Sub.
H.B. 471
127th General Assembly
(As Passed by the General Assembly)
Reps. Setzer, Gibbs, Combs, Bacon, Domenick, Dyer, Evans, Flowers, Grady, Hughes, Letson, Schneider
Sens. Schaffer, Stivers, Turner, Seitz, Harris, Sawyer, Wilson
Effective date: *
ACT SUMMARY
· Specifies that certain records of a decedent relating to the criminal investigation of the decedent's death are not public records, but provides that the records so excluded are part of the "full and complete records of the coroner" that must be provided upon request to specified next of kin or insurers.
· Authorizes the coroner to hire local law enforcement officers as investigators, to use money in the coroner's laboratory fund for administration of the laboratory, and to dispose of dangerous drugs found at the scene of an investigation the coroner conducts, if the dangerous drugs are no longer needed for investigative or scientific purposes.
· Provides that, if a person files a petition requesting the issuance of a civil protection order for the benefit of an alleged victim of the offense of "menacing by stalking" or of a sexually oriented offense: (1) if the court after a full hearing upon request by the petitioner or upon its own motion finds by clear and convincing evidence that the petitioner reasonably believed that the respondent's conduct at any time preceding the filing of the petition endangered the health, welfare, or safety of the person to be protected and that the respondent presents a continuing danger to that person, the court may order that the respondent be electronically monitored for a period of time and under the terms and conditions that the court determines are appropriate (the electronic monitoring will be in addition to any other relief granted to the petitioner), (2) if the petitioner seeks relief in the form of electronic monitoring of the respondent, the petition must contain or state an allegation that at any time preceding the filing of the petition the respondent engaged in conduct that would cause a reasonable person to believe that the health, welfare, or safety of the person to be protected was at risk, a description of the nature and extent of that conduct, and an allegation that the respondent presents a continuing danger to that person, and (3) if the court issues the civil protection order and includes in the order required electronic monitoring of the respondent, the court must direct the sheriff's office or any other appropriate law enforcement agency to install the electronic monitoring device and to monitor the respondent and, unless the respondent is indigent, must order the respondent to pay the cost of the installation and monitoring of the electronic monitoring device (if the respondent is indigent, the cost of the installation and monitoring of the electronic monitoring device must be paid out of funds from the existing Reparations Fund).
· Provides that, if an offender commits the offense of "violating a protection order" and the protection order violated was a civil protection order for the benefit of an alleged victim of the offense of menacing by stalking or of a sexually oriented offense, the court may require in addition to any other sentence imposed that the offender be electronically monitored for a period not exceeding five years by a law enforcement agency designated by the court and, unless the respondent is indigent, that the offender pay the costs of the installation of the electronic monitoring device and the cost of monitoring the electronic monitoring device (if the court imposes such a requirement and the respondent is indigent, the cost of the installation and monitoring of the electronic monitoring device must be paid out of funds from the existing Reparations Fund).
TABLE OF CONTENTS
Certain
coroner's records not public records
Provision
of "full and complete records of the coroner" to next of kin or
insurer
Definition
of "full and complete records of the coroner"
Use
of money in the coroner's laboratory fund
Disposition
of controlled substances
Offense
of "menacing by stalking"--background
Stalking/sex
offense-related civil protection orders
Offense
of "violating a protection order"
CONTENT AND OPERATION
Continuing law generally states that the records of the coroner made personally by the coroner or by anyone acting under the coroner's direction or supervision are public records. Certain of the coroner's records, however, are not public records. (R.C. 313.10(A)(1) and (2); see COMMENT 1.) The act provides that, in addition to the records that currently are excluded as public records, the following coroner's records are not public records: (1) the records of a deceased individual that are "confidential law enforcement investigatory records" as defined in the Public Records Law (see COMMENT 2) and (2) laboratory reports generated from the analysis of physical evidence by the coroner's laboratory that is discoverable under Criminal Rule 16 (see COMMENT 3) (R.C. 313.10(A)(2)(e) and (f)).
The act also specifies that the coroner of the county where the death was pronounced is responsible for the release of all public records relating to that death, but, other than the changes it makes in the definition of "full and complete records of the coroner," as described below, and the changes described in the preceding paragraph, the act does not change the provisions relating to records that are contained in R.C. 313.10 (R.C. 313.10(A)(1)).
