127th General Assembly
(As Reported by H. Criminal Justice)
Sens. Grendell, Harris, Gardner, Schuring, Schaffer, Mason, Carey, Cates, Cafaro, Fedor, Goodman, Jacobson, Mumper, Niehaus, Padgett, Roberts, Sawyer, Faber, Spada, Stivers, Wilson, Boccieri, Morano, Buehrer
Reps. Uecker, Dyer, Sears, Core, DeGeeter
BILL SUMMARY
· Expands to include all "equivalent offenses" the list of relevant prior convictions used in the prohibition against a person refusing to submit to a chemical test under the Vehicle Implied Consent Law if the person is arrested for operating a vehicle while under the influence of alcohol, a drug of abuse, or both and if within the preceding 20 years the person has certain relevant prior convictions.
· Increases by $50 the minimum fine that an offender who is convicted of or pleads guilty to a state OVI violation is required to pay.
· Provides that the $50 increase described in the previous dot point must be deposited in the special projects fund of the court in which the offender was convicted and must 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 and provides that, if the county or municipal corporation in which the offender was convicted does not have a special projects fund, the $50 must be deposited into the Indigent Drivers Interlock and Alcohol Monitoring Fund that the bill creates.
· Revises the sentencing provisions for an offender who is convicted of state OVI and who, within six years of the offense, previously has been convicted of or pleaded guilty to one state OVI offense, state OVUAC offense (a violation of R.C. 4511.19(B)), or other equivalent offense by requiring the sentencing court to require the offender to be assessed by an authorized alcohol and drug treatment program and by requiring the offender to follow the treatment recommendations (existing law authorizes the court to require attendance at a certified driver's intervention program).
· Revises the sentencing provisions for an offender who is convicted of state OVI and who, within six years of the offense, was convicted of or pleaded guilty to two or more state OVI offenses, state OVUAC offenses, or other equivalent offenses, for an offender who, within 20 years of the offense, was convicted of or pleaded guilty to five or more such offenses, and for an offender who previously was convicted of or pleaded guilty to a felony state OVI by requiring the sentencing court to order the offender to follow the treatment recommendations of the alcohol and drug addiction program in which the offender must participate and by requiring the operator of the program to determine and assess the degree of the offender's alcohol dependency and make recommendations for treatment.
· Provides that expenditures from a county indigent drivers alcohol treatment fund, a county juvenile indigent drivers alcohol treatment fund, or a municipal indigent drivers alcohol treatment fund may be made upon the order of a county, juvenile, or municipal court judge to pay for the cost of an assessment of a person convicted of or found to be a juvenile traffic offender for state OVI by an alcohol and drug addiction program if the person is determined by the court to be unable to pay the cost of the assessment.
· Provides that non-certified alcohol and drug addiction programs that apply to be certified pursuant to R.C. 3793.06 are eligible to receive surplus IDAT funds so long as the application is pending with the Department of Alcohol and Drug Addiction Services.
· Provides that, if the non-certified alcohol and drug addiction program described in the previous dot point withdraws the certification application, the Department of Alcohol and Drug Addiction Services must notify the court, and the court may not provide the non-certified program with any further surplus funds.
· Requires the court to identify and refer any alcohol and drug addiction program that is not certified under R.C. 3793.06 and that is interested in receiving amounts from surplus IDAT money to the Department of Alcohol and Drug Addiction Services and requires the Department to keep a record of such applicant referrals and submit a report on the referrals each year to the General Assembly.
· Authorizes a court that otherwise would be required to issue a vehicle immobilization order as part of the sentence of a person convicted of state OVI or as a sanction for a person convicted of a municipal OVI violation to waive the vehicle immobilization upon making specified findings regarding the substantial injustice of the order to a family or household member of the offender.
· Specifies that a family or household member described in the previous dot point who permits the offender to operate a vehicle that is subject to an immobilization waiver order is in violation of the offense of wrongful entrustment.
· Creates the offense of operating a motor vehicle in violation of an immobilization waiver, a misdemeanor of the first degree.
· Extends to 45 days the period of the "hard suspension" for a person whose driver's or commercial driver's license or permit or nonresident operating privilege is suspended as a result of a state or municipal OVI conviction, when the offender, within six years of the offense, previously has been convicted of or pleaded guilty to one state OVI offense, state OVUAC offense, or another equivalent offense and provides that on or after the 46th day of suspension, the court may grant limited driving privileges to such an offender but, if the underlying conviction is alcohol-related, the court must issue an order that for the remainder of the period of suspension the offender may not exercise the privileges unless the vehicles the offender operates are equipped with a certified ignition interlock device.
· Regarding an offender described in the previous dot point whose underlying conviction is drug-related, permits a court to issue an order that for the remainder of the period of suspension the offender must not exercise limited driving privileges unless the vehicles the offender operates are equipped with a certified ignition interlock device.
· Permits a court to require an OVI offender who is granted limited driving privileges after a three-year period of "hard suspension" and whose underlying OVI offense is drug-related to utilize a certified ignition interlock device on all vehicles the offender operates for the remainder of the period of suspension.
· Extends to 45 days the period of the "hard suspension" of a person's driver's or commercial driver's license or nonresident operating privilege when results of a chemical test following an arrest for state OVI, state OVUAC, or an other equivalent offense indicate a prohibited concentration of alcohol or drugs and the person has previously been convicted of or pleaded guilty to one state OVI, state OVUAC, or an equivalent offense within the prior six years.
· Permits the court to require a person who is arrested for state OVI, state OVUAC, or other equivalent offense, whose chemical test results indicate a prohibited concentration of alcohol or drugs, and who, within six years of the date the test was conducted, has been convicted of or pleaded guilty to two state OVI offenses, state OVUAC offenses, or other equivalent offenses to utilize a certified ignition interlock device on all vehicles the offender operates for the remainder of the period of suspension if the offender's underlying conviction is drug-related (the italicized word is an error and should be arrest).
· Permits a court to require an OVI offender who has been convicted of or pleaded guilty to two state OVI offenses, state OVUAC offenses, or other equivalent offenses in the previous six years, who is granted limited driving privileges after a 180-day period of "hard suspension," and whose underlying OVI conviction is drug-related, to utilize a certified ignition interlock device on all vehicles the offender operates for the remainder of the period of suspension.
· Changes the term "immobilizing or disabling device" to "certified ignition interlock device" in parts of the Revised Code providing for hard license suspensions.
· Provides that in any case in which an offender who has previously been convicted of two or more OVI offenses and is granted limited driving privileges and prohibited from operating any motor vehicle that is not equipped with an ignition interlock device operates a motor vehicle that is not equipped with an ignition interlock device, circumvents the device, or tampers with the device, or in any case in which the court receives a notice pursuant to R.C. 4510.46 that such a device prevented an offender described in this dot point from starting a motor vehicle, the court must require the offender to wear a continuous alcohol monitor for a specified period.
· Provides that in any case in which an offender who has previously been convicted of one or more OVI offenses and is granted limited driving privileges and prohibited from operating any motor vehicle that is not equipped with an ignition interlock device operates a motor vehicle that is not equipped with an ignition interlock device, circumvents the device, or tampers with the device, or in any case in which the court receives notice pursuant to R.C. 4510.46 that such a device prevented an offender described in this dot point from starting a motor vehicle, the court may require the offender to wear a continuous alcohol monitor on the first instance and must require the offender to wear a continuous alcohol monitor on a second or subsequent instance for specified periods of time.
· Requires the court to impose an additional $2.50 court cost on an OVI offender when the court grants limited driving privileges after a hard license suspension and requires the offender to utilize an immobilizing or disabling device, including a certified ignition interlock device, and requires the court to impose an additional $2.50 court cost on such an offender who "violates" the device in that instance and is required under the bill to wear a remote alcohol monitor.
· Directs the $2.50 mandatory court cost described in the previous dot point to the state treasury to the credit of the State Highway Safety Fund, to be used by the Department of Public Safety to cover costs associated with the habitual OVI/OMWI Offender Registry created by the bill.
· Provides that the court may impose an additional $2.50 court cost on an OVI offender when the court grants limited driving privileges after a hard license suspension and requires the offender to utilize an immobilizing or disabling device, including a certified ignition interlock device, and provides that the court may impose an additional $2.50 court cost on such an offender who "violates" the device in that instance and is required under the bill to wear a continuous alcohol monitor.
· Provides that if the court imposes the court cost described in the previous dot point, the clerk of court must retain the court cost and must deposit it in the court's special projects fund.
· Provides that if a court grants limited driving privilege to a person who has been convicted of or pleaded guilty to two, three, or four prior OVI offenses in the previous six years or five OVI offenses in the past 20 years, and who is alleged to have committed a state OVI offense or a violation of a substantially equivalent municipal ordinance, the court must prohibit the person from consuming any beer or intoxicating liquor and may require the person to wear a continuous alcohol monitor until the person is convicted of, pleads guilty to, is found not guilty of the alleged violation, or the charges in the case are dismissed.
· Provides that if a court grants limited driving privilege to a person who has formerly been convicted of a felony OVI offense and is alleged to have committed a state OVI offense or a violation of a substantially equivalent municipal ordinance, the court must prohibit the person from consuming any beer or intoxicating liquor and must require the person to wear a continuous alcohol monitor until the person is convicted of, pleads guilty to, is found not guilty of the alleged violation, or the charges in the case are dismissed.
· Specifies that a county court or a municipal court may require an OVI offender to pay, as a financial sanction, all or part of the cost of purchasing and using an immobilizing or disabling device, including a certified ignition interlock device, or a remote alcohol monitoring device that a court orders an offender to use under R.C. 4510.13.
· Requires the Director of Public Safety to publish and make available to courts a list of licensed manufacturers of ignition interlock devices and requires that a manufacturer that desires for its devices to be certified and included on the list first must, annually, obtain a license from the Department of Public Safety.
· Provides for procedures and requirements pertaining to the license described in the previous dot point, including a $100 application fee for the license (to be deposited in the Indigent Drivers Alcohol Treatment Fund), grounds to reject an application for such a license, and an appeals process.
· Requires that every manufacturer of ignition interlock devices that is issued a license must file an annual report and pay, annually, a fee equal to 5% of the amount of net profit the manufacturer earned during a 12-month period specified by the Department that is attributable to sales of that manufacturer's certified ignition interlock devices to purchasers in this state (the fee must be deposited in the Indigent Drivers Alcohol Treatment Fund).
· Requires the Department of Public Safety to remove from the list of certified ignition interlock devices the ignition interlock devices manufactured by a manufacturer that fails to file an annual report with the Department or fails to pay the fee described in the preceding dot point.
· Allows the Director of Public Safety to make an assessment against any licensed manufacturer of ignition interlock devices that fails to file an annual report or pay the fee described in the second preceding dot point.
· Requires the Director to adopt rules governing assessments described in the previous dot point, including rules governing the appeals of such assessments, and rules that adopt a penalty schedule setting forth the monetary penalties to be imposed upon a manufacturer of ignition interlock devices that is issued a license and fails to file an annual report or pay the fee described in the third preceding dot point in a timely manner.
· Provides that a licensed manufacturer of ignition interlock devices that files an annual report with the Department that contains erroneous or incorrect information is guilty of a misdemeanor of the first degree and that the Department must remove from the list of certified ignition interlock devices the ignition interlock devices manufactured by a manufacturer that is found guilty of this offense.
· Provides that an entity that monitors certified ignition interlock devices for or on behalf of a court must inform the court whenever such a device that has been installed in a motor vehicle indicates that it has prevented an offender with a suspended license, permit, or operating privilege and who has been granted limited driving privileges from starting the motor vehicle.
· Provides that upon receipt of the information described in the previous dot point pertaining to a repeat offender, the court must send a notice to the offender stating that because of this instance: (1) if R.C. 4510.13(A)(8) requires the offender to wear a continuous alcohol monitor, the offender is now required to wear a continuous alcohol monitor, (2) the court may increase the period of suspension of the offender's driver's license, permit, or operating privilege from that originally imposed by the court by a factor of two, and (3) the court may increase the period of time during which the offender will be prohibited from exercising any limited driving privileges granted to the offender unless the vehicles the offender operates are equipped with a certified ignition interlock device by a factor of two.
· Specifies that the notice described in the previous dot point must state whether the court will impose the increases described in the previous dot point and, if so, that the increases will take effect 14 days from the date of the notice; provides procedures for an offender's appeal, and provides that in no case may any period of suspension that is increased by a factor of two or any period of time during which the offender is prohibited from exercising limited driving privileges granted to the offender unless the vehicles the offender operates are equipped with a certified ignition interlock device that is increased by a factor of two exceed the maximum period of time for which the court originally was authorized to suspend the offender's license, permit, or operating privilege.
· Regarding an offender who is required to use an immobilizing or disabling device while exercising limited driving privileges, requires the court to notify the offender at the time the court grants the offender limited driving privileges that if the court receives notice that the device prevented the offender from starting the motor vehicle because the device was tampered with or circumvented or because the analysis of the deep-lung breath sample or other method of measuring the concentration of alcohol in the offender's breath indicated the presence of alcohol in the offender's breath in a concentration sufficient to prevent the motor vehicle from starting, the court may increase the period of suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege from that originally imposed by the court by a factor of two and may increase the period of time during which the offender will be prohibited from exercising any limited driving privileges granted to the offender unless the vehicles the offender operates are equipped with a certified ignition interlock device by a factor of two.
