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Sub. S. B. No. 58 As Passed by the HouseAs Passed by the House
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Senators Schaffer, Wagoner, Grendell, Gibbs, Harris, Husted, Patton, Stewart, Turner, Wilson
Representatives Beck, Blair, Blessing, Bubp, Coley, Combs, Derickson, Dodd, Domenick, Evans, Garland, Gerberry, Grossman, Hackett, Harris, Harwood, Heard, Hottinger, Luckie, Mandel, McGregor, Weddington, Zehringer
A BILL
To amend sections 109.561, 1547.11, 2919.25, 2929.13,
2933.82, 4506.17, 4511.19, 4765.38, and 4765.39
and to enact section 2927.15 of the Revised Code
to prohibit a person from collecting any bodily
substance of another person without privilege or
consent to do so, to correct erroneous
cross-references in provisions enacted in Am. Sub.
H.B. 280 of the 127th General Assembly regarding
increased penalties for domestic violence
committed against a pregnant woman, to permit
emergency medical technicians-intermediate and
emergency medical technicians-paramedic to
withdraw blood for the purposes of the watercraft
or vehicle OVI law or the commercial motor vehicle
law, to require the office of the attorney general
to administer and conduct preservation of
biological evidence training, and to add a
representative from the Division of Criminal
Justice Services to the Biological Evidence Task
Force.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.561, 1547.11, 2919.25, 2929.13,
2933.82, 4506.17, 4511.19, 4765.38, and 4765.39 be amended and
section 2927.15 of the Revised Code be enacted to read as follows:
Sec. 109.561. There is hereby established within the bureau
of criminal identification and investigation a preservation of
biological evidence task force. The task force shall consist of
officers and employees of the bureau; a representative from the
Ohio prosecutors association; a representative from the Ohio state
coroners association; a representative from the Ohio association
of chiefs of police; a representative from the Ohio public
defenders office, in consultation with the Ohio innocence project;
a representative from the division of criminal justice services of
the department of public safety; and a representative from the
buckeye state sheriffs association. The task force shall perform
the duties and functions specified in division (C) of section
2933.82 of the Revised Code.
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 eight-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 ninety-six-thousandths
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 eleven-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 eight-hundredths of one
gram or more by weight of alcohol per two hundred ten liters of
the person's breath.
(6) Except as provided in division (H) of this section, the
person has a concentration of any of the following controlled
substances or metabolites of a controlled substance in the
person's whole blood, blood serum or plasma, or urine that equals
or exceeds any of the following:
(a) The person has a concentration of amphetamine in the
person's urine of at least five hundred nanograms of amphetamine
per milliliter of the person's urine or has a concentration of
amphetamine in the person's whole blood or blood serum or plasma
of at least one hundred nanograms of amphetamine per milliliter of
the person's whole blood or blood serum or plasma.
(b) The person has a concentration of cocaine in the person's
urine of at least one hundred fifty nanograms of cocaine per
milliliter of the person's urine or has a concentration of cocaine
in the person's whole blood or blood serum or plasma of at least
fifty nanograms of cocaine per milliliter of the person's whole
blood or blood serum or plasma.
(c) The person has a concentration of cocaine metabolite in
the person's urine of at least one hundred fifty nanograms of
cocaine metabolite per milliliter of the person's urine or has a
concentration of cocaine metabolite in the person's whole blood or
blood serum or plasma of at least fifty nanograms of cocaine
metabolite per milliliter of the person's whole blood or blood
serum or plasma.
(d) The person has a concentration of heroin in the person's
urine of at least two thousand nanograms of heroin per milliliter
of the person's urine or has a concentration of heroin in the
person's whole blood or blood serum or plasma of at least fifty
nanograms of heroin per milliliter of the person's whole blood or
blood serum or plasma.
(e) The person has a concentration of heroin metabolite
(6-monoacetyl morphine) in the person's urine of at least ten
nanograms of heroin metabolite (6-monoacetyl morphine) per
milliliter of the person's urine or has a concentration of heroin
metabolite (6-monoacetyl morphine) in the person's whole blood or
blood serum or plasma of at least ten nanograms of heroin
metabolite (6-monoacetyl morphine) per milliliter of the person's
whole blood or blood serum or plasma.
(f) The person has a concentration of L.S.D. in the person's
urine of at least twenty-five nanograms of L.S.D. per milliliter
of the person's urine or has a concentration of L.S.D. in the
person's whole blood or blood serum or plasma of at least ten
nanograms of L.S.D. per milliliter of the person's whole blood or
blood serum or plasma.
(g) The person has a concentration of marihuana in the
person's urine of at least ten nanograms of marihuana per
milliliter of the person's urine or has a concentration of
marihuana in the person's whole blood or blood serum or plasma of
at least two nanograms of marihuana per milliliter of the person's
whole blood or blood serum or plasma.
(h) The state board of pharmacy has adopted a rule pursuant
to section 4729.041 of the Revised Code that specifies the amount
of salvia divinorum and the amount of salvinorin A that constitute
concentrations of salvia divinorum and salvinorin A in a person's
urine, in a person's whole blood, or in a person's blood serum or
plasma at or above which the person is impaired for purposes of
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, the rule is in effect, and the person has a
concentration of salvia divinorum or salvinorin A of at least that
amount so specified by rule in the person's urine, in the person's
whole blood, or in the person's blood serum or plasma.
(i) Either of the following applies:
(i) The person is under the influence of alcohol, a drug of
abuse, or a combination of them, and, as measured by gas
chromatography mass spectrometry, the person has a concentration
of marihuana metabolite in the person's urine of at least fifteen
nanograms of marihuana metabolite per milliliter of the person's
urine or has a concentration of marihuana metabolite in the
person's whole blood or blood serum or plasma of at least five
nanograms of marihuana metabolite per milliliter of the person's
whole blood or blood serum or plasma.
(ii) As measured by gas chromatography mass spectrometry, the
person has a concentration of marihuana metabolite in the person's
urine of at least thirty-five nanograms of marihuana metabolite
per milliliter of the person's urine or has a concentration of
marihuana metabolite in the person's whole blood or blood serum or
plasma of at least fifty nanograms of marihuana metabolite per
milliliter of the person's whole blood or blood serum or plasma.
(j) The person has a concentration of methamphetamine in the
person's urine of at least five hundred nanograms of
methamphetamine per milliliter of the person's urine or has a
concentration of methamphetamine in the person's whole blood or
blood serum or plasma of at least one hundred nanograms of
methamphetamine per milliliter of the person's whole blood or
blood serum or plasma.
(k) The person has a concentration of phencyclidine in the
person's urine of at least twenty-five nanograms of phencyclidine
per milliliter of the person's urine or has a concentration of
phencyclidine in the person's whole blood or blood serum or plasma
of at least ten nanograms of phencyclidine per milliliter of the
person's whole blood or blood serum or plasma.
(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 eight-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
ninety-six-thousandths 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 eleven-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 eight-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)(a) In any criminal prosecution or juvenile court
proceeding for a violation of division (A) or (B) of this section
or for an equivalent offense that is watercraft-related, the
result of any test of any blood or urine withdrawn and analyzed at
any health care provider, as defined in section 2317.02 of the
Revised Code, may be admitted with expert testimony to be
considered with any other relevant and competent evidence in
determining the guilt or innocence of the defendant.
(b) In any criminal prosecution or juvenile court proceeding
for a violation of division (A) or (B) of this section or for an
equivalent offense that is watercraft-related, the court may admit
evidence on the concentration of alcohol, drugs of abuse,
controlled substances, metabolites of a controlled substance, 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 three hours of the time of the
alleged violation. The three-hour time limit specified in this
division regarding the admission of evidence does not extend or
affect the two-hour time limit specified in division (C) of
section 1547.111 of the Revised Code as the maximum period of time
during which a person may consent to a chemical test or tests as
described in that section. The court may admit evidence on the
concentration of alcohol, drugs of abuse, or a combination of them
as described in this division when a person submits to a blood,
breath, urine, or other bodily substance test at the request of a
law enforcement officer under section 1547.111 of the Revised Code
or a blood or urine sample is obtained pursuant to a search
warrant. Only a physician, a registered nurse, an emergency
medical technician-intermediate, an emergency medical
technician-paramedic, or a qualified technician, chemist, or
phlebotomist shall withdraw blood for the purpose of determining
the alcohol, drug, controlled substance, metabolite of a
controlled substance, or combination 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
withdrawn under division (D)(1)(b) of this section 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 that is watercraft-related, if there was at the
time the 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 or less than
the applicable concentration of a listed controlled substance or a
listed metabolite of a controlled substance specified for a
violation of division (A)(6) 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.
If the chemical test was administered pursuant to division
(D)(1)(b) of this section, 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,
of a municipal ordinance relating to operating or being in
physical control of any vessel underway or to 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 a
combination of them, or of a municipal ordinance relating to
operating or being in physical control of any vessel underway or
to manipulating any water skis, aquaplane, or similar device on
the waters of this state with a prohibited concentration of
alcohol, a controlled substance, or a metabolite of a controlled
substance in the whole blood, blood serum or plasma, 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) Subject to division (F)(3) of this section, in any
criminal prosecution or juvenile court proceeding for a violation
of division (A) or (B) of this section or for an equivalent
offense that is substantially equivalent to either of those
divisions, the court shall admit as prima-facie evidence a
laboratory report from any laboratory personnel issued a permit by
the department of health authorizing an analysis as described in
this division 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, a controlled substance, a metabolite of a
controlled substance, 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
(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 (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.
(G) Except as otherwise provided in this division, any
physician, registered nurse, emergency medical
technician-intermediate, emergency medical technician-paramedic,
or qualified technician, chemist, or phlebotomist who withdraws
blood from a person pursuant to this section or section 1547.111
of the Revised Code, and a hospital, first-aid station, or clinic
at which blood is withdrawn from a person pursuant to this section
or section 1547.111 of the Revised Code, 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 also extends to an emergency medical
service organization that employs an emergency medical
technician-intermediate, an emergency medical technician-paramedic
who withdraws blood under this section. The immunity provided in
this division is not available to a person who withdraws blood if
the person engages in willful or wanton misconduct.