Continuing law requires the coroner to provide a copy of the "full and complete records of the coroner" (see "Definition of "full and complete records of the coroner"," below) with respect to a decedent to a person who makes a written request as the next of kin of the decedent. The following persons may make a request pursuant to this provision as the next of kin of a decedent: (1) the surviving spouse of the decedent, (2) if there is no surviving spouse, or if the surviving spouse has died without having made a request pursuant to this division, any child of the decedent over 18 years of age, with each child over 18 years of age having an independent right to make a request pursuant to this division, (3) if there is no surviving spouse or child over 18 years of age, or if the surviving spouse and all children over 18 years of age have died without having made a request pursuant to this division, the parents of the decedent, with each parent having an independent right to make a request pursuant to this division, or (4) if there is no surviving spouse, child over 18 years of age, or parents of the decedent, or if all have died without having made a request pursuant to this division, the brothers and sisters of the decedent, whether of the whole or the half blood, with each having an independent right to make a request pursuant to this division.
If there is no surviving person who may make a written request as next of kin for a copy of the "full and complete records of the coroner" pursuant to the provision described in the preceding paragraph, or if all next of kin of the decedent have died without having made a request pursuant to that provision, the coroner must provide a copy of the "full and complete records of the coroner" with respect to a decedent to the representative of the estate of the decedent who is the subject of the records upon written request made by the representative. (R.C. 313.10(C).)
Continuing law also provides that an insurer may submit to the coroner a written request to obtain a copy of the "full and complete records of the coroner" (see "Definition of "full and complete records of the coroner"," below) with respect to a deceased person. The request must include the name of the deceased person, the type of policy to which the written request relates, and the name and address of the insurer. If an insurer submits such a written request to the coroner to obtain a copy of records, the coroner must grant the request. Upon the granting of a written request to obtain a copy of records by the coroner, the insurer may utilize the records for the following purposes: (1) to investigate any first party claim or third party claim asserted under a policy of insurance issued by the insurer that arises from the death of the deceased person, (2) to determine coverage for any first party claim or third party claim asserted under a policy of insurance issued by the insurer that arises from the death of the deceased person, or (3) to determine the insurer's liability for any first party claim or third party claim asserted under a policy of insurance issued by the insurer that arises from the death of the deceased person.
Prior to the delivery of records that are the subject of a request made pursuant to this provision, the coroner may require the insurer who submitted the request for the records to pay a record retrieval and copying fee at the rate of 25¢ per page or a minimum fee of $1. Any records produced by the coroner in response to a written request under this provision must remain in the care, custody, and control of the insurer and its employees or representatives at all times. The insurer may not release or disclose the records to any other person unless any of the following apply: (1) the release of the records is reasonably necessary to further a purpose described in the preceding paragraph, (2) a court of competent jurisdiction orders the insurer to produce the records, (3) the insurer is required to produce the records in response to a civil or criminal subpoena, or (4) the insurer is responding to a request for the records from a law enforcement agency, the Department of Insurance or a department of insurance from another state, or another governmental authority.
The coroner may contact the decedent's next of kin to inform the next of kin that an insurer has submitted a written request pursuant to this provision and whether the coroner has granted the journalist's or the insurer's request. (R.C. 313.10(E) and (F).)
Prior law.
Under prior law, as used in the next of kin and insurer provisions
described above, "full and complete records of the coroner" included,
but was not limited to, the following (R.C. 313.10(G)(1)): (1) the detailed descriptions of the
observations written by the coroner or by anyone acting under the coroner's
direction or supervision during the progress of an autopsy and the conclusions
drawn from those observations that are filed in the office of the coroner under
R.C. 313.13(A), (2) preliminary autopsy and investigative notes and findings
made by the coroner or by anyone acting under the coroner's direction or
supervision, (3) photographs of a decedent made by the coroner or by anyone
acting under the coroner's direction or supervision, (4) suicide notes, and (5)
medical and psychiatric records provided to the coroner, a deputy coroner, or a
representative of the coroner or a deputy coroner under R.C. 313.091.
Operation of the act. The act expands the definition of "full and complete records of the coroner" so that, in addition to the records included in the definition under prior law, it also includes, but is not limited to (R.C. 313.10(G)(1)(f) and (g)): (1) records of a deceased individual that are confidential law enforcement investigatory records as defined in R.C. 149.43 (see COMMENT 2), and (2) laboratory reports generated from the analysis of physical evidence by the coroner's laboratory that is discoverable under Criminal Rule 16 (see COMMENT 3).
Continuing law authorizes the coroner to appoint deputy coroners, pathologists serving as deputy coroners, technicians, stenographers, secretaries, clerks, custodians, or investigators. A coroner may appoint as a person in any of those positions or as any other employee a person who is an associate of, or who is employed by, the coroner or a deputy coroner in the private practice of medicine in a partnership, professional association, or other medical business arrangement. The act also allows the coroner to appoint, as an investigator, a deputy sheriff within the county or a law enforcement officer of a political subdivision located within the county. (R.C. 313.05(B).)