· In the provisions that establish and pertain to the offense of wrongful entrustment of a motor vehicle, expands the prohibition so that it also prohibits a person from permitting a motor vehicle owned by the person or under the person's control to be driven by another if the offender knows or has reasonable cause to believe that the vehicle is the subject of an immobilization waiver order issued under the bill and the other person is prohibited from operating the vehicle under that order.
· Revises the sentencing provisions for an offender convicted of state OMWI (a violation of R.C. 1547.11(A) or (B)) by replacing the list of prior convictions that are relevant in determining the penalty with a new, expanded list of "equivalent offenses."
· Provides that, in any criminal prosecution or juvenile court proceeding charging state OMWI or an "equivalent offense that is watercraft-related": (1) the court may admit evidence of the concentration of alcohol, drugs of abuse, or a combination of them in the defendant's bodily substance if a person submits to a blood, breath, urine, or other bodily substance test at the request of a law enforcement officer under the Watercraft Implied Consent Law or if a blood or urine sample is obtained pursuant to a search warrant, and (2) the result of any test of any blood or urine withdrawn and analyzed at a hospital, ambulatory care facility, long-term care facility, pharmacy, emergency pharmacy, emergency facility, or health care practitioner may be admitted with expert testimony to be considered with any other relevant and competent evidence in determining the defendant's guilt or innocence.
· In the provision of the Vehicle Implied Consent Law that requires the suspension of the driver's license or permit or nonresident operating privilege of a person who is arrested for state OVI, state OVUAC, "having physical control of a vehicle while under the influence" or a substantially equivalent municipal ordinance, or a municipal OVI ordinance, who is requested to submit to a chemical test of a bodily substance and is read specified required notices, and who refuses to submit to the test, expands the factors used in determining the length of the suspension to include all of the following that occurred within six years of the refusal: (1) prior convictions of the person of state OVI, state OVUAC, or another "equivalent offense" (this factor is added by the bill), and (2) prior refusals to submit to a chemical test (retained from existing law).
· Adds a new provision to both the Vehicle Implied Consent Law and the Watercraft Implied Consent Law that specifies that: (1) if a person is arrested for any of the list of offenses that subjects a person to either of those Laws and the person has two or more prior convictions of state OVI, state OVUAC, state OMWI, or "equivalent offenses" (OMWI, OVI, and OVUAC), in the prior six years, has five or more such prior convictions within the prior 20 years (OVI and OVUAC), or has a prior felony state OVI conviction (OVI and OVUAC), the arresting law enforcement officer must request the person to submit, and the person must submit, to a chemical test of the person's whole blood, blood serum or plasma, breath, or urine for the purpose of determining the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine, (2) the officer is required to advise the person of the consequences of refusing to submit to the test, (3) if the person refuses to submit to a chemical test upon request of the officer, the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma, (4) the officer is immune from criminal and civil liability based upon any claim for acts taken under the provision described in clause (3) unless the officer acted with malicious purpose, in bad faith, or in a wanton or reckless manner, and (5) if the test results indicate a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, breath, or urine at the time of the alleged offense the person's driver's or commercial driver's license or permit or nonresident operating privilege is suspended as a "prohibited concentration suspension."
· Explicitly extends an existing qualified immunity from criminal or civil liability to the persons who withdraw blood from a person pursuant to the Watercraft Implied Consent Law or the Vehicle Implied Consent Law.
· Expands the definition of "equivalent offense" that applies to R.C. 4511.19 to 4511.197, including state OVI, state OVUAC, and the Vehicle Implied Consent Law to additionally include (1) state OMWI, (2) a violation of a municipal ordinance that is substantially equivalent to state OMWI, (3) a violation of an existing or former municipal ordinance, law of a state other than Ohio, or law of the United States that is substantially equivalent to state OMWI, and (4) a violation of a former Ohio law that was substantially equivalent to state OMWI.
· Replaces the watercraft-related definition of "equivalent violation" with the redefined OVI-related "equivalent offense" definition.
· Defines the term "equivalent offense that is vehicle-related" for purposes of R.C. 4511.19 to 4511.197, including state OVI, state OVUAC, and the Vehicle Implied Consent Law.
· Defines the term "equivalent offense that is watercraft-related" for purposes of state OMWI and the Watercraft Implied Consent Law.
· Modifies the provisions that govern the requirements for an immobilizing or disabling device that is an ignition interlock device to additionally (1) require the manufacturer of the device to submit to the Department of Public Safety a certificate from an independent testing laboratory indicating that the device meets or exceeds the standards of the federal National Highway Traffic Safety Administration, and (2) require the device to have operating and functional features that make circumvention difficult and that do not interfere with the normal use of the vehicle.
· Requires the Department of Public Safety to establish a State Registry of Ohio's Habitual OVI/OMWI Offenders and an Internet database, both of which are public records, containing specified information about persons who on or after the effective date of the bill receive their fifth or subsequent conviction within the preceding 20 years for state OVI, state OVUAC, municipal OVI, having physical control of a vehicle while under the influence or a substantially equivalent municipal ordinance, state OMWI, a violation of a municipal ordinance substantially equivalent to state OMWI, or another "equivalent offense," and requires a court that convicts a person for any of those offenses for a fifth or subsequent time to send to the Department of Public Safety specified information.
· Provides that if a defendant claims a constitutional defect in any prior conviction when it is necessary to prove such a conviction for sentencing and other purposes, the defendant has the burden of proving the defect by a preponderance of the evidence.
· Increases by $50 the cost of the license reinstatement fee and directs this $50 to the Indigent Drivers Interlock and Alcohol Monitoring Fund that the bill creates.
· Establishes the Indigent Drivers Interlock and Alcohol Monitoring Fund in the state treasury and provides that money in the fund must be distributed by the Department of Public Safety to the county, county juvenile, and municipal indigent drivers interlock and alcohol monitoring funds that the bill also establishes.
· Provides that the money in the indigent drivers interlock and alcohol monitoring funds described in the previous dot point must be used only to pay the cost of an immobilizing or disabling device, including a certified ignition interlock device, or an alcohol monitoring device used by an offender or juvenile offender who is ordered to use the device by a county, county juvenile, or municipal court judge and who is determined by the county, juvenile, or municipal court judge not to have the means to pay for the person's use of the device.
· Provides that money in a county indigent drivers alcohol treatment fund, a county juvenile indigent drivers alcohol treatment fund, or a municipal indigent drivers alcohol treatment fund may only be used to pay for the cost of alcohol monitoring in conjunction with treatment for an indigent offender when money in the Indigent Drivers Interlock and Alcohol Monitoring Fund is exhausted.
· Provides that if the court declares a surplus in the Indigent Drivers Alcohol Treatment Fund, the court may expend the amount of the surplus for all or part of the cost of purchasing electronic continuous alcohol monitoring devices to be used in conjunction with treatment only upon exhaustion of money in the Indigent Drivers Interlock and Alcohol Monitoring Fund for the use of an alcohol monitoring device.
· Requires the court to use the indigent client eligibility guidelines and the standards of indigency established by the State Public Defender to determine whether an offender does not have the means to pay for the offender's attendance at an alcohol and drug addiction treatment program and to determine whether an alleged offender or delinquent child is unable to pay the costs of an alcohol and drug abuse assessment and treatment.
TABLE
OF CONTENTS
Use of $50 increase in mandatory OVI fine
Vehicle immobilization waiver order
Issuance of vehicle immobilization waiver order
Limited driving privileges under an OVI suspension
Increase in license reinstatement fee
Creation of county and municipal indigent drivers interlock and alcohol
monitoring funds
Circumstances under which non-certified treatment programs may receive
surplus IDAT funds
Continuous alcohol monitoring after arrest
Wrongful entrustment of a motor vehicle
Admission of evidence on the concentration of alcohol or a drug of
abuse in
a state OMWI case
Ways in which admissible evidence may be obtained
Vehicle Implied Consent Law suspensions
Operation of the bill--Vehicle Implied Consent Law refusal suspensions
Operation of the bill--Vehicle Implied Consent Law prohibited
concentration suspensions
Immunity for withdrawal of blood
Definition of "equivalent offense" as used in OVI and OMWI
laws
Certification of ignition interlock devices
Licensing option for manufacturers of certified ignition interlock
devices
Establishment of State Registry and Internet database
Updating of State Registry and Internet database
Definition of "OVI/OMWI violation"
Burden of proof when proving prior constitutional defect
Financial sanction--reimbursement for alcohol monitoring device or
ignition interlock
CONTENT AND OPERATION
Existing law, unchanged by the bill, prohibits a person from operating any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply: (1) the person is under the influence of alcohol, a drug of abuse, or a combination of them, (2) the person has a concentration of .08 of one per cent or more but less than .17 of one per cent by weight per unit volume of alcohol in the person's whole blood, (3) the person has a concentration of .096 of one per cent or more but less than .204 of one per cent by weight per unit volume of alcohol in the person's blood serum or plasma, (4) the person has a concentration of .08 of one gram or more but less than .17 of one gram by weight of alcohol per 210 liters of the person's breath, (5) the person has a concentration of .11 of one gram or more but less than .238 of one gram by weight of alcohol per 100 milliliters of the person's urine, (6) the person has a concentration of .17 of one per cent or more by weight per unit volume of alcohol in the person's whole blood, (7) the person has a concentration of .204 of one per cent or more by weight per unit volume of alcohol in the person's blood serum or plasma, (8) the person has a concentration of .17 of one gram or more by weight of alcohol per 210 liters of the person's breath, (9) the person has a concentration of .238 of one gram or more by weight of alcohol per 100 milliliters of the person's urine, or (10) the person has a concentration of any of a list of controlled substances or metabolites of a controlled substance in the person's whole blood, blood serum or plasma, or urine that equals or exceeds a specified concentration of the controlled substance or metabolite, as described in COMMENT 1. (R.C. 4511.19(A)(1).)
Existing law also prohibits a person who, within 20 years of the conduct described in clause (1) of this paragraph, previously has been convicted of or pleaded guilty to a violation of the prohibition described in this paragraph, the prohibition described in the preceding paragraph, R.C. 4511.19(B) (state OVUAC, see COMMENT 2), or a municipal OVI offense from doing both of the following: (1) operating any vehicle, streetcar, or trackless trolley within this state while under the influence of alcohol, a drug of abuse, or a combination of them, and (2) subsequent to being arrested for operating the vehicle, streetcar, or trackless trolley as described in clause (1), being asked by a law enforcement officer to submit to a chemical test or tests under R.C. 4511.191 (the Vehicle Implied Consent Law), and being advised by the officer in accordance with R.C. 4511.192 of the consequences of the person's refusal or submission to the test or tests, refusing to submit to the test or tests. (R.C. 4511.19(A)(2).) The bill changes the reference to "a municipal OVI offense" in this prohibition to "any other equivalent offense." This change expands the number of offenders potentially subject to this prohibition.
A violation of any of the prohibitions in clauses (1) to (9) of the second preceding paragraph or the prohibition described in the preceding paragraph is the offense of "operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them." A violation of the prohibition described in clause (10) of the second preceding paragraph is the offense of "operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance." Hereafter, both of the offenses are referred to as "state OVI." In subsequent portions of this analysis, references to "high-amount state OVI" mean violations of a prohibition set forth in clause (6), (7), (8), or (9) of the second preceding paragraph, and references to "division (A)(2) state OVI" mean violations of the prohibition set forth in the preceding paragraph. The offense of state OVI is punished as described below in "State OVI penalties."
The existing penalties for state OVI are described below in "Existing law." The bill changes the definition of "equivalent offense" that is used in determining the penalty for state OVI and state OVUAC (see "Definition of "equivalent offense" as used in OVI and OMWI laws," below). Offenders with one or more prior convictions of the offenses listed within that definition are subject to more stringent penalties than offenders with no such prior conviction. The bill also modifies some of the existing penalties for repeat state OVI offenders, as follows:
(1) It increases the minimum fine from $325 to $375 that an offender who previously has not been convicted of state OVI, state OVUAC, or another "equivalent offense" (see "Definition of "equivalent offense" as used in OVI and OMWI laws,") is required to pay. It does not change the other penalties described below in paragraph (1) under "Existing law" for such an offender. (R.C. 4511.19(G)(1)(a).)
(2) For an offender who, within six years of the offense, previously has been convicted of one state OVI offense, one state OVUAC offense, or one other equivalent offense, the bill retains the existing offense classification as a misdemeanor of the first degree and retains the existing jail term/house arrest provisions, and the existing license suspension provisions, as described below in paragraph (2) under "Existing law." But the bill provides that, in addition to the jail term or the term of house arrest with monitoring and jail term, the court must require the offender to be assessed by an alcohol and drug treatment program that is authorized by R.C. 3793.02 and must 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 whether or not treatment is warranted. Upon the request of the court, the program must submit the results of the assessment to the court, including all treatment recommendations and clinical diagnoses related to alcohol use. The bill also increases the minimum fine from $475 to $525 that such an offender is required to pay. (R.C. 4511.19(G)(1)(b)(i), (ii), and (iii).) (Existing law authorizes the court to require attendance at a driver's intervention program.)