(H) Division (A)(6) of this section does not apply to a
person who operates or is in physical control of a vessel underway
or manipulates any water skis, aquaplane, or similar device while
the person has a concentration of a listed controlled substance or
a listed metabolite of a controlled substance in the person's
whole blood, blood serum or plasma, or urine that equals or
exceeds the amount specified in that division, if both of the
following apply:
(1) The person obtained the controlled substance pursuant to
a prescription issued by a licensed health professional authorized
to prescribe drugs.
(2) The person injected, ingested, or inhaled the controlled
substance in accordance with the health professional's directions.
(I) As used in this section and section 1547.111 of the
Revised Code:
(1) "Equivalent offense" has the same meaning as in section
4511.181 of the Revised Code.
(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.
(4) "Controlled substance" and "marihuana" have the same
meanings as in section 3719.01 of the Revised Code.
(5) "Cocaine" and "L.S.D." have the same meanings as in
section 2925.01 of the Revised Code.
(6) "Equivalent offense that is watercraft-related" means an
equivalent offense that is one of the following:
(a) A violation of division (A) or (B) of this section;
(b) A violation of a municipal ordinance prohibiting a person
from operating or being in physical control of any vessel underway
or from 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 a combination of them or prohibiting a person
from operating or being in physical control of any vessel underway
or from manipulating any water skis, aquaplane, or similar device
on the waters of this state with a prohibited concentration of
alcohol, a controlled substance, or a metabolite of a controlled
substance in the whole blood, blood serum or plasma, breath, or
urine;
(c) A violation of an existing or former municipal ordinance,
law of another state, or law of the United States that is
substantially equivalent to division (A) or (B) of this section;
(d) A violation of a former law of this state that was
substantially equivalent to division (A) or (B) of this section.
(7) "Emergency medical technician-intermediate" and
"emergency medical technician-paramedic" have the same meanings as
in section 4765.01 of the Revised Code.
Sec. 2919.25. (A) No person shall knowingly cause or attempt
to cause physical harm to a family or household member.
(B) No person shall recklessly cause serious physical harm
to a family or household member.
(C) No person, by threat of force, shall knowingly cause a
family or household member to believe that the offender will cause
imminent physical harm to the family or household member.
(D)(1) Whoever violates this section is guilty of domestic
violence, and the court shall sentence the offender as provided in
divisions (D)(2) to (6) of this section.
(2) Except as otherwise provided in division divisions (D)(3)
to (5) of this section, a violation of division (C) of this
section is a misdemeanor of the fourth degree, and a violation of
division (A) or (B) of this section is a misdemeanor of the first
degree.
(3) Except as otherwise provided in division (D)(4) of this
section, if the offender previously has pleaded guilty to or been
convicted of domestic violence, a violation of an existing or
former municipal ordinance or law of this or any other state or
the United States that is substantially similar to domestic
violence, a violation of section 2903.14, 2909.06, 2909.07,
2911.12, 2911.211, or 2919.22 of the Revised Code if the victim of
the violation was a family or household member at the time of the
violation, a violation of an existing or former municipal
ordinance or law of this or any other state or the United States
that is substantially similar to any of those sections if the
victim of the violation was a family or household member at the
time of the commission of the violation, or any offense of
violence if the victim of the offense was a family or household
member at the time of the commission of the offense, a violation
of division (A) or (B) of this section is a felony of the fourth
degree, and, if the offender knew that the victim of the violation
was pregnant at the time of the violation, the court shall impose
a mandatory prison term on the offender pursuant to division
(A)(D)(6) of this section, and a violation of division (C) of this
section is a misdemeanor of the second degree.
(4) If the offender previously has pleaded guilty to or been
convicted of two or more offenses of domestic violence or two or
more violations or offenses of the type described in division
(D)(3) of this section involving a person who was a family or
household member at the time of the violations or offenses, a
violation of division (A) or (B) of this section is a felony of
the third degree, and, if the offender knew that the victim of the
violation was pregnant at the time of the violation, the court
shall impose a mandatory prison term on the offender pursuant to
division (A)(D)(6) of this section, and a violation of division
(C) of this section is a misdemeanor of the first degree.
(5) Except as otherwise provided in division (D)(3) or (4) of
this section, if the offender knew that the victim of the
violation was pregnant at the time of the violation, a violation
of division (A) or (B) of this section is a felony of the fifth
degree, and the court shall impose a mandatory prison term on the
offender pursuant to division (A)(D)(6) of this section, and a
violation of division (C) of this section is a misdemeanor of the
third degree.
(6) If division (A)(D)(3), (4), or (5) of this section
requires the court that sentences an offender for a violation of
division (A) or (B) of this section to impose a mandatory prison
term on the offender pursuant to this division, the court shall
impose the mandatory prison term as follows:
(a) If the violation of division (A) or (B) of this section
is a felony of the fourth or fifth degree, except as otherwise
provided in division (A)(D)(6)(b) or (c) of this section, the
court shall impose a mandatory prison term on the offender of at
least six months.
(b) If the violation of division (A) or (B) of this section
is a felony of the fifth degree and the offender, in committing
the violation, caused serious physical harm to the pregnant
woman's unborn or caused the termination of the pregnant woman's
pregnancy, the court shall impose a mandatory prison term on the
offender of twelve months.
(c) If the violation of division (A) or (B) of this section
is a felony of the fourth degree and the offender, in committing
the violation, caused serious physical harm to the pregnant
woman's unborn or caused the termination of the pregnant woman's
pregnancy, the court shall impose a mandatory prison term on the
offender of at least twelve months.
(d) If the violation of division (A) or (B) of this section
is a felony of the third degree, except as otherwise provided in
division (A)(D)(6)(e) of this section and notwithstanding the
range of prison terms prescribed in section 2929.14 of the Revised
Code for a felony of the third degree, the court shall impose a
mandatory prison term on the offender of either a definite term of
six months or one of the prison terms prescribed in section
2929.14 of the Revised Code for felonies of the third degree.
(e) If the violation of division (A) or (B) of this section
is a felony of the third degree and the offender, in committing
the violation, caused serious physical harm to the pregnant
woman's unborn or caused the termination of the pregnant woman's
pregnancy, notwithstanding the range of prison terms prescribed in
section 2929.14 of the Revised Code for a felony of the third
degree, the court shall impose a mandatory prison term on the
offender of either a definite term of one year or one of the
prison terms prescribed in section 2929.14 of the Revised Code for
felonies of the third degree.
(E) Notwithstanding any provision of law to the contrary, no
court or unit of state or local government shall charge any fee,
cost, deposit, or money in connection with the filing of charges
against a person alleging that the person violated this section or
a municipal ordinance substantially similar to this section or in
connection with the prosecution of any charges so filed.
(F) As used in this section and sections 2919.251 and 2919.26
of the Revised Code:
(1) "Family or household member" means any of the following:
(a) Any of the following who is residing or has resided with
the offender:
(i) A spouse, a person living as a spouse, or a former spouse
of the offender;
(ii) A parent, a foster parent, or a child of the offender,
or another person related by consanguinity or affinity to the
offender;
(iii) A parent or a child of a spouse, person living as a
spouse, or former spouse of the offender, or another person
related by consanguinity or affinity to a spouse, person living as
a spouse, or former spouse of the offender.
(b) The natural parent of any child of whom the offender is
the other natural parent or is the putative other natural parent.
(2) "Person living as a spouse" means a person who is living
or has lived with the offender in a common law marital
relationship, who otherwise is cohabiting with the offender, or
who otherwise has cohabited with the offender within five years
prior to the date of the alleged commission of the act in
question.
(3) "Pregnant woman's unborn" has the same meaning as "such
other person's unborn," as set forth in section 2903.09 of the
Revised Code, as it relates to the pregnant woman. Division (C) of
that section applies regarding the use of the term in this
section, except that the second and third sentences of division
(C)(1) of that section shall be construed for purposes of this
section as if they included a reference to this section in the
listing of Revised Code sections they contain.
(4) "Termination of the pregnant woman's pregnancy" has the
same meaning as "unlawful termination of another's pregnancy," as
set forth in section 2903.09 of the Revised Code, as it relates to
the pregnant woman. Division (C) of that section applies regarding
the use of the term in this section, except that the second and
third sentences of division (C)(1) of that section shall be
construed for purposes of this section as if they included a
reference to this section in the listing of Revised Code sections
they contain.
Sec. 2927.15. (A) No person shall knowingly collect any
blood, urine, tissue, or other bodily substance of another person
without privilege or consent to do so.
(B)(1) Division (A) of this section does not apply to any of
the following:
(a) The collection of any bodily substance of a person by a
law enforcement officer, or by another person pursuant to the
direction or advice of a law enforcement officer, for purposes of
a chemical test or tests of the substance under division (A)(1) of
section 1547.111 or division (A)(2) of section 4511.191 of the
Revised Code to determine the alcohol, drug, controlled substance,
metabolite of a controlled substance, or combination content of
the bodily substance;
(b) The collection of any bodily substance of a person by a
peace officer, or by another person pursuant to the direction or
advice of a peace officer, for purposes of a test or tests of the
substance as provided in division (A) of section 4506.17 of the
Revised Code to determine the person's alcohol concentration or
the presence of any controlled substance or metabolite of a
controlled substance.
(2) Division (B)(1) of this section shall not be construed as
implying that the persons identified in divisions (B)(1)(a) and
(b) of this section do not have privilege to collect the bodily
substance of another person as described in those divisions or as
limiting the definition of "privilege" set forth in section
2901.01 of the Revised Code.
(C) Whoever violates division (A) of this section is guilty
of unlawful collection of a bodily substance. Except as otherwise
provided in this division, unlawful collection of a bodily
substance is a misdemeanor of the first degree. If the offender
previously has been convicted of or pleaded guilty to a violation
of division (A) of this section, unlawful collection of a bodily
substance is a felony of the fifth degree.
Sec. 2929.13. (A) Except as provided in division (E), (F),
or (G) of this section and unless a specific sanction is required
to be imposed or is precluded from being imposed pursuant to law,
a court that imposes a sentence upon an offender for a felony may
impose any sanction or combination of sanctions on the offender
that are provided in sections 2929.14 to 2929.18 of the Revised
Code. The sentence shall not impose an unnecessary burden on state
or local government resources.
