is not
a claim of
malpractice, for
any
act performed in withdrawing blood from the
person.
The immunity
provided in this division is not available to
a person who
withdraws blood if the person engages in willful or
wanton
misconduct.
(G)(H)
As used in this
section
and section 1547.111 of the
Revised Code:
(1)
"Equivalent violation" means a violation of a municipal
ordinance, law
of another state, or law of the United States that
is
substantially equivalent to division (A) or (B) of this
section. (2)
"National highway traffic safety administration" has the
same meaning as in section 4511.19 of the Revised Code. (3)
"Operate" means that a
vessel is being used on the
waters
in this state when the vessel is not
securely affixed to a
dock or
to shore or to any permanent structure to which
the vessel
has the
right to affix or that a vessel is not anchored in a
designated
anchorage area or boat camping area that is established
by the
United States coast guard, this state, or a political
subdivision
and in which the vessel has the right to anchor. Sec. 1547.111. (A)(1) Any person who operates
or is in
physical
control of a vessel or
uses
manipulates any water skis,
aquaplane, or
similar device upon any waters
in this state shall
be deemed to
have given consent to a chemical
test or tests
to
determine the
alcohol, drug of abuse,
or alcohol and drug of
abuse
content
of
the person's whole blood, blood serum or plasma,
breath, or
urine
if arrested
for
the offense of operating
or being
in physical
control of a vessel or
manipulating any water
skis,
aquaplane, or
similar device in violation of section 1547.11
of
the Revised Code
or a substantially equivalent municipal
ordinance.
(2)
The test or tests
under division (A) of this
section
shall be
administered at the
direction of a law enforcement
officer having reasonable grounds
to believe the person
was
operating
or in
physical control of a vessel or
manipulating
any
water skis, aquaplane, or similar device in
violation of
section
1547.11 of the Revised Code
or a
substantially equivalent
municipal
ordinance. The law enforcement
agency
by which the
officer is employed shall designate which
test
or tests shall be
administered. (B) Any person who is dead
or unconscious or
who otherwise
is in a condition rendering the person incapable
of
refusal shall
be deemed
to have
consented as
provided
in division (A)(1) of
this section,
and the test or tests may be
administered,
subject
to sections 313.12 to 313.16 of the Revised
Code. (C) Any person under arrest for
violating section 1547.11
of the Revised Code
or a
substantially equivalent municipal
ordinance shall be advised
of
the consequences of refusing to
submit to a
chemical test
or tests
designated
as provided in
division
(A) of this section. The advice shall be in a written
form
prescribed by the chief of the division of watercraft and
shall
be
read to the person. The form shall contain a statement
that
the
form was shown to the person under arrest and read to the
person
by the arresting officer. The
reading of the form shall
be witnessed by one or
more
persons, and the witnesses shall
certify to this fact by
signing
the form. (D) If a
law enforcement officer asks a person under arrest
for
violating section
1547.11 of the Revised Code
or a
substantially equivalent municipal
ordinance to submit to a
chemical test
or tests as
provided in
division
(A) of this
section,
if the arresting
officer
advises
the person of the
consequences of
the
person's refusal as
provided in division (C)
of
this section,
and if the person
refuses to submit, no chemical
test
shall be
given.
Upon receipt of
a sworn statement of
the
officer that the
arresting law enforcement officer had
reasonable
grounds to believe the arrested person
violated section 1547.11
of the Revised Code or
a substantially
equivalent municipal
ordinance and that the person
refused to
submit to the chemical
test upon
the
request of the
officer, and upon receipt of the
form as provided in
division (C) of this section certifying that
the arrested person
was advised of the consequences of the
refusal,
the chief of the
division of watercraft shall inform the
person by written notice
that the
person is prohibited from
operating
or being in physical
control of a
vessel,
from
using
manipulating
any
water skis,
aquaplane, or
similar device, and
from
registering
any watercraft
in accordance with section 1547.54
of
the Revised
Code, for one
year following the date of the
alleged
violation.
The suspension of these
operation,
physical
control,
use
manipulation, and
registration privileges
shall
continue
for
the entire
one-year
period, subject to review as
provided in
this
section. If the person under arrest is the owner of the vessel
involved in the alleged violation, the
law enforcement officer who
arrested the person shall
seize the watercraft registration
certificate and tags from the
vessel involved in the violation and
forward them to the chief. The chief shall retain the
impounded
registration certificate and tags and shall impound
all other
registration
certificates and tags issued to the person in
accordance with sections 1547.54 and 1547.57 of the Revised Code,
for a period of one year following the date of the alleged
violation,
subject to review as provided in this section. If the arrested person fails to surrender the
registration
certificate because it is not on the person of the
arrested person
or in the watercraft, the law enforcement
officer who made the
arrest shall order the person to
surrender it within twenty-four
hours to the law enforcement officer or the
law enforcement agency
that employs the law enforcement officer.
