HomeMy WebLinkAbout88-04 OrdinanceRECORD OF ORDINANCES
Blank. [nc.
Ordinance No.
88-04
AN ORDINANCE AMENDING SECTION 73.01 OF THE
DUBLIN CODIFIED ORDINANCES REGARDING
DRIVING UNDER THE INFLUENCE OF ALCOHOL
OR DRUGS, AND DECLARING AN EMERGENCY.
Passed
20
WHEREAS, Dublin Codified Ordinances, Section 73.01, provides that no person
shall operate any vehicle under the influence of alcohol, a drug of abuse, or a
combination of them; and
WHEREAS, Dublin Codified Ordinances, Section 73.01, is modeled after Ohio
Revised Code, Section 4511.19; and
WHEREAS, Ohio Revised Code, Section 4511.19, was recently amended by the
passage of 2004 House Bill 163, which took effect on September 23, 2004, and
requires atwenty-year look back period of prior similar convictions and guilty pleas;
WHEREAS, the Council hereby finds and declares it desires for the Dublin Code
section pertaining to Driving Under the Influence of Alcohol or Drugs to be consistent
with the recently enacted state laws pertaining to the same.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin,
State of Ohio, ~ of the elected members concurring:
Section 1. Dublin Codified Ordinances Section 73.01 is hereby amended to read as
follows:
§ 73.01 DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS.
(A) ~ No person shall operate any vehicle within this municipality, 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.
(~} ~ The person has a concentration of 0.08% or more but
less than 0.17% by weight per unit volume of alcohol in the person's whole
blood.
(~} ~ The person has a concentration of 0.096% or more but less
than 0.204% by weight per unit volume of alcohol in the person's blood serum
or plasma.
f 4} ~d,~ The person has a concentration of 0.08 grams or more
but less than 0.17 grams by weight of alcohol per 210 liters of the person's
breath.
~} ~ The person has a concentration of 0.11 grams or more
but less than 0.238 grams by weight of alcohol per 100 milliliters of the
person's urine.
{~} ~f The person has a concentration of 0.17% or more by
weight per unit volume of alcohol in the person's whole blood.
{~} ~ The person has a concentration of 0.204% or more by
weight per unit volume of alcohol in the person's blood serum or plasma.
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~) ~ The person has a concentration of 0.17 grams or more
by weight of alcohol per 2101iters of the person's breath.
(s3) ~ The person has a concentration of 0.238 grams or more
by weight of alcohol per 100 milliliters of the person's urine.
~2) No person who, within twenty years of the conduct described in
division (A)(2)(a) of this section, previously has been convicted of or pleaded
guilty to a violation of this division, division (A)(1) or (B) of this section, or a
State of Ohio or municipal OVI offense shall do both of the following:
~) Operate any vehicle within this municipality while under
the influence of alcohol, a drub of abuse, or a combination of them;
(b) Subsequent to being arrested for operating the vehicle,
as described in division (A)(2)(a) of this section, being asked b
enforcement officer to submit to a chemical test or tests under section
4511.191 of the Revised Code, and being advised by the officer in accordance
with section 4511.192 of the Revised Code of the consequences of the person's
refusal or submission to the test or tests refuse to submit to the test or tests.
(B) No person under 21 years of age shall operate any vehicle within this
municipality, if, at the time of the operation, any of the following apply:
(1) The person has a concentration of at least 0.02% but less than
0.08% by weight per unit volume of alcohol in the person's whole blood.
(2) The person has a concentration of at least 0.03% but less than
0.096% by weight per unit volume of alcohol in the person's blood serum or
plasma.
(3) The person has a concentration of at least 0.02 grams but less
than 0.08 grams by weight of alcohol per 2101iters of the person's breath.
(4) The person has a concentration of at least 0.028 grams but less
than 0.11 grams by weight of alcohol per 100 milliliters of the person's urine.
(C) In any proceeding arising out of one incident, a person maybe charged
with a violation of division (A)(1)(a) or (A~(2) and a violation of division
(B)(1), (2), or (3) of this section, but the person may not be convicted of more
than one violation of these divisions.
(D) (1) In any criminal prosecution for a violation of division (A) or (B)
of this section or for an equivalent offense, the court may admit evidence on
the concentration of alcohol, drugs of abuse, or a combination of them in the
defendant's whole blood, blood serum or plasma, breath, urine, or other bodily
substance at the time of the alleged violation as shown by chemical analysis of
the substance withdrawn within two hours of the time of the alleged violation.