If the offender is eligible to be sentenced to community
control sanctions, the court shall consider the appropriateness of
imposing a financial sanction pursuant to section 2929.18 of the
Revised Code or a sanction of community service pursuant to
section 2929.17 of the Revised Code as the sole sanction for the
offense. Except as otherwise provided in this division, if the
court is required to impose a mandatory prison term for the
offense for which sentence is being imposed, the court also shall
impose any financial sanction pursuant to section 2929.18 of the
Revised Code that is required for the offense and may impose any
other financial sanction pursuant to that section but may not
impose any additional sanction or combination of sanctions under
section 2929.16 or 2929.17 of the Revised Code.
If the offender is being sentenced for a fourth degree felony
OVI offense or for a third degree felony OVI offense, in addition
to the mandatory term of local incarceration or the mandatory
prison term required for the offense by division (G)(1) or (2) of
this section, the court shall impose upon the offender a mandatory
fine in accordance with division (B)(3) of section 2929.18 of the
Revised Code and may impose whichever of the following is
applicable:
(1) For a fourth degree felony OVI offense for which sentence
is imposed under division (G)(1) of this section, an additional
community control sanction or combination of community control
sanctions under section 2929.16 or 2929.17 of the Revised Code. If
the court imposes upon the offender a community control sanction
and the offender violates any condition of the community control
sanction, the court may take any action prescribed in division (B)
of section 2929.15 of the Revised Code relative to the offender,
including imposing a prison term on the offender pursuant to that
division.
(2) For a third or fourth degree felony OVI offense for which
sentence is imposed under division (G)(2) of this section, an
additional prison term as described in division (D)(4) of section
2929.14 of the Revised Code or a community control sanction as
described in division (G)(2) of this section.
(B)(1) Except as provided in division (B)(2), (E), (F), or
(G) of this section, in sentencing an offender for a felony of the
fourth or fifth degree, the sentencing court shall determine
whether any of the following apply:
(a) In committing the offense, the offender caused physical
harm to a person.
(b) In committing the offense, the offender attempted to
cause or made an actual threat of physical harm to a person with a
deadly weapon.
(c) In committing the offense, the offender attempted to
cause or made an actual threat of physical harm to a person, and
the offender previously was convicted of an offense that caused
physical harm to a person.
(d) The offender held a public office or position of trust
and the offense related to that office or position; the offender's
position obliged the offender to prevent the offense or to bring
those committing it to justice; or the offender's professional
reputation or position facilitated the offense or was likely to
influence the future conduct of others.
(e) The offender committed the offense for hire or as part of
an organized criminal activity.
(f) The offense is a sex offense that is a fourth or fifth
degree felony violation of section 2907.03, 2907.04, 2907.05,
2907.22, 2907.31, 2907.321, 2907.322, 2907.323, or 2907.34 of the
Revised Code.
(g) The offender at the time of the offense was serving, or
the offender previously had served, a prison term.
(h) The offender committed the offense while under a
community control sanction, while on probation, or while released
from custody on a bond or personal recognizance.
(i) The offender committed the offense while in possession of
a firearm.
(2)(a) If the court makes a finding described in division
(B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this
section and if the court, after considering the factors set forth
in section 2929.12 of the Revised Code, finds that a prison term
is consistent with the purposes and principles of sentencing set
forth in section 2929.11 of the Revised Code and finds that the
offender is not amenable to an available community control
sanction, the court shall impose a prison term upon the offender.
(b) Except as provided in division (E), (F), or (G) of this
section, if the court does not make a finding described in
division (B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of
this section and if the court, after considering the factors set
forth in section 2929.12 of the Revised Code, finds that a
community control sanction or combination of community control
sanctions is consistent with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised Code, the
court shall impose a community control sanction or combination of
community control sanctions upon the offender.
(C) Except as provided in division (D), (E), (F), or (G) of
this section, in determining whether to impose a prison term as a
sanction for a felony of the third degree or a felony drug offense
that is a violation of a provision of Chapter 2925. of the Revised
Code and that is specified as being subject to this division for
purposes of sentencing, the sentencing court shall comply with the
purposes and principles of sentencing under section 2929.11 of the
Revised Code and with section 2929.12 of the Revised Code.
(D)(1) Except as provided in division (E) or (F) of this
section, for a felony of the first or second degree, for a felony
drug offense that is a violation of any provision of Chapter
2925., 3719., or 4729. of the Revised Code for which a presumption
in favor of a prison term is specified as being applicable, and
for a violation of division (A)(4) or (B) of section 2907.05 of
the Revised Code for which a presumption in favor of a prison term
is specified as being applicable, it is presumed that a prison
term is necessary in order to comply with the purposes and
principles of sentencing under section 2929.11 of the Revised
Code. Division (D)(2) of this section does not apply to a
presumption established under this division for a violation of
division (A)(4) of section 2907.05 of the Revised Code.
(2) Notwithstanding the presumption established under
division (D)(1) of this section for the offenses listed in that
division other than a violation of division (A)(4) or (B) of
section 2907.05 of the Revised Code, the sentencing court may
impose a community control sanction or a combination of community
control sanctions instead of a prison term on an offender for a
felony of the first or second degree or for a felony drug offense
that is a violation of any provision of Chapter 2925., 3719., or
4729. of the Revised Code for which a presumption in favor of a
prison term is specified as being applicable if it makes both of
the following findings:
(a) A community control sanction or a combination of
community control sanctions would adequately punish the offender
and protect the public from future crime, because the applicable
factors under section 2929.12 of the Revised Code indicating a
lesser likelihood of recidivism outweigh the applicable factors
under that section indicating a greater likelihood of recidivism.
(b) A community control sanction or a combination of
community control sanctions would not demean the seriousness of
the offense, because one or more factors under section 2929.12 of
the Revised Code that indicate that the offender's conduct was
less serious than conduct normally constituting the offense are
applicable, and they outweigh the applicable factors under that
section that indicate that the offender's conduct was more serious
than conduct normally constituting the offense.
(E)(1) Except as provided in division (F) of this section,
for any drug offense that is a violation of any provision of
Chapter 2925. of the Revised Code and that is a felony of the
third, fourth, or fifth degree, the applicability of a presumption
under division (D) of this section in favor of a prison term or of
division (B) or (C) of this section in determining whether to
impose a prison term for the offense shall be determined as
specified in section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06,
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, or 2925.37 of the
Revised Code, whichever is applicable regarding the violation.
(2) If an offender who was convicted of or pleaded guilty to
a felony violates the conditions of a community control sanction
imposed for the offense solely by reason of producing positive
results on a drug test, the court, as punishment for the violation
of the sanction, shall not order that the offender be imprisoned
unless the court determines on the record either of the following:
(a) The offender had been ordered as a sanction for the
felony to participate in a drug treatment program, in a drug
education program, or in narcotics anonymous or a similar program,
and the offender continued to use illegal drugs after a reasonable
period of participation in the program.
(b) The imprisonment of the offender for the violation is
consistent with the purposes and principles of sentencing set
forth in section 2929.11 of the Revised Code.
(3) A court that sentences an offender for a drug abuse
offense that is a felony of the third, fourth, or fifth degree may
require that the offender be assessed by a properly credentialed
professional within a specified period of time. The court shall
require the professional to file a written assessment of the
offender with the court. If the offender is eligible for a
community control sanction and after considering the written
assessment, the court may impose a community control sanction that
includes treatment and recovery support services authorized by
section 3793.02 of the Revised Code. If the court imposes
treatment and recovery support services as a community control
sanction, the court shall direct the level and type of treatment
and recovery support services after considering the assessment and
recommendation of treatment and recovery support services
providers.
(F) Notwithstanding divisions (A) to (E) of this section, the
court shall impose a prison term or terms under sections 2929.02
to 2929.06, section 2929.14, section 2929.142, or section 2971.03
of the Revised Code and except as specifically provided in section
2929.20 or 2967.191 of the Revised Code or when parole is
authorized for the offense under section 2967.13 of the Revised
Code shall not reduce the term or terms pursuant to section
2929.20, section 2967.193, or any other provision of Chapter 2967.
or Chapter 5120. of the Revised Code for any of the following
offenses:
(1) Aggravated murder when death is not imposed or murder;
(2) Any rape, regardless of whether force was involved and
regardless of the age of the victim, or an attempt to commit rape
if, had the offender completed the rape that was attempted, the
offender would have been guilty of a violation of division
(A)(1)(b) of section 2907.02 of the Revised Code and would be
sentenced under section 2971.03 of the Revised Code;
(3) Gross sexual imposition or sexual battery, if the victim
is less than thirteen years of age and if any of the following
applies:
(a) Regarding gross sexual imposition, the offender
previously was convicted of or pleaded guilty to rape, the former
offense of felonious sexual penetration, gross sexual imposition,
or sexual battery, and the victim of the previous offense was
less than thirteen years of age;
(b) Regarding gross sexual imposition, the offense was
committed on or after August 3, 2006, and evidence other than the
testimony of the victim was admitted in the case corroborating the
violation.
(c) Regarding sexual battery, either of the following
applies:
(i) The offense was committed prior to August 3, 2006, the
offender previously was convicted of or pleaded guilty to rape,
the former offense of felonious sexual penetration, or sexual
battery, and the victim of the previous offense was less than
thirteen years of age.
(ii) The offense was committed on or after August 3, 2006.
(4) A felony violation of section 2903.04, 2903.06, 2903.08,
2903.11, 2903.12, 2903.13, or 2907.07 of the Revised Code if the
section requires the imposition of a prison term;
(5) A first, second, or third degree felony drug offense for
which section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06,
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, 2925.37, 3719.99, or
4729.99 of the Revised Code, whichever is applicable regarding the
violation, requires the imposition of a mandatory prison term;
(6) Any offense that is a first or second degree felony and
that is not set forth in division (F)(1), (2), (3), or (4) of this
section, if the offender previously was convicted of or pleaded
guilty to aggravated murder, murder, any first or second degree
felony, or an offense under an existing or former law of this
state, another state, or the United States that is or was
substantially equivalent to one of those offenses;
(7) Any offense that is a third degree felony and either is a
violation of section 2903.04 of the Revised Code or an attempt to
commit a felony of the second degree that is an offense of
violence and involved an attempt to cause serious physical harm to
a person or that resulted in serious physical harm to a person if
the offender previously was convicted of or pleaded guilty to any
of the following offenses:
(a) Aggravated murder, murder, involuntary manslaughter,
rape, felonious sexual penetration as it existed under section
2907.12 of the Revised Code prior to September 3, 1996, a felony
of the first or second degree that resulted in the death of a
person or in physical harm to a person, or complicity in or an
attempt to commit any of those offenses;
(b) An offense under an existing or former law of this state,
another state, or the United States that is or was substantially
equivalent to an offense listed in division (F)(7)(a) of this
section that resulted in the death of a person or in physical harm
to a person.