If the person fails to
do so, the law
enforcement officer shall notify the chief of that
fact in the
statement the officer submits to the chief under this
division. (E) Upon suspending a person's operation,
physical control,
use
manipulation,
and
registration privileges in accordance with
division (D)
of this
section, the chief shall notify the
person in
writing, at
the person's last known address, and
inform the person
that the
person may
petition for a hearing in accordance with
division (F)
of this section. If a
person whose operation,
physical control,
use
manipulation,
and registration
privileges
have been suspended
petitions for
a hearing or appeals any
adverse
decision, the suspension
shall
begin at the
termination
of any
hearing or appeal unless the
hearing or appeal
results in a
decision
favorable to the person. (F) Any person who has been notified by the chief that the
person is prohibited from
operating
or being in physical control
of a vessel or
using
manipulating any
water skis, aquaplane, or
similar
device
and
from registering any watercraft in accordance
with section
1547.54 of the Revised Code, or who has had the
registration
certificate and tags of the person's watercraft
impounded
pursuant
to
division (D) of this section, within twenty
days of the
notification or impoundment, may file a petition in
the municipal
court or the county court, or if the person is a
minor
in juvenile
court,
with jurisdiction
over the place
at
which the
arrest
occurred,
agreeing to pay the cost of the
proceedings and
alleging
error in
the action taken by the chief
under
division (D)
of this
section or alleging one or more of the
matters within the
scope of
the hearing as provided in this
section, or both. The
petitioner
shall notify the chief of the
filing of the
petition
and send
the
chief a copy of the petition. The scope of the hearing is limited to the issues of
whether
the law enforcement officer had reasonable grounds to
believe the
petitioner was operating
or in physical control of a vessel
or
manipulating any water
skis, aquaplane, or similar device
in
violation of
section 1547.11
of the Revised Code or a
substantially equivalent municipal
ordinance,
whether the
petitioner was placed under arrest, whether
the petitioner
refused
to submit to the chemical test upon request
of the
officer, and
whether the petitioner was advised of the
consequences of the
petitioner's refusal. (G)(1) The chief shall
furnish the court a copy of the
affidavit as provided in division
(C) of this section and any
other relevant information requested
by the court. (2) In hearing the matter and in determining whether the
person has shown error in the decision taken by the chief as
provided in
division (D) of this
section, the court shall decide
the issue upon the relevant,
competent, and material evidence
submitted by the chief or the person whose
operation,
physical
control,
use
manipulation,
and
registration privileges have been
suspended. In the proceedings, the chief shall be represented by
the
prosecuting attorney of the county in which the petition is
filed
if the petition is filed in a county court or juvenile
court,
except that if the arrest occurred within a city or
village within
the jurisdiction of the county court in which the
petition is
filed, the city director of law or village solicitor
of that city
or village shall represent the chief. If the
petition is filed in
the municipal court, the chief shall be
represented as provided in
section 1901.34 of the
Revised
Code. (3) If the court finds from the evidence submitted that
the
person has failed to show error in the action taken by the
chief
under division (D) of this
section or in one or more of the
matters within the scope of the
hearing as provided in division
(F) of this section, or both,
the court shall assess the cost of
the proceeding against
the person and shall uphold the suspension
of the operation,
physical
control, use, and registration
privileges provided in division (D)
of this
section. If the court
finds that the person has shown error in
the action taken by the
chief under
division (D) of this section or in one or more of the
matters
within the scope of the hearing as provided in division
(F) of
this section, or both, the cost of the proceedings shall be
paid
out of the county treasury of the county in which the
proceedings
were held,
the chief shall reinstate the operation,
physical
control,
use
manipulation,
and registration privileges of
the
person
without charge, and
the chief shall
return the
registration
certificate and tags, if impounded,
without charge. (4) The court shall give information in writing of any
action taken under this section to the chief. (H) At the end of any period of suspension or impoundment
imposed under this section, and upon request of the person whose
operation,
physical control, use,
and registration privileges
were
suspended or
whose registration certificate and tags were
impounded, the chief
shall reinstate the person's
operation,
physical control,
use
manipulation, and registration privileges by
written
notice and
return the certificate and tags. (I) No person who has received written notice from the
chief
that the person is
prohibited from operating
or being in physical
control of a vessel,
from
using
manipulating any water skis,
aquaplane, or
similar
device, and from registering a watercraft,
or who has had
the
registration certificate and tags of the
person's watercraft
impounded, in
accordance with division (D) of
this section, shall
operate
or be in
physical control of a vessel
or
use
manipulate any water
skis, aquaplane, or
similar device for
a period of one year
following the date of the person's
alleged
violation of section
1547.11 of the Revised Code
or the
substantially equivalent
municipal ordinance. Sec. 4511.19. (A) No person shall operate any vehicle,
streetcar, or trackless trolley
within this state, if,
at the
time
of the operation, any of the
following apply: (1) The person is under the influence of alcohol, a drug
of
abuse, or
a
combination of
them; (2) The person has a concentration of ten-hundredths of
one
per cent or more
but less than seventeen-hundredths of one per
cent
by weight
per unit volume of alcohol in the person's
whole
blood; (3)
The person has a concentration of twelve-hundredths of
one per
cent or more but less than two hundred four-thousandths of
one per cent
by weight per unit volume of alcohol in the person's
blood serum or
plasma; (4) The person has a concentration of ten-hundredths of
one
gram or more but less than seventeen-hundredths of one gram
by
weight of alcohol per two hundred ten liters
of the person's
breath; (5) The person has a concentration of fourteen-hundredths
of
one gram or more
but less than two hundred
thirty-eight-thousandths of one gram
by weight of alcohol per one
hundred
milliliters of the person's urine; (6) The person has a concentration of
seventeen-hundredths
of one per cent or more by weight
per unit
volume
of alcohol in
the person's
whole blood; (7)
The person has a concentration of two hundred
four-thousandths of one per cent or more by weight per unit volume
of alcohol
in the person's blood serum or plasma; (8) The person has a concentration of
seventeen-hundredths
of one gram or more by weight of alcohol per
two hundred ten
liters of the person's breath; (9) The person has a concentration of two hundred
thirty-eight-thousandths of one gram or more by weight of alcohol
per one hundred milliliters of the person's urine. (B) No person under twenty-one years of age shall operate
any vehicle, streetcar, or trackless trolley within this state,
if,
at the time of the operation, any of the following
apply: (1) The person has a concentration of at least
two-hundredths of one per cent but less than ten-hundredths of
one
per cent by weight
per unit volume of alcohol in the person's
whole blood; (2)
The person has a concentration of at least
three-hundredths of one per
cent but less than twelve-hundredths
of one per cent by weight per unit volume
of alcohol in the
person's blood serum or plasma; (3) The person has a concentration of at least
two-hundredths of one gram but less than ten-hundredths of one
gram by weight of alcohol per two hundred ten liters of the
person's breath; (4) The person has a concentration of at least
twenty-eight
one-thousandths of one gram but less than
fourteen-hundredths of
one gram by weight of alcohol per one
hundred milliliters of the
person's urine. (C) In any proceeding arising out of one incident, a
person
may be charged with a violation of division (A)(1) and a
violation
of division (B)(1), (2), or (3) of this section, but
the person
may not be convicted of more than one violation of these
divisions. (D)(1) In any criminal prosecution or juvenile court
proceeding for a violation of
division (A) or (B) of this section
or for an equivalent
offense, the court may admit
evidence on the
concentration of
alcohol, drugs of abuse, or
a combination of
them in the
defendant's
whole blood,
blood serum or plasma,
breath, urine, or
other bodily
substance at the time of the
alleged violation as
shown by
chemical analysis of the
substance
withdrawn within two
hours of
the time of
the alleged violation. When a person submits to a blood test at the request of a
law enforcement officer under section 4511.191 of the
Revised
Code, only a
physician, a registered nurse, or a qualified
technician,
chemist,
or phlebotomist shall withdraw blood for
the
purpose of
determining
the
alcohol, drug, or alcohol and
drug
content
of the whole blood, blood serum,
or blood plasma.