When a person submits to a blood test at the request of a law enforcement
officer under R.C. § 4511.191 or a substantially similar municipal ordinance,
only a physician, a registered nurse, or a qualified technician, chemist, or
phlebotomist shall withdraw blood for the purpose of determining the alcohol,
drug, or alcohol and drug content of the whole blood, blood serum, or blood
plasma. This limitation does not apply to the taking of breath or urine
specimens. A person authorized to withdraw blood under this division may
refuse to withdraw blood under this division, if in that person's opinion, the
physical welfare of the person would be endangered by the withdrawing of
blood. The bodily substance withdrawn shall be analyzed in accordance with
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methods approved by the Director of Health by an individual possessing a
valid permit issued by the Director pursuant to R.C. § 3701.143.
(2) In a criminal prosecution for a violation of division (A) of this
section or for an equivalent offense, if there was at the time the bodily
substance was withdrawn a concentration of less than the applicable
concentration of alcohol specified in divisions (A)(z2'~', ~^', ^^a «'
(1)(b~,(c), (d), and (e) of this section, that fact may be considered with other
competent evidence in determining the guilt or innocence of the defendant.
This division does not limit or affect a criminal prosecution for a violation of
division (B) of this section.
(3) Upon the request of the person who was tested, the results of the
chemical test shall be made available to the person or the person's attorney,
immediately upon the completion of the chemical test analysis. The person
tested may have a physician, a registered nurse, or a qualified technician,
chemist, or phlebotomist of the person's own choosing administer a chemical
test or tests, at the person's expense, in addition to any administered at the
request of a law enforcement officer. The form to be read to the person to be
tested, as required under § 73.011, shall state that the person may have an
independent test performed at the person's expense. The failure or inability to
obtain an additional chemical test by a person shall not preclude the admission
of evidence relating to the chemical test or tests taken at the request of a law
enforcement officer.
(4) (a) As used in division (D)(4)(b) and (c) of this section,
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION means
the National Highway Traffic Safety Administration established as an
administration of the United States Department of Transportation under 96
Stat. 2415 (1983), 49 U.S.C. § 105.
(b) In any criminal prosecution or juvenile court proceeding
for a violation of division (A) or (B) of this section, of a municipal ordinance
relating to operating a vehicle while under the influence of alcohol, a drug of
abuse, or alcohol and a drug of abuse, or of a municipal ordinance relating to
operating a vehicle with a prohibited concentration of alcohol in the blood,
breath, or urine, if a law enforcement officer has administered a field sobriety
test to the operator of the vehicle involved in the violation and if it is shown by
clear and convincing evidence that the officer administered the test in
substantial compliance with the testing standards for any reliable, credible, and
generally accepted field sobriety tests that were in effect at the time the tests
were administered, including, but not limited to, any testing standards then in
effect that were set by the National Highway Traffic Safety Administration, all
of the following apply:
1. The officer may testify concerning the results of
the field sobriety test so administered.
2. The prosecution may introduce the results of the
field sobriety test so administered as evidence in any proceedings in the
criminal prosecution or juvenile court proceeding.
3. If testimony is presented or evidence is
introduced under division (D)(4)(b)1. or 2. of this section and if the testimony
or evidence is admissible under the Rules of Evidence, the court shall admit
the testimony or evidence and the trier of fact shall give it whatever weight the
trier of fact considers to be appropriate.
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(c) Division (D)(4)(b) of this section does not limit or
preclude a court, in its determination of whether the arrest of a person was
supported by probable cause or its determination of any other matter in a
criminal prosecution or juvenile court proceeding of a type described in that
division, from considering evidence or testimony that is not otherwise
disallowed by division (D)(4)(b) of this section.
(E) (1) Subject to division (E)(3) of this section, in any criminal
prosecution or juvenile court proceeding for a violation of division (A) ,
rn~ «~ «~ r~~ ~Q~ ,,,. ~o~ (1)(b), (c), (d), (e), (fl, (gl, (h), (il or (B)(1)~ (2),
(3), or (4) of this section or for an equivalent offense that is substantially
equivalent to any of those divisions, a laboratory report from any forensic
laboratory certified by the Department of Health that contains an analysis of
the whole blood, blood serum or plasma, breath, urine, or other bodily
substance tested and that contains all of the information specified in this
division shall be admitted as prima facie evidence of the information and
statements that the report contains. The laboratory report shall contain all of
the following:
(a) The signature, under oath, of any person who performed
the analysis;
(b) Any findings as to the identity and quantity of alcohol, a
drug of abuse, or a combination of them that was found;
(c) A copy of a notarized statement by the laboratory
director of a designee of the director that contains the name of each certified
analyst or test performer involved with the report, the analyst's or test
performer's employment relationship with the laboratory that issued the report,
and a notation that performing an analysis of the type involved is part of the
analyst's or test performer's regular duties;
(d) An outline of the analyst's or test performer's education,
training, and experience in performing the type of analysis involved and a
certification that the laboratory satisfies appropriate quality control standards
in general and, in this particular analysis, under rules of the Department of
Health.