(8) Any offense, other than a violation of section 2923.12 of
the Revised Code, that is a felony, if the offender had a firearm
on or about the offender's person or under the offender's control
while committing the felony, with respect to a portion of the
sentence imposed pursuant to division (D)(1)(a) of section 2929.14
of the Revised Code for having the firearm;
(9) Any offense of violence that is a felony, if the offender
wore or carried body armor while committing the felony offense of
violence, with respect to the portion of the sentence imposed
pursuant to division (D)(1)(d) of section 2929.14 of the Revised
Code for wearing or carrying the body armor;
(10) Corrupt activity in violation of section 2923.32 of the
Revised Code when the most serious offense in the pattern of
corrupt activity that is the basis of the offense is a felony of
the first degree;
(11) Any violent sex offense or designated homicide, assault,
or kidnapping offense if, in relation to that offense, the
offender is adjudicated a sexually violent predator;
(12) A violation of division (A)(1) or (2) of section 2921.36
of the Revised Code, or a violation of division (C) of that
section involving an item listed in division (A)(1) or (2) of that
section, if the offender is an officer or employee of the
department of rehabilitation and correction;
(13) A violation of division (A)(1) or (2) of section 2903.06
of the Revised Code if the victim of the offense is a peace
officer, as defined in section 2935.01 of the Revised Code, or an
investigator of the bureau of criminal identification and
investigation, as defined in section 2903.11 of the Revised Code,
with respect to the portion of the sentence imposed pursuant to
division (D)(5) of section 2929.14 of the Revised Code;
(14) A violation of division (A)(1) or (2) of section 2903.06
of the Revised Code if the offender has been convicted of or
pleaded guilty to three or more violations of division (A) or (B)
of section 4511.19 of the Revised Code or an equivalent offense,
as defined in section 2941.1415 of the Revised Code, or three or
more violations of any combination of those divisions and
offenses, with respect to the portion of the sentence imposed
pursuant to division (D)(6) of section 2929.14 of the Revised
Code;
(15) Kidnapping, in the circumstances specified in section
2971.03 of the Revised Code and when no other provision of
division (F) of this section applies;
(16) Kidnapping, abduction, compelling prostitution,
promoting prostitution, engaging in a pattern of corrupt activity,
illegal use of a minor in a nudity-oriented material or
performance in violation of division (A)(1) or (2) of section
2907.323 of the Revised Code, or endangering children in violation
of division (B)(1), (2), (3), (4), or (5) of section 2919.22 of
the Revised Code, if the offender is convicted of or pleads guilty
to a specification as described in section 2941.1422 of the
Revised Code that was included in the indictment, count in the
indictment, or information charging the offense;
(17) A felony violation of division (A) or (B) of section
2919.25 of the Revised Code if division (D)(3), (4), or (5) of
that section, and division (A)(D)(6) of that section, require the
imposition of a prison term;
(18) A felony violation of section 2903.11, 2903.12, or
2903.13 of the Revised Code, if the victim of the offense was a
woman that the offender knew was pregnant at the time of the
violation, with respect to a portion of the sentence imposed
pursuant to division (D)(8) of section 2929.14 of the Revised
Code.
(G) Notwithstanding divisions (A) to (E) of this section, if
an offender is being sentenced for a fourth degree felony OVI
offense or for a third degree felony OVI offense, the court shall
impose upon the offender a mandatory term of local incarceration
or a mandatory prison term in accordance with the following:
(1) If the offender is being sentenced for a fourth degree
felony OVI offense and if the offender has not been convicted of
and has not pleaded guilty to a specification of the type
described in section 2941.1413 of the Revised Code, the court may
impose upon the offender a mandatory term of local incarceration
of sixty days or one hundred twenty days as specified in division
(G)(1)(d) of section 4511.19 of the Revised Code. The court shall
not reduce the term pursuant to section 2929.20, 2967.193, or any
other provision of the Revised Code. The court that imposes a
mandatory term of local incarceration under this division shall
specify whether the term is to be served in a jail, a
community-based correctional facility, a halfway house, or an
alternative residential facility, and the offender shall serve the
term in the type of facility specified by the court. A mandatory
term of local incarceration imposed under division (G)(1) of this
section is not subject to any other Revised Code provision that
pertains to a prison term except as provided in division (A)(1) of
this section.
(2) If the offender is being sentenced for a third degree
felony OVI offense, or if the offender is being sentenced for a
fourth degree felony OVI offense and the court does not impose a
mandatory term of local incarceration under division (G)(1) of
this section, the court shall impose upon the offender a mandatory
prison term of one, two, three, four, or five years if the
offender also is convicted of or also pleads guilty to a
specification of the type described in section 2941.1413 of the
Revised Code or shall impose upon the offender a mandatory prison
term of sixty days or one hundred twenty days as specified in
division (G)(1)(d) or (e) of section 4511.19 of the Revised Code
if the offender has not been convicted of and has not pleaded
guilty to a specification of that type. The court shall not reduce
the term pursuant to section 2929.20, 2967.193, or any other
provision of the Revised Code. The offender shall serve the one-,
two-, three-, four-, or five-year mandatory prison term
consecutively to and prior to the prison term imposed for the
underlying offense and consecutively to any other mandatory prison
term imposed in relation to the offense. In no case shall an
offender who once has been sentenced to a mandatory term of local
incarceration pursuant to division (G)(1) of this section for a
fourth degree felony OVI offense be sentenced to another mandatory
term of local incarceration under that division for any violation
of division (A) of section 4511.19 of the Revised Code. In
addition to the mandatory prison term described in division (G)(2)
of this section, the court may sentence the offender to a
community control sanction under section 2929.16 or 2929.17 of the
Revised Code, but the offender shall serve the prison term prior
to serving the community control sanction. The department of
rehabilitation and correction may place an offender sentenced to a
mandatory prison term under this division in an intensive program
prison established pursuant to section 5120.033 of the Revised
Code if the department gave the sentencing judge prior notice of
its intent to place the offender in an intensive program prison
established under that section and if the judge did not notify the
department that the judge disapproved the placement. Upon the
establishment of the initial intensive program prison pursuant to
section 5120.033 of the Revised Code that is privately operated
and managed by a contractor pursuant to a contract entered into
under section 9.06 of the Revised Code, both of the following
apply:
(a) The department of rehabilitation and correction shall
make a reasonable effort to ensure that a sufficient number of
offenders sentenced to a mandatory prison term under this division
are placed in the privately operated and managed prison so that
the privately operated and managed prison has full occupancy.
(b) Unless the privately operated and managed prison has full
occupancy, the department of rehabilitation and correction shall
not place any offender sentenced to a mandatory prison term under
this division in any intensive program prison established pursuant
to section 5120.033 of the Revised Code other than the privately
operated and managed prison.
(H) If an offender is being sentenced for a sexually oriented
offense or child-victim oriented offense that is a felony
committed on or after January 1, 1997, the judge shall require the
offender to submit to a DNA specimen collection procedure pursuant
to section 2901.07 of the Revised Code.
(I) If an offender is being sentenced for a sexually oriented
offense or a child-victim oriented offense committed on or after
January 1, 1997, the judge shall include in the sentence a summary
of the offender's duties imposed under sections 2950.04, 2950.041,
2950.05, and 2950.06 of the Revised Code and the duration of the
duties. The judge shall inform the offender, at the time of
sentencing, of those duties and of their duration. If required
under division (A)(2) of section 2950.03 of the Revised Code, the
judge shall perform the duties specified in that section, or, if
required under division (A)(6) of section 2950.03 of the Revised
Code, the judge shall perform the duties specified in that
division.
(J)(1) Except as provided in division (J)(2) of this section,
when considering sentencing factors under this section in relation
to an offender who is convicted of or pleads guilty to an attempt
to commit an offense in violation of section 2923.02 of the
Revised Code, the sentencing court shall consider the factors
applicable to the felony category of the violation of section
2923.02 of the Revised Code instead of the factors applicable to
the felony category of the offense attempted.
(2) When considering sentencing factors under this section in
relation to an offender who is convicted of or pleads guilty to an
attempt to commit a drug abuse offense for which the penalty is
determined by the amount or number of unit doses of the controlled
substance involved in the drug abuse offense, the sentencing court
shall consider the factors applicable to the felony category that
the drug abuse offense attempted would be if that drug abuse
offense had been committed and had involved an amount or number of
unit doses of the controlled substance that is within the next
lower range of controlled substance amounts than was involved in
the attempt.
(K) As used in this section, "drug abuse offense" has the
same meaning as in section 2925.01 of the Revised Code.
(L) At the time of sentencing an offender for any sexually
oriented offense, if the offender is a tier III sex
offender/child-victim offender relative to that offense and the
offender does not serve a prison term or jail term, the court may
require that the offender be monitored by means of a global
positioning device. If the court requires such monitoring, the
cost of monitoring shall be borne by the offender. If the offender
is indigent, the cost of compliance shall be paid by the crime
victims reparations fund.
Sec. 2933.82. (A) As used in this section:
(1)(a) "Biological evidence" means any of the following:
(i) The contents of a sexual assault examination kit;
(ii) Any item that contains blood, semen, hair, saliva, skin
tissue, fingernail scrapings, bone, bodily fluids, or any other
identifiable biological material that was collected as part of a
criminal investigation or delinquent child investigation and that
reasonably may be used to incriminate or exculpate any person for
an offense or delinquent act.
(b) The definition of "biological evidence" set forth in
division (A)(1)(a) of this section applies whether the material in
question is cataloged separately, such as on a slide or swab or in
a test tube, or is present on other evidence, including, but not
limited to, clothing, ligatures, bedding or other household
material, drinking cups or containers, or cigarettes.
(2) "Biological material" has the same meaning as in section
2953.71 of the Revised Code.
(3) "DNA" has the same meaning as in section 109.573 of the
Revised Code.
(4) "Profile" means a unique identifier of an individual,
derived from DNA.
(5) "Prosecutor" has the same meaning as in section 2935.01
of the Revised Code.