(3) For an offender who, within six years of the offense, previously has been convicted of two state OVI offenses, state OVUAC offenses, or other equivalent offenses, the bill retains the existing offense classification as a misdemeanor and retains the existing jail term/house arrest provisions, the existing forfeiture provisions, and the existing license suspension provisions, as described below in paragraph (3) under "Existing law." The bill expands the existing alcohol and drug addiction program provisions to require the court to require the offender to follow the treatment recommendations of the program. The operator of the program must determine and assess the degree of the offender's alcohol dependency and must make recommendations for treatment. Upon the request of the court, the program must submit the results of the assessment to the court, including all treatment recommendations and clinical diagnoses related to alcohol use. The bill also increases the minimum fine from $800 to $850 that such an offender is required to pay. (R.C. 4511.19(G)(1)(c)(iii) and (vi).)
(4) For an offender who, within six years of the offense, previously has been convicted of three or four state OVI offenses, state OVUAC offenses, or other equivalent offenses or an offender who, within 20 years of the offense, previously has been convicted of five or more violations of that nature, the bill retains the existing offense classification as a felony of the fourth degree and retains the existing prison term/jail term/house arrest provisions, the existing forfeiture provisions, and the existing license suspension provisions, as described below in paragraph (4) under "Existing law." But the bill increases the minimum fine from $1,300 to $1,350 that such an offender is required to pay. The bill also changes the sentencing provision regarding such an offender that pertains to participation in an alcohol and drug addiction program in the same manner as is described above in paragraph (3) regarding an offender who is subject to the provisions described in that paragraph. (R.C. 4511.19(G)(1)(d)(iii) and (vi).)
(5) For an offender who previously has been convicted of or pleaded guilty to state OVI when the offense was a felony, the bill retains the existing offense classification as a felony of the third degree and retains the existing prison term provisions, the existing forfeiture provisions, and the existing license suspension provisions, as described below in paragraph (5) under "Existing law." The bill changes the sentencing provisions regarding such an offender, though, in the same manner as is described above in paragraph (3) regarding an offender who is subject to the provisions described in that paragraph. (R.C. 4511.19(G)(1)(e)(iii) and (vi).)
The bill provides that the additional $50 of the mandatory OVI fines imposed under R.C. 4511.19(G)(1)(a)(iii), (G)(1)(b)(iii), (G)(1)(c)(iii), (G)(1)(d)(iii), and (G)(1)(e)(iii) that are imposed by the bill and discussed in the prior five paragraphs must be deposited into the special projects fund of the court in which the offender was convicted and that is established under R.C. 2303.201(E)(1) or R.C. 1901.26(B)(1), 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 county or municipal corporation in which the offender was convicted does not have a special projects fund that is established under R.C. 2303.201(E)(1) or R.C. 1901.26(B)(1), the $50 must be deposited into the Indigent Drivers Interlock and Alcohol Monitoring Fund under R.C. 4511.191(I). (R.C. 4511.19(G)(5)(e).)
Cost of an assessment. The bill provides that expenditures from a county indigent drivers alcohol treatment fund, a county juvenile indigent drivers alcohol treatment fund, or a municipal indigent drivers alcohol treatment fund may be made upon the order of a county, juvenile, or municipal court judge to pay for the cost of an assessment of a person convicted of or found to be a juvenile traffic offender for state OVI by an alcohol and drug addiction program described in the previous paragraphs if the person is determined by the court to be unable to pay the cost of the assessment. In addition, upon exhaustion of moneys in the Indigent Drivers Interlock and Alcohol Monitoring Fund for the use of an alcohol monitoring device, a judge may use moneys in one of those local indigent drivers alcohol treatment funds to pay for the continued use of an electronic continuous alcohol monitoring device by an offender or juvenile traffic offender. (R.C. 4511.191(H)(3).)
Under existing law, a person who is convicted of the offense of state OVI is sentenced under R.C. Chapter 2929., the general Criminal Sentencing Law, except as otherwise authorized or required by the provisions described in paragraphs (1) to (5), below (R.C. 4511.19(G)):
(1) First conviction. Except as otherwise described in paragraphs (2) to (5), below, the offender is guilty of a misdemeanor of the first degree, and the court must sentence the offender to all of the following:
(a) Unless the offense is high-amount state OVI or division (A)(2) state OVI, a mandatory jail term of three consecutive days. The court may sentence an offender to both an intervention program and a jail term and may impose a jail term in addition to the three-day mandatory jail term or intervention program, provided that the cumulative jail term imposed cannot exceed six months. The court may suspend the execution of some or all of the three-day jail term and, instead, place the offender under a community control sanction for the suspended portion, require the offender to attend, for the suspended portion, a drivers' intervention program, and sentence the offender to a jail term for the non-suspended portion. The court also may require the offender to attend and complete any treatment or education programs that the operators of the drivers' intervention program determine that the offender should attend, and may impose on the offender any other conditions of community control that it considers necessary.
(b) If the offense is high-amount state OVI or division (A)(2) state OVI, except as otherwise described in this paragraph, 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. If the court determines that the offender is not conducive to treatment in such a program, if the offender refuses to attend such a program, or if the jail at which the offender is to serve the jail term imposed can provide such a program, the court must sentence the offender to a mandatory jail term of at least six consecutive days. The court may require the offender to attend and complete any treatment or education programs that the operators of the drivers' intervention program determine that the offender should attend, and may impose any other conditions of community control on the offender that it considers necessary.
(c) In all cases, a fine of not less than $325 and not more than $1,075 and a Class 5 license suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege. The court may grant limited driving privileges relative to the suspension under R.C. 4510.021 and 4510.13 (see "Limited driving privileges under an OVI suspension," below).
(2) One prior conviction within preceding six years. Except as otherwise described in paragraph (5), below, an offender who, within six years of the offense, previously has been convicted of one state OVI offense, one state OVUAC offense, or one other "equivalent offense" (see "Definition of "equivalent offense" as used in OVI and OMWI laws," below) is guilty of a misdemeanor of the first degree, and the court must sentence the offender to all of the following:
(a) Unless the offense is high-amount state OVI or division (A)(2) state OVI, a mandatory jail term of ten consecutive days. In specified circumstances, the court may instead impose a sentence 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, provided that the cumulative jail term imposed cannot exceed six months. In addition to the jail term or the term of house arrest with monitoring and jail term, the court may require the offender to attend a drivers' intervention program. If the operator of the program determines that the offender is alcohol dependent, the program must notify the court, and the court generally must order the offender to obtain treatment through an alcohol and drug addiction program.
(b) If the sentence is being imposed for high-amount state OVI or division (A)(2) state OVI, except as otherwise described in this paragraph, a mandatory jail term of 20 consecutive days. In specified circumstances, the court may instead impose a sentence 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 20-day mandatory jail term, provided that the cumulative jail term imposed cannot exceed six months. In addition to the jail term or the term of house arrest with monitoring and jail term, the court may require the offender to attend a driver's intervention program. If the operator of the program determines that the offender is alcohol dependent, the program must notify the court, and the court generally must order the offender to obtain treatment through an alcohol and drug addiction program.
(c) In all cases, a fine of not less than $475 and not more than $1,625; a Class 4 license suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege; and, if the vehicle is registered in the offender's name, immobilization of the vehicle involved in the offense for 90 days and impoundment of the license plates of that vehicle for 90 days. The court may grant limited driving privileges relative to the suspension under R.C. 4510.021 and 4510.13 (see "Limited driving privileges under an OVI suspension," below).
(3) Two prior convictions within preceding six years. Except as otherwise described below in paragraph (5), an offender who, within six years of the offense, previously has been convicted of two state OVI offenses, state OVUAC offenses, or equivalent offenses is guilty of a misdemeanor, and the court must sentence the offender to all of the following:
(a) Unless the offense is high-amount state OVI or division (A)(2) state OVI, a mandatory jail term of 30 consecutive days. In specified circumstances, the court instead may impose a sentence 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 30-day mandatory jail term, provided that the additional jail term cannot exceed one year and the cumulative jail term imposed cannot exceed one year.
(b) If the sentence is being imposed for high-amount state OVI or division (A)(2) state OVI, a mandatory jail term of 60 consecutive days. In specified circumstances, the court instead may impose a sentence 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 60-day mandatory jail term, provided that the additional jail term cannot exceed one year and the cumulative jail term imposed cannot exceed one year.
(c) In all cases, a fine of not less than $800 and not more than $2,750; a Class 3 license suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege; if the vehicle is registered in the offender's name, criminal forfeiture of the vehicle involved in the offense; and participation in an alcohol and drug addiction program. The court may grant limited driving privileges relative to the suspension under R.C. 4510.021 and 4510.13 (see "Limited driving privileges under an OVI suspension," below).
(4) Three or four prior convictions within preceding six years or five or more prior convictions within preceding 20 years. Except as otherwise described below in paragraph (5), an offender who, within six years of the offense, previously has been convicted of three or four state OVI offenses, state OVUAC offenses, or other equivalent offenses or an offender who, within 20 years of the offense, previously has been convicted of five or more violations of that nature is guilty of a felony of the fourth degree and the court must sentence the offender to all of the following:
(a) Unless the offense is high-amount state OVI or division (A)(2) state OVI, 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 R.C. 2941.1413 or, in the discretion of the court, either a mandatory term of local incarceration of 60 consecutive days or a mandatory prison term of 60 consecutive days 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 60-day mandatory term, the cumulative total of the mandatory term and the jail term cannot exceed one year, and, generally, no prison term is authorized for the offense. If the court imposes a mandatory prison term, it also may sentence the offender to a definite prison term that must be not less than six months and not more than 30 months. 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, but the offender must serve all of the prison terms so imposed prior to serving the community control sanction.
(b) If the sentence is being imposed for high-amount state OVI or division (A)(2) state OVI, a mandatory prison term of one, two, three, four, or five years if the offender also is convicted of a specification of the type described in R.C. 2941.1413 or, in the discretion of the court, either a mandatory term of local incarceration of 120 consecutive days or a mandatory prison term of 120 consecutive days 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 120-day mandatory term, the cumulative total of the mandatory term and the jail term cannot exceed one year, and, generally, no prison term is authorized for the offense. If the court imposes a mandatory prison term, it also may sentence the offender to a definite prison term that must be not less than six months and not more than 30 months. 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, but the offender must serve all of the prison terms so imposed prior to serving the community control sanction.
(c) In all cases, a fine of not less than $1,300 nor more than $10,500; a Class 2 license suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege; if the vehicle is registered in the offender's name, criminal forfeiture of the vehicle involved in the offense; and participation in an alcohol and drug addiction program. If the court sentences the offender to a mandatory term of local incarceration, in addition to the mandatory term, the court may impose a term of house arrest with electronic monitoring, to commence after the offender has served the mandatory term of local incarceration. The court may grant limited driving privileges relative to the suspension under sections 4510.021 and 4510.13 of the Revised Code (see "Limited driving privileges under an OVI suspension," below).
(5) Prior felony state OVI conviction. An offender who previously has been convicted of state OVI when the offense was a felony, regardless of when the violation and the conviction occurred, is guilty of a felony of the third degree and the court must sentence the offender to all of the following:
(a) Unless the offense is high-amount state OVI or division (A)(2) state OVI, 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 R.C. 2941.1413 or a mandatory prison term of 60 consecutive days 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, provided that the cumulative total of a 60-day mandatory prison term and the additional prison term for the offense cannot 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, but the offender must serve all of the prison terms so imposed prior to serving the community control sanction.
(b) If the sentence is being imposed for high-amount state OVI or division (A)(2) state OVI, 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 R.C. 2941.1413 or a mandatory prison term of 120 consecutive days 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, provided that the cumulative total of a 120-day mandatory prison term and the additional prison term for the offense cannot 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, but the offender must serve all of the prison terms so imposed prior to serving the community control sanction.
(c) In all cases, a fine of not less than $1,300 nor more than $10,500; a Class 2 license suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege, if the vehicle is registered in the offender's name; criminal forfeiture of the vehicle involved in the offense; and participation in an alcohol and drug addiction program. The court may grant limited driving privileges relative to the suspension under R.C. 4510.021 and 4510.13 (see "Limited driving privileges under an OVI suspension," below).
Under the bill, if R.C. 4511.19(G) or R.C. 4511.193(B) requires a court, as part of the sentence for state OVI or as a sanction for a violation of a municipal OVI ordinance, to order the immobilization of a vehicle for a specified period of time, notwithstanding the requirement, the court in its discretion may determine not to order the immobilization of the vehicle if both of the following apply: (1) prior to the issuance of the immobilization order, a "family or household member" (defined in the bill as having the same meaning as in R.C. 2919.25, except the person must be currently residing with the offender) of the offender files a motion identifying the vehicle and requesting that the immobilization order not be issued because the family or household member who files the motion is completely dependent on the vehicle for the necessities of life and the immobilization of the vehicle would be an undue hardship on the family or household member, and (2) the court determines that the family or household member of the offender is completely dependent on the vehicle for the necessities of life and that the immobilization would be an undue hardship to the family or household member.
If a court pursuant to the above-described provision determines not to order the immobilization of a vehicle that otherwise would be required, the court must issue an order that waives the immobilization that otherwise would be required pursuant to either of those divisions. The immobilization waiver order will be in effect for the period of time for which the immobilization of the vehicle otherwise would have been required under R.C. 4511.19(G) or R.C. 4511.193(B) if the immobilization waiver order had not been issued. The immobilization waiver order must specify the period of time for which it is in effect. The court must provide a copy of an immobilization waiver order to the offender and to the family or household member of the offender who filed the motion requesting that the immobilization order not be issued and must place a copy of the immobilization waiver order in the record in the case. The court must impose an immobilization waiver fee of $50 and must determine whether the offender or the family or household member must pay the fee. The clerk must deposit the fee in the state treasury to the credit of the Indigent Drivers Alcohol Treatment Fund.
