HomeMy WebLinkAbout73-00 OrdinanceRECORD OF ORDINANCES
Ordinance No ....................................73-00.............. Passed .................................................
AN ORDINANCE AMENDING SECTION 73.01
REGARDING DRIVING OR PHYSICAL
CONTROL OF A VEHICLE WHILE UNDER
THE INFLUENCE, AND DECLARING AN
EMERGENCY
WHEREAS, Council desires to enact stricter penalties for persons operating a
motor vehicle with a higher concentration of alcohol and/or drugs in their system;
and
WHEREAS, Council desires to protect both drivers and pedestrians from persons
who are operating a motor vehicle while under the influence; and
WHEREAS, the State of Ohio has enacted Amended Sub. Senate Bi1122, which
now mandates higher penalties for persons operating a motor vehicle with a higher
concentration of alcohol and/or drugs in their system; and
WHEREAS, the problem of people operating a motor vehicle with a higher
concentration of alcohol and/or drugs in their system is a matter of statewide
concern; and
WHEREAS, Council desires to preserve and promote the health, safety and
welfare of its citizens and the traveling public by enacting stricter penalties for
persons who operate a motor vehicle while under the influence.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Dublin,
State of Ohio, ~_ of the elected members concurring as follows:
Section 1. That Section 73.01 of the Dublin Codified Ordinances, regarding
driving or physical control of a vehicle while under the influence, be amended to
read as follows:
§ 73.01 DRIVING OR PHYSICAL CONTROL WHILE UNDER THE
INFLUENCE; EVIDENCE.
(A) Operation generally. No person shall operate any vehicle within the
municipality, if any of the following apply:
(1) The person is under the influence of alcohol, a drug of
abuse, or alcohol and a drug of abuse;
(2) The person has a concentration often-hundredths of one per
cent or more but less than seventeen-hundredths of one per cent by weight of
alcohol in the person's blood;
(3) The person has a concentration often-hundredths of one gram or
more but less than seventeen-hundredths of one gram by weight of alcohol per two
hundred ten liters of the person's breath;
(4) The person has a concentration offourteen-hundredths of one
gram or more but less than two hundred thirty-eight-thousandths of one gram by
weight of alcohol per one hundred milliliters of the person's urine;
(5) The person has a concentration ofseventeen-hundredths of one
per cent or more by weight of alcohol in the person's blood;
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Ordinance No .....................................73-00.............. Passed ...........................................................page..2.;~..r......
(6) The person has a concentration of seventeen-hundredths of one
gram or more by weight of alcohol per two hundred ten liters of the person's
breath;
(7) The person has a concentration of two hundred thirty-eight-
thousandths of one gram or more by weight of alcohol per one hundred milliliters
of the person's urine.
(B) Operating a motor vehicle after underage alcohol consumption. No
person under 21 years of age shall operate any vehicle within this municipality, if
any of the following apply:
(1) The person has a concentration of at least 0.02% but less
than 0.10% by weight of alcohol in the person's blood;
(2) The person has a concentration of at least 0.02 of one gram
but less than 0.10 of one gram by weight of alcohol per 2101iters of the person's
breath;
(3) The person has a concentration of at least 0.028 of one gram
but less than 0.14 of one gram by weight of alcohol per 100 milliliters of the
person's urine.
(C) One conviction limitation. In any proceeding arising out of one
incident, a person may be charged with a violation of division (A)(1) and a
violation of division (A)(2), (3), (4), (5), (6), (7) or (B)(1), (2), or (3) of this
section, but the person may not be convicted of more than one violation of these
divisions.
(D) Physical control generally. No person shall be in actual physical
control of any vehicle within the municipality, if any of the following apply:
(1) The person is under the influence of alcohol, a drug of
abuse, or alcohol and a drug of abuse;
(2) The person has a concentration of 0.10% or more by weight
of alcohol in his blood;
(3) The person has a concentration of 0.10 of one gram or more
by weight of alcohol per 210 liters of his breath;
(4) The person has a concentration of 0.14 of one gram or more
by weight of alcohol per 100 milliliters of his urine.