Continuing law requires that money derived from fees paid for examinations conducted by a coroner's laboratory be kept in a special fund, for the use of the coroner's laboratory. Under prior law, these funds could be used only to purchase necessary supplies and equipment for the laboratory. The act further allows these funds to be used to pay associated costs incurred in the administration of the laboratory at the coroner's discretion. (R.C. 313.16.)
The act authorizes the coroner to secure, catalog, record, and, with the approval of the prosecuting attorney, destroy any dangerous drugs found at the scene of an investigation the coroner conducts, if the dangerous drugs are no longer needed for investigative or scientific purposes (R.C. 313.211).
Continuing law prohibits a person from doing any of the following (see COMMENT 4 for definitions of the terms in quotation marks): (1) by engaging in a "pattern of conduct," knowingly causing another person to believe that the offender will cause physical harm to the other person or cause "mental distress" to the other person, (2) through the use of any electronic method of remotely transferring information, including, but not limited to, any "computer," "computer network," "computer program," or "computer system," "posting a message" with purpose to urge or incite another to commit a violation of the provision described in clause (1) of this paragraph, or (3) with a "sexual motivation," violating the provision described in clause (1) or (2) of this paragraph. A violation of this prohibition is the offense of "menacing by stalking." Menacing by stalking generally is a misdemeanor of the first degree, but it is a felony of the fourth or fifth degree if any of a list of specified aggravating circumstances is present. (R.C. 2903.211(A) and (B), not in the act.)
Continuing law contains provisions that pertain to the issuance of a protection order, for the benefit of the complainant or alleged victim, when a person is charged with a violation that constitutes the offense of "menacing by stalking," as described above in "Background" (hereafter, a "menacing by stalking violation") or any of a list of other assault-related or menacing-related offenses and the alleged offense does not involve a family or household member. These provisions, set forth in R.C. 2903.213 (not in the act), are described in COMMENT 5. Continuing law also contains provisions that pertain to the issuance of a civil protection order for the benefit of an alleged victim of a menacing by stalking violation or of a sexually oriented offense (hereafter, a "stalking/sex offense-related civil protection order").
Filing and content of petition for civil protection order. A person may seek relief under the provisions that pertain to the issuance of a stalking/sex offense-related civil protection order for the person, or any parent or adult household member may seek relief under those provisions on behalf of any other family or household member, by filing a petition with the court of common pleas of the county in which the person to be protected by the protection order resides. The petition must contain or state both of the following: (1) an allegation that the respondent engaged in a menacing by stalking violation against the person to be protected by the protection order or committed a sexually oriented offense against the person to be protected by the protection order, including a description of the nature and extent of the violation, and (2) a request for relief under the civil protection order provisions. (As explained below under "Operation of the act," the act adds a required allegation if the petitioner seeks electronic monitoring of the respondent.) (R.C. 2903.214(C).)
Hearings on petition and issuance of order. If a person who files a petition for a stalking/sex offense-related civil protection order requests an ex parte order, the court must hold an ex parte hearing as soon as possible after the petition is filed, but not later than the next day that the court is in session after it is filed. The court, for good cause shown at the ex parte hearing, may enter any temporary orders, with or without bond, that it finds necessary for the safety and protection of the person to be protected by the order. Immediate and present danger to the person to be protected by the order constitutes good cause for purposes of this provision. Immediate and present danger includes, but is not limited to, situations in which the respondent has threatened the person to be protected by the order with bodily harm or in which the respondent previously has been convicted of a menacing by stalking violation or a sexually oriented offense against the person to be protected by the order. If the court, after an ex parte hearing, issues a protection order as described in the next paragraph, the court must schedule a full hearing for a date that is within ten court days after the ex parte hearing, must give the respondent notice of, and an opportunity to be heard at, the hearing, and must hold the hearing on the date scheduled unless it grants a continuance of the hearing. An ex parte order does not expire because of a failure to serve notice of the full hearing upon the respondent before the date set for the full hearing or because the court grants a continuance. If a person who files a petition does not request an ex parte order, or if a person requests an ex parte order but the court does not issue one after an ex parte hearing, the court must proceed as in a normal civil action and grant a full hearing on the matter.