This
limitation does
not apply to the taking of breath or urine
specimens. A
person authorized to withdraw blood under
this
division may
refuse to withdraw blood
under this division, if in
that person's
opinion, the physical welfare of
the person would
be
endangered by the withdrawing of blood. The bodily substance
withdrawn shall be analyzed in
accordance with
methods approved by the director of health by an
individual
possessing a valid permit issued by the director
pursuant to section 3701.143 of the Revised Code. (2) In a criminal prosecution or juvenile court proceeding
for a violation of division (A) of this section
or for an
equivalent offense, if there was at the time the
bodily substance
was
withdrawn a concentration of less than
the
applicable
concentration of alcohol specified in
divisions (A)(2),
(3), (4),
and (5) of this section, that fact
may be considered
with other
competent evidence
in determining the guilt or
innocence of the
defendant. This
division does not limit or
affect a criminal
prosecution or
juvenile court proceeding for a
violation of
division (B) of this
section or
for an equivalent offense that
is
substantially
equivalent to
that
division. (3) Upon the request of the person who was tested, the
results of the chemical test shall be made available to the
person
or the person's
attorney, immediately upon the completion
of the
chemical test analysis. The person tested may have a physician, a registered nurse,
or a qualified technician, chemist,
or
phlebotomist of the
person's own
choosing administer a chemical test or tests,
at the
person's
expense, in addition to any
administered at the request
of a
law enforcement
officer.
The
form to be read to the person
to be tested, as required
under
section 4511.192 of the Revised
Code, shall state that the person
may have an
independent test
performed at the person's expense.
The failure or
inability to
obtain an additional
chemical test by
a person shall not preclude
the admission of
evidence relating to
the chemical test or tests
taken at the
request of a
law
enforcement officer. (4)(a) As used in divisions (D)(4)(b) and (c) of this
section, "national highway traffic safety administration" means
the national highway traffic safety administration established as
an administration of the United States department of
transportation under 96 Stat. 2415 (1983), 49 U.S.C.A. 105. (b) In any criminal prosecution or juvenile court proceeding
for a violation of division (A) or (B) of this section, of a
municipal ordinance relating to operating a vehicle while under
the influence of alcohol, a drug of abuse, or alcohol and a drug
of abuse, or of a municipal ordinance relating to operating a
vehicle with a prohibited concentration of alcohol in the blood,
breath, or urine, if a law enforcement officer has administered a
field sobriety test to the operator of the vehicle involved in the
violation and if it is shown by clear and convincing evidence that
the officer administered the test in substantial
compliance with
the testing standards for any reliable, credible,
and generally
accepted field sobriety
tests that were in effect at
the time the
tests were administered, including, but not limited
to, any
testing standards then in effect that were set by the
national
highway traffic safety administration, all
of the
following apply: (i) The officer may testify concerning the results of the
field sobriety test so administered. (ii) The prosecution may introduce the results of the field
sobriety test so administered as evidence in any proceedings in
the criminal prosecution or juvenile court proceeding. (iii) If testimony is presented or evidence is introduced
under division (D)(4)(b)(i) or (ii) of this section and if the
testimony or evidence is admissible under the Rules of Evidence,
the court shall admit the testimony or evidence and the trier of
fact shall give it whatever weight the trier of fact considers to
be appropriate. (c) Division (D)(4)(b) of this section does not limit or
preclude a court, in its determination of whether the arrest of a
person was supported by probable cause or its determination of any
other matter in a criminal prosecution or juvenile court
proceeding of a type described in that division, from considering
evidence or testimony that is not otherwise disallowed by division
(D)(4)(b) of this section. (E)(1)
Subject to division (E)(3) of
this section,
in any
criminal prosecution or juvenile court proceeding for a
violation
of
division (A)(2), (3), (4), (5), (6), (7), (8), or (9)
or
(B)(1), (2), (3), or
(4) of this
section or for an equivalent
offense that is substantially equivalent to any
of those
divisions, a laboratory report from any
forensic laboratory
certified by the department of health that
contains an analysis of
the whole blood, blood serum or plasma,
breath, urine, or other
bodily substance tested and that contains
all of the information
specified in this division shall be
admitted as prima-facie
evidence of the information and statements
that the report
contains. The laboratory report shall contain all
of the
following: (a)
The signature, under oath, of any person who performed
the
analysis; (b)
Any findings as to the identity and quantity of alcohol,
a
drug of abuse, or a combination of them that was found; (c)
A copy of a notarized statement by the laboratory
director or
a designee of the director that contains the name of
each certified analyst or test performer involved with the
report,
the analyst's or test performer's employment relationship
with the
laboratory that issued the report, and a notation that
performing
an analysis of the type involved is part of the
analyst's or test
performer's regular duties; (d)
An outline of the analyst's or test performer's
education,
training, and experience in performing the type of
analysis involved and a
certification that the laboratory
satisfies appropriate quality control standards in general and, in
this
particular analysis, under rules of the
department of health. (2) Notwithstanding any other provision of law regarding the
admission of
evidence, a report of the type described
in division
(E)(1) of this section is not admissible against the
defendant to
whom
it pertains in any proceeding, other than a preliminary
hearing or a grand
jury proceeding, unless the prosecutor
has
served a
copy of the report on the defendant's attorney or, if the
defendant has no attorney, on the defendant. (3) A report of the type described in division (E)(1) of
this
section shall not be prima-facie evidence of the contents,
identity, or amount
of any substance if, within seven days after
the
defendant to whom the report pertains or the defendant's
attorney
receives a copy of the report, the defendant or the
defendant's
attorney demands the testimony of the person who
signed the
report. The judge in the case may extend the seven-day
time limit
in the interest of justice. (F) Except as otherwise provided in this division, any
physician, registered nurse, or qualified
technician, chemist,
or
phlebotomist who
withdraws blood from a person pursuant
to this
section, and any hospital, first-aid station, or clinic
at which
blood is withdrawn from a person pursuant to this
section, is
immune from criminal liability and
civil
liability
based upon a
claim of assault and battery or
any other
claim that is not
a
claim
of malpractice, for any
act performed in withdrawing blood
from
the person.