(E) Physical control after underage alcohol consumption. No person
under 21 years of age shall be in actual physical control of any vehicle within this
municipality, if any of the following apply:
(1) The person has a concentration of at least 0.02% but less
than 0.10% by weight of alcohol in his blood;
(2) The person has a concentration of at least 0.02 of one gram
but less than 0.10 of one gram by weight of alcohol per 2101iters of his breath;
(3) The person has a concentration of at least 0.028 of one gram
but less than 0.14 of one gram by weight of alcohol in his urine.
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RECORD OF ORDINANCES
Ordinance No .....................................Z3-D0.............. Passed ...........................................................page..3_.:~.:........
(F) Evidence; tests; immunity. In any criminal prosecution or juvenile
court proceeding for a violation 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 a municipal ordinance relating to operating a vehicle with
prohibited concentration of alcohol in the blood, breath, or urine, the court may
admit evidence on the concentration of alcohol, drugs of abuse, or alcohol and
drugs of abuse in the defendant's blood, breath, urine or other bodily substance at
the time of the alleged violation as shown by chemical analysis of the defendant's
blood, urine, breath or other bodily substance withdrawn within two hours of the
time of the alleged violation.
(1) When a person submits to a blood test at the request of a
police officer under R.C. § 4511.191, only a physician, a registered nurse or a
qualified technician or chemist shall withdraw blood for the purpose of
determining its alcohol, drug, or alcohol and drug content. This limitation does not
apply to the taking of breath or urine specimens. A physician, a registered nurse or
a qualified technician or chemist may refuse to withdraw blood for the purpose of
determining the alcohol, drug, or alcohol and drug content of the blood, if in the
opinion of the physician, nurse, technician, or chemist the physical welfare of the
person would be endangered by the withdrawing of blood.
(2) Such bodily substance shall be analyzed in accordance with
methods approved by the Ohio Director of Health by an individual possessing a
valid permit issued by the Director of Health pursuant to R.C. § 3701.143.
(3) In a criminal prosecution or juvenile court proceeding for a
violation of division (A) 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 substantially equivalent to
division (A) of this section relating to operating a vehicle with a prohibited
concentration of alcohol in the blood, breath or urine, if there was at the time the
bodily substance was withdrawn a concentration of less than 0.10% by weight of
alcohol in the defendant's blood, less than 0.10 of one gram by weight of alcohol
per 2101iters of the Defendant's breath or less than 0.14 of one gram by weight of
alcohol per 100 milliliters of the Defendant's urine, such fact may be considered
with other competent evidence in determining the guilt or innocence of the
defendant. This division does not limit or affect a criminal prosecution or juvenile
court proceeding for a violation of division (B) of this section or of a municipal
ordinance substantially equivalent to division (B) of this section relating to
operating a vehicle with a prohibited concentration of alcohol in the blood, breath,
or unne.
(4) 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, or
his agent, immediately upon the completion of the chemical test analysis.
(5) The person tested may have a physician, a registered nurse
or a qualified technician or chemist of the person's own choosing administer a
chemical test or tests in addition to any administered at the request of a police
officer, and shall be so advised. 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 police officer.
(6) Any physician, registered nurse or qualified technician or
chemist 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 from civil liability
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RECORD OF ORDINANCES
dank Co.
Ordinance No ......................................73-0.0........:.... Passed ............................................................ a pe..4................
p"'~b VF+R
that is based upon a claim of assault and battery or based upon any other claim that
is not in the nature of a claim of malpractice, for any act performed in withdrawing
blood from the person.
(R.C. § 4511.19) ('80 Code, § 333.01) (Am. Ord. 88-94, passed 10-3-94)
(G) Penalty.