After an ex parte or full hearing, the court may issue any protection order, with or without bond, that contains terms designed to ensure the safety and protection of the person to be protected by the order, including, but not limited to, a requirement that the respondent refrain from entering the residence, school, business, or place of employment of the petitioner or family or household member. If the court includes a requirement that the respondent refrain from entering the residence, school, etc., of the petitioner or family or household member in the order, it also must include in the order a statement that the order cannot be waived or nullified by an invitation to the alleged offender from the complainant to enter the residence, school, etc., or by the alleged offender's entry into one of those places otherwise upon the consent of the petitioner or family or household member. No protection order issued pursuant to these provisions may in any manner affect title to any real property.
(As explained below under "Operation of the act," the act authorizes the court to order electronic monitoring of the respondent under certain circumstances.)
Any stalking/sex offense-related civil protection order is valid until a date certain, but not later than five years from the date of its issuance. The order may be renewed in the same manner as the original order was issued.
A court may not issue a stalking/sex offense-related civil protection order that requires a petitioner to do or to refrain from doing an act that the court may require a respondent to do or to refrain from doing under the provisions described in the second preceding paragraph unless all of the following apply: (a) the respondent files a separate petition for a protection order, (b) the petitioner is served with notice of the respondent's petition at least 48 hours before the court holds a hearing with respect to the respondent's petition, or the petitioner waives the right to receive this notice, (c) if the petitioner has requested an ex parte order, the court does not delay any hearing required relative to such an order beyond the time specified in order to consolidate the hearing with a hearing on the petition filed by the respondent, and (d) after a full hearing at which the respondent presents evidence in support of the request for a protection order and the petitioner is afforded an opportunity to defend against that evidence, the court determines that the petitioner has committed a menacing by stalking violation against the person to be protected by the order, has committed a sexually oriented offense against the person to be protected by the order, or has violated a protection order issued pursuant to R.C. 2903.213 relative to the person to be protected by the order issued pursuant to this provision.
The court must cause the delivery of a copy of any stalking/sex offense-related civil protection order to the petitioner, to the respondent, and to all law enforcement agencies with jurisdiction to enforce the order. The court must direct that a copy of the order be delivered to the respondent on the same day it is entered. All law enforcement agencies must establish and maintain an index for the protection orders delivered to them and, with respect to each order so delivered, must note on the index the date and time that it received the order.
Any proceeding under these provisions is to be conducted in accordance with the Rules of Civil Procedure, except that a protection order may be obtained with or without bond. An order issued under these provisions, other than an ex parte order, that grants a protection order, or that refuses to grant a protection order, is a final, appealable order. The remedies and procedures provided in these provisions are in addition to, and not in lieu of, any other available civil or criminal remedies. In all stages of a proceeding under these provisions, a petitioner may be accompanied by a victim advocate.
Notwithstanding any provision of law to the contrary and regardless of whether a protection order is issued or a consent agreement is approved by a court of another county or by a court of another state, no court or unit of state or local government may charge any fee, cost, deposit, or money in connection with the filing of a petition requesting a stalking/sex offense-related civil protection order, in connection with the filing, issuance, registration, or service of a protection order or consent agreement, or for obtaining a certified copy of a protection order or consent agreement. (R.C. 2903.214(D) to (G), (J), and (L).)
Enforcement of order and sanctions for a violation. Regardless of whether the petitioner has registered the protection order in the county in which the officer's agency has jurisdiction pursuant to a specified procedure (see below), any officer of a law enforcement agency must enforce a stalking/sex offense-related civil protection order issued by any court in Ohio in accordance with the provisions of the order, including removing the respondent from the premises, if appropriate.
A person who violates a stalking/sex offense-related civil protection order is subject to criminal prosecution for a violation of R.C. 2919.27 (see "Offense of "violating a protection order"," below), if the violation of the order constitutes a violation of that section, and to punishment for contempt of court. The punishment of a person for contempt of court for violation of the protection order does not bar criminal prosecution of the person for a violation of R.C. 2919.27; however, a person punished for contempt of court is entitled to credit for the punishment imposed upon conviction of a violation of that section, and a person convicted of a violation of that section cannot subsequently be punished for contempt of court arising out of the same activity.