If a court issues an immobilization waiver order, the order must identify the family or household member who requested the order and the vehicle to which it applies, must identify the family or household members who are permitted to operate the vehicle, and must identify the offender and specify that the offender is not permitted to operate the vehicle. The immobilization waiver order must require that the family or household member who is permitted to operate the vehicle display on the vehicle to which the order applies restricted license plates issued under R.C. 4503.231 (see "Restricted license plates," below) for the entire period for which the immobilization of the vehicle otherwise would have been required if the immobilization waiver order had not been issued.
A family or household member who is permitted to operate a vehicle under an immobilization waiver order issued under the provisions described above may not permit the offender to operate the vehicle. If a family or household member who is permitted to operate the vehicle permits the offender to operate the vehicle, both of the following apply: (1) the court that issued the immobilization waiver order must terminate that order and must issue an immobilization order in accordance with R.C. 4503.233 that applies to the vehicle, and the immobilization order is in effect for the remaining period of time for which the immobilization of the vehicle otherwise would have been required if the immobilization waiver order had not been issued, and (2) the conduct of the family or household member in permitting the offender to operate the vehicle is a violation of the offense of wrongful entrustment of a motor vehicle (see "Wrongful entrustment," below). The bill also prohibits the offender from operating the motor vehicle that is subject to the immobilization waiver order. Whoever violates this prohibition is guilty of operating a motor vehicle in violation of an immobilization waiver, a misdemeanor of the first degree. (R.C. 4503.235, and a reference in R.C. 4503.233.)
Existing law. Existing law contains provisions regarding the issuance of restricted license plates. Among the provisions, R.C. 4503.231 specifies that no motor vehicle registered in the name of a person whose vehicle registration and license plates have been impounded as provided in R.C. 4507.02(B)(1) may be operated on any highway in Ohio unless the vehicle displays restricted license plates that are a different color from those regularly issued and carry a special serial number that may be readily identified by law enforcement officers. The Registrar of Motor Vehicles is required to designate the color and serial number to be used on restricted license plates. The section provides an exception to the requirement, for certain employment-related purposes. The section prohibits a person operating a motor vehicle displaying restricted license plates as described in this paragraph from knowingly disguising or obscuring the color of the restricted plate. A person who violates the section is guilty of a minor misdemeanor. (R.C. 4503.231.)
Operation of the bill. The bill also specifies that no vehicle that may be operated pursuant to an immobilization waiver order issued under the bill's provisions described above in "Issuance of vehicle immobilization waiver order" may be operated on any highway in Ohio unless the vehicle displays restricted license plates that are a different color from those regularly issued and carry a special serial number that may be readily identified by law enforcement officers. The bill does not change the existing provisions regarding the duties of the Registrar of Motor Vehicles and the Bureau of Motor Vehicles. The existing prohibition and penalty apply to the expansion enacted in the bill. (R.C. 4503.231(A).)
Existing law generally authorizes a court that imposes a suspension of a person's driver's or commercial driver's license or permit or nonresident operating privilege to grant the person limited driving privileges during the period of the suspension, unless expressly prohibited by any Revised Code section (R.C. 4510.021--not in the bill). Existing law specifies that, in any case in which a judge or mayor (serving as judge of a mayor's court) grants limited driving privileges to an offender whose driver's or commercial driver's license or permit or nonresident operating privilege has been suspended as a result of a conviction of a state OVI offense or a municipal OVI offense, other than when the offender has no prior state OVI, state OVUAC, or equivalent offense convictions within the preceding six years and the offense for which the suspension was imposed is not high-amount state OVI, the judge or mayor generally must 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. (R.C. 4510.13(A)(7).)
Among the limited driving privilege prohibitions contained in the Revised Code are restrictions that specify a period of time, for specified types of suspensions, during which a court cannot grant limited driving privileges for the person who is subject to the suspension (the periods of time during which limited driving privileges cannot be granted generally are referred to as "hard suspensions"). For example, existing law provides that no judge or mayor may grant limited driving privileges to an offender whose driver's or commercial driver's license or permit or nonresident operating privilege has been suspended as a result of a state OVI conviction or as a result of a municipal OVI conviction during any of the following periods of time (R.C. 4510.13(A)(5)):
(1) Except as otherwise described in paragraph (2), (3), or (4), below, the first 15 days of the suspension. On or after the 16th day of the suspension, the court may grant limited driving privileges, but the court may require that the offender not exercise the privileges unless the vehicles the offender operates are equipped with immobilizing or disabling devices that monitor the offender's alcohol consumption or any other type of immobilizing or disabling devices, except as provided in R.C. 4510.43(C) (that provision provides a limited exception to immobilizing or disabling device orders for persons who operate a vehicle in employment).
(2) The first 30 days of the suspension, when the offender, within six years of the offense, previously has been convicted of one state OVI offense, state OVUAC offense, or other equivalent offense. On or after the 31st day of suspension, the court may grant limited driving privileges, but the court may require that the offender not exercise the privileges unless the vehicles the offender operates are equipped with immobilizing or disabling devices that monitor the offender's alcohol consumption or any other type of immobilizing or disabling devices, except as provided in R.C. 4510.43(C).
(3) The first 180 days of the suspension, when the offender, within six years of the offense, previously has been convicted of two state OVI offenses, state OVUAC offenses, or other equivalent offenses. The judge may grant limited driving privileges on or after the 181st day of the suspension only if the judge, at the time of granting the privileges, also issues an order prohibiting the offender, while exercising the privileges during the period commencing with the 181st day of suspension and ending with the first year of suspension, from operating any motor vehicle unless it is equipped with an immobilizing or disabling device that monitors the offender's alcohol consumption. After the first year of the suspension, the court may authorize the offender to continue exercising the privileges in vehicles that are not equipped with immobilizing or disabling devices that monitor the offender's alcohol consumption, except as provided in R.C. 4510.43(C). If the offender does not petition for limited driving privileges until after the first year of suspension, the judge may grant limited driving privileges without requiring the use of an immobilizing or disabling device that monitors the offender's alcohol consumption.
(4) The first three years of the suspension, when the offender, within six years of the offense, previously has been convicted of three or four state OVI offenses, state OVUAC offenses, or other equivalent offenses or previously has been convicted of state OVI when it was a felony. The judge may grant limited driving privileges after the first three years of suspension only if the judge, at the time of granting the privileges, also issues an order prohibiting the offender from operating any motor vehicle, for the period of suspension following the first three years of suspension, unless the motor vehicle is equipped with an immobilizing or disabling device that monitors the offender's alcohol consumption, except as provided in R.C. 4510.43(C).
The bill modifies the conditions of the period of the "hard suspension" for a person whose driver's or commercial driver's license or permit or nonresident operating privilege is suspended as a result of a state OVI conviction or as a result of a municipal OVI conviction, when the offender, within six years of the offense, previously has been convicted of one or more state OVI offenses, state OVUAC offenses, or other equivalent offenses. Under the bill, no judge or mayor may grant limited driving privileges to an offender whose driver's or commercial driver's license or permit or nonresident operating privilege has been suspended as a result of a state OVI conviction or as a result of a municipal OVI conviction during the first 45 days of the suspension (as opposed to current law's 30 days), when the offender, within six years of the offense, previously has been convicted of one state OVI offense, state OVUAC offense, or another equivalent offense. The judge may grant limited driving privileges on or after the 46th day of suspension, and either of the following applies: (1) if the underlying conviction is alcohol-related, the court must issue an order that, except for an exception regarding a vehicle owned by the person's employer (see R.C. 4510.43(C)), for the remainder of the period of suspension the offender shall not exercise the privileges unless the vehicles the offender operates are equipped with a certified ignition interlock device, and (2) if the underlying conviction is drug-related, the court in its discretion may issue an order that, except for an exception regarding a vehicle owned by the person's employer (see R.C. 4510.43(C)), for the remainder of the period of suspension the offender must not exercise the privileges unless the vehicles the offender operates are equipped with a certified ignition interlock device. (R.C. 4510.13(A)(5)(b) and (e).)
The bill also provides that if a judge or mayor grants limited driving privileges to an offender who, within six years of the offense, previously has been convicted of two or more state OVI offenses, state OVUAC offenses, or other equivalent offenses or who has previously been convicted of a felony OVI offense and to whom a hard license suspension of either 180 days or three years applies, the court may grant limited driving privileges after the period of the hard license suspension, and either of the following applies: (1) if the underlying conviction is alcohol-related, the court must issue an order that, except for an exception regarding a vehicle owned by the person's employer (see R.C. 4510.43(C)), for the remainder of the period of suspension the offender shall not exercise the privileges unless the vehicles the offender operates are equipped with a certified ignition interlock device, and (2) if the underlying conviction is drug-related, the court in its discretion may issue an order that, except for an exception regarding a vehicle owned by the person's employer (see R.C. 4510.43(C)), for the remainder of the period of suspension the offender must not exercise the privileges unless the vehicles the offender operates are equipped with a certified ignition interlock device. (R.C. 4510.13(A)(5)(b), (f), and (g).)
The bill increases from 30 days to 45 days the length of the hard suspension of a person's driver's or commercial driver's license or nonresident operating privilege when results of a chemical test following an arrest for state OVI, state OVUAC, or an equivalent offense indicate a prohibited concentration of alcohol or drugs and the person has previously been convicted of or pleaded guilty to one state OVI, state OVUAC, or an equivalent offense within the prior six years (R.C. 4510.10(A)(5)(b)).
The bill retains the 180-day hard suspension of a person's driver's or commercial driver's license or nonresident operating privilege when results of a chemical test following an arrest for state OVI, state OVUAC, or an equivalent offense indicate a prohibited concentration of alcohol or drugs and the person has previously been convicted of or pled guilty to two prior convictions for state OVI, state OVUAC, or other equivalent offenses within the prior six years. However, the bill adds the provision that on or after the 181st day of suspension the court may grant limited driving privileges, and either of the following applies: (1) if the underlying conviction is alcohol-related, the court must issue an order that, except for an exception regarding a vehicle owned by the person's employer (see R.C. 4510.43(C)), for the remainder of the period of suspension the offender shall not exercise the privileges unless the vehicles the offender operates are equipped with a certified ignition interlock device, and (2) if the underlying conviction is drug-related, the court in its discretion may issue an order that, except for an exception regarding a vehicle owned by the person's employer (see R.C. 4510.43(C)), for the remainder of the period of suspension the offender must not exercise the privileges unless the vehicles the offender operates are equipped with a certified ignition interlock device (the italicized words are incorrect and should be replaced with the word "arrest" to preserve the intent, as there is no "underlying conviction" for this kind of license suspension). (R.C. 4510.10(A)(5)(d).)
The bill provides that in certain instances in which the offender operates a motor vehicle that is not equipped with an ignition interlock device, circumvents the device, or tampers with the device or in any case in which the court receives notice pursuant to R.C. 4510.46 that a certified ignition interlock device issued under R.C. 4510.13(A)(5)(e), (f), or (g) (see "Limited driving privileges under an OVI suspension," above) prevented an offender from starting a motor vehicle, the court must require the offender to wear a monitor that provides continuous alcohol monitoring that is remote. If the offender was sentenced under R.C. 4511.19(G)(1)(b) (the offender had one prior OVI conviction in the prior six years), on a first instance the court may require the offender to wear a monitor that provides continuous alcohol monitoring that is remote. On a second instance, the court must require the offender to wear a monitor that provides continuous alcohol monitoring that is remote for a minimum of 40 days. On a third instance or more, the court must require the offender to wear a monitor that provides continuous alcohol monitoring that is remote for a minimum of 60 days.
If the offender was sentenced under R.C. 4511.19(G)(1)(c), (d), or (e) (the offender had two, three, or four OVI convictions in the prior six years, five prior convictions in the prior 20 years, or a prior felony state OVI conviction), on a first instance the court must require the offender to wear a monitor that provides continuous alcohol monitoring that is remote for a minimum of 40 days. On a second instance or more, the court must require the offender to wear a monitor that provides continuous alcohol monitoring that is remote for a minimum of 60 days. (R.C. 4510.13(A)(8).)
In any case in which the court issues an order prohibiting an offender from exercising limited driving privileges unless the vehicles the offender operates are equipped with an immobilizing or disabling device, including a certified ignition interlock device, or requires an offender to wear a monitor that provides continuous alcohol monitoring that is remote, the court must impose an additional court cost of $2.50 upon the offender. The court must not waive the payment of the $2.50 unless the court determines that the offender is indigent and waives the payment of all court costs imposed upon the indigent offender. The clerk of court must retain 100% of this court cost. The clerk of court must transmit 100% of this court cost collected during a month on the first business day of the following month to the state treasury to be credited to the State Highway Safety Fund created under R.C. 4501.06, to be used by the Department of Public Safety to cover costs associated with maintaining the Habitual OVI/OMWI Offender Registry created under R.C. 5502.10. In its discretion the court may impose an additional court cost of $2.50 upon the offender. The clerk of court must retain this $2.50 court cost, if imposed, and shall deposit it in the court's special projects fund that is established under R.C. 2303.201(E)(1) or R.C. 1901.26(B)(1). (R.C. 4510.13(A)(9).)