(1) Driving under the influence. Whoever violates division
(A)(1), (2), (3), or (4) in addition to the license suspension or revocation provided
in R.C. § 4507.16, and any disqualification imposed under R.C. § 4506.16, shall be
punished as provided in division (G)(1)(a) of this section. Whoever violates
division (A)(5), (6), or (7) in addition to the license suspension or revocation
provided in R.C. § 4507.16, and any disqualification imposed under R.C. §
4506.16, shall be punished as provided in division (G)(1)(b) of this section. The
court, in addition to and independent of any sentence that it imposes upon the
offender for a violation of divisions (A) or (B), shall order the immobilization of
the vehicle and impoundment of the license plates or forfeiture of the vehicle as
provided in R.C. § 4511.193:
(a) Except as provided in Section (G)(1)(c) hereof,
whoever violates Section (A)(1), (2), (3), or (4) hereof is guilty of a misdemeanor
of the first degree and the court shall sentence the offender to a term of
imprisonment of three consecutive days and may sentence the offender pursuant to
§ 70.99(B) to a longer term of imprisonment. In addition, the court shall impose
upon the offender a fine of not less than two hundred and fifty dollars ($250.00)
and not more than one thousand dollars ($1,000.00). The court may suspend the
execution of the mandatory three consecutive days of imprisonment that it is
required to be imposed by this division if the court, in lieu of the suspended term
of imprisonment, places the offender on probation and requires the offender to
attend, for three consecutive days, a drivers' intervention program that is certified
pursuant to R.C. § 3793.10. The court also may suspend the execution of any part
of the mandatory three consecutive days of imprisonment that it is required to be
imposed by this division, if the court places the offender on probation for part of
the three consecutive days; requires the offender to attend, for that part of the three
consecutive days, a drivers' intervention program that is certified pursuant to R.C.
§ 3793.10; and sentences the offender to a term of imprisonment equal to the
remainder of the three consecutive days that the offender does not spend attending
the drivers' intervention program. The court may require the offender, as a
condition of probation, to attend and satisfactorily complete any treatment or
education programs that comply with the minimum standards adopted pursuant to
R.C. Chapter 3793 by the State Director of Alcohol and Drug Addiction Services,
in addition to the required attendance at a drivers' intervention program, that the
operators of the drivers' intervention program determine that the offender should
attend and to report periodically to the court on his progress in the programs. The
court also may impose any other conditions of probation on the offender that it
considers necessary. (R.C. § 4511.99 (A)(1))
(b) Except as provided in Section (G)(1)(c) hereof,
whoever violates Section (A)(5), (6) or (7) hereof is guilty of a misdemeanor of the
first degree, and the court shall sentence the offender to one of the following:
(I) a term of imprisonment of at least three consecutive days and a
requirement that the offender attend, for three consecutive days, a drivers'
intervention program that is certified pursuant to section 3793.10 of the
Revised Code; or
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Ordinance No ......................................73.-0.0............. Passed ............................................................pagc..S
(II) if the court determines that the offender is not conducive to treatment in
the program, if the offender refuses to attend the program, or if the place of
imprisonment can provide a drivers' intervention program, a term of
imprisonment of at least six consecutive days.
In addition, the court shall impose upon the offender a fine of not less two hundred
and fifty dollars ($250.00) and not more than one thousand dollars ($1,000.00).
The court may require the offender, as a condition of probation, to attend and
satisfactorily complete any treatment or education programs that comply with the
minimum standards adopted pursuant to Chapter 3793 of the Revised Code by the
director of alcohol and drug addiction services, in addition to the required
attendance at a drivers' intervention program, that the operators of the drivers'
intervention program determine that the offender should attend and to report
periodically to the court on the offender's progress in the programs. The court also
may impose any other conditions of probation on the offender that it considers
necessary. (R.C. § 4511.99 (5)(a))
(c) Upon a showing that imprisonment would seriously
affect the ability of an offender sentenced pursuant to divisions (G)(1)(a) and (b)
hereof to continue his employment, the court may authorize that the offender be
granted work release from imprisonment after the offender has served the three or
six consecutive days of imprisonment that the court is required by divisions
(G)(1)(a) or (b) hereof to impose. No court shall authorize work release from
imprisonment during the three, or six consecutive days of imprisonment that the
court is required by divisions (G)(1)(a) or (b) hereof to impose. The duration of the
work release shall not exceed the time necessary each day for the offender to
commute to and from the place of employment and the place of imprisonment and
the time actually spent under employment. (R.C. § 4511.99 (A)(9)(a))
(d) No court shall sentence an offender to an alcohol
treatment program pursuant to divisions (G)(1)(a) or (b) hereof unless the
treatment program complies with the minimum standards adopted pursuant to R.C.
Chapter 3793 by the State Director of Alcohol and Drug Addiction Services.