The immunity
provided in this division is not
available to a
person who
withdraws blood if the person engages in
willful or wanton
misconduct. (G)(1) Whoever violates any provision of divisions
(A)(1) to
(9) of this section is
guilty of
operating a vehicle under the
influence of alcohol, a drug of abuse, or a
combination of them.
The court shall sentence the offender under
Chapter 2929. of the
Revised Code, except as otherwise
authorized or required by
divisions (G)(1)(a)
to (e)
of this section: (a)
Except as otherwise provided in division
(G)(1)(b), (c),
(d),
or (e) of this section, the offender is guilty of a
misdemeanor of
the first degree, and the court shall sentence the
offender to all of the
following: (i)
If the sentence is being imposed for a violation of
division
(A)(1), (2), (3), (4), or (5) of this section, a
mandatory jail term
of three consecutive days. As used in
this
division, three consecutive days means seventy-two consecutive
hours.
The court
may sentence an offender to both an
intervention
program and a jail term. The court may impose a jail
term in
addition to the three-day mandatory jail term or intervention
program. However,
in no case shall the cumulative jail term
imposed for the offense
exceed six months. The court may suspend the execution of the
three-day jail
term under this division if the court, in lieu of that
suspended
term, places the offender on probation and requires the offender
to
attend, for three consecutive days, a
drivers' intervention
program certified under section 3793.10 of the Revised Code.
The
court also may suspend the execution of any part of the
three-day
jail term under this division if it places the offender on
probation for part of the three days, requires the offender to
attend for the suspended part of the term a drivers' intervention
program so certified, and sentences the offender to a jail term
equal to the remainder of the three consecutive days that the
offender does not spend attending the program. The court may
require the offender, as a condition of probation and in addition
to the required attendance at a drivers' intervention program, to
attend and satisfactorily complete any treatment or education
programs that comply with the minimum standards adopted pursuant
to Chapter 3793. of the Revised Code by the director of alcohol
and drug addiction services that the operators of the drivers'
intervention program determine that the offender should attend and
to report periodically to the court on the offender's progress in
the programs. The court also may impose on the offender any other
conditions of probation that it considers necessary. (ii)
If the sentence is being imposed for a violation of
division
(A)(6),
(7), (8), or (9) of this section, except as
otherwise provided in
this division, a mandatory jail term of at
least three consecutive
days and a requirement that the offender
attend, for three
consecutive days, a drivers' intervention
program that is
certified pursuant to section 3793.10 of the
Revised Code. As
used in this division, three consecutive days
means seventy-two consecutive
hours. If the court determines that
the offender is not
conducive to treatment in a drivers'
intervention program, if the
offender refuses to attend a drivers'
intervention program, or if the jail at
which the offender is to
serve the jail term imposed can provide a
driver's intervention
program, the court shall sentence the
offender to a mandatory jail
term of at least six consecutive
days.
The court may require the offender, as a condition of
probation,
to attend and satisfactorily complete any treatment or
education
programs that comply with the minimum standards adopted
pursuant to
Chapter 3793. of the Revised Code by the director of
alcohol and drug addiction services, in addition to the required
attendance at
drivers' intervention program, that the operators of
the drivers' intervention
program determine that
the offender
should attend and to report periodically to the court
on the
offender's progress in the programs. The court also may
impose
any other conditions of probation on the offender that it
considers necessary. (iii)
In all cases,
a fine of not less than two hundred
fifty
and not more than one
thousand dollars; (iv)
In all cases, a class five license suspension of the
offender's driver's or commercial driver's license or permit or
nonresident
operating privilege from the range specified in
division (A)(5) of
section 4510.02 of the Revised Code. The court
may grant limited driving privileges
relative to the suspension
under sections 4510.021 and 4510.13 of the
Revised
Code. (b)
Except as otherwise provided in division
(G)(1)(e)
of
this section,
an offender who, within six years of the offense,
previously
has been convicted of or pleaded guilty to one
violation of division
(A) or (B) of this section or one other
equivalent offense
is guilty of a misdemeanor of the first degree.
The court shall sentence the
offender to all of the
following: (i)
If the sentence is being imposed for a violation of
division
(A)(1), (2), (3), (4), or (5) of this section, a
mandatory jail term
of ten consecutive days. The court
shall
impose the ten-day mandatory jail term under this division unless,
subject to division (G)(3) of this section, it instead
imposes a
sentence under that division consisting of both a jail term and a
term of
electronically
monitored
house arrest. The court may
impose a
jail term in addition to the
ten-day mandatory jail term.