(2) Notwithstanding any other provision of law regarding the
admission of evidence, a report of the type described in division (E)(1) of this
section is not admissible against the defendant to whom it pertains in any
proceeding, other than a preliminary hearing or a grand jury proceeding, unless
the prosecutor has served a copy of the report on the defendant's attorney or, if
the defendant has no attorney, on the defendant.
(3) A report of the type described in division (E)(1) of this section
shall not be prima facie evidence of the contents, identity, or amount of any
substance if, within seven days after the defendant to whom the report pertains
or the defendant's attorney receives a copy of the report, the defendant or the
defendant's attorney demands the testimony of the person who signed the
report. The judge in the case may extend the seven-day time limit in the
interest of justice.
(F) Except as otherwise provided in this division, any physician, registered
nurse, or qualified technician, chemist, or phlebotomist who withdraws blood
from a person pursuant to this section, and any hospital, first-aid station, or
clinic at which blood is withdrawn from a person pursuant to this section, is
immune from criminal liability and civil liability based upon a claim of assault
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and battery or any other claim that is not a claim of malpractice, for any act
performed in withdrawing blood from the person. The immunity provided in
this division is not available to a person who withdraws blood if the person
engages in willful or wanton misconduct.
(G) (1) Whoever violates any provisions of divisions (A)(1)~ to (1}~
or A 2 of this section is guilty of operating a vehicle under the influence of
alcohol, a drug of abuse, or a combination of them. The court shall sentence
the offender under Chapter 130, except as otherwise authorized or required by
(G)(1)(a) to (e) of this section:
(a) Except as otherwise provided in division (G)(1)(b), (c),
(d), or (e) of this section, the offender is guilty of a misdemeanor of the first
degree, and the court shall sentence the offender to all of the penalties and
sanctions provided in R.C. § 4511.19(G)(1)(a)(i) to (iv).
(b) Except as otherwise provided in division (G)(1)(e) of
this section, an offender who, within six years of the offense, previously has
been convicted of or pleaded guilty to one violation of division (A) or (B) of
this section or one other equivalent offense is guilty of a misdemeanor of the
first degree. The court shall sentence the offender to all of the penalties and
sanctions provided in R.C. § 4511.19(G)(1)(b)(i) to (v).
(c) Except as otherwise provided in division (G)(1)(e) of
this section, an offender who, within six years of the offense, previously has
been convicted of or pleaded guilty to two violations of division (A) or (B) of
this section or other equivalent offenses is guilty of a misdemeanor. The court
shall sentence the offender to all of the penalties and sanctions provided in
R.C. § 4511.19(G)(1)(c)(i) to (vi).
(d) Except as otherwise provided in division (G)(1)(e) of
this section, an offender who, within six years of the offense, previously has
been convicted of or pleaded guilty to three or mere four violations of division
(A) or (B) of this section or other equivalent offenses or an offender who,
within twenty years of the offense, previously has been convicted of or pleaded
guilty to five or more violations of that nature is guilty of a felony to be
prosecuted under appropriate state law.
(e) An offender who previously has been convicted of or
pleaded guilty to a violation of R.C. § 4511.19(A) that was a felony, regardless
of when the violation and the conviction or guilty plea occurred, is guilty of a
felony to be prosecuted under appropriate state law.
(2) An offender who is convicted of or pleads guilty to a violation
of division (A) of this section and who subsequently seeks reinstatement of the
driver's or occupational driver's license or permit or nonresident operating
privilege suspended under this section or R.C. § 4511.19 as a result of the
conviction or guilty plea shall pay a reinstatement fee as provided in R.C. §
4511.191(F)(2).
(3) If an offender is sentenced to a jail term under R.C. §
4511.19(G)(1)(b)(i) or (ii) or (G)(1)(c)(i) or (ii) and if, within 60 days of
sentencing of the offender, the court issues a written finding on the record that,
due to the unavailability of space at the jail where the offender is required to
serve the term, the offender will not be able to begin serving that term within
the 60-day period following the date of sentencing, the court may impose an
alternative sentence as specified in R.C. § 4511.19(G)(3) that includes a term
of house arrest with electronic monitoring, with continuous alcohol
I
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monitoring or with both electronic monitoring and continuous alcohol
monitoring..