(R.C. § 4511.99 (A)(11))
(e) As used in this section, THREE CONSECUTIVE
DAYS means 72 consecutive hours. (R.C. § 4511.991)
(f) Of the fine imposed pursuant to (G)(1)(a) or (b) of
this section, twenty-five dollars shall be paid to an enforcement and education fund
established by the legislative authority of the law enforcement agency in this state
that primarily was responsible for the arrest of the offender, as determined by the
court that imposes the fine. the agency shall use this share to pay only those costs it
incurs in enforcing section 4511.19 of the Revised Code or a substantially similar
municipal ordinance and in informing the public of the laws governing the
operation of a motor vehicle while under the influence of alcohol, the dangers of
operating a motor vehicle while under the influence of alcohol, and other
information relating to the operation of a motor vehicle and the consumption of
alcoholic beverages. Fifty dollars of the fine imposed pursuant to this division shall
be paid to the political subdivision that pays the cost of housing the offender
during the offender's term of incarceration to the credit of the fund that pays the
cost of the incarceration. The political subdivision shall use this share to pay or
reimburse incarceration or treatment costs it incurs in housing or providing drug
and alcohol treatment to persons who violate section 4511.19 of the Revised Code
or a substantially similar municipal ordinance and to pay for ignition interlock
devices and electronic house arrest equipment for persons who violate that section.
Twenty-five dollars of the fine imposed pursuant to this division shall be deposited
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Ordinance No ......................................73-00............. Passed ............................................................page..6 F...R ......
into the county indigent drivers alcohol treatment fund or municipal indigent
drivers alcohol treatment fund under the control of that court, as created by the
county or municipal corporation pursuant to division (n) of section 4511.191 of the
Revised Code, the balance of the fine shall be disbursed as otherwise provided by
law. (R.C. § 4511.99(A)(1) and R.C. § 4511.99(A)(5)(b))
(2) (a) Operating a motor vehicle after underage
consumption. 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. If, within one year of the offense, the
offender has not been convicted of or pleaded guilty to any violation of division
(A) or (B) of this section, 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, a municipal ordinance relating to operating a vehicle with a prohibited
concentration of alcohol in the blood, breath, or urine, R.C. § 2903.04 in a case in
which the offender was subject to the sanctions described in division (D) of that
section, or R.C. §§ 2903.06, 2903.07 or 2903.08 or a municipal ordinance that is
substantially similar to R.C. § 2903.07 in a case in which the jury or judge found
that the offender was under the influence of alcohol, a drug of abuse, or alcohol
and a drug of abuse, the offender is guilty of a misdemeanor of the fourth degree;
2. If, within one year of the offense, the
offender has been convicted of or pleaded guilty to any violation of division (A) or
(B), 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, a municipal ordinance
relating to operating a vehicle with a prohibited concentration of alcohol in the
blood, breath, or urine, R.C. § 2903.04 in a case in which the offender was subject
to the sanctions described in division (D) of that section, or R.C. §§ 2903.06,
2903.07, 2903.08 or a municipal ordinance that is substantially similar to R.C. §
2903.07 in a case in which the jury or judge found that the offender was under the
influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or a statute of
the United States or any other state or a municipal ordinance of a municipality
located in any other state that is substantially similar to R.C. § 4511.19(A) or (B),
the offender is guilty of a misdemeanor of the third degree.
(b) In addition to or independent of all other penalties
provided bylaw, the offender's driver's or commercial driver's license or permit or
nonresident operating privilege shall be suspended in accordance with, and for the
period of time specified in R.C. § 4507.16(E). (R.C. § 4511.99(N))
(3) Physical control. Whoever violates division's (D) or (E) of
this section is guilty of a misdemeanor of the first degree. (R.C. § 4511.99 (D))
(H) 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.
('80 Code, § 333.99) (Am. Ord. 88-94, passed 10-3-94; Am. Ord. 93-95, passed 9-
18-95) Penalty, see § 70.99
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RECORD OF ORDINANCES
~o.
Ordinance No ......................................73.-Q0............. Passed ............................................................p.age..Z:~.:.~......