A petitioner who obtains a stalking/sex offense-related civil protection order or a protection order under R.C. 2903.213 may provide notice of the issuance or approval of the order to the judicial and law enforcement officials in any county other than the county in which the order is issued by registering that order in the other county, in the manner described below, and filing a copy of the registered order with a law enforcement agency in the other county. A petitioner may register the protection order in a county other than the county in which the court that issued the order is located in the following manner: (1) the petitioner must obtain a certified copy of the order from the clerk of the court that issued the order and present that certified copy to the clerk of the court of common pleas, municipal court, or county court in the county in which the order is to be registered, and (2) upon accepting the certified copy of the order for registration, the recipient clerk must place an endorsement of registration on the order and give the petitioner a copy of the order that bears that proof of registration. The clerk of each court of common pleas, municipal court, or county court must maintain a registry of certified copies of protection orders that have been issued by courts in other counties and that have been registered with the clerk. A person who obtains a protection order issued by a court of another state may provide notice of the issuance of the order to the judicial and law enforcement officials in any county of this state by registering the order in that county pursuant to a procedure specified in R.C. 2919.272 and filing a copy of the registered order with a law enforcement agency in that county. (R.C. 2903.214(F)(3), (K), and (M).)
The act authorizes a court that makes certain findings at a full hearing on a petition for a stalking/sex offense-related civil protection order to order that the respondent be subjected to "electronic monitoring" in a specified manner. Specifically, it provides that:
(1) After a full hearing, if the court considering a petition that includes an allegation of the type described in (2), below, or the court upon its own motion, finds upon clear and convincing evidence that a person who files a petition for a stalking/sex offense-related civil protection order reasonably believed that the respondent's conduct at any time preceding the filing of the petition endangered the health, welfare, or safety of the person to be protected and that the respondent presents a continuing danger to that person, the court may order that the respondent be electronically monitored for a period of time and under the terms and conditions that the court determines are appropriate. Electronic monitoring will be in addition to any other relief granted to the petitioner. (R.C. 2903.214(E)(1)(b).)
(2) If a person who files a petition for a stalking/sex offense-related civil protection order seeks relief in the form of electronic monitoring of the respondent, in addition to the allegation and request that existing law requires to be contained or stated in the petition, the petition also must contain or state an allegation that, at any time preceding the filing of the petition, the respondent engaged in conduct that would cause a reasonable person to believe that the health, welfare, or safety of the person to be protected was at risk, a description of the nature and extent of that conduct, and an allegation that the respondent presents a continuing danger to the person to be protected (R.C. 2903.214(C)(2)).
(3) If the court orders electronic monitoring of the respondent in a stalking/sex offense-related civil protection order, the court must direct the sheriff's office or any other appropriate law enforcement agency to install the electronic monitoring device and to monitor the respondent. Unless the court determines that the respondent is indigent, the court must order the respondent to pay the cost of the installation and monitoring of the electronic monitoring device. If the court determines that the respondent is indigent, the cost of the installation and monitoring of the electronic monitoring device must be paid out of funds from the existing Reparations Fund created pursuant to R.C. 2743.191. (R.C. 2903.214(N); also, R.C. 2743.191(A)(1)(n).)
(4) As used in the provisions regarding stalking/sex offense-related civil protection orders, "electronic monitoring" means monitoring through the use of an electronic monitoring device (R.C. 2903.214(A)(6), by reference to existing R.C. 2929.01, which is not in the act). As used in the definition of "electronic monitoring," "electronic monitoring device" means any of the following (existing R.C. 2929.01, not in the act):
(a) Any device that can be operated by electrical or battery power and that conforms with all of the following: (i) the device has a transmitter that can be attached to a person, that will transmit a specified signal to a receiver of the type described in clause (ii) of this paragraph if the transmitter is removed from the person, turned off, or altered in any manner without prior court approval in relation to electronic monitoring or without prior approval of the department of rehabilitation and correction in relation to the use of an electronic monitoring device for an inmate on transitional control or otherwise is tampered with, that can transmit continuously and periodically a signal to that receiver when the person is within a specified distance from the receiver, and that can transmit an appropriate signal to that receiver if the person to whom it is attached travels a specified distance from that receiver, (ii) the device has a receiver that can receive continuously the signals transmitted by a transmitter of the type described in clause (i) of this paragraph, can transmit continuously those signals by telephone to a central monitoring computer of the type described in clause (iii) of this paragraph, and can transmit continuously an appropriate signal to that central monitoring computer if the receiver is turned off or altered without prior court approval or otherwise tampered with, and (iii) the device has a central monitoring computer that can receive continuously the signals transmitted by telephone by a receiver of the type described in clause (ii) of this paragraph and can monitor continuously the person to whom an electronic monitoring device of the type described in clause (i) of this paragraph is attached.
