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S. B. No. 204 As IntroducedAs Introduced
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Senators Fedor, Miller, D., Mason, Kearney, Smith, Boccieri, Wilson
A BILL
To amend sections 4549.61, 4549.62, and 4549.63 of
the
Revised Code to modify
the guidelines
governing
seizure of a motorcycle
by a law
enforcement
officer when the identity of
the
motorcycle cannot
be determined and to establish
limited civil liability if the law enforcement
officer or agency fails to comply with specified
guidelines.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4549.61, 4549.62, and 4549.63 of the
Revised Code be
amended to read as follows:
Sec. 4549.61. As used in sections 4549.61 to 4549.63 of the
Revised Code,
"vehicle:
(A) "Vehicle identification number or derivative
thereof
of
the
vehicle identification number" means any number or
derivative
of
such a number that is embossed, engraved, etched, or otherwise
marked on any vehicle or vehicle part by the manufacturer.
"Vehicle
identification number" also includes a duplicate vehicle
identification number
replaced upon a vehicle under the authority
of the registrar of motor
vehicles.
(B) "Motorcycle" has the same meaning as in section 4511.01
of the Revised Code.
Sec. 4549.62. (A) No person, with purpose to
conceal
or
destroy the identity of a vehicle or vehicle part,
shall
remove,
deface, cover, alter, or destroy any vehicle
identification number
or derivative
of a the vehicle
identification number on a vehicle
or
vehicle part.
(B) No person, with purpose to conceal or destroy
the
identity of a vehicle or a vehicle part,
shall remove, deface,
cover, alter, or destroy any identifying number that has been
lawfully placed upon a vehicle or vehicle part by an owner of the
vehicle or vehicle part, other than the manufacturer, for the
purpose of deterring its theft and facilitating its recovery if
stolen.
(C) No person, with purpose to conceal or destroy
the
identity of a vehicle or vehicle part,
shall place a counterfeit
vehicle identification number or derivative
of a the vehicle
identification number upon the
vehicle or vehicle part.
(D)(1) No person shall buy, offer to buy, sell, offer to
sell, receive, dispose of, conceal, or, except as provided in
division (D)(4) of this section, possess any vehicle or vehicle
part with knowledge that the vehicle identification number or a
derivative
of the vehicle identification number has been
removed,
defaced, covered, altered,
or destroyed in such a manner
that the
identity of the vehicle or
part cannot be determined by a
visual
examination of the number
at the site where the
manufacturer
placed the number.
(2)(a) A vehicle or vehicle part from which the vehicle
identification number or a derivative
of the vehicle
identification number has been so
removed, defaced, covered,
altered, or destroyed shall be seized
and forfeited under Chapter
2981. of the Revised Code unless
division (D)(3) or (4) of this
section applies to the vehicle or
part. If a derivative of the
vehicle identification number has
been removed, defaced, covered,
altered, or destroyed in such a
manner that the identity of the
part cannot be determined, the
entire vehicle is subject to
seizure pending a determination of
the original identity and
ownership of the vehicle and parts of
the vehicle, and the rights
of innocent owners to reclaim the
remainder or any part of the
vehicle.
(b) The lawful owners of parts upon a vehicle that has
been
seized under this section and that is subject to forfeiture
under
Chapter 2981. of the Revised Code are entitled to reclaim
their
respective parts upon satisfactory proof of all of the
following:
(i) That the part is not needed for evidence in pending
proceedings involving the vehicle or part and is not subject to
forfeiture under Chapter 2981. of the Revised Code;
(ii) That the original identity and ownership of the part
can
be determined and that the claimant is the lawful owner of
the
part;
(iii) That no vehicle identification number or derivative
of
a the vehicle identification number on the part has been destroyed
or
concealed in such a manner that the identity of the part
cannot
be
determined from that number;
(iv) Payment of all costs of removing the part.
(3) Divisions (A), (B), and (D)(1) and (2) of this section
do
not apply to the good faith acquisition and disposition of
vehicles and vehicle parts as junk or scrap in the ordinary
course
of business by a scrap metal processing facility as
defined in
division
(D) of section 4737.05 of the Revised
Code or
by a
motor
vehicle salvage dealer licensed under Chapter 4738. of
the
Revised
Code. This division
does not create an
element of
an offense or
an
affirmative defense, or affect the
burden of
proceeding with
the
evidence or burden of proof in a
criminal
proceeding.
(4)(a) Divisions (D)(1) and (2) of this section do not
apply
to the possession of an owner, or the owner's insurer, who
provides satisfactory evidence of all of the following:
(i) That the vehicle identification number or derivative
thereof of the vehicle identification number on the vehicle or
part has been removed, defaced,
covered,
altered, or destroyed,
after the owner acquired such
possession,
by another person
without the consent of the owner,
by accident or
other casualty
not due to the owner's purpose to
conceal or
destroy the identity
of the vehicle or vehicle part,
or by
ordinary wear and tear;
(ii) That the person is the owner of the vehicle as shown
on
a valid certificate of title issued by this state or
certificate
of title or other lawful evidence of title issued in
another
state, in a clear chain of title beginning with the
manufacturer;
(iii) That the original identity of the vehicle can be
established in a manner that excludes any reasonable probability
that the vehicle has been stolen from another person.