(6) "Governmental evidence-retention entity" means all of the
following:
(a) Any law enforcement agency, prosecutor's office, court,
public hospital, crime laboratory, or other governmental or public
entity or individual within this state that is charged with the
collection, storage, or retrieval of biological evidence;
(b) Any official or employee of any entity or individual
described in division (A)(6)(a) of this section.
(B)(1) Each governmental evidence-retention entity that
secures any biological evidence in relation to an investigation or
prosecution of a criminal offense or delinquent act that is a
violation of section 2903.01, 2903.02, or 2903.03, a violation of
section 2903.04 or 2903.06 that is a felony of the first or second
degree, a violation of section 2907.02 or 2907.03 or division
(A)(4) or (B) of section 2907.05 of the Revised Code, or an
attempt to commit a violation of section 2907.02 of the Revised
Code shall secure the biological evidence for whichever of the
following periods of time is applicable:
(a) For a violation of section 2903.01 or 2903.02 of the
Revised Code, for the period of time that the offense or act
remains unsolved;
(b) For a violation of section 2903.03, a violation of
section 2903.04 or 2903.06 that is a felony of the first or second
degree, a violation of section 2907.02 or 2907.03 or of division
(A)(4) or (B) of section 2907.05 of the Revised Code, or an
attempt to commit a violation of section 2907.02 of the Revised
Code, for a period of thirty years if the offense or act remains
unsolved;
(c) If any person is convicted of or pleads guilty to the
offense, or is adjudicated a delinquent child for committing the
delinquent act, for the earlier of the following: (i) the
expiration of the latest of the following periods of time that
apply to the person: the period of time that the person is
incarcerated, is in a department of youth services institution or
other juvenile facility, is under a community control sanction for
that offense, is under any order of disposition for that act, is
on probation or parole for that offense, is under judicial release
or supervised release for that act, is under post-release control
for that offense, is involved in civil litigation in connection
with that offense or act, or is subject to registration and other
duties imposed for that offense or act under sections 2950.04,
2950.041, 2950.05, and 2950.06 of the Revised Code or (ii) thirty
years. If after the period of thirty years the person remains
incarcerated, then the governmental evidence-retention entity
shall secure the biological evidence until the person is released
from incarceration or dies.
(2) This section applies to evidence likely to contain
biological material that was in the possession of any governmental
evidence-retention entity during the investigation and prosecution
of a criminal case or delinquent child case involving a violation
of section 2903.01, 2903.02, or 2903.03, a violation of section
2903.04 or 2903.06 that is a felony of the first or second degree,
a violation of section 2907.02 or 2907.03 or of division (A)(4) or
(B) of section 2907.05 of the Revised Code, or an attempt to
commit a violation of section 2907.02 of the Revised Code.
(3) A governmental evidence-retention entity that possesses
biological evidence shall retain the biological evidence in the
amount and manner sufficient to develop a DNA profile from the
biological material contained in or included on the evidence.
(4) Upon written request by the defendant in a criminal case
or the alleged delinquent child in a delinquent child case
involving a violation of section 2903.01, 2903.02, or 2903.03, a
violation of section 2903.04 or 2903.06 that is a felony of the
first or second degree, a violation of section 2907.02 or 2907.03
or of division (A)(4) or (B) of section 2907.05 of the Revised
Code, or an attempt to commit a violation of section 2907.02 of
the Revised Code, a governmental evidence-retention entity that
possesses biological evidence shall prepare an inventory of the
biological evidence that has been preserved in connection with the
defendant's criminal case or the alleged delinquent child's
delinquent child case.
(5) Except as otherwise provided in division (B)(7) of this
section, a governmental evidence-retention entity that possesses
biological evidence that includes biological material may destroy
the evidence before the expiration of the applicable period of
time specified in division (B)(1) of this section if all of the
following apply:
(a) No other provision of federal or state law requires the
state to preserve the evidence.
(b) The governmental evidence-retention entity, by certified
mail, return receipt requested, provides notice of intent to
destroy the evidence to all of the following:
(i) All persons who remain in custody, incarcerated, in a
department of youth services institution or other juvenile
facility, under a community control sanction, under any order of
disposition, on probation or parole, under judicial release or
supervised release, under post-release control, involved in civil
litigation, or subject to registration and other duties imposed
for that offense or act under sections 2950.04, 2950.041, 2950.05,
and 2950.06 of the Revised Code as a result of a criminal
conviction, delinquency adjudication, or commitment related to the
evidence in question;
(ii) The attorney of record for each person who is in custody
in any circumstance described in division (B)(5)(b)(i) of this
section if the attorney of record can be located;
(iii) The state public defender;
(iv) The office of the prosecutor of record in the case that
resulted in the custody of the person in custody in any
circumstance described in division (B)(5)(b)(i) of this section;
(v) The attorney general.
(c) No person who is notified under division (B)(5)(b) of
this section does either of the following within one year after
the date on which the person receives the notice:
(i) Files a motion for testing of evidence under sections
2953.71 to 2953.81 or section 2953.82 of the Revised Code;
(ii) Submits a written request for retention of evidence to
the governmental evidence-retention entity that provided notice of
its intent to destroy evidence under division (B)(5)(b) of this
section.
(6) Except as otherwise provided in division (B)(7) of this
section, if, after providing notice under division (B)(5)(b) of
this section of its intent to destroy evidence, a governmental
evidence-retention entity receives a written request for retention
of the evidence from any person to whom the notice is provided,
the governmental evidence-retention entity shall retain the
evidence while the person referred to in division (B)(5)(b)(i) of
this section remains in custody, incarcerated, in a department of
youth services institution or other juvenile facility, under a
community control sanction, under any order of disposition, on
probation or parole, under judicial release or supervised release,
under post-release control, involved in civil litigation, or
subject to registration and other duties imposed for that offense
or act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of
the Revised Code as a result of a criminal conviction, delinquency
adjudication, or commitment related to the evidence in question.
(7) A governmental evidence-retention entity that possesses
biological evidence that includes biological material may destroy
the evidence five years after a person pleads guilty or no contest
to a violation of section 2903.01, 2903.02, or 2903.03, a
violation of 2903.04 or 2903.06 that is a felony of the first or
second degree, a violation of section 2907.02, 2907.03, division
(A)(4) or (B) of section 2907.05, or an attempt to commit a
violation of section 2907.02 of the Revised Code and all appeals
have been exhausted unless, upon a motion to the court by the
person who pleaded guilty or no contest or the person's attorney
and notice to those persons described in division (B)(5)(b) of
this section requesting that the evidence not be destroyed, the
court finds good cause as to why that evidence must be retained.
(8) A governmental evidence-retention entity shall not be
required to preserve physical evidence pursuant to this section
that is of such a size, bulk, or physical character as to render
retention impracticable. When retention of physical evidence that
otherwise would be required to be retained pursuant to this
section is impracticable as described in this division, the
governmental evidence-retention entity that otherwise would be
required to retain the physical evidence shall remove and preserve
portions of the material evidence likely to contain biological
evidence related to the offense, in a quantity sufficient to
permit future DNA testing before returning or disposing of that
physical evidence.
(C)(1) The preservation of biological evidence task force
established within the bureau of criminal identification and
investigation under section 109.561 of the Revised Code shall
establish a system regarding the proper preservation of biological
evidence in this state. In establishing the system, the task force
shall do all of the following:
(a) Devise standards regarding the proper collection,
retention, and cataloguing of biological evidence for ongoing
investigations and prosecutions;
(b) Recommend practices, protocols, models, and resources for
the cataloging and accessibility of preserved biological evidence
already in the possession of governmental evidence-retention
entities.
(2) In consultation with the preservation of biological
evidence task force described in division (C)(1) of this section,
the division of criminal justice services of the department of
public safety office of the attorney general shall administer and
conduct training programs for law enforcement officers and other
relevant employees who are charged with preserving and cataloging
biological evidence regarding the methods and procedures
referenced in this section.
Sec. 4506.17. (A) Any person who holds a commercial driver's
license or operates a commercial motor vehicle requiring a
commercial driver's license within this state shall be deemed to
have given consent to a test or tests of the person's whole blood,
blood serum or plasma, breath, or urine for the purpose of
determining the person's alcohol concentration or the presence of
any controlled substance or a metabolite of a controlled
substance.
(B) A test or tests as provided in division (A) of this
section may be administered at the direction of a peace officer
having reasonable ground to stop or detain the person and, after
investigating the circumstances surrounding the operation of the
commercial motor vehicle, also having reasonable ground to believe
the person was driving the commercial vehicle while having a
measurable or detectable amount of alcohol or of a controlled
substance or a metabolite of a controlled substance in the
person's whole blood, blood serum or plasma, breath, or urine. Any
such test shall be given within two hours of the time of the
alleged violation.
(C) A person requested to submit to a test under division (A)
of this section shall be advised by the peace officer requesting
the test that a refusal to submit to the test will result in the
person immediately being placed out-of-service for a period of
twenty-four hours and being disqualified from operating a
commercial motor vehicle for a period of not less than one year,
and that the person is required to surrender the person's
commercial driver's license to the peace officer.
(D) If a person refuses to submit to a test after being
warned as provided in division (C) of this section or submits to a
test that discloses the presence of a controlled substance or a
metabolite of a controlled substance, an alcohol concentration of
four-hundredths of one per cent or more by whole blood or breath,
an alcohol concentration of forty-eight-thousandths of one per
cent or more by blood serum or blood plasma, or an alcohol
concentration of fifty-six-thousandths of one per cent or more by
urine, the person immediately shall surrender the person's
commercial driver's license to the peace officer. The peace
officer shall forward the license, together with a sworn report,
to the registrar of motor vehicles certifying that the test was
requested pursuant to division (A) of this section and that the
person either refused to submit to testing or submitted to a test
that disclosed the presence of a controlled substance or a
metabolite of a controlled substance or a prohibited alcohol
concentration. The form and contents of the report required by
this section shall be established by the registrar by rule, but
shall contain the advice to be read to the driver and a statement
to be signed by the driver acknowledging that the driver has been
read the advice and that the form was shown to the driver.
(E) Upon receipt of a sworn report from a peace officer as
provided in division (D) of this section, the registrar shall
disqualify the person named in the report from driving a
commercial motor vehicle for the period described below:
(1) Upon a first incident, one year;
(2) Upon an incident of refusal or of a prohibited
concentration of alcohol, a controlled substance, or a metabolite
of a controlled substance after one or more previous incidents of
either refusal or of a prohibited concentration of alcohol, a
controlled substance, or a metabolite of a controlled substance,
the person shall be disqualified for life or such lesser period as
prescribed by rule by the registrar.