The bill increases the cost of the license reinstatement fee by $50 (from $425 to $475) and instructs that $50 of the total fee must be credited to the Indigent Drivers Interlock and Alcohol Monitoring Fund that the bill creates. The bill instructs that money in the fund must be distributed by the Department of Public Safety to the county indigent drivers interlock and alcohol monitoring funds, the county juvenile indigent drivers interlock and alcohol monitoring funds, and the municipal indigent drivers interlock and alcohol monitoring funds that the bill requires counties and municipal corporations to establish (see "Creation of Indigent Drivers Interlock and Alcohol Monitoring Funds," below). The money in these funds must be used only to pay the cost of an immobilizing or disabling device, including a certified ignition interlock device, or an alcohol monitoring device used by an offender or juvenile offender who is ordered to use the device by a county, juvenile, or municipal court judge and who is determined by that judge to not to have the means to pay for the person's use of the device. (R.C. 4511.191(F)(2) and (F)(2)(h).)
The bill also provides that money in a county indigent drivers alcohol treatment fund, a county juvenile indigent drivers alcohol treatment fund, or a municipal indigent drivers alcohol treatment fund may be used to pay for the cost of the continued use of an electronic continuous alcohol monitoring device in conjunction with a Department of Alcohol and Drug Addiction Service approved treatment program for an indigent offender or indigent juvenile traffic offender when money in the Indigent Drivers Interlock and Alcohol Monitoring Fund is exhausted. Similarly, if a court declares a surplus in a county or municipal indigent drivers alcohol treatment fund, the court may expend the amount of the surplus for all or part of the cost of purchasing electronic continuous alcohol monitoring devices to be used in conjunction with such treatment only upon exhaustion of money in the Indigent Drivers Interlock and Alcohol Monitoring Fund for the use of an alcohol monitoring device. (R.C. 4511.191(H)(3) and (4)(a)(ii).)
The bill provides that each county must establish an indigent drivers interlock and alcohol monitoring fund and a juvenile indigent drivers interlock and alcohol treatment fund, and each municipal corporation in which there is a municipal court must establish an indigent drivers interlock and alcohol monitoring fund. All revenue that the General Assembly appropriates to the Indigent Drivers Interlock and Alcohol Monitoring Fund for transfer to a county indigent drivers interlock and alcohol monitoring fund, a county juvenile indigent drivers interlock and alcohol monitoring fund, or a municipal indigent drivers interlock and alcohol monitoring fund, all portions of license reinstatement fees that are paid under R.C. 4511.191(F)(2) and that are credited under that division to the Indigent Drivers Interlock and Alcohol Monitoring Fund in the state treasury, and all portions of fines that are paid under R.C. 4511.19(G) and that are credited by R.C. 4511.19(G)(5)(e) to the Indigent Drivers Interlock and Alcohol Monitoring Fund in the state treasury must be deposited in the appropriate fund in accordance with the paragraph below.
The portion of the license reinstatement fee ($50) that is paid under R.C. 4511.191(F) and the portion of the fine paid under R.C. 4511.19(G) and that is credited under either division to the Indigent Drivers Interlock and Alcohol Monitoring Fund must be deposited into a county indigent drivers interlock and alcohol monitoring fund, a county juvenile indigent drivers interlock and alcohol monitoring fund, or a municipal indigent drivers interlock and alcohol monitoring fund as follows:
(1) If the fee or fine is paid by a person who was charged in a county court with the violation that resulted in the suspension or fine, the portion must be deposited into the county indigent drivers interlock and alcohol monitoring fund under the control of that court;
(2) If the fee or fine is paid by a person who was charged in a juvenile court with the violation that resulted in the suspension or fine, the portion must be deposited into the county juvenile indigent drivers interlock and alcohol monitoring fund established in the county served by the court;
(3) If the fee or fine is paid by a person who was charged in a municipal court with the violation that resulted in the suspension, the portion must be deposited into the municipal indigent drivers interlock and alcohol monitoring fund under the control of that court. (R.C. 4511.191(I).)
The bill provides that the court must identify and refer any alcohol and drug addiction program that is not certified under R.C. 3793.06 and that is interested in receiving amounts from a surplus declared in the IDAT fund to the Department of Alcohol and Drug Addiction Services in order for the program to become a certified alcohol and drug treatment program. The Department must keep a record of applicant referrals received and must submit a report on the referrals each year to the General Assembly. If a program interested in becoming certified makes an application to become certified pursuant to R.C. 3793.06, the program is eligible to receive surplus funds as long as the application is pending with the Department. The Department must offer technical assistance to the applicant. If the interested program withdraws the certification application, the Department must notify the court, and the court may not provide the interested program with any further surplus funds. (R.C. 4511.191(H)(6).)
The bill provides that if a court grants limited driving privilege to a person who is described in the subsequent paragraph and who is alleged to have committed a state OVI offense or a violation of a substantially equivalent municipal ordinance, the court as a condition of granting limited driving privileges may prohibit the person from consuming any beer or intoxicating liquor and may require the person to wear a monitor that provides continuous alcohol monitoring that is remote. If the court imposes the requirement, the court must require the person to wear the monitor until the person is convicted of, pleads guilty to, or is found not guilty of the alleged violation or the charges in the case are dismissed. Any consumption by the person of beer or intoxicating liquor prior to that time is grounds for revocation by the court of the person's limited driving privilege. The person must pay all costs associated with the monitor, including the cost of remote monitoring.
The preceding paragraph applies to the following persons:
(1) A person who is alleged to have committed a violation of R.C. 4511.19(A) (state OVI) and who, if convicted of the alleged violation, is required to be sentenced under R.C. 4511.19(G)(1)(c) or (d) (alleged offender has been convicted of or pleaded guilty to two, three, or four prior OVI offenses in past six years or of five OVI offenses in past 20 years);
(2) A person who is alleged to have committed a violation of a municipal ordinance that is substantially equivalent to R.C. 4511.19(A) and who, if the law enforcement officer who arrested and charged the person with the violation of the municipal ordinance instead had charged the person with a violation of R.C. 4511.19(A), would be required to be sentenced under R.C. 4511.19(G)(1)(c) or (d).
In addition, the bill provides that if a court grants limited driving privilege to a person who is described in the subsequent paragraph and who is alleged to have committed a state OVI offense or a violation of a substantially equivalent municipal ordinance, the court as a condition of granting limited driving privileges, unless the court determines otherwise, must prohibit the person from consuming any beer or intoxicating liquor and must require the person to wear a monitor that provides continuous alcohol monitoring that is remote. The court must require the person to wear the monitor until the person is convicted of, pleads guilty to, or is found not guilty of the alleged violation or the charges in the case are dismissed. Any consumption by the person of beer or intoxicating liquor prior to that time is grounds for revocation by the court of the person's limited driving privilege. The person must pay all costs associated with the monitor, including the cost of remote monitoring.
The preceding paragraph applies to the following persons:
(1) A person who is alleged to have committed a violation of R.C. 4511.19(A) (state OVI) and who, if convicted of the alleged violation, is required to be sentenced under R.C. 4511.19(G)(1)(e) (alleged offender was previously convicted of or pleaded guilty to a felony OVI);
(2) A person who is alleged to have committed a violation of a municipal ordinance that is substantially equivalent to R.C. 4511.19(A) and who, if the law enforcement officer who arrested and charged the person with the violation of the municipal ordinance instead had charged the person with a violation of R.C. 4511.19(A), would be required to be sentenced under R.C. 4511.19(G)(1)(e).
Existing law prohibits a person from permitting a motor vehicle owned by the person or under the person's control to be driven by another if any of the following apply: (1) the offender knows or has reasonable cause to believe that the other person does not have a valid driver's or commercial driver's license or permit or valid nonresident driving privileges, (2) the offender knows or has reasonable cause to believe that the other person's driver's or commercial driver's license or permit or nonresident operating privileges have been suspended or canceled under any provision of the Revised Code, (3) the offender knows or has reasonable cause to believe that the other person's act of driving the motor vehicle would violate any prohibition contained in R.C. Chapter 4509., or (4) the offender knows or has reasonable cause to believe that the other person's act of driving would be a state OVI offense, a state OVUAC offense, or a violation of any substantially equivalent municipal ordinance.
The bill expands the above prohibition so that it applies in an additional set of circumstances. Under the bill, in addition to the prohibited conduct described in the preceding paragraph, the prohibition prohibits a person from permitting a motor vehicle owned by the person or under the person's control to be driven by another if the offender knows or has reasonable cause to believe that the vehicle is the subject of an immobilization waiver order issued under the bill (see "Vehicle immobilization waiver order," above) and the other person is prohibited from operating the vehicle under that order. (R.C. 4511.203(A)(5) and cross references in (B).)
Existing law, unchanged by the bill, prohibits a person from operating or being in physical control of any vessel underway or manipulating any water skis, aquaplane, or similar device on Ohio waters if, at the time of the operation, control, or manipulation, any of the following apply: (1) the person is under the influence of alcohol, a drug of abuse, or a combination of them, (2) the person has a concentration of .08 of one per cent or more by weight per unit volume of alcohol in the person's whole blood, (3) the person has a concentration of .096 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 .11 of one gram or more by weight of alcohol per 100 milliliters of the person's urine, (5) the person has a concentration of .08 of one gram or more by weight of alcohol per 210 liters of the person's breath, or (6) the person has a concentration of any of a list of controlled substances or metabolites of a controlled substance in the person's whole blood, blood serum or plasma, or urine that equals or exceeds a specified concentration of the controlled substance or metabolite (the concentrations of the controlled substances and metabolites are similar to the concentrations described in COMMENT 1 regarding the offense of state OVI). (R.C. 1547.11(A)(1).)
Existing law, unchanged by the bill, also prohibits a person under 21 years of age from operating or being in physical control of any vessel underway or manipulating any water skis, aquaplane, or similar device on Ohio waters if, at the time of the operation, control, or manipulation, any of the following apply: (1) the person has a concentration of at least .02 of one per cent but less than .08 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 .03 of one per cent but less than .096 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 .028 of one gram but less than .11 of one gram by weight of alcohol per 100 milliliters of the person's urine, or (4) the person has a concentration of at least .02 of one gram but less than .08 of one gram by weight of alcohol per 210 liters of the person's breath (R.C. 1547.11(B)).
Hereafter, the offenses described in the two preceding paragraphs are referred to as "state OMWI." The offense of state OMWI is punished as described below in "State OMWI penalties."
The existing penalties for state OMWI are described below in "Existing law." The bill changes the existing penalties for state OMWI only by replacing the list of prior offenses, other than state OMWI, that are classified as prior convictions that are relevant in determining the penalty with a reference to "equivalent offenses," as defined in the bill and as described below in "Definition of "equivalent offense" as used in OVI and OMWI laws." Offenders with one or more relevant prior convictions are subject to more stringent penalties than offenders with no relevant prior convictions. (R.C. 1547.99(G)(2), (3), and (6)(a).)
Under existing law, state OMWI is a misdemeanor of the first degree and an offender convicted of the offense is punished as follows (R.C. 1547.99(G)):
(1) Except as otherwise described in paragraphs (2) or (3), below, the court must sentence the offender to a jail term of three consecutive days and may sentence the offender to a longer jail term. In addition, the court must impose a fine of not less than $150 nor more than $1,000. The court may suspend the execution of some or all of the three-day jail term and, instead, place the offender under a community control sanction for the suspended portion and require the offender to attend, for the suspended portion, a drivers' intervention program, and sentences the offender to a jail term for the non-suspended portion. The court also may require the offender to attend and complete any treatment or education programs that the operators of the drivers' intervention program determine that the offender should attend, and may impose on the offender any other conditions of community control that it considers necessary.
(2) If, within six years of the offense, the offender has been convicted of one state OMWI offense, one violation of a municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane, or similar device while under the influence of alcohol, a drug of abuse, or a combination of them or relating to operating a watercraft or manipulating any water skis, aquaplane, or similar device 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, of R.C. 2903.06(A)(1), or of R.C. 2903.06(A)(2), (3), or (4) or R.C. 2903.06 or 2903.07 as they existed prior to March 23, 2000, in a case in which the jury or judge found that the offender was under the influence of alcohol, a drug of abuse, or a combination of them (replaced with "equivalent offense" by the bill), the court must sentence the offender to a jail term of ten consecutive days and may sentence the offender to a longer jail term. In addition, the court must impose a fine of not less than $150 nor more than $1,000, and may require the offender to attend a drivers' intervention program.
(3) If, within six years of the offense, the offender has been convicted of more than one violation identified in paragraph (2), above, the court must sentence the offender to a jail term of 30 consecutive days and may sentence the offender to a longer jail term of not more than one year. In addition, the court must impose a fine of not less than $150 nor more than $1,000, and may require the offender to attend a drivers' intervention program.
Existing law. Current law provides that, in any criminal prosecution or juvenile court proceeding charging state OMWI or an "equivalent violation" (defined as a violation of a municipal ordinance, law of another state, or law of the United States that is substantially equivalent to state OMWI), 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 two hours of the time of the alleged violation.
Current law specifies that, when a person submits to a blood test at the request of a law enforcement officer under R.C. 1547.111 (the Watercraft Implied Consent Law), only a physician, registered nurse, or qualified technician, chemist, or phlebotomist may withdraw blood for the purpose of determining the alcohol, drug, controlled substance, metabolite of a controlled substance, or combination content of the blood. This limitation does not apply to the taking of breath or urine specimens. The bodily substance withdrawn must 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 R.C. 3701.143.