(b) Any device that is not a device of the type described in the preceding paragraph and that conforms with all of the following: (i) the device includes a transmitter and receiver that can monitor and determine the location of a subject person at any time, or at a designated point in time, through the use of a central monitoring computer or through other electronic means, and (ii) the device includes a transmitter and receiver that can determine at any time, or at a designated point in time, through the use of a central monitoring computer or other electronic means the fact that the transmitter is turned off or altered in any manner without prior approval of the court in relation to the electronic monitoring or without prior approval of the department of rehabilitation and correction in relation to the use of an electronic monitoring device for an inmate on transitional control or otherwise is tampered with.
(c) Any type of technology that can adequately track or determine the location of a subject person at any time and that is approved by the director of rehabilitation and correction, including, but not limited to, any satellite technology, voice tracking system, or retinal scanning system that is so approved.
Continuing law prohibits a person from recklessly violating the terms of a stalking/sex offense-related civil protection order, as described above in "Stalking/sex offense-related civil protection orders." The prohibition also prohibits a person from recklessly violating the terms of: (1) a protection order issued under the provisions described in COMMENT 5 after a person is charged with a menacing by stalking violation or any of a list of other assault-related or menacing-related offenses and the alleged offense does not involve a family or household member, (2) a protection order issued or consent agreement approved pursuant to R.C. 2919.26 regarding an offense of violence or other specified offense committed against a family or household member or R.C. 3113.31 regarding an act of domestic violence, or (3) a protection order issued by a court of another state. It is an affirmative defense to a charge based on a violation of the third clause of this prohibition that the protection order issued by a court of another state does not comply with the requirements specified in 18 U.S.C. 2265(b) for a protection order that must be accorded full faith and credit by an Ohio court or that it is not entitled to full faith and credit under 18 U.S.C. 2265(c).
A violation of the prohibition described in the preceding paragraph is the offense of "violating a protection order." Violating a protection order generally is a misdemeanor of the first degree, but it is: (1) a felony of the fifth degree if the offender previously has been convicted of a violation of a stalking/sex offense-related civil protection order, as described above in "Stalking/sex offense-related civil protection order," a violation of a protection order issued under the provisions described in COMMENT 5, two or more menacing by stalking violations or offenses of "aggravated menacing," "menacing," or "aggravated trespass" that involved the same person who is the subject of the protection order or consent agreement, or one or more offenses of "violating a protection order," and (2) a felony of the third degree if the offender violates a protection order or consent agreement while committing a felony offense.
The act provides that, if an offender commits the offense of violating a protection order and the protection order violated by the offender was a stalking/sex offense-related civil protection order, the court may require in addition to any other sentence imposed upon the offender that the offender be electronically monitored for a period not exceeding five years by a law enforcement agency designated by the court. If the court requires under this provision that the offender be electronically monitored, unless the court determines that the offender is indigent, the court must order that the offender pay the costs of the installation of the electronic monitoring device and the cost of monitoring the electronic monitoring device. If the court determines that the offender is indigent, the costs of the installation of the electronic monitoring device and the cost of monitoring the electronic monitoring device must be paid out of funds from the existing Reparations Fund created pursuant to R.C. 2743.191. (R.C. 2919.27(B)(5); also R.C. 2743.191(A)(1)(n).)
COMMENT
1. The records of a coroner that, subject to specified exceptions for journalists and insurers, currently are not public records are (R.C. 313.10(A)(2)): (a) preliminary autopsy and investigative notes and findings made by the coroner or by anyone acting under the coroner's direction or supervision, (b) photographs of a decedent made by the coroner or by anyone acting under the coroner's direction or supervision, (c) suicide notes, and (d) medical and psychiatric records provided to the coroner, a deputy coroner, or a representative of the coroner or a deputy coroner under R.C. 313.091.
2. As currently defined in the Public Records Law, "confidential law enforcement investigatory record" means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following (existing R.C. 149.43, not in the act): (a) the identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised, (b) information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source's or witness's identity, (c) specific confidential investigatory techniques or procedures or specific investigatory work product, or (d) information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.
3. Criminal Rule 16, not in the act, provides rules for discovery in criminal actions and proceedings. In relevant part, it provides as follows:
(A) Demand for discovery. Upon written request each party shall forthwith provide the discovery herein allowed. Motions for discovery shall certify that demand for discovery has been made and the discovery has not been provided.
(B) Disclosure of evidence by the prosecuting attorney.
(1) Information subject to disclosure.
...
(c) Documents and tangible objects. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, available to or within the possession, custody or control of the state, and which are material to the preparation of his defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant.
(d) Reports of examination and tests. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, made in connection with the particular case, or copies thereof, available to or within the possession, custody or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney.
...