The
cumulative jail
term imposed for the offense shall not exceed
six
months. In addition to the jail term or the term of electronically
monitored house arrest and jail term, the court may require the
offender
to attend a drivers' intervention program that is
certified pursuant to
section 3793.10 of the Revised Code. If the
operator of the
program determines that the offender is alcohol
dependent, the
program shall notify the court, and, subject to
division (I) of
this section, the court shall order the offender
to obtain treatment through
an alcohol and drug
addiction program
authorized by section 3793.02 of the Revised
Code. (ii)
If the sentence is being imposed for a violation of
division
(A)(6),
(7), (8), or (9) of this section, except as
otherwise provided in
this division, a mandatory jail term of
twenty consecutive days. The court
shall impose the twenty-day
mandatory jail term under
this division unless, subject to
division (G)(3) of this section,
it instead imposes a sentence
under that division
consisting of both a jail term and a term of
electronically
monitored
house arrest. The court may impose a
jail term in
addition to the twenty-day
mandatory jail term. The
cumulative
jail term imposed for the offense shall
not exceed six
months. In addition to the jail term or the term of electronically
monitored house arrest and jail term, the court may require the
offender
to attend a driver's intervention program that is
certified pursuant to
section 3793.10 of the Revised Code. If the
operator of the
program determines that the offender is alcohol
dependent, the
program shall notify the court, and, subject to
division (I) of
this section, the court shall order the offender
to obtain
treatment through an alcohol and drug addiction program
authorized
by section 3793.02 of the Revised Code. (iii)
In all cases, notwithstanding the fines set forth in
Chapter
2929. of the Revised Code, a fine of not less than three
hundred fifty and not more than one thousand five hundred dollars; (iv)
In all cases, a class four license suspension of the
offender's driver's
license, commercial driver's license,
temporary instruction permit,
probationary license, or nonresident
operating privilege from the range
specified in division (A)(4) of
section 4510.02 of
the Revised Code. The court may grant limited
driving
privileges relative to the suspension under sections
4510.021 and 4510.13 of
the Revised Code. (v)
In all cases, if the vehicle is registered in the
offender's
name, immobilization of the vehicle involved in the
offense for ninety days in
accordance with section
4503.233 of the
Revised Code and impoundment of the license plates
of that vehicle
for ninety days. (c)
Except as otherwise provided in division
(G)(1)(e)
of
this section, an offender who, within six
years of the offense,
previously
has been convicted of or pleaded guilty to two
violations of division
(A) or (B) of this section or other
equivalent offenses is
guilty of a
misdemeanor. The court shall
sentence the offender to all
of the
following: (i)
If the sentence is being imposed for a violation of
division
(A)(1), (2), (3), (4), or (5) of this section, a
mandatory jail term
of thirty consecutive days. The court
shall
impose the thirty-day mandatory jail term under this division
unless, subject to division (G)(3) of this section, it
instead
imposes a sentence under that division consisting of both a jail
term and a term of
electronically
monitored house arrest. The
court may impose a
jail term in addition to the
thirty-day
mandatory jail term.
Notwithstanding the terms of imprisonment
set
forth in Chapter
2929. of the Revised Code, the additional
jail
term shall not
exceed one year, and the cumulative jail term
imposed
for the
offense shall not exceed
one year. (ii)
If the sentence is being imposed for a violation of
division
(A)(6), (7), (8), or (9) of this section, a mandatory
jail term of
sixty
consecutive days. The court shall impose the
sixty-day mandatory jail
term under this division unless, subject
to division (G)(3)
of this section, it instead imposes a sentence
under that division
consisting of both a jail term
and a term of
electronically
monitored house arrest. The court may impose a
jail term in
addition to the sixty-day mandatory jail term.
Notwithstanding
the terms of imprisonment set forth in Chapter
2929. of the
Revised Code, the additional jail term shall
not
exceed one year,
and the cumulative jail term imposed for the
offense
shall not
exceed one year. (iii)
In all cases, notwithstanding the fines set forth in
Chapter 2929. of the Revised Code, a fine of not less than five
hundred fifty and
not more than two thousand five hundred dollars; (iv)
In all cases, a class three license suspension of the
offender's driver's
license, commercial driver's license,
temporary instruction permit,
probationary license, or nonresident
operating privilege from the range
specified in division (A)(3) of
section 4510.02 of the
Revised Code. The court may grant limited
driving
privileges
relative to the suspension under sections
4510.021 and 4510.13 of the
Revised Code. (v)
In all cases, if the vehicle is registered in the
offender's
name, criminal forfeiture of the vehicle involved in
the offense in
accordance with section
4503.234 of the Revised
Code. Division (G)(6) of this section applies regarding any
vehicle that is subject to an order of criminal forfeiture under
this division. (vi)
In all cases, participation in an alcohol and drug
addiction
program authorized by section
3793.02 of the Revised
Code, subject to division (I) of this
section. (d)
Except as otherwise provided in division
(G)(1)(e)
of
this section, an offender who, within six
years of the offense,
previously has been
convicted of or pleaded guilty to three or
more violations of division
(A) or (B) of this section or other
equivalent offenses is
guilty of a felony of the fourth degree.
The court shall
sentence the offender to all of the following: (i)
If the sentence is being imposed for a violation of
division
(A)(1), (2), (3), (4), or (5) of this section, in the
discretion of
the court, either a mandatory term of local
incarceration of sixty consecutive
days in accordance with
division (G)(1) of section 2929.13 of the Revised Code or a
mandatory prison term of sixty consecutive days of imprisonment in
accordance
with division (G)(2) of that section. If the
court
imposes a mandatory term of local incarceration, it may impose a
jail
term in addition to the sixty-day mandatory term, the
cumulative total of the mandatory
term and the jail term for the
offense
shall not exceed one year, and no prison term is
authorized for the
offense. If the court imposes a mandatory
prison term, notwithstanding
division (A)(4) of section 2929.14 of
the Revised
Code, it also may sentence the offender to a definite
prison term
that shall be not less than six months and not more
than thirty months, the
prison terms shall be imposed as described
in division (G)(2) of
section 2929.13 of the Revised Code, and no
term of local
incarceration, community residential sanction, or
nonresidential sanction is
authorized for the offense. (ii)
If the sentence is being imposed for a violation of
division
(A)(6), (7), (8), or (9) of this section, in the
discretion of the
court, either a mandatory term of local
incarceration of one
hundred twenty consecutive days in accordance
with division (G)(1)
of section 2929.13 of the Revised Code or a
mandatory prison
term of one hundred twenty consecutive days in
accordance with division
(G)(2) of that section. If the court
imposes a mandatory
term of local incarceration, it may impose a