(4) If an offender's driver's or occupational driver's license or
permit or nonresident operating privilege is suspended under division (G) of
this section or R.C. § 4511.19(G) and if R.C. § 4510.13 permits the court to
grant limited driving privileges, the court may grant the limited driving
privileges e~-y-i€ in accordance with that section. If division (A)(7) of that
section requires that the court des impose as en° ^~ *'~° ^^~a~+~^^~ a
condition of the privileges that the offender must display on the vehicle that is
driven subject to the privileges restricted license plates that are issued under
R.C. § 4503.231, except as provided in division (B) of that section, the court
shall impose that condition as one of the conditions of the limited driving
privile eg_s granted to the offender, except as provided in division (B) of section
4503.231 of the Revised Code .
(5) Fines imposed under this section for a violation of division (A)
of this section shall be distributed as provided in R.C. § 4511.19(G)(5).
(6) If title to a motor vehicle that is subject to an order of criminal
forfeiture under division (G)(1)(c), (d), or (e) of this section is assigned or
transferred and R.C. § 4503.234(B)(2) or (3) applies, in addition to or
independent of any other penalty established by law, the court may fine the
offender the value of the vehicle as determined by publications of the National
Auto Dealers Association. The proceeds of any fine so imposed shall be
distributed in accordance with division (C)(2) of that section.
(H) Whoever violates division (B) of this section is guilty of operating a
motor vehicle after underage alcohol consumption and shall be punished as
follows:
(1) Except as otherwise provided in division (H)(2) of this section,
the offender is guilty of a misdemeanor of the fourth degree. In addition to any
other sanction imposed for the offense, the court shall impose a class six
suspension of the offender's driver's license, commercial driver's license,
temporary instruction permit, probationary license, or nonresident operating
privilege form the range specified in R.C. 4510.02(A)(6).
(2) If, within one year of the offense, the offender previously has
been convicted of or pleaded guilty to one or more violations of division (A) or
(B) of this section or other equivalent offense or offenses, the offender is guilty
of a misdemeanor of the third degree. In addition to any other sanction
imposed for the offense, the court shall impose a class four suspension of the
offender's driver's license, commercial driver's license, temporary instruction
permit, probationary license, or nonresident operating privilege from the range
specified in R.C. 4510.02(A)(4).
31 If the offender also is convicted of or also pleads euilty to a
specification of the type described in section 2941.1414 of the Revised Code
and if the court imposes a jail term for the violation of division (B) of this
section, the court shall impose upon the offender an additional definite jail
term pursuant to division (E) of section 2929.24 of the Revised Code.
(I) (1) No court shall sentence an offender to an alcohol treatment
program under this section unless the treatment program complies with the
minimum standards for alcohol treatment programs adopted under R.C.
Chapter 3793 by the Director of Alcohol and Drug Addiction Services.
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(2) An offender who stays in a drivers' intervention program or in
an alcohol treatment program under an order issued under this section shall pay
the cost of the stay in the program. However, if the court determines that an
offender who stays in an alcohol treatment program under an order issued
under this section is unable to pay the cost of the stay in the program, the court
may order that the cost be paid from the court's indigent drivers' alcohol
treatment fund.
(J) If a person whose driver's or commercial driver's license or permit or
nonresident operating privilege is suspended under this section or R.C. §
4511.19 files an appeal regarding any aspect of the person's trial or sentence,
the appeal itself does not stay the operation of the suspension.
(K) All terms defined in R.C. § 4510.01 apply to this section. If the
meaning of a term defined in R.C. § 4510.01 conflicts with the meaning of the
same term as defined in R.C. § 4501.01 or 4511.01, the term as defined in R.C.
§ 4510.01 applies to this section.
(R.C. § 4511.19(A) - (K)) ('80 Code, § 333.01) (Am. Ord. 88-94, passed 10-3-
94)
(L) Upon a finding that such person operated a motor vehicle in a
construction zone where a sign was then posted in accordance with R.C. §
4511.98, in addition to all other penalties provided by law, there shall be
imposed a fine of two times and usual amount imposed for the violation.
There shall not be imposed a fine of two times the usual amount imposed for
the violation upon an offender who alleges, in an affidavit filed with the court
prior to a sentencing, that he is indigent and is unable to pay the fine imposed
pursuant to this section, provided the court determines the offender is an
indigent person and is unable to pay the fine.
Section 2. This ordinance is hereby declared to be an emergency necessary for the
immediate preservation of the public health, safety and welfare. The reason for such
necessity is that the state law pertaining to Driving Under the Influence of Alcohol or
Drugs has recently been amended, and the City of Dublin needs to come into
compliance with requirements in state law. Therefore, this ordinance shall go into
immediate effect.
Passed this ~,3~ day of ~e(°~,yy,~j~/,"2004.
c
ayor -Presiding Officer
Attest:
Clerk of Council
I hereby certify that copies of this
Ordinance/~ese#ztien were posted in the
City of Dublin in accordance with Section
731.25 of the Ohio Revised Code.
uty Clerk of Council, Dublin, Ohio