(f) Disclosure of evidence favorable to defendant. Upon motion of the defendant before trial the court shall order the prosecuting attorney to disclose to counsel for the defendant all evidence, known or which may become known to the prosecuting attorney, favorable to the defendant and material either to guilt or punishment. The certification and the perpetuation provisions of subsection (B)(1)(e) apply to this subsection.
...
(C) Disclosure of evidence by the defendant.
(1) Information subject to disclosure.
(a) Documents and tangible objects. If on request or motion the defendant obtains discovery under subsection (B)(1)(c), the court shall, upon motion of the prosecuting attorney order the defendant to permit the prosecuting attorney to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, available to or within the possession, custody or control of the defendant and which the defendant intends to introduce in evidence at the trial.
(b) Reports of examinations and tests. If on request or motion the defendant obtains discovery under subsection (B)(1)(d), the court shall, upon motion of the prosecuting attorney, order the defendant to permit the prosecuting attorney to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, available to or within the possession or control of the defendant, and which the defendant intends to introduce in evidence at the trial, or which were prepared by a witness whom the defendant intends to call at the trial, when such results or reports relate to his testimony.
4. R.C. 2903.211(D), which is not in the act, provides that, as used in R.C. 2903.211:
(a) "Pattern of conduct" means two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents. Actions or incidents that prevent, obstruct, or delay the performance by a public official, firefighter, rescuer, emergency medical services person, or emergency facility person of any authorized act within the public official's, firefighter's, rescuer's, emergency medical services person's, or emergency facility person's official capacity, or the posting of messages or receipt of information or data through the use of an electronic method of remotely transferring information, including, but not limited to, a computer, computer network, computer program, computer system, or telecommunications device, may constitute a "pattern of conduct."
(b) "Mental distress" means any of the following: (i) any mental illness or condition that involves some temporary substantial incapacity, or (ii) any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services.
(c) "Computer" means an electronic device that performs logical, arithmetic, and memory functions by the manipulation of electronic or magnetic impulses; "computer" includes, but is not limited to, all input, output, processing, storage, computer program, or communication facilities that are connected, or related, in a computer system or network to an electronic device of that nature (by reference to existing R.C. 2913.01, not in the act).
(d) "Computer network" means a set of related and remotely connected computers and communication facilities that includes more than one computer system that has the capability to transmit among the connected computers and communication facilities through the use of computer facilities (by reference to existing R.C. 2913.01, not in the act).
(e) "Computer program" means an ordered set of data representing coded instructions or statements that, when executed by a computer, cause the computer to process data (by reference to R.C. 2913.01, not in the act).
(f) "Computer system" means a computer and related devices, whether connected or unconnected, including, but not limited to, data input, output, and storage devices, data communications links, and computer programs and data that make the system capable of performing specified special purpose data processing tasks (by reference to R.C. 2913.01, not in the act).
(g) "Telecommunications device" means any instrument, equipment, machine, or other device that facilitates "telecommunication," including, but not limited to, a computer, computer network, computer chip, computer circuit, scanner, telephone, cellular telephone, pager, personal communications device, transponder, receiver, radio, modem, or device that enables the use of a modem. "Telecommunication" means the origination, emission, dissemination, transmission, or reception of data, images, signals, sounds, or other intelligence or equivalence of intelligence of any nature over any communications system by any method, including, but not limited to, a fiber optic, electronic, magnetic, optical, digital, or analog method. (By reference to R.C. 2913.01, not in the act.)
(h) "Post a message" means transferring, sending, posting, publishing, disseminating, or otherwise communicating, or attempting to transfer, send, post, publish, disseminate, or otherwise communicate, any message or information, whether truthful or untruthful, about an individual, and whether done under one's own name, under the name of another, or while impersonating another.
(i) "Sexual motivation" means a purpose to gratify the sexual needs or desires of the offender (by reference to R.C. 2971.01, not in the act).
5. R.C. 2903.213, not in the act, provides that, except when the complaint involves a person who is a family or household member as defined in R.C. 2919.25, upon the filing of a complaint that alleges a violation of R.C. 2903.11, 2903.12, 2903.13, 2903.21, 2903.211, 2903.22, or 2911.211, a violation of a municipal ordinance substantially similar to R.C. 2903.13, 2903.21, 2903.211, 2903.22, or 2911.211, or the commission of a sexually oriented offense (as defined in the Sex Offender Registration and Notification Law), the complainant, the alleged victim, or a family or household member of an alleged victim may file a motion that requests the issuance of a protection order as a pretrial condition of release of the alleged offender, in addition to any bail. The motion must be filed, in a specified form, with the clerk of the court with jurisdiction of the case at any time after the filing of the complaint.