jail term in addition to the one
hundred twenty-day mandatory
term, the cumulative total of the mandatory term
and the jail term
for
the offense shall not exceed one year, and no prison term is
authorized for the offense. If the court imposes a mandatory
prison term, notwithstanding division (A)(4) of section 2929.14 of
the Revised Code,
it also may sentence the offender to a definite
prison term that shall be not
less than six months and not more
than thirty months, the prison terms shall
be imposed as described
in division (G)(2) of section 2929.13 of the Revised Code,
and no
term of local incarceration, community residential sanction, or
nonresidential sanction is authorized for the offense. (iii)
In all cases, notwithstanding section 2929.18 of the
Revised Code, a fine
of not less than eight hundred nor more than
ten thousand
dollars; (iv)
In all cases, a class two license suspension of the
offender's driver's
license, commercial driver's license,
temporary instruction permit,
probationary license, or nonresident
operating privilege from the range
specified in division (A)(2) of
section 4510.02 of the
Revised Code. The court may grant limited
driving
privileges
relative to the suspension under sections
4510.021 and 4510.13 of the
Revised Code. (v)
In all cases, if the vehicle is registered in the
offender's name, criminal forfeiture of the vehicle
involved
in
the offense
in accordance with section 4503.234 of the
Revised
Code. Division (G)(6) of this section applies regarding any
vehicle that is subject to an order of
criminal
forfeiture
under
this division. (vi)
In all cases, participation in an alcohol and drug
addiction
program
authorized by section 3793.02 of the Revised
Code, subject to
division (I) of this section. (vii)
In all cases, if the court sentences the offender to a
mandatory term of local incarceration, in addition to the
mandatory term, the
court, pursuant to section 2929.17 of the
Revised Code,
may impose a term
of electronically monitored house
arrest. The term shall not
commence until after the
offender has
served the mandatory term of local incarceration. (e)
An offender who previously has been convicted of or
pleaded
guilty to a violation of
division (A) of this section that
was a felony, regardless
of when the violation and the conviction
or guilty plea occurred, is guilty of
a felony of the third
degree. The court shall sentence the offender to all of
the
following: (i)
If the offender is being sentenced for a violation of
division (A)(1), (2), (3), (4), or (5) of this section, a
mandatory
prison term of sixty consecutive days in
accordance with
division (G)(2) of section 2929.13 of the Revised Code. The court
may impose a prison term in
addition to the sixty-day mandatory
prison term. The cumulative
total of
the mandatory prison term
and the additional prison term for the offense shall
not exceed
five years. No term of local incarceration, community residential
sanction, or nonresidential
sanction is authorized for the
offense.
(ii)
If the sentence is being imposed for a violation of
division
(A)(6), (7), (8), or (9) of this section, a mandatory
prison term of
one
hundred twenty consecutive days in accordance
with division (G)(2)
of section 2929.13 of the Revised Code. The
court may
impose a prison term in addition to the one hundred
twenty-day mandatory
prison term. The cumulative total of the
mandatory prison term and
the additional prison term for the
offense shall not exceed five
years. No term of local
incarceration, community residential
sanction, or nonresidential
sanction is authorized for the
offense. (iii)
In all cases, notwithstanding section 2929.18 of the
Revised Code, a fine
of not less than eight hundred nor more than
ten thousand
dollars; (iv)
In all cases, a class two license suspension of the
offender's driver's
license, commercial driver's license,
temporary instruction permit,
probationary license, or nonresident
operating privilege from the range
specified in division (A)(2) of
section 4510.02 of the
Revised Code. The court may grant limited
driving
privileges
relative to the suspension under sections
4510.021 and 4510.13 of the
Revised Code. (v)
In all cases, if the vehicle is registered in the
offender's name, criminal forfeiture of the vehicle
involved
in
the offense
in accordance with section 4503.234 of the
Revised
Code. Division (G)(6) of this section applies regarding any
vehicle
that is subject to an order of
criminal
forfeiture under
this division. (vi)
In all cases, participation in an alcohol and drug
addiction
program authorized by section 3793.02 of the Revised
Code,
subject to division (I) of this section. (2) An offender who is convicted of or pleads guilty to a
violation of division (A) of this section and who subsequently
seeks reinstatement of the driver's or occupational driver's
license or permit
or nonresident operating privilege
suspended
under this section as a result of the conviction or
guilty plea
shall pay a reinstatement fee as provided in division
(F)(2) of
section 4511.191 of the Revised Code. (3) If an offender is sentenced to a jail term under
division
(G)(1)(b)(i)
or (ii)
or
(G)(1)(c)(i)
or (ii)
of this
section and if,
within sixty days of
sentencing of the offender,
the court issues a written finding on the record
that, due to the
unavailability of space at the
jail where the offender is required
to serve the term, the offender will not
be able to begin serving
that term within the
sixty-day period following the date of
sentencing, the court may
impose an alternative sentence under
this division that includes a
term of electronically monitored
house arrest, as defined in section 2929.23
of the Revised Code. As an alternative to a mandatory jail term of ten consecutive
days
required by division (G)(1)(b)(i) of this
section, the court,
under this division, may sentence the
offender to five consecutive
days in jail and not less than eighteen consecutive days of
electronically
monitored house arrest. The cumulative total of
the five consecutive days in
jail and the period of electronically
monitored house arrest shall
not exceed six months. The five
consecutive days in jail do not
have to be served prior to or
consecutively to the period of house
arrest. As an alternative to the mandatory jail term of twenty
consecutive
days required by division (G)(1)(b)(ii)
of
this
section, the
court, under this division, may sentence the offender
to ten consecutive days
in jail and not less than thirty-six
consecutive days of electronically
monitored
house arrest. The
cumulative total of the ten consecutive days in
jail and the
period of electronically monitored house arrest shall
not exceed
six months. The ten consecutive days in jail do not
have to be
served prior to or consecutively to the period of house
arrest. As an alternative to a mandatory jail term of thirty
consecutive
days required by division (G)(1)(c)(i) of
this
section, the court,
under this division, may sentence the offender
to fifteen consecutive days in
jail and not less than fifty-five
consecutive days of electronically
monitored house arrest. The
cumulative total of the fifteen
consecutive days in jail and the
period of electronically
monitored house arrest shall not exceed
one year. The fifteen
consecutive days in jail
do not have to be
served prior to or
consecutively to the period of house arrest. As an alternative to the mandatory jail term of sixty
consecutive
days required by division (G)(1)(c)(ii)
of
this
section, the
court, under this division, may sentence the offender
to thirty
consecutive days in jail and not less than one hundred
ten
consecutive days of electronically monitored house arrest.