Upon the request of the person who was tested, the results of the chemical test must be made available to the person or the person's attorney, immediately upon the completion of the chemical test analysis. The person tested may have a physician, registered nurse, or qualified technician, chemist, or phlebotomist of the person's own choosing administer a chemical test or tests, in addition to any administered at the request of a law enforcement officer, and must be so advised. (R.C. 1547.11(D).)
Operation of the bill. Under the bill, in any criminal prosecution or juvenile court proceeding charging state OMWI or an "equivalent offense that is watercraft-related" (note that the bill replaces the existing term "equivalent violation" with the term "equivalent offense that is watercraft-related," as defined in the bill and as described below in "Definition of "equivalent offense" as used in OVI and OMWI laws"), the court may admit evidence on the concentration of alcohol, drugs of abuse, or a combination of them "in the defendant's whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation." The bill also states that the court may admit evidence on the concentration of alcohol, drugs of abuse, or a combination of them when a person submits to a blood, breath, urine, or other bodily substance test at the request of a law enforcement officer under the Watercraft Implied Consent Law or when a blood or urine sample is obtained pursuant to a search warrant (this is a modification of existing law, with the bill adding the language in italics).
The bill additionally specifies that, in any criminal prosecution or juvenile court proceeding for a state OMWI violation or an "equivalent offense that is watercraft-related," the result of any test of any blood or urine withdrawn and analyzed at any hospital, ambulatory care facility, long-term care facility, pharmacy, emergency pharmacy, emergency facility, or health care practitioner (health care provider as defined in R.C. 2317.02) 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.
The bill specifies that the requirement for an analysis in accordance with Director of Health standards and for allowing the person tested to have another chemical test administered by a qualified technician, chemist, or phlebotomist of the person's own choosing, discussed above in "Existing law," apply only to the manners described in the second preceding paragraph by which a court may admit evidence of the alcohol, drug, controlled substance, or metabolite content of a person's bodily substance. (R.C. 1547.11(D)(1) and (3).)
The existing Vehicle Implied Consent Law provides, in relevant part, for administrative suspensions of the driver's or commercial driver's license or permit or nonresident operating privilege of persons who are arrested for the offense of state OVI, the offense of state OVUAC, the offense of "having physical control of a vehicle while under the influence" (see COMMENT 3) or a violation of a substantially equivalent municipal ordinance, or a municipal OVI ordinance (see COMMENT 4), who are requested in accordance with specified procedures to submit to a chemical test of a specified bodily substance to determine the alcohol or drug content of the bodily substance, and who refuse to submit to the requested test (a "Vehicle Implied Consent Law refusal suspension") or who submit to the requested test and are determined to have a specified concentration of alcohol in the bodily substance (a "Vehicle Implied Consent Law prohibited concentration suspension"). The length of the suspension varies, depending upon the number of times within the preceding six years that: (1) for a refusal suspension, the person has refused previous requests to submit to a chemical test made under that Law, or (2) for a prohibited concentration suspension, the person has been convicted of state OVI, state OVUAC, or another equivalent offense. (R.C. 4511.191.)
The bill provides for consideration of prior related convictions in determining the length of a Vehicle Implied Consent Law refusal suspension. The bill does not change the length of the suspensions.
Under the bill, a "Vehicle Implied Consent Law refusal suspension" is determined as follows (the changes made by the bill are indicated in italics):
(1) Except as provided in paragraph (2), (3), or (4), below, the suspension remains as under existing law a Class C suspension (a period of one year) under R.C. 4510.02(B);
(2) If the arrested person, within six years of the date of the refusal, had refused one previous request to consent to a chemical test or had been convicted of or pleaded guilty to one state OVI, state OVUAC, or other equivalent offense (as defined in the bill and as described below in "Definition of "equivalent offense" as used in OVI and OMWI laws"), the suspension is a Class B suspension (a period of two years) under R.C. 4510.02(B);
(3) If the arrested person, within six years of the date of the refusal, had refused two previous requests to consent to a chemical test, had been convicted of or pleaded guilty to two state OVI, state OVUAC, or other equivalent offenses, or had refused one previous request to consent to a chemical test and also had been convicted of or pleaded guilty to one state OVI, state OVUAC, or other equivalent offense, the suspension is a Class A suspension (a period of three years);
(4) If the arrested person within six years of the date of the refusal, had refused three or more previous requests to consent to a chemical test, had been convicted of or pleaded guilty to three or more state OVI, state OVUAC, or other equivalent offenses, or had refused a number of previous requests to consent to a chemical test and also had been convicted of or pleaded guilty to a number of state OVI, state OVUAC, or other equivalent offenses that cumulatively total three or more such refusals, convictions, and guilty pleas, each of which violations or offenses arose from an incident other than an incident that led to any of the refusals, the suspension is for five years. (R.C. 4511.191(B)(1).)
The bill does not change the existing provisions regarding the immediate effect of the suspension, the termination of the suspension subsequent to a guilty plea or conviction of a related offense resulting from the same incident, or the crediting against a judicial suspension imposed subsequent to a guilty plea or conviction of a related offense resulting from the same incident any time during which the person serves a related "refusal suspension" (R.C. 4511.191(B)(2) and (D)).
The bill replaces the list of "equivalent offenses," other than state OVI and state OVUAC, that are classified as prior convictions used in determining the length of a Vehicle Implied Consent Law prohibited concentration suspension with a new list of "equivalent offenses," as defined in the bill and as described below in "Definition of "equivalent offense" as used in OVI and OMWI laws."
The bill does not change the length of the suspensions or any of the other existing provisions governing the suspensions, other than an erroneous cross-reference that is corrected in division (C)(1) of R.C. 4511.191. (R.C. 4511.191(C) and (D).)
For the purpose of determining as described in R.C. 4511.191(F)(2)(c) whether an offender does not have the means to pay for the offender's attendance at an alcohol and drug addiction treatment program or whether an alleged offender or delinquent child is unable to pay the costs specified in R.C. 4511.191(H)(4), the court must use the indigent client eligibility guidelines and the standards of indigency established by the State Public Defender to make the determination (R.C. 4511.191(H)(5)).
Vehicle Implied Consent Law. The existing Vehicle Implied Consent Law, in general, provides that any person who operates a vehicle, streetcar, or trackless trolley upon a highway or any public or private property used by the public for vehicular travel or parking within Ohio or who is in physical control of a vehicle, streetcar, or trackless trolley is deemed to have given consent to a chemical test or tests of the person's whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine if arrested for state OVI, state OVUAC, having physical control of a vehicle while under the influence, or a violation of a substantially equivalent municipal ordinance, or a municipal OVI ordinance. The chemical test or tests must be administered at the request of a law enforcement officer having reasonable grounds to believe the person was operating or in physical control of a vehicle, streetcar, or trackless trolley while committing any of the specified offenses or violations.
Before the arrested person may be requested to submit to the test, the arresting officer must read a statutorily specified form to the person that advises the person as to the ramifications of refusing to submit to a requested test and of taking a requested test and having a prohibited concentration of alcohol in the tested bodily substance. If an arrested person refuses to submit to the requested test, no test is administered. If an arrested person who is read the form refuses to submit to a requested test or, unless the arrest is for the offense of having physical control of a vehicle while under the influence or a violation of a substantially equivalent municipal ordinance, submits to a requested test and the test results indicate a prohibited concentration of alcohol in the tested bodily substance, the person's driver's or commercial driver's license or permit or nonresident operating privilege is suspended immediately and the suspension lasts at least until the person's initial appearance at which time the person may appeal the suspension. The length of the suspension varies, as described in "Vehicle Implied Consent Law suspensions," above. The arresting officer must send to the Registrar of Motor Vehicles (hereafter, the Registrar) a report concerning the matter. (R.C. 4511.191 and 4511.192.)
Watercraft Implied Consent Law. The existing Watercraft Implied Consent Law, in general, provides that any person who operates or is in physical control of a vessel or manipulates any water skis, aquaplane, or similar device upon any waters in Ohio is deemed to have given consent to a chemical test or tests to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine if arrested for operating or being in physical control of a vessel or manipulating any water skis, aquaplane, or similar device in violation of the state's OMWI prohibitions or a substantially equivalent municipal ordinance. The chemical test or tests must be administered at the direction of a law enforcement officer having reasonable grounds to believe the person was operating or in physical control of a vessel or manipulating any water skis, aquaplane, or similar device while committing the specified violation.
Before the arrested person may be requested to submit to the test, the arresting officer must read a specified form prescribed by the Chief of the Division of Watercraft to the person that advises the person as to the ramifications of refusing to submit to a requested test. If an arrested person refuses to submit to the requested test, no test is administered. If an arrested person who is read the form refuses to submit to a requested test, the person is prohibited from operating or being in physical control of a vessel, from manipulating any water skis, aquaplane, or similar device, and from registering any watercraft for one year following the date of the alleged violation, subject to review in accordance with specified procedures. The arresting officer must send to the Chief of the Division of Watercraft a report concerning the matter. (R.C. 1547.111.)
The bill adds a new provision to both the Vehicle Implied Consent Law and the Watercraft Implied Consent Law that requires a person who is arrested for any of the list of offenses that subjects a person to either of those Laws and who has two or more prior convictions of specified offenses to submit upon request to a chemical test or test under the applicable Law. Specifically, under the bill:
(1) If a law enforcement officer arrests a person for operating or being in physical control of a vessel or manipulating any water skis, aquaplane, or similar device in violation of the state's OMWI prohibitions or a substantially equivalent municipal ordinance and if the person previously has been convicted of or pleaded guilty to two or more violations of the state's OMWI prohibitions or other "equivalent offenses" (as defined in the bill and as described below in "Definition of "equivalent offense" as used in OVI and OMWI laws"), the law enforcement officer is required to request the person to submit, and the person must submit, to a chemical test or tests of the person's whole blood, blood serum or plasma, breath, or urine for the purpose of determining the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine. A law enforcement officer who makes such a request must advise the person at the time of the arrest that if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma. The officer must also 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. The advice must be in written form prescribed by the chief of the division of watercraft and must be read to the person. The form must contain a statement that the form was shown to the person under arrest and read to the person by the arresting officer. The reading of the form must be witnessed by one or more persons, and the witnesses must certify to this fact by signing the form. Except for the provisions regarding the advice that must be given to the person and the right to refuse and effect of a refusal, procedures under existing law regarding the administration of a chemical test under the Watercraft Implied Consent Law apply to the administration of a chemical test or tests pursuant to this provision. (R.C. 1547.111(B)(1), (C), and (D).)
(2) If a law enforcement officer arrests a person for state OVI, state OVUAC, a violation of R.C. 4511.194 or a substantially equivalent municipal ordinance, or a violation of a municipal OVI ordinance and if the person is required to be sentenced under R.C. 4511.19(G)(1)(c), (d), or (e) for previously being convicted of or pleading guilty to two, three, or four state OVI offenses, state OVUAC offenses, or other equivalent offenses (as defined in the bill and as described below in "Definition of "equivalent offense" as used in OVI and OMWI laws") within six years of the offense, within 20 years of the offense being convicted of or pleading guilty to five or more violations of that nature, or previously being convicted of or pleading guilty to felony OVI, the law enforcement officer is required to request the person to submit, and the person must submit, to a chemical test or tests of the person's whole blood, blood serum or plasma, breath, or urine for the purpose of determining the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine. A law enforcement officer who makes a request pursuant to this provision must advise the person that if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to the chemical test. The officer must also 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. Except for the provisions regarding the advice that must be given to the person and the right to refuse and effect of a refusal, procedures under existing law regarding the administration of a chemical test under the Vehicle Implied Consent Law apply to the administration of a chemical test or tests pursuant to this provision. (R.C. 4511.191(A)(5)(a) and 4511.191(A) to (C).)
(3) If a person refuses to submit to a chemical test upon a request made pursuant to the provision described in either paragraph (1) or (2), above, the law enforcement officer who made the request may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma. A law enforcement officer who acts pursuant to this provision to ensure that a person submits to a chemical test of the person's whole blood or blood serum or plasma is immune from criminal and civil liability based upon a claim for assault and battery or any other claim for the acts, unless the officer so acted with malicious purpose, in bad faith, or in a wanton or reckless manner. (R.C. 1547.111(B)(2) and 4511.191(A)(5)(b).)
(4) If a law enforcement officer asks a person under arrest as described above in paragraph (2) to submit to a chemical test or tests under that provision and the test results indicate a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, breath, or urine at the time of the alleged offense the officer must do all of the following: (a) on behalf of the Registrar, notify the person that, independent of any other penalties or sanctions, the person's Ohio driver's or commercial driver's license or permit or nonresident operating privilege is suspended immediately, that the suspension will last at least until the person's initial appearance on the charge, and that the person may appeal the suspension at the initial appearance or during the period of time ending 30 days after that initial appearance, (b) seize the person's license or permit and immediately forward it to the Registrar (if the person is not in possession of the license or permit, the officer must order the person to surrender it to the law enforcement agency that employs the officer within 24 hours after the person is given notice of the suspension and it then is forwarded to the Registrar), (c) verify the person's current residence and, if it differs from that on the person's license or permit, notify the Registrar of the change, and (d) send to the Registrar, within 48 hours after the arrest, a sworn report that states that the officer had reasonable grounds to believe that, at the time of the arrest, the arrested person was committing state OVI, state OVUAC, a violation of a municipal OVI ordinance, or a violation of R.C. 4511.194 or a substantially equivalent municipal ordinance, that the person was arrested and charged with committing state OVI, state OVUAC, a violation of a municipal OVI ordinance, or a violation of R.C. 4511.194 or a substantially equivalent municipal ordinance, that the person was under arrest as described above in paragraph (2), that the chemical test or tests were performed in accordance with that provision, and that test results indicated a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, breath, or urine at the time of the alleged offense. (R.C. 4511.192(D).)