(F) A test of a person's whole blood or a person's blood
serum or plasma given under this section shall comply with the
applicable provisions of division (D) of section 4511.19 of the
Revised Code and any physician, registered nurse, emergency
medical technician-intermediate, emergency medical
technician-paramedic, or qualified technician, chemist, or
phlebotomist who withdraws whole blood or blood serum or plasma
from a person under this section, and any hospital, first-aid
station, clinic, or other facility at which whole blood or blood
serum or plasma 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 of malpractice, for any act performed
in withdrawing whole blood or blood serum or plasma from the
person. The immunity provided in this division also extends to an
emergency medical service organization that employs an emergency
medical technician-intermediate or emergency medical
technician-paramedic who withdraws blood under this section.
(G) When a person submits to a test under this section, the
results of the test, at the person's request, shall be made
available to the person, the person's attorney, or the person's
agent, immediately upon completion of the chemical test analysis.
The person also may have an additional test administered by a
physician, a registered nurse, or a qualified technician, chemist,
or phlebotomist of the person's own choosing as provided in
division (D) of section 4511.19 of the Revised Code for tests
administered under that section, and the failure to obtain such a
test has the same effect as in that division.
(H) No person shall refuse to immediately surrender the
person's commercial driver's license to a peace officer when
required to do so by this section.
(I) A peace officer issuing an out-of-service order or
receiving a commercial driver's license surrendered under this
section may remove or arrange for the removal of any commercial
motor vehicle affected by the issuance of that order or the
surrender of that license.
(J)(1) Except for civil actions arising out of the operation
of a motor vehicle and civil actions in which the state is a
plaintiff, no peace officer of any law enforcement agency within
this state is liable in compensatory damages in any civil action
that arises under the Revised Code or common law of this state for
an injury, death, or loss to person or property caused in the
performance of official duties under this section and rules
adopted under this section, unless the officer's actions were
manifestly outside the scope of the officer's employment or
official responsibilities, or unless the officer acted with
malicious purpose, in bad faith, or in a wanton or reckless
manner.
(2) Except for civil actions that arise out of the operation
of a motor vehicle and civil actions in which the state is a
plaintiff, no peace officer of any law enforcement agency within
this state is liable in punitive or exemplary damages in any civil
action that arises under the Revised Code or common law of this
state for any injury, death, or loss to person or property caused
in the performance of official duties under this section of the
Revised Code and rules adopted under this section, unless the
officer's actions were manifestly outside the scope of the
officer's employment or official responsibilities, or unless the
officer acted with malicious purpose, in bad faith, or in a wanton
or reckless manner.
(K) When disqualifying a driver, the registrar shall cause
the records of the bureau of motor vehicles to be updated to
reflect the disqualification within ten days after it occurs.
(L) The registrar immediately shall notify a driver who is
subject to disqualification of the disqualification, of the length
of the disqualification, and that the driver may request a hearing
within thirty days of the mailing of the notice to show cause why
the driver should not be disqualified from operating a commercial
motor vehicle. If a request for such a hearing is not made within
thirty days of the mailing of the notice, the order of
disqualification is final. The registrar may designate hearing
examiners who, after affording all parties reasonable notice,
shall conduct a hearing to determine whether the disqualification
order is supported by reliable evidence. The registrar shall adopt
rules to implement this division.
(M) Any person who is disqualified from operating a
commercial motor vehicle under this section may apply to the
registrar for a driver's license to operate a motor vehicle other
than a commercial motor vehicle, provided the person's commercial
driver's license is not otherwise suspended. A person whose
commercial driver's license is suspended shall not apply to the
registrar for or receive a driver's license under Chapter 4507. of
the Revised Code during the period of suspension.
(N) Whoever violates division (H) of this section is guilty
of a misdemeanor of the first degree.
(O) As used in this section, "emergency medical
technician-intermediate" and "emergency medical
technician-paramedic" have the same meanings as in section 4765.01
of the Revised Code.
Sec. 4511.19. (A)(1) 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:
(a) The person is under the influence of alcohol, a drug of
abuse, or a combination of them.
(b) The person has a concentration of eight-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.
(c) The person has a concentration of ninety-six-thousandths
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.
(d) The person has a concentration of eight-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.
(e) The person has a concentration of eleven-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.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) Except as provided in division (K) of this section, the
person has a concentration of any of the following controlled
substances or metabolites of a controlled substance in the
person's whole blood, blood serum or plasma, or urine that equals
or exceeds any of the following:
(i) The person has a concentration of amphetamine in the
person's urine of at least five hundred nanograms of amphetamine
per milliliter of the person's urine or has a concentration of
amphetamine in the person's whole blood or blood serum or plasma
of at least one hundred nanograms of amphetamine per milliliter of
the person's whole blood or blood serum or plasma.
(ii) The person has a concentration of cocaine in the
person's urine of at least one hundred fifty nanograms of cocaine
per milliliter of the person's urine or has a concentration of
cocaine in the person's whole blood or blood serum or plasma of at
least fifty nanograms of cocaine per milliliter of the person's
whole blood or blood serum or plasma.
(iii) The person has a concentration of cocaine metabolite in
the person's urine of at least one hundred fifty nanograms of
cocaine metabolite per milliliter of the person's urine or has a
concentration of cocaine metabolite in the person's whole blood or
blood serum or plasma of at least fifty nanograms of cocaine
metabolite per milliliter of the person's whole blood or blood
serum or plasma.
(iv) The person has a concentration of heroin in the person's
urine of at least two thousand nanograms of heroin per milliliter
of the person's urine or has a concentration of heroin in the
person's whole blood or blood serum or plasma of at least fifty
nanograms of heroin per milliliter of the person's whole blood or
blood serum or plasma.
(v) The person has a concentration of heroin metabolite
(6-monoacetyl morphine) in the person's urine of at least ten
nanograms of heroin metabolite (6-monoacetyl morphine) per
milliliter of the person's urine or has a concentration of heroin
metabolite (6-monoacetyl morphine) in the person's whole blood or
blood serum or plasma of at least ten nanograms of heroin
metabolite (6-monoacetyl morphine) per milliliter of the person's
whole blood or blood serum or plasma.
(vi) The person has a concentration of L.S.D. in the person's
urine of at least twenty-five nanograms of L.S.D. per milliliter
of the person's urine or a concentration of L.S.D. in the person's
whole blood or blood serum or plasma of at least ten nanograms of
L.S.D. per milliliter of the person's whole blood or blood serum
or plasma.
(vii) The person has a concentration of marihuana in the
person's urine of at least ten nanograms of marihuana per
milliliter of the person's urine or has a concentration of
marihuana in the person's whole blood or blood serum or plasma of
at least two nanograms of marihuana per milliliter of the person's
whole blood or blood serum or plasma.
(viii) Either of the following applies:
(I) The person is under the influence of alcohol, a drug of
abuse, or a combination of them, and, as measured by gas
chromatography mass spectrometry, the person has a concentration
of marihuana metabolite in the person's urine of at least fifteen
nanograms of marihuana metabolite per milliliter of the person's
urine or has a concentration of marihuana metabolite in the
person's whole blood or blood serum or plasma of at least five
nanograms of marihuana metabolite per milliliter of the person's
whole blood or blood serum or plasma.
(II) As measured by gas chromatography mass spectrometry, the
person has a concentration of marihuana metabolite in the person's
urine of at least thirty-five nanograms of marihuana metabolite
per milliliter of the person's urine or has a concentration of
marihuana metabolite in the person's whole blood or blood serum or
plasma of at least fifty nanograms of marihuana metabolite per
milliliter of the person's whole blood or blood serum or plasma.
(ix) The person has a concentration of methamphetamine in the
person's urine of at least five hundred nanograms of
methamphetamine per milliliter of the person's urine or has a
concentration of methamphetamine in the person's whole blood or
blood serum or plasma of at least one hundred nanograms of
methamphetamine per milliliter of the person's whole blood or
blood serum or plasma.
(x) The person has a concentration of phencyclidine in the
person's urine of at least twenty-five nanograms of phencyclidine
per milliliter of the person's urine or has a concentration of
phencyclidine in the person's whole blood or blood serum or plasma
of at least ten nanograms of phencyclidine per milliliter of the
person's whole blood or blood serum or plasma.
(xi) The state board of pharmacy has adopted a rule pursuant
to section 4729.041 of the Revised Code that specifies the amount
of salvia divinorum and the amount of salvinorin A that constitute
concentrations of salvia divinorum and salvinorin A in a person's
urine, in a person's whole blood, or in a person's blood serum or
plasma at or above which the person is impaired for purposes of
operating any vehicle, streetcar, or trackless trolley within this
state, the rule is in effect, and the person has a concentration
of salvia divinorum or salvinorin A of at least that amount so
specified by rule in the person's urine, in the person's whole
blood, or in the person's blood serum or plasma.
(2) No person who, within twenty years of the conduct
described in division (A)(2)(a) of this section, previously has
been convicted of or pleaded guilty to a violation of this
division, a violation of division (A)(1) or (B) of this section,
or any other equivalent offense shall do both of the following:
(a) Operate any vehicle, streetcar, or trackless trolley
within this state while under the influence of alcohol, a drug of
abuse, or a combination of them;
(b) Subsequent to being arrested for operating the vehicle,
streetcar, or trackless trolley as described in division (A)(2)(a)
of this section, being asked by a law enforcement officer to
submit to a chemical test or tests under section 4511.191 of the
Revised Code, and being advised by the officer in accordance with
section 4511.192 of the Revised Code of the consequences of the
person's refusal or submission to the test or tests, refuse to
submit to the test or tests.
(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 eight-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
ninety-six-thousandths 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 eight-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 eleven-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)(a) or (A)(2)
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)(a) In any criminal prosecution or juvenile court
proceeding for a violation of division (A)(1)(a) of this section
or for an equivalent offense that is vehicle-related, the result
of any test of any blood or urine withdrawn and analyzed at any
health care provider, as defined in section 2317.02 of the Revised
Code, may be admitted with expert testimony to be considered with
any other relevant and competent evidence in determining the guilt
or innocence of the defendant.