The
cumulative total of the thirty consecutive days in jail and
the
period of electronically monitored house arrest shall not
exceed
one year. The thirty consecutive days in jail do not have
to be
served prior to or consecutively to the period of house
arrest. (4) If an offender's driver's or occupational driver's
license or
permit or nonresident operating privilege is suspended
under division
(G) of this
section and if section 4510.13 of the
Revised Code permits the
court to grant limited driving
privileges, the court may
grant the limited driving privileges
only
if the court imposes as one of the conditions of the
privileges that the
offender must display on the vehicle that is
driven subject to the privileges
restricted license plates that
are issued under section 4503.231 of the Revised Code, except
as
provided in division (B) of that section. (5) Fines imposed under this section for a violation of
division
(A) of this section shall be distributed as follows: (a)
Twenty-five dollars of the fine imposed under division
(G)(1)(a)(iii), thirty-five
dollars of the fine imposed under
division
(G)(1)(b)(iii), one
hundred twenty-three dollars of the
fine imposed under division
(G)(1)(c)(iii),
and two hundred
ten
dollars of the fine imposed under division
(G)(1)(d)(iii) or
(e)(iii)
of this section shall be paid to an enforcement
and
education fund established by the legislative authority of the law
enforcement
agency in this state that primarily was responsible
for the arrest of the
offender, as determined by the court that
imposes the fine. The agency shall
use this share to pay only
those costs it incurs in
enforcing this section or a municipal OVI
ordinance
and in informing the public of the laws governing the
operation of
a vehicle while under the influence of alcohol, the
dangers of
the operation of a vehicle under the influence of
alcohol, and other
information relating to the operation of a
vehicle under the influence of
alcohol and the consumption of
alcoholic beverages.
(b)
Fifty dollars of the fine imposed under division
(G)(1)(a)(iii)
of
this section shall be paid to the political
subdivision that pays the cost of
housing the offender during the
offender's term of incarceration. If the
offender is being
sentenced for a violation of division (A)(1),
(2), (3), (4), or
(5) of this section and was confined as a result of the
offense
prior to being
sentenced for the offense but is not sentenced to a
term of incarceration, the
fifty dollars shall
be paid to the
political subdivision that paid the cost of housing
the offender
during that period of confinement. The political subdivision
shall use the share under this division to pay or
reimburse
incarceration or treatment costs it incurs in housing or
providing
drug and alcohol treatment to persons who violate this
section or
a municipal OVI ordinance, costs of any immobilizing or
disabling
device used on the offender's vehicle, and costs of electronic
house
arrest equipment
needed for persons who violate this
section. (c)
Twenty-five dollars of the fine imposed under division
(G)(1)(a)(iii)
and fifty
dollars of the fine imposed under
division
(G)(1)(b)(iii)
of this
section shall be deposited into
the county or municipal indigent drivers'
alcohol treatment fund
under the control of that
court, as created by the county or
municipal corporation under division
(N) of section 4511.191 of
the Revised Code. (d)
One hundred fifteen dollars of the fine imposed under
division
(G)(1)(b)(iii),
two hundred seventy-seven
dollars of the
fine imposed under division
(G)(1)(c)(iii),
and four hundred forty
dollars of the fine imposed under division
(G)(1)(d)(iii) or
(e)(iii)
of this section shall be paid to the political
subdivision
that pays the cost of housing the offender during the
offender's term of
incarceration. The political subdivision shall
use
this share to pay or reimburse incarceration or treatment
costs it incurs in
housing or providing drug and alcohol treatment
to persons who
violate this section or a municipal OVI ordinance,
costs for any
immobilizing or disabling device used on the
offender's vehicle, and costs of electronic house arrest equipment
needed for
persons who violate this section. (e)
The balance of the fine imposed under division
(G)(1)(a)(iii),
(b)(iii), (c)(iii),
(d)(iii),
or (e)(iii) of this
section
shall be
disbursed as otherwise provided by law.
(6) If title to a motor vehicle that is subject to an order
of criminal forfeiture under division (G)(1)(c), (d), or (e) of
this section is assigned or transferred and division (B)(2) or (3)
of section 4503.234 of the Revised Code applies, in addition to or
independent of any other penalty established by law, the court may
fine the offender the value of the vehicle as determined by
publications of the national auto dealers association. The
proceeds of any fine so imposed shall be distributed in accordance
with division (C)(2) of that section. (H) Whoever violates division (B) of this section is
guilty
of
operating a vehicle after underage alcohol consumption and
shall be
punished as follows: (1) Except as otherwise provided in division (H)(2) of this
section, the offender is guilty of a misdemeanor of the fourth
degree. In
addition to any other sanction imposed for the
offense, the court shall impose a class six suspension of the
offender's
driver's license, commercial driver's license,
temporary instruction permit,
probationary license, or nonresident
operating privilege from the range
specified in division (A)(6) of
section
4510.02 of the Revised Code. (2) If, within one year of the offense, the offender
previously
has been convicted of or pleaded guilty to one or more
violations of
division (A) or (B) of this section or other
equivalent
offense offenses, the
offender is guilty of a
misdemeanor of the third degree. In addition to any
other
sanction imposed
for the offense, the court shall impose a class
four suspension of the
offender's driver's license, commercial
driver's license, temporary
instruction permit, probationary
license, or nonresident operating privilege
from the range
specified in division (A)(4) of
section 4510.02 of the Revised
Code. (I)(1)
No court shall sentence an offender to an alcohol
treatment program under this section unless the treatment program
complies
with the minimum standards for alcohol treatment programs
adopted
under Chapter 3793. of the Revised Code by the director of
alcohol
and drug addiction services. (2) An offender who stays in a drivers' intervention program
or in an
alcohol treatment program under
an order issued under
this section shall pay the cost of the stay in the
program.