The officer also must 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 (R.C. 4511.19(D)(3)).
Upon receipt of a law enforcement officer's report as described in the second preceding paragraph, the Registrar must enter into the Registrar's records the fact that the person's license or permit or nonresident operating privilege was suspended by the officer and the period of the suspension. The suspension is a Vehicle Implied Consent Law prohibited concentration suspension (as described in "Vehicle Implied Consent Law suspensions," above, and the period is that of Vehicle Implied Consent Law prohibited concentration suspension. (R.C. 4511.191(C).)
Existing law provides that, except as otherwise described in this paragraph, any physician, registered nurse, or qualified technician, chemist, or phlebotomist who withdraws blood from a person pursuant to R.C. 1547.11 (state OMWI) or 4511.19 (state OVI and state OVUAC), and a hospital, first-aid station, or clinic at which blood is withdrawn from a person pursuant to R.C. 1547.11 or 4511.19, is immune from criminal or 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 is not available, though, to a person who withdraws blood if the person engages in willful or wanton misconduct. (R.C. 1547.11(G) and 4511.19(F).)
The bill modifies the language of the existing provision to ensure that it also applies to the specified persons who withdraw blood from a person pursuant to the Watercraft Implied Consent Law or the Vehicle Implied Consent Law. Specifically, under the bill, except as otherwise described in this paragraph, any physician, registered nurse, or qualified technician, chemist, or phlebotomist who withdraws blood from a person pursuant to R.C. 1547.11, 1547.111, 4511.19, or 4511.191, and a hospital, first-aid station, or clinic at which blood is withdrawn from a person pursuant to R.C. 1547.11, 1547.111, 4511.19, or 4511.191 is immune from criminal or 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. As under existing law, the immunity is not available to a person who withdraws blood if the person engages in willful or wanton misconduct. (R.C. 1547.11(G) and 4511.19(F).)
Existing law defines "equivalent violation" for purposes of the offense of OMWI and the Watercraft Implied Consent Law as a violation of a municipal ordinance, law of a state other than Ohio, or law of the United States that is substantially equivalent to the offense of state OMWI (R.C. 1547.11(I)).
Existing law defines "equivalent offense" for purposes of R.C. 4511.19 to 4511.197, including state OVI, state OVUAC, and the Vehicle Implied Consent Law, as any of the following:
(1) State OVI or state OVUAC;
(2) A violation of a municipal OVI ordinance (see COMMENT 4);
(3) A violation of R.C. 2903.04 (involuntary manslaughter) in a case in which the offender was subject to the sanctions described in division (D) of that section;
(4) A violation of division (A)(1) of R.C. 2903.06 or 2903.08 (aggravated vehicular homicide based on an OVI violation and aggravated vehicular assault) or a municipal ordinance that is substantially equivalent to either of those divisions;
(5) A violation of R.C. 2903.06(A)(2), (3), or (4), R.C. 2903.08(A)(2), or former R.C. 2903.07 (all the vehicular homicide type offenses and vehicular assault type offenses not covered by paragraph (4)), or a municipal ordinance that is substantially equivalent to any of those divisions or that former section, in a case in which a judge or jury as the trier of fact found that the offender was under the influence of alcohol, a drug of abuse, or a combination of them;
(6) A violation of an existing or former municipal ordinance, law of a state other than Ohio, or law of the United States that is substantially equivalent to state OVI or state OVUAC;
(7) A violation of a former Ohio law that was substantially equivalent to state OVI or state OVUAC (R.C. 4511.181).
Equivalent offense. The bill expands the existing R.C. 4511.181 definition of the term "equivalent offense" and replaces the existing R.C. 1547.11 definition of the term "equivalent violation" with the expanded R.C. 4511.181 definition of the term "equivalent offense." Under the bill, as used in state OMWI, the Watercraft Implied Consent Law, and R.C. 4511.19 to 4511.197, including state OVI, state OVUAC, and the Vehicle Implied Consent Law, "equivalent offense" means any of the following (R.C. 1547.11(I) and 4511.181(A)):
(1) Any offense listed in paragraph (1), (2), (3), (4), (5), (6), or (7) of the existing definition (see "Existing law," above);
(2) State OMWI;
(3) 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 Ohio waters 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 Ohio waters with a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, or urine;
(4) A violation of an existing or former municipal ordinance, law of a state other than Ohio, or law of the United States that is substantially equivalent to state OMWI;
(5) A violation of a former Ohio law that was substantially equivalent to state OMWI.
Equivalent offense that is vehicle-related. Under the bill, for purposes of R.C. 4511.19 to 4511.197, including state OVI, state OVUAC, and the Vehicle Implied Consent Law, "equivalent offense that is vehicle-related" means an equivalent offense that is any of the following (R.C. 4511.181(F)): (1) a violation that is listed in paragraphs (1) to (5), above, under the existing law definition of "equivalent offense," (2) a violation of an existing or former municipal ordinance, law of a state other than Ohio, or law of the United States that is substantially equivalent to state OVI or state OVUAC, or (3) a violation of a former Ohio law that was substantially equivalent to state OVI or state OVUAC.
The bill substitutes this term for the current term of "equivalent offense" that is used in provisions of the statute containing the offense of OVI that pertain to the charging of a person with a vehicle-related offense or the trial of a person charged with a vehicle-related offense but that do involve any consideration of any prior convictions of the person of other offenses (R.C. 4511.19(D)(1)(a) and (b) and (D)(2)).
Equivalent offense that is watercraft-related. Under the bill, for purposes of state OMWI and the Watercraft Implied Consent Law, "equivalent offense that is watercraft-related" means an equivalent offense that is any of the following (R.C. 1547.11(I)(6)): (1) a violation that is listed in paragraph (2) or (3), above, under the bill's modified definition of "equivalent offense," (2) a violation of an existing or former municipal ordinance, law of a state other than Ohio, or law of the United States that is substantially equivalent to state OMWI, or (3) a violation of a former Ohio law that was substantially equivalent to state OMWI.
The bill substitutes this term for the current term of "equivalent violation" that is used in provisions of the statute containing the offense of OMWI that pertain to the charging of a person with a watercraft-related offense or the trial of a person charged with a watercraft-related offense but that do involve any consideration of any prior convictions of the person of other offenses (R.C. 1547.11(D)(1)(b) and (D)(2)) and makes similar clarifying changes in a few other similar provisions (R.C. 1547.11(E)(1) and (F)(1)).
Existing law requires the Director of Public Safety, in consultation with the Director of Health and in accordance with the Administrative Procedure Act (the APA), to certify immobilizing and disabling devices and to publish and make available to the courts, without charge, a list of approved devices together with information about the manufacturers of the devices and where they may be obtained (immobilizing and disabling devices are used under certain motor vehicle-related provisions, including provisions related to a grant of limited driving privileges during the period of a license suspension--see, for example, the discussion under "Limited driving privileges under an OVI suspension"). The manufacturer of an immobilizing or disabling device must pay the cost of obtaining the certification of the device to the Director of Public Safety, who must deposit the payment in the Drivers' Treatment and Intervention Fund established by R.C. 4511.19 and 4511.191.
The Director of Public Safety, in accordance with the APA, also must adopt and publish rules setting forth the requirements for obtaining certification of an immobilizing or disabling device. The Director cannot certify an immobilizing or disabling device under this provision unless it meets the requirements specified and published by the Director in those rules. A certified device may consist of an ignition interlock device, an ignition blocking device initiated by time or magnetic or electronic encoding, an activity monitor, or any other device that reasonably assures compliance with an order granting limited driving privileges. The Director also must adopt rules in accordance with the APA for the design of a warning label that must be affixed to each immobilizing or disabling device upon installation; the label must contain a warning that any person tampering, circumventing, or otherwise misusing the device is subject to a fine, imprisonment, or both and may be subject to civil liability.
The requirements for an immobilizing or disabling device that is an ignition interlock device must include provisions for setting a minimum and maximum calibration range and must include, but are not limited to, specifications that the device complies with all of the following: (1) it does not impede the safe operation of the vehicle, (2) it has features that make circumvention difficult and that do not interfere with the normal use of the vehicle, (3) it correlates well with established alcohol impairment measures, (4) it works accurately and reliably in an unsupervised environment, (5) it is resistant to tampering and shows evidence of tampering if attempted, (6) it is difficult to circumvent and requires premeditation to do so, (7) it minimizes inconvenience to a sober user, (8) it requires a proper, deep-lung breath sample or other accurate measure of the concentration by weight of alcohol in the breath, (9) it operates reliably over the range of automobile environments, and (10) it is made by a manufacturer covered by product liability insurance.
A court considering the use of a prototype device in a pilot program must advise the Director of Public Safety, 30 days before the use, of the prototype device and its protocol, methodology, manufacturer, and licensor, lessor, other agent, or owner, and the length of the court's pilot program. A prototype device cannot be used for state OVI or OVUAC, a violation of R.C. 4510.14, a violation of a municipal OVI ordinance, or in relation to a suspension imposed under the Vehicle Implied Consent Law. A court that uses a prototype device in a pilot program, periodically during the existence of the program and within 14 days after termination of the program, must report in writing to the Director regarding the effectiveness of the prototype device and the program. (R.C. 4510.43.)
The bill modifies the provisions that govern the requirements for an immobilizing or disabling device that is an ignition interlock device. Under the bill, the requirements for an immobilizing or disabling device that is an ignition interlock device must require that the manufacturer of the device submit to the Department of Public Safety a certificate from an independent testing laboratory indicating that the device meets or exceeds the standards of the federal National Highway Traffic Safety Administration that are in effect at the time of the Director's certification of the device (language in italics is added by the bill), must include provisions for setting a minimum and maximum calibration range, and must include, but are not limited to, specifications that the device complies with all of the following: (1) it does not impede the safe operation of the vehicle, (2) it has features that make circumvention difficult and that do not interfere with the normal use of the vehicle, and the features are operating and functional (language in italics is added by the bill), and (3) it complies with all of the criteria and requirements described above in clauses (3) to (10) of the second paragraph under "Existing law." The bill also provides that ignition interlock devices must be certified annually (R.C. 4510.43(A)(1) and (2).)
The bill provides that a manufacturer of ignition interlock devices that desires for its devices to be certified under R.C. 4510.43 and then to be included on the list of certified devices that the Department of Public Safety compiles and makes available to courts pursuant to that section first must obtain a license from the Department. The Department must adopt any rules that are necessary to implement this licensing requirement.
A manufacturer must apply to the Department for the license and must include all information the Department may require by rule. Each application, including an application for license renewal, must be accompanied by an application fee of $100, which the Department must deposit into the state treasury to the credit of the Indigent Drivers Alcohol Treatment Fund created by R.C. 4511.191.
Upon receipt of a completed application, if the Department finds that a manufacturer has complied with all application requirements, the Department must issue a license to the manufacturer. A manufacturer that has been issued a license under this provision is eligible immediately to have the models of ignition interlock devices it produces certified under R.C. 4510.43 and then included on the list of certified devices that the Department compiles and makes available to courts.
Such a license expires annually on a date selected by the Department. The Department must reject the license application of a manufacturer if any of the following apply: (1) the application is not accompanied by the application fee, (2) the Department finds that the manufacturer has not complied with all application requirements, and (3) the license application is a renewal application and the manufacturer failed to file the annual report or failed to pay the required fee that is equal to 5% of the net profit the manufacturer earned in a 12-month period, as specified in the next paragraph as required by division (B) of this section.
A manufacturer whose license application is rejected by the Department may appeal the decision to the Director of Public Safety. The Director or the Director's designee must hold a hearing on the matter not more than 30 days from the date of the manufacturer's appeal. If the Director or the Director's designee upholds the denial of the manufacturer's application for a license, the manufacturer may appeal the decision to the Franklin County Court of Common Pleas. If the Director or the Director's designee reverses the denial of the manufacturer's application for a license, the Director or the Director's designee must issue a written order directing that the Department issue a license to the manufacturer.
Every manufacturer of ignition interlock devices that is issued a license under this provision must file an annual report with the Department on a form the Department prescribes on or before a date the Department prescribes. The annual report must state the amount of net profit the manufacturer earned during a 12-month period specified by the Department that is attributable to the sales of that manufacturer's certified ignition interlock devices to purchasers in this state. Each manufacturer must pay a fee equal to 5% of the amount of the net profit described in this division. The Department may permit annual reports to be filed via electronic means.
The Department must deposit all such fees it receives from manufacturers into the state treasury to the credit of the Indigent Drivers Alcohol Treatment Fund created by R.C. 4511.191. All money so deposited into that fund that is paid by the Department of Alcohol and Drug Addiction Services to county indigent drivers alcohol treatment funds, county juvenile indigent drivers alcohol treatment funds, and municipal indigent drivers alcohol treatment funds must be used only as described in R.C. 4511.191(H)(3)(c).