(b) The registrar of motor vehicles shall adopt rules
under
Chapter 119. of the Revised Code to permit an owner
described in
division (D)(4)(a) of this section, upon application
and
submission of satisfactory evidence to the registrar, to obtain
authority to replace the vehicle
identification number under the
supervision of a peace officer,
trooper of the state highway
patrol, or representative of the
registrar. The rules shall be
designed to restore the
identification of the vehicle in a manner
that will deter its
theft and facilitate its marketability. Until
such those rules are
adopted, the registrar shall follow the
existing
procedure for
the
replacement of vehicle identification
numbers
that have been
established by the registrar, with such any
modifications as that the
registrar determines to be necessary or
appropriate for the
administration of the laws that
the registrar
is
required to
administer.
The registrar may issue a temporary permit to an owner of a
motor vehicle who is described in division (D)(4)(a) of this
section to authorize the owner to retain possession of the motor
vehicle and to transfer title to the motor vehicle with the
consent of the registrar.
(c) No owner described in division (D)(4)(a) of this
section
shall
fail
knowingly to apply to the registrar
for
authority to
replace the vehicle identification number, within
thirty days
after the later of the following dates:
(i) The date of receipt by the applicant of actual
knowledge
of the concealment or destruction;
(ii) If the property has been stolen, the date thereafter
upon which the applicant obtains possession of the vehicle or has
been notified by a law enforcement agency that the vehicle has
been recovered.
The requirement of division (D)(4)(c) of this section may
be
excused by the registrar for good cause shown.
(E) Whoever violates division (A),
(B),
(C), or (D)(1) of
this
section is guilty of a felony of the fifth degree on a first
offense and a
felony of the
fourth degree on each subsequent
offense.
(F) Whoever violates division
(D)(4)(c)
of this section is
guilty of a minor misdemeanor.
Sec. 4549.63. (A) A law enforcement officer may seize and
take possession of a vehicle or vehicle part if the officer has
probable cause to believe that any vehicle identification number
or derivative thereof of the vehicle identification number on the
vehicle or part has been removed,
defaced, covered, altered, or
destroyed in such a manner that the
identity of the vehicle or
part cannot be determined by visual
examination of the number at
the site where the manufacturer
placed the number. The seizure
shall be pursuant to a warrant,
unless the circumstances are
within one of the exceptions to the
warrant requirement that have
been established by the supreme
court of the United States or of
the supreme court of this state.
(B) A (1) Except as provided in divisions (B)(2) and (3) of
this section, a vehicle or vehicle part seized under division (A)
of
this section shall be held in custody pursuant to section
2981.11 of the Revised Code or any applicable municipal ordinance.
(2) If a vehicle or vehicle part that is seized under
division (A) of this section is a motorcycle or motorcycle part, a
law enforcement officer or agency that seizes the motorcycle or
motorcycle part shall
transport, secure, and store the motorcycle
or motorcycle part, or shall cause the motorcycle or motorcycle
part to be transported, secured, and stored, in a
manner that
protects the motorcycle or
motorcycle part from damage.
(3) Within thirty days of seizing a motorcycle or
motorcycle
part, the law enforcement officer or agency shall do
the
following:
(a) Locate the vehicle identification number if
possible and
determine whether the motorcycle or motorcycle part
is
stolen;
(b) If the motorcycle or motorcycle part is not determined to
be stolen, except as otherwise provided in any provision of
federal law, return the motorcycle or motorcycle part to the
person from whom the motorcycle or motorcycle part was seized, the
lawful
owner,
or owner of record in accordance with division (D)
of this section or otherwise make a good faith effort to return
the motorcycle or motorcycle part to the person from whom the
motorcycle or motorcycle part was seized, the lawful owner, or
owner of record in accordance with that division.
(4) A law enforcement agency that holds a motorcycle or
motorcycle part that is not determined to be stolen longer than
thirty days after the date of seizure of such motorcycle or
motorcycle part is liable for damages.
(C)(1) A law enforcement officer who acts in good faith in
the belief that the seizure of a vehicle or vehicle part is
justified under division (A) of this section is immune from any
civil or criminal liability for such seizure.
(2) Notwithstanding division (C)(1) of this section, the
state or any political subdivision associated with a law
enforcement officer or agency that seizes a motorcycle or
motorcycle
part under this section is liable to the person from
whom the motorcycle or motorcycle part was seized, its lawful
owner,
or owner of record in a civil
action for any damage to the
motorcycle or
motorcycle part that is proximately caused by either
of the
following:
(a) The negligent failure of the law enforcement officer or
agency to
transport, secure, and store the motorcycle or
motorcycle part in
a
manner that protects the motorcycle or
motorcycle part from
damage;
(b) The negligent failure of the law enforcement officer or
agency to
comply with division (B)(3) of this section.
(D) The lawful owner or owner of record of a vehicle or
vehicle part seized
under this section that is not needed as
evidence and is not
subject to forfeiture under division (D)(2) of
section 4549.62 of
the Revised Code may reclaim the property by
submitting
satisfactory proof of ownership of the vehicle or
vehicle part to the law enforcement agency or
court holding the
property.
Section 2. That existing sections 4549.61, 4549.62, and
4549.63 of the Revised Code
are hereby repealed.
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