(b) In any criminal prosecution or juvenile court proceeding
for a violation of division (A) or (B) of this section or for an
equivalent offense that is vehicle-related, the court may admit
evidence on the concentration of alcohol, drugs of abuse,
controlled substances, metabolites of a controlled substance, 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 three hours of the time of the alleged
violation. The three-hour time limit specified in this division
regarding the admission of
evidence does not extend or affect the
two-hour time limit specified in division (A) of section 4511.192
of the Revised Code as the maximum period of time during which a
person may consent to a chemical test or tests as described in
that section. The court may admit evidence on the concentration of
alcohol, drugs of abuse, or a combination of them as described in
this division when a person submits to a blood, breath, urine, or
other bodily substance test at the request of a law enforcement
officer under section 4511.191 of the Revised Code or a blood or
urine sample is obtained pursuant to a search warrant. Only a
physician, a registered nurse, an emergency medical
technician-intermediate, an emergency medical
technician-paramedic, or a qualified technician, chemist, or
phlebotomist shall withdraw a blood sample for the purpose of
determining the alcohol, drug, controlled substance, metabolite of
a controlled substance, or combination 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 under division (D)(1)(b) of
this section 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.
(c) As used in division (D)(1)(b) of this section, "emergency
medical technician-intermediate" and "emergency medical
technician-paramedic" have the same meanings as in section 4765.01
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 that is vehicle-related, 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)(1)(b), (c), (d), and (e) of this section or less
than the applicable concentration of a listed controlled substance
or a listed metabolite of a controlled substance specified for a
violation of division (A)(1)(j) 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.
If the chemical test was obtained pursuant to division
(D)(1)(b) of this section, 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. If the
person was under arrest as described in division (A)(5) of section
4511.191 of the Revised Code, the arresting officer shall advise
the person at the time of the arrest that the person may have an
independent chemical test taken at the person's own expense. If
the person was under arrest other than described in division
(A)(5) of section 4511.191 of the Revised Code, 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, a controlled
substance, or a metabolite of a controlled substance in the whole
blood, blood serum or plasma, 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)(1)(b), (c), (d), (e), (f), (g), (h), (i), or (j)
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 laboratory personnel
issued a permit by the department of health authorizing an
analysis as described in this division 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, a controlled substance, a metabolite of a
controlled substance, 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, emergency medical
technician-intermediate, emergency medical technician-paramedic,
or qualified technician, chemist, or phlebotomist who withdraws
blood from a person pursuant to this section or section 4511.191
or 4511.192 of the Revised Code, and any hospital, first-aid
station, or clinic at which blood is withdrawn from a person
pursuant to this section or section 4511.191 or 4511.192 of the
Revised Code, 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 also extends to an emergency medical service organization
that employs an emergency medical technician-intermediate or
emergency medical technician-paramedic who withdraws blood under
this section. The immunity provided in this division is not
available to a person who withdraws blood if the person engages in
willful or wanton misconduct.
As used in this division, "emergency medical
technician-intermediate" and "emergency medical
technician-paramedic" have the same meanings as in section 4765.01
of the Revised Code.
(G)(1) Whoever violates any provision of divisions (A)(1)(a)
to (i) or (A)(2) of this section is guilty of operating a vehicle
under the influence of alcohol, a drug of abuse, or a combination
of them. Whoever violates division (A)(1)(j) of this section is
guilty of operating a vehicle while under the influence of a
listed controlled substance or a listed metabolite of a controlled
substance. The court shall sentence the offender for either
offense 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)(a), (b), (c), (d), (e), or (j) 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 under a community control sanction
pursuant to section 2929.25 of the Revised Code 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 under a community control sanction pursuant to section
2929.25 of the Revised Code 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
community control 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 community control
that it considers necessary.
(ii) If the sentence is being imposed for a violation of
division (A)(1)(f), (g), (h), or (i) or division (A)(2) 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, under a community control
sanction imposed under section 2929.25 of the Revised Code, 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 community control on the offender that it
considers necessary.
(iii) In all cases, a fine of not less than three hundred
seventy-five and not more than one thousand seventy-five 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)(a), (b), (c), (d), (e), or (j) 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 house arrest with electronic monitoring, with continuous
alcohol monitoring, or with both electronic monitoring and
continuous alcohol monitoring. 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 house arrest with
electronic monitoring or continuous alcohol monitoring or both
types of monitoring and jail term, the court shall require the
offender to be assessed by an alcohol and drug treatment program
that is authorized by section 3793.02 of the Revised Code, subject
to division (I) of this section, and shall order the offender to
follow the treatment recommendations of the program. The purpose
of the assessment is to determine the degree of the offender's
alcohol usage and to determine whether or not treatment is
warranted. Upon the request of the court, the program shall submit
the results of the assessment to the court, including all
treatment recommendations and clinical diagnoses related to
alcohol use.
(ii) If the sentence is being imposed for a violation of
division (A)(1)(f), (g), (h), or (i) or division (A)(2) 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 house arrest with electronic monitoring, with
continuous alcohol monitoring, or with both electronic monitoring
and continuous alcohol monitoring. 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 house arrest with
electronic monitoring or continuous alcohol monitoring or both
types of monitoring and jail term, the court shall require the
offender to be assessed by an alcohol and drug treatment program
that is authorized by section 3793.02 of the Revised Code, subject
to division (I) of this section, and shall order the offender to
follow the treatment recommendations of the program. The purpose
of the assessment is to determine the degree of the offender's
alcohol usage and to determine whether or not treatment is
warranted. Upon the request of the court, the program shall submit
the results of the assessment to the court, including all
treatment recommendations and clinical diagnoses related to
alcohol use.
(iii) In all cases, notwithstanding the fines set forth in
Chapter 2929. of the Revised Code, a fine of not less than five
hundred twenty-five and not more than one thousand six hundred
twenty-five 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)(a), (b), (c), (d), (e), or (j) 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 house arrest with electronic monitoring, with
continuous alcohol monitoring, or with both electronic monitoring
and continuous alcohol monitoring. The court may impose a jail
term in addition to the thirty-day mandatory jail term.
Notwithstanding the jail terms set forth in sections 2929.21 to
2929.28 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)(1)(f), (g), (h), or (i) or division (A)(2) 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 house arrest with electronic monitoring,
with continuous alcohol monitoring, or with both electronic
monitoring and continuous alcohol monitoring. The court may impose
a jail term in addition to the sixty-day mandatory jail term.
Notwithstanding the jail terms set forth in sections 2929.21 to
2929.28 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 eight
hundred fifty and not more than two thousand seven hundred fifty
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, the court shall order the offender to
participate in an alcohol and drug addiction program authorized by
section 3793.02 of the Revised Code, subject to division (I) of
this section, and shall order the offender to follow the treatment
recommendations of the program. The operator of the program shall
determine and assess the degree of the offender's alcohol
dependency and shall make recommendations for treatment. Upon the
request of the court, the program shall submit the results of the
assessment to the court, including all treatment recommendations
and clinical diagnoses related to alcohol use.
(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
four violations of division (A) or (B) of this section or other
equivalent offenses or an offender who, within twenty years of the
offense, previously has been convicted of or pleaded guilty to
five or more violations of that nature 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)(a), (b), (c), (d), (e), or (j) of this section, a
mandatory prison term of one, two, three, four, or five years as
required by and in accordance with division (G)(2) of section
2929.13 of the Revised Code if the offender also is convicted of
or also pleads guilty to a specification of the type described in
section 2941.1413 of the Revised Code or, 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 in accordance with division (G)(2) of that
section if the offender is not convicted of and does not plead
guilty to a specification of that type. 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, except as provided in division (A)(1) of
section 2929.13 of the Revised Code, 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 and the prison terms shall be imposed as described in
division (G)(2) of section 2929.13 of the Revised Code. If the
court imposes a mandatory prison term or mandatory prison term and
additional prison term, in addition to the term or terms so
imposed, the court also may sentence the offender to a community
control sanction for the offense, but the offender shall serve all
of the prison terms so imposed prior to serving the community
control sanction.
(ii) If the sentence is being imposed for a violation of
division (A)(1)(f), (g), (h), or (i) or division (A)(2) of this
section, a mandatory prison term of one, two, three, four, or five
years as required by and in accordance with division (G)(2) of
section 2929.13 of the Revised Code if the offender also is
convicted of or also pleads guilty to a specification of the type
described in section 2941.1413 of the Revised Code or, 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 offender is
not convicted of and does not plead guilty to a specification of
that type. 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, except as provided in division (A)(1) of section
2929.13 of the Revised Code, 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 and the prison terms shall be imposed as described in
division (G)(2) of section 2929.13 of the Revised Code. If the
court imposes a mandatory prison term or mandatory prison term and
additional prison term, in addition to the term or terms so
imposed, the court also may sentence the offender to a community
control sanction for the offense, but the offender shall serve all
of the prison terms so imposed prior to serving the community
control sanction.
(iii) In all cases, notwithstanding section 2929.18 of the
Revised Code, a fine of not less than one thousand three hundred
fifty nor more than ten thousand five hundred 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, the court shall order the offender to
participate in an alcohol and drug addiction program authorized by
section 3793.02 of the Revised Code, subject to division (I) of
this section, and shall order the offender to follow the treatment
recommendations of the program. The operator of the program shall
determine and assess the degree of the offender's alcohol
dependency and shall make recommendations for treatment. Upon the
request of the court, the program shall submit the results of the
assessment to the court, including all treatment recommendations
and clinical diagnoses related to alcohol use.
(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 house arrest with electronic
monitoring. 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)(a), (b), (c), (d), (e), or (j) of this section, a
mandatory prison term of one, two, three, four, or five years as
required by and in accordance with division (G)(2) of section
2929.13 of the Revised Code if the offender also is convicted of
or also pleads guilty to a specification of the type described in
section 2941.1413 of the Revised Code or a mandatory prison term
of sixty consecutive days in accordance with division (G)(2) of
section 2929.13 of the Revised Code if the offender is not
convicted of and does not plead guilty to a specification of that
type. The court may impose a prison term in addition to the
mandatory prison term. The cumulative total of a sixty-day
mandatory prison term and the additional prison term for the
offense shall not exceed five years. In addition to the mandatory
prison term or mandatory prison term and additional prison term
the court imposes, the court also may sentence the offender to a
community control sanction for the offense, but the offender shall
serve all of the prison terms so imposed prior to serving the
community control sanction.