As soon as possible after the filing of such a motion, but not later than the next day that the court is in session after the filing of the motion, the court must conduct a hearing to determine whether to issue the order. The person who requested the order must appear before the court and provide it with the information it requests concerning the basis of the motion. If the court finds that the safety and protection of the complainant or the alleged victim may be impaired by the continued presence of the alleged offender, the court may issue a protection order, as a pretrial condition of release, that contains terms designed to ensure the safety and protection of the complainant or the alleged victim, including a requirement that the alleged offender refrain from entering the residence, school, business, or place of employment of the complainant or the alleged victim. If the court issues a protection order that includes a requirement that the alleged offender refrain from entering the residence, school, etc., of the complainant or the alleged victim, the order must clearly state that the order cannot be waived or nullified by an invitation to the alleged offender from the complainant, the alleged victim, or a family or household member to enter the residence, school, etc., or by the alleged offender's entry into one of those places otherwise upon the consent of the complainant, the alleged victim, or a family or household member.
Except when the complaint involves a person who is a family or household member, upon the filing of a complaint that alleges a violation specified in the second preceding paragraph, the court, upon its own motion, may issue a protection order as a pretrial condition of release of the alleged offender if it finds that the safety and protection of the complainant or the alleged victim may be impaired by the continued presence of the alleged offender. If the court issues a protection order as an ex parte order, it must conduct, as soon as possible after the issuance of the order but not later than the next day that the court is in session after its issuance, a hearing (under the standards described in the preceding paragraph) to determine whether the order should remain in effect, be modified, or be revoked.
If a municipal court or a county court issues a protection order under these provisions and if, subsequent to the issuance of the order, the alleged offender who is the subject of the order is bound over to the court of common pleas for prosecution of a felony arising out of the same activities as those that were the basis of the complaint upon which the order is based, the order remains in effect, as though it were an order of the court of common pleas, while the charges against the alleged offender are pending in the court of common pleas, for the period of time described in the next paragraph, and the court of common pleas has exclusive jurisdiction to modify the order.
A protection order issued under these provisions: (1) is in addition to, but is not construed as a part of, any bail, (2) is effective only until the disposition, by the court that issued the order or, if the alleged offender who is the subject of the order is bound over for prosecution to the court of common pleas, by that court of common pleas, of the criminal proceeding arising out of the complaint upon which the order is based or until the issuance of a stalking/sex offense-related civil protection order under R.C. 2903.214 arising out of the same activities as those that were the basis of the complaint, and (3) cannot be construed as a finding that the alleged offender committed the alleged offense and cannot be introduced as evidence of the commission of the offense at the trial of the alleged offender on the complaint upon which the order is based.
A copy of a protection order issued under these provisions must be issued by the court to the complainant, to the alleged victim, to the person who requested the order, to the defendant, and to all law enforcement agencies with jurisdiction to enforce the order. If the order is issued by a municipal court or county court and the defendant who is the subject of the order is bound over to the court of common pleas for prosecution, the municipal court or county court must direct that a copy be delivered to the court of common pleas. All law enforcement agencies must establish and maintain an index for the protection orders so delivered to the agencies and must note on the index the date and time of the agency's receipt of the order.
Regardless of whether the petitioner has registered the protection order in the county in which the officer's agency has jurisdiction, any officer of a law enforcement agency must enforce a protection order issued pursuant to these provisions in accordance with the provisions of the order. Upon a violation of a protection order issued pursuant to these provisions, the court may issue another protection order under them, as a pretrial condition of release, that modifies the terms of the order that was violated.
Notwithstanding any provision of law to the contrary and regardless of whether a protection order is issued or a consent agreement is approved by a court of another county or by a court of another state, no court or unit of state or local government may charge any fee, cost, deposit, or money in connection with the filing of a motion requesting the issuance of a protection order pursuant to these provisions, in connection with the filing, issuance, registration, or service of a protection order or consent agreement, or for obtaining certified copies of a protection order or consent agreement.
HISTORY
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ACTION |
DATE |
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Introduced |
02-06-08 |
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Reported, H. State Government & Elections |
12-10-08 |
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Passed House (95-0) |
12-10-08 |
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Reported, S. Judiciary - Criminal Justice |
12-17-08 |
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Passed Senate (31-1) |
12-17-08 |
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House concurred in Senate amendments (94-0) |
12-17-08 |
08-hb471-127.doc/kl
* The Legislative Service Commission had not received formal notification of the effective date at the time this analysis was prepared. Additionally, the analysis may not reflect action taken by the Governor.