However, if the court determines that an offender who stays in an
alcohol treatment program under an order issued under this section
is unable
to
pay the cost of the stay in the program, the court
may order that the cost be
paid from the court's
indigent drivers'
alcohol treatment fund. (J)
If a person whose driver's or commercial driver's
license
or
permit or nonresident operating privilege is suspended
under
this section
files an appeal regarding any aspect of the
person's
trial or sentence, the
appeal itself does not stay the
operation
of the suspension. (K)
All terms defined in sections 4510.01 of the Revised
Code
apply to this section. If the meaning of a term defined in
section
4510.01 of the Revised Code conflicts with the meaning of
the same term as defined in section 4501.01 or 4511.01 of the
Revised Code, the term as
defined in section 4510.01 of the
Revised Code applies to this section. (L)(1)
The Ohio Traffic Rules in effect
on
the effective date
of
this amendment
January 1, 2004, as adopted by the supreme court
under authority
of
section 2937.46 of the Revised Code, do not
apply to felony
violations of this section. Subject to division
(L)(2) of this
section, the Rules of Criminal Procedure apply to
felony
violations of this section. (2) If, on or after
the effective date of
this
amendment
January 1, 2004,
the supreme court modifies the Ohio Traffic
Rules
to provide
procedures to govern felony violations of this
section,
the
modified rules shall apply to felony violations
of this
section. Sec. 4511.194. (A) As used in this section, "physical: (1) "National highway traffic safety administration" has the
same meaning as in section 4511.19 of the Revised Code. (2) "Physical
control" means being in the driver's position
of the
front seat of
a vehicle or in the driver's position of a
streetcar
or trackless
trolley and having possession of the
vehicle's,
streetcar's, or
trackless trolley's ignition key or
other ignition
device. (B)
No person shall be in physical control of a
vehicle,
streetcar, or trackless trolley while under
the influence
of
alcohol,
a drug of abuse, or a combination of
them or
while the
person's whole blood, blood serum or plasma,
breath, or
urine
contains at least the concentration of alcohol
specified in
division (A)(2), (3), (4), or (5) of section 4511.19
of the
Revised Code. (C)(1) In any criminal prosecution or juvenile court
proceeding for a violation of this section or a substantially
equivalent municipal ordinance, if a law enforcement officer has
administered a field sobriety test to the person in physical
control of the vehicle involved in the violation and if it is
shown by clear and convincing evidence that the
officer
administered the test in substantial compliance with the
testing
standards for any reliable, credible, and generally
accepted field
sobriety tests that were in effect at the time the
tests were
administered, including, but not limited to, any
testing standards
then in effect that were set by the national
highway traffic
safety administration, all of the following apply: (a) The officer may testify concerning the results of the
field sobriety test so administered. (b) The prosecution may introduce the results of the field
sobriety test so administered as evidence in any proceedings in
the criminal prosecution or juvenile court proceeding. (c) If testimony is presented or evidence is introduced under
division (C)(1)(a) or (b) of this section and if the testimony or
evidence is admissible under the Rules of Evidence, the court
shall admit the testimony or evidence, and the trier of fact shall
give it whatever weight the trier of fact considers to be
appropriate. (2) Division (C)(1) of this section does not limit or
preclude a court, in its determination of whether the arrest of a
person was supported by probable cause or its determination of any
other matter in a criminal prosecution or juvenile court
proceeding of a type described in that division, from considering
evidence or testimony that is not otherwise disallowed by division
(C)(1) of this section. (D) Whoever violates this section is guilty of having
physical
control of a vehicle while under the influence, a
misdemeanor of the first
degree. In addition to other sanctions
imposed, the court may
impose on the offender a class seven
suspension of the offender's driver's
license, commercial driver's
license, temporary instruction permit,
probationary license, or
nonresident operating privilege from the range
specified in
division (A)(7) of section 4510.02 of the Revised Code. SECTION 4. That the existing versions of sections 1547.11, 1547.111, 4511.19, and 4511.194 of the Revised Code that are scheduled to take effect January 1, 2004, are hereby repealed. SECTION 5. Sections 3 and 4 of this act shall take effect January 1, 2004. SECTION 6. There is hereby created the Highway, Bridge, and
Overpass Vandal Fence Task Force, consisting of the Governor or
the Governor's designee, one person appointed by the Director of
Transportation, one person appointed by the Director of Public
Safety, who shall be the Superintendent or a trooper of the
State
Highway Patrol, one person appointed by the Buckeye State
Sheriffs
Association, one person appointed by the Ohio Association
of
Chiefs of Police, one person appointed by the County Engineers
Association of Ohio, and three or more members of the public
appointed by
the Governor. The Governor or the Governor's
designee shall be
chairperson of the Task Force, and the Task
Force members shall
elect a vice-chairperson from among their
members and appoint a
secretary, who need not be a member of the
Task Force. A vacancy
shall be filled in the same manner as the
original appointment.
Members of the Task Force shall not receive
a salary, but the
three Task Force members the Governor appoints
shall be reimbursed
for the actual expenses they incur in
performing their duties as
Task Force members.
The Task Force shall do all of the following: (A) Develop an awareness program with local law enforcement
officials and the Ohio Department of Transportation relative to
the problem of objects thrown from highways, bridges, and
overpasses; (B) Review and evaluate the overall situation regarding
objects thrown from highways, bridges, and overpasses, including
the types and number of objects thrown yearly, the perpetrators
involved, the locations within this state where such throwing has
occurred, and any other aspects of this criminal activity the Task
Force determines to be relevant and significant; (C) Facilitate communication between the Ohio Department of
Transportation and law enforcement agencies by developing a
central computer system to track these incidents; (D) Examine the value of the improved safety resulting from
the installation of vandal fences on all bridges and overpasses on
interstate freeways relative to the cost of such installation. The Task Force shall compile its findings and formulate
recommendations and report these to a joint House of
Representatives and Senate Transportation Committee not later than
September 30, 2003. The joint committee shall consist of eight
members, four from the Senate appointed by the President of the
Senate and four from the House of Representatives appointed by the
Speaker. After the Task Force presents its report, the Governor
may declare the end to the existence of the Task Force or may
declare that the Task Force will remain in existence for such
additional time as the Governor determines necessary. If the
Governor declares that the Task Force will remain in existence,
the Task Force shall examine any issues relating to the throwing
of objects from highways, bridges, and overpasses that the Task
Force chooses to examine, until the Governor declares the end to
the existence of the Task Force.
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