Section 2. This Ordinance is declared to be an emergency ordinance necessary
for the immediate preservation of the public peace, health, safety or welfare, and
for the further reason, the Dublin Code must mirror the State Code changes which
take effect on May 17, 2000. Therefore, this ordinance shall take effect and be in
force immediately upon passage.
Passed this .77h day of , 2000.
ayor -Presiding Officer
ATTEST:
Clerk of Council
I ltcrehy fortify that top~ies of t0zis Or~~nance!~esoliition ,~osre hoste~" -the
City of Dublin in ncrorda,jte v~~:t!? Se;:t~!I 731.25 of ti~^ `i' ;o gevsed Cocis.
k of Countii, Ctublin, CIIio
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~~
SCHOTTENSTEIN, ZOX ~ DUNN
A Legal Professional Association
ONE CLEVELAND CENTER
1375 EAST NHJTH STREET, SurrE 950
CLEVELAND, OHIO 44114
TELEPHONE 216/621-6501
THE HUNTIIQGTON CENTER
41 SOUTH HIGH STREET ^' COLUMBUS, Oxco 43215-6106
TELEexoxE 614/462-2700 ~ FAx 614/462-5135
WEBSITE: WWW.SZD.COM
Ordinance 73-00
OMVI
BANK ONE TOWERS
SO44 MONTGOMERY ROAD, SUITE 7O0
CINCINNATI, OHIO 45236-2926
TELEPHONE 513/792-2730
MEMORANDUM
TO: Dublin City Council
Tim Hansley, City Manager
Chief Rob Geis, Dublin Police Department
Don Colby, Director of Court Services
FROM: Stephen J. Smith
Mitchell H. Banchefsky
Stephen J. Smith, Jr.
DATE: May 15, 2000
RE: Summary of Senate Bill 22 Regarding Operating a Motor Vehicle While Under
the Influence
On February 15, 2000, the Governor of Ohio signed Senate Bill 22 (the "Bill"). The Bill
contains significant changes in the law regarding operating a motor vehicle while under the
influence ("O.M.V.I."). While most of the changes contained in the Bill relate to persons
convicted of multiple O.M.V.I. offenses, which Dublin Mayors Court would not have
Jurisdiction, the Bill does contain two provisions that are applicable to Dublin's Mayors Court.
The Bill will go into effect on May 17, 2000.
.M First, the Bill creates a new offense for operating a motor vehicle with a concentration of
.17 of one percent or more by weight of alcohol in the person's blood, a concentration of .17 of
one gram or more by weight of alcohol per 210 liters of the person's breath, or a concentration of
.238 of one gram or more by weight per 100 milliliters of the persons urine. The Bill also creates
higher penalties for violating this newly created offense. While the offense classification is still
the same, a misdemeanor of the first degree, the Bill a now mandates higher minimum penalties.
A person convicted of this new offense must be fined a minimum of two hundred and fifty
dollars. In addition, the Bill requires six days of mandatory imprisonment. While the person
may complete athree-day alcohol program that is already provided for under the current law, the
Bill requires that an offender must be sentenced to three additional days in jail. Furthermore, the
Bill provides that if the Court finds that the person is not conducive to a treatment program or
refuses to attend an alcohol, the Court must sentence the person to six days in jail.
Second, the Bill also raises the minimum fine for an O.M.V.I. from two hundred dollars
($200) to two hundred and fifty dollars ($250) dollars. The Bill provides that the additional fifty
SCHOTTENSTEIN, ZOX ~ DUNN
i
A Legal Professional Association
dollars must be paid to the political subdivision that pays the cost of housing the offender during
the offenders' incarceration.l
This chart illustrates the difference between the old law and the new law including the
addition of the new offense:
Old Law: New Law: New Law:
.10 And Above .10 To .169 .17 And Above
Mandatory Fine $200 - $1000 $250 - $1000 $250 - $1000
Mandatory Three (3) Consecutive Three (3) Consecutive Six (6) Consecutive
Imprisonment Days Days Days
Alternative To Three (3) Days May Three (3) Days May Three (3) Days May
Mandatory Be Suspended By Be Suspended By Be Suspended By
Imprisonment Attending A Drivers' Attending A Drivers' Attending A Drivers
Intervention Program Intervention