(ii) If the sentence is being imposed for a violation of
division (A)(1)(f), (g), (h), or (i) or division (A)(2) of this
section, a mandatory prison term of one, two, three, four, or five
years as required by and in accordance with division (G)(2) of
section 2929.13 of the Revised Code if the offender also is
convicted of or also pleads guilty to a specification of the type
described in section 2941.1413 of the Revised Code or a mandatory
prison term of one hundred twenty consecutive days in accordance
with division (G)(2) of section 2929.13 of the Revised Code if the
offender is not convicted of and does not plead guilty to a
specification of that type. The court may impose a prison term in
addition to the mandatory prison term. The cumulative total of a
one hundred twenty-day mandatory prison term and the additional
prison term for the offense shall not exceed five years. In
addition to the mandatory prison term or mandatory prison term and
additional prison term the court imposes, the court also may
sentence the offender to a community control sanction for the
offense, but the offender shall serve all of the prison terms so
imposed prior to serving the community control sanction.
(iii) In all cases, notwithstanding section 2929.18 of the
Revised Code, a fine of not less than one thousand three hundred
fifty nor more than ten thousand five hundred 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, the court shall order the offender to
participate in an alcohol and drug addiction program authorized by
section 3793.02 of the Revised Code, subject to division (I) of
this section, and shall order the offender to follow the treatment
recommendations of the program. The operator of the program shall
determine and assess the degree of the offender's alcohol
dependency and shall make recommendations for treatment. Upon the
request of the court, the program shall submit the results of the
assessment to the court, including all treatment recommendations
and clinical diagnoses related to alcohol use.
(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 house arrest with electronic
monitoring, with continuous alcohol monitoring, or with both
electronic monitoring and continuous alcohol monitoring.
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 house
arrest with electronic monitoring, with continuous alcohol
monitoring, or with both electronic monitoring and continuous
alcohol monitoring. The cumulative total of the five consecutive
days in jail and the period of house arrest with electronic
monitoring, continuous alcohol monitoring, or both types of
monitoring 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 house arrest with electronic monitoring, with
continuous alcohol monitoring, or with both electronic monitoring
and continuous alcohol monitoring. The cumulative total of the ten
consecutive days in jail and the period of house arrest with
electronic monitoring, continuous alcohol monitoring, or both
types of monitoring 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 house arrest with electronic monitoring, with
continuous alcohol monitoring, or with both electronic monitoring
and continuous alcohol monitoring. The cumulative total of the
fifteen consecutive days in jail and the period of house arrest
with electronic monitoring, continuous alcohol monitoring, or both
types of monitoring 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 house arrest with electronic monitoring,
with continuous alcohol monitoring, or with both electronic
monitoring and continuous alcohol monitoring. The cumulative total
of the thirty consecutive days in jail and the period of house
arrest with electronic monitoring, continuous alcohol monitoring,
or both types of monitoring 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 in
accordance with that section. If division (A)(7) of that section
requires that the court impose as a condition 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, the court shall impose
that condition as one of the conditions of the limited driving
privileges granted to the offender, except as provided in division
(B) of section 4503.231 of the Revised Code.
(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)(a), (b), (c), (d),
(e), or (j) 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 (F) 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) Fifty dollars of the fine imposed under divisions
(G)(1)(a)(iii), (G)(1)(b)(iii), (G)(1)(c)(iii), (G)(1)(d)(iii),
and (G)(1)(e)(iii) of this section shall be deposited into the
special projects fund of the court in which the offender was
convicted and that is established under division (E)(1) of section
2303.201, division (B)(1) of section 1901.26, or division (B)(1)
of section 1907.24 of the Revised Code, to be used exclusively to
cover the cost of immobilizing or disabling devices, including
certified ignition interlock devices, and remote alcohol
monitoring devices for indigent offenders who are required by a
judge to use either of these devices. If the court in which the
offender was convicted does not have a special projects fund that
is established under division (E)(1) of section 2303.201, division
(B)(1) of section 1901.26, or division (B)(1) of section 1907.24
of the Revised Code, the fifty dollars shall be deposited into the
indigent drivers interlock and alcohol monitoring fund under
division (I) of section 4511.191 of the Revised Code.
(f) Seventy-five dollars of the fine imposed under division
(G)(1)(a)(iii), one hundred twenty-five dollars of the fine
imposed under division (G)(1)(b)(iii), two hundred fifty dollars
of the fine imposed under division (G)(1)(c)(iii), and five
hundred dollars of the fine imposed under division (G)(1)(d)(iii)
or (e)(iii) of this section shall be transmitted to the treasurer
of state for deposit into the indigent defense support fund
established under section 120.08 of the Revised Code.
(g) 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.
(7) As used in division (G) of this section, "electronic
monitoring," "mandatory prison term," and "mandatory term of local
incarceration" have the same meanings as in section 2929.01 of the
Revised Code.
(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 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.
(3) If the offender also is convicted of or also pleads
guilty to a specification of the type described in section
2941.1416 of the Revised Code and if the court imposes a jail term
for the violation of division (B) of this section, the court shall
impose upon the offender an additional definite jail term pursuant
to division (E) of section 2929.24 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) Division (A)(1)(j) of this section does not apply to a
person who operates a vehicle, streetcar, or trackless trolley
while the person has a concentration of a listed controlled
substance or a listed metabolite of a controlled substance in the
person's whole blood, blood serum or plasma, or urine that equals
or exceeds the amount specified in that division, if both of the
following apply:
(1) The person obtained the controlled substance pursuant to
a prescription issued by a licensed health professional authorized
to prescribe drugs.
(2) The person injected, ingested, or inhaled the controlled
substance in accordance with the health professional's directions.
(L) The prohibited concentrations of a controlled substance
or a metabolite of a controlled substance listed in division
(A)(1)(j) of this section also apply in a prosecution of a
violation of division (D) of section 2923.16 of the Revised Code
in the same manner as if the offender is being prosecuted for a
prohibited concentration of alcohol.
(M) All terms defined in section 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.
(N)(1) The Ohio Traffic Rules in effect
on 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 (N)(2) of this section, the Rules of
Criminal Procedure apply to felony violations of this section.
(2) If, on or after 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. 4765.38. (A) An emergency medical
technician-intermediate shall perform the emergency medical
services described in this section in accordance with this chapter
and any rules adopted under it.
(B) An EMT-I may do any of the following:
(1) Establish and maintain an intravenous lifeline that has
been approved by a cooperating physician or physician advisory
board;
(2) Perform cardiac monitoring;
(3) Perform electrical interventions to support or correct
the cardiac function;
(4) Administer epinephrine;
(5) Determine triage of adult and pediatric trauma victims;
(6) Perform any other emergency medical services approved
pursuant to rules adopted under section 4765.11 of the Revised
Code.
(C)(1) Except as provided in division (C)(2) of this section,
the services described in division (B) of this section shall be
performed by an EMT-I only pursuant to the written or verbal
authorization of a physician or of the cooperating physician
advisory board, or pursuant to an authorization transmitted
through a direct communication device by a physician or registered
nurse designated by a physician.
(2) If communications fail during an emergency situation or
the required response time prohibits communication, an EMT-I may
perform any of the services described in division (B) of this
section, if, in the judgment of the EMT-I, the life of the patient
is in immediate danger. Services performed under these
circumstances shall be performed in accordance with the protocols
for triage of adult and pediatric trauma victims established in
rules adopted under sections 4765.11 and 4765.40 of the Revised
Code and any applicable protocols adopted by the emergency medical
service organization with which the EMT-I is affiliated.
(D) In addition to, and in the course of, providing emergency
medical treatment, an emergency medical technician-intermediate
may withdraw blood as provided under sections 1547.11, 4506.17,
and 4511.19 of the Revised Code. An emergency medical
technician-intermediate shall withdraw blood in accordance with
this chapter and any rules adopted under it by the state board of
emergency medical services.
Sec. 4765.39. (A) An emergency medical technician-paramedic
shall perform the emergency medical services described in this
section in accordance with this chapter and any rules adopted
under it.
(B) A paramedic may do any of the following:
(1) Perform cardiac monitoring;
(2) Perform electrical interventions to support or correct
the cardiac function;
(3) Perform airway procedures;
(4) Perform relief of pneumothorax;
(5) Administer appropriate drugs and intravenous fluids;
(6) Determine triage of adult and pediatric trauma victims;
(7) Perform any other emergency medical services, including
life support or intensive care techniques, approved pursuant to
rules adopted under section 4765.11 of the Revised Code.
(C)(1) Except as provided in division (C)(2) of this section,
the services described in division (B) of this section shall be
performed by a paramedic only pursuant to the written or verbal
authorization of a physician or of the cooperating physician
advisory board, or pursuant to an authorization transmitted
through a direct communication device by a physician or registered
nurse designated by a physician.
(2) If communications fail during an emergency situation or
the required response time prohibits communication, a paramedic
may perform any of the services described in division (B) of this
section, if, in the paramedic's judgment, the life of the patient
is in immediate danger. Services performed under these
circumstances shall be performed in accordance with the protocols
for triage of adult and pediatric trauma victims established in
rules adopted under sections 4765.11 and 4765.40 of the Revised
Code and any applicable protocols adopted by the emergency medical
service organization with which the paramedic is affiliated.
(D) In addition to, and in the course of, providing emergency
medical treatment, emergency medical technician-paramedic may
withdraw blood as provided under sections 1547.11, 4506.17, and
4511.19 of the Revised Code. An emergency medical
technician-paramedic shall withdraw blood in accordance with this
chapter and any rules adopted under it by the state board of
emergency medical services.
Section 2. That existing sections 109.561, 1547.11, 2919.25,
2929.13, 2933.82, 4506.17, 4511.19, 4765.38, and 4765.39 of the
Revised Code are hereby repealed.
Section 3. Section 2929.13 of the Revised Code is presented
in this act as a composite of the section as amended by both Am.
Sub. H.B. 130 and Am. Sub. H.B. 280 of the 127th General Assembly.
The General Assembly, applying the principle stated in division
(B) of section 1.52 of the Revised Code that amendments are to be
harmonized if reasonably capable of simultaneous operation, finds
that the composite is the resulting version of the section in
effect prior to the effective date of the section as presented in
this act.
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