The Director may make an assessment, based on any information in the Director's possession, against any manufacturer that fails to file an annual report or pay the fee explained above. The Director, in accordance with R.C. Chapter 119., must adopt rules governing assessments and assessment procedures and related provisions. In adopting these rules, the Director must incorporate the provisions of R.C. 5751.09 to the greatest extent possible, except that the Director is not required to incorporate any provisions of that section that by their nature are not applicable, appropriate, or necessary to assessments made by the Director.
A manufacturer may appeal the final determination of the Director regarding an assessment made by the Director. The Director, in accordance with R.C. Chapter 119., must adopt rules governing such appeals. In adopting these rules, the Director must incorporate the provisions of R.C. 5717.02 to the greatest extent possible, except that the Director is not required to incorporate any provisions of that section that by their nature are not applicable, appropriate, or necessary to appeals of assessments made by the Director.
The Director, in accordance with R.C. Chapter 119., must adopt a penalty schedule setting forth the monetary penalties to be imposed upon a manufacturer that is issued a license under this section and fails to file an annual report or pay the required fee in a timely manner. The penalty amounts must not exceed the maximum penalty amounts established in R.C. 5751.06 for similar or equivalent facts or circumstances.
The bill also provides that: (1) no manufacturer of ignition interlock devices that is required to file an annual report with the Department or pay a fee shall fail to do so, and (2) no manufacturer of ignition interlock devices that is required to file an annual report with the Department shall file a report that contains incorrect or erroneous information. The bill provides that whoever violates provision (2), above, of this provision is guilty of a misdemeanor of the first degree. The Department must remove from the list of certified devices the ignition interlock devices manufactured by a manufacturer that violates either provision (1) or (2), above. (R.C. 4510.45.)
The bill specifies that a governmental agency, bureau, department, or office, or a private corporation, or any other entity that monitors certified ignition interlock devices for or on behalf of a court must inform the court whenever such a device that has been installed in a motor vehicle indicates that it has prevented an offender whose driver's or commercial driver's license or permit or nonresident operating privilege has been suspended by a court under R.C. 4511.19(G)(1)(a), (b), (c), (d), or (e) and who has been granted limited driving privileges under R.C. 4510.13 from starting the motor vehicle because the device was tampered with or circumvented or because the analysis of the deep-lung breath sample or other method employed by the ignition interlock device to measure the concentration by weight of alcohol in the offender's breath indicated the presence of alcohol in the offender's breath in a concentration sufficient to prevent the ignition interlock device from permitting the motor vehicle to be started.
Upon receipt of the information described in the previous paragraph pertaining to an offender whose license or operating privilege has been suspended by a court under R.C. 4511.19(G)(1)(b), (c), (d), or (e) (repeat offenders), the court must send a notice to the offender stating that it has received evidence of an instance described in the prior paragraph. If a court, pursuant to R.C. 4510.13(A)(8) requires the offender to wear a monitor that provides for continuous alcohol monitoring the notice shall state that the offender is required to wear the monitor in accordance with R.C. 4510.13(A)(8). The notice must further state that because of this instance the court may increase the period of suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege from that originally imposed by the court by a factor of two and may increase the period of time during which the offender will be prohibited from exercising any limited driving privileges granted to the offender unless the vehicles the offender operates are equipped with a certified ignition interlock device by a factor of two.
The notice must state whether the court will impose these increases and, if so, that these increases will take effect 14 days from the date of the notice unless the offender files a timely motion with the court, appealing the increases in the time described in this division and requesting a hearing on the matter. Any such motion that is filed within that 14-day period must be considered to be filed in a timely manner, and any such motion that is filed after that 14-day period must be considered not to be filed in a timely manner. If the offender files a timely motion, the court may hold a hearing on the matter. The scope of the hearing is limited to determining whether the offender in fact was prevented from starting a motor vehicle that is equipped with a certified ignition interlock device because the device was tampered with or circumvented or because the analysis of the deep-lung breath sample or other method employed by the ignition interlock device to measure the concentration by weight of alcohol in the offender's breath indicated the presence of alcohol in the offender's breath in a concentration sufficient to prevent the ignition interlock device from permitting the motor vehicle to be started.
If the court finds by a preponderance of the evidence that this instance as indicated by the ignition interlock device in fact did occur, it may deny the offender's appeal and issue the order increasing the relevant periods of time described in this division. If the court finds by a preponderance of the evidence that this instance as indicated by the ignition interlock device in fact did not occur, it must grant the offender's appeal and no such order shall be issued.
The bill specifies that in no case may any period of suspension of an offender's driver's or commercial driver's license or permit or nonresident operating privilege that is increased by a factor of two or any period of time during which the offender is prohibited from exercising any limited driving privileges granted to the offender unless the vehicles the offender operates are equipped with a certified ignition interlock device that is increased by a factor of two exceed the maximum period of time for which the court originally was authorized to suspend the offender's driver's or commercial driver's license or permit or nonresident operating privilege under R.C. 4511.19(G)(1)(a), (b), (c), (d), or (e). It also specifies that nothing in R.C. 4510.46 shall be construed as prohibiting the court from revoking an individual's driving privileges. (R.C. 4510.46.)
In any case in which the court issues an order under R.C. 4510.13 prohibiting an offender from exercising limited driving privileges unless the vehicles the offender operates are equipped with an immobilizing or disabling device, including a certified ignition interlock device, the court must notify the offender at the time the offender is granted limited driving privileges that, in accordance with R.C. 4510.46, if the court receives notice that the device prevented the offender from starting the motor vehicle because the device was tampered with or circumvented or because the analysis of the deep-lung breath sample or other method employed by the device to measure the concentration by weight of alcohol in the offender's breath indicated the presence of alcohol in the offender's breath in a concentration sufficient to prevent the device from permitting the motor vehicle to be started, the court may increase the period of suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege from that originally imposed by the court by a factor of two and may increase the period of time during which the offender will be prohibited from exercising any limited driving privileges granted to the offender unless the vehicles the offender operates are equipped with a certified ignition interlock device by a factor of two.
The bill requires the Department of Public Safety, not later than 90 days after the bill's effective date, to do all of the following (R.C. 5502.10(A)):
(1) Establish and maintain a State Registry, named "Ohio's Habitual OVI/OMWI Offenders," that contains all of the information specified below regarding each offender who, on or after the effective date of the section is convicted in this state for a fifth or subsequent time in the preceding 20 years for an OVI/OMWI violation (see "Definition of "OVI/OMWI violation"," below). The State Registry is a public record open for inspection under the state's Public Records Law. The Department is required to obtain the information to be included in the State Registry from the court. A court that convicts a person for an OVI/OMWI violation must send the information described in (a) and (b), below, to the Department of Public Safety within 30 days after the conviction of the offender. The State Registry must include at least the following information regarding each offender who on or after the effective date of the section is convicted in this state for a fifth or subsequent time in the preceding 20 years for an OVI/OMWI violation:
(a) The offender's name, date of birth, and residence address, including, but not limited to, the street address, municipal corporation or township, county, and ZIP code of the person's place of residence;
(b) The number of times within the preceding 20 years that the offender has been convicted in Ohio for an OVI/OMWI violation and the date of each of those convictions.
(2) Establish and operate on the Internet a database that contains for each person who, on or after the effective date of the section is convicted in this state for the fifth or subsequent time in the preceding 20 years of an OVI/OMWI violation, all of the information regarding the offender that is included in the State Registry of Ohio's Habitual OVI/OMWI Offenders that is established and maintained under the provision described above in (1). The database is a public record open for inspection under the state's Public Records Law, and it must be searchable by an offender's name, by county, and by ZIP code.
The bill requires the Department of Public Safety to update the State Registry of Ohio's Habitual OVI/OMWI Offenders and the Internet database required under the provisions described above every month to ensure that the information they contain is accurate and current (R.C. 5502.10(C)).
The bill defines "OVI/OMWI violation," for purposes of the State Registry and Internet database provisions described above, as meaning any of the following (R.C. 5502.10(D)): (1) state OVI or state OVUAC or a violation of a "municipal OVI ordinance" (as used in this provision, "municipal OVI ordinance" has the same meaning as is described in COMMENT 4), (2) having physical control of a vehicle while under the influence or a substantially equivalent municipal ordinance, (3) state OMWI or a violation of a municipal ordinance, law of another state, or law of the United States that is substantially equivalent to state OMWI, or (4) any equivalent offense not listed in clauses (1) to (3) of this paragraph (as used in this provision, "equivalent offense" has the same meaning as is described above in "Definition of "equivalent offense" as used in OVI and OMWI laws").
The bill provides that if the defendant claims a constitutional defect in any prior conviction when it is necessary to prove such a conviction for sentencing and other purposes, the defendant has the burden of proving the defect by a preponderance of the evidence (R.C. 2945.75(B)(3)).
Existing law provides that the court imposing a sentence upon an offender for a felony may sentence the offender to any financial sanction or combination of financial sanctions authorized under R.C. 2929.18 or, in the circumstances specified in R.C. 2929.32, may impose upon the offender a fine in accordance with that section. Existing law contains a list of financial sanctions that may be imposed under R.C. 2929.18. In addition to the nonexhaustive list of financial sanctions available in existing law, the bill provides that a financial sanction could include reimbursement by the offender for all or part of the cost of purchasing and using an immobilizing or disabling device, including a certified ignition interlock device, or a remote alcohol monitoring device that a court orders an offender to use under R.C. 4510.13. The bill also makes this financial sanction available for misdemeanor offenders. (R.C. 2929.18(A)(5)(a)(iii) and 2929.28(A)(3)(a)(iii).)
COMMENT
1. Existing R.C. 4511.19(A)(1)(j) prohibits a person from operating any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, except as provided in R.C. 4511.19(K), 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 500 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 100 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 150 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 50 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 150 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 50 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 2,000 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 50 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 10 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 10 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 25 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 10 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 10 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 2 nanograms of marihuana per milliliter of the person's whole blood or blood serum or plasma, (h) 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 15 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 5 nanograms of marihuana metabolite per milliliter of the person's whole blood or blood serum or plasma, or (ii) as measured by gas chromatography mass spectrometry, the person has a concentration of marihuana metabolite in the person's urine of at least 35 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 50 nanograms of marihuana metabolite per milliliter of the person's whole blood or blood serum or plasma, (i) the person has a concentration of methamphetamine in the person's urine of at least 500 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 100 nanograms of methamphetamine per milliliter of the person's whole blood or blood serum or plasma, or (j) the person has a concentration of phencyclidine in the person's urine of at least 25 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 10 nanograms of phencyclidine per milliliter of the person's whole blood or blood serum or plasma.
2. Existing R.C. 4511.19(B) prohibits a person under 21 years of age from operating 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 .02 of one per cent but less than .08 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 .03 of one per cent but less than .096 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 .02 of one gram but less than .08 of one gram by weight of alcohol per 210 liters of the person's breath, or (4) the person has a concentration of at least .028 of one gram but less than .11 of one gram by weight of alcohol per 100 milliliters of the person's urine.
A violation of the prohibition is the offense of "operating a vehicle after underage alcohol consumption," commonly referred to as "state OVUAC." The penalty for the offense is as follows: (a) except as otherwise described in clause (b) of this next paragraph, the offense is a misdemeanor of the fourth degree and, in addition to any other sanction imposed for the offense, the court must impose a Class 6 suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege, (b) if, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one or more state OVI offenses, state OVUAC offenses, or other equivalent offenses, the offense is a misdemeanor of the third degree and, in addition to any other sanction imposed for the offense, the court must impose a Class 4 suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege, or (c) if the offender also is convicted of or also pleads guilty to a specification of the type described in R.C. 2941.1416 and if the court imposes a jail term for the offense, the court must impose upon the offender an additional definite jail term pursuant to R.C. 2929.24(E).
3. Existing R.C. 4511.194 prohibits a person from being in "physical control" (defined as being in the driver's position of the front seat of a vehicle or in the driver's position of a streetcar or trackless trolley and having possession of the vehicle's, streetcar's, or trackless trolley's ignition key or other ignition device) of a vehicle, streetcar, or trackless trolley while under the influence of alcohol, a drug of abuse, or a combination of them or while the person's whole blood, blood serum or plasma, breath, or urine contains at least the concentration of alcohol specified in R.C. 4511.19(A)(1)(b), (c), (d), or (e). A violation of the prohibition is the offense of "having physical control of a vehicle while under the influence." (R.C. 4511.194--not in the bill.)
4. Existing R.C. 4511.181(C) defines "municipal OVI ordinance" and "municipal OVI offense," for purposes of R.C. 4511.181 to 4511.197, as any municipal ordinance prohibiting a person from operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them or prohibiting a person from operating a vehicle with a prohibited concentration of alcohol in the whole blood, blood serum or plasma, breath, or urine (R.C. 4511.181(C)--not in the bill).
HISTORY
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ACTION |
DATE |
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Introduced |
02-20-07 |
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Reported, S. Judiciary - Criminal Justice |
04-19-07 |
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Recommitted to S. Judiciary - Criminal Justice |
04-24-07 |
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Re-reported, S. Judiciary - Criminal Justice |
05-09-07 |
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Passed Senate (32-0) |
05-10-07 |
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Reported, H. Criminal Justice |
06-03-08 |
s0017-rh-127.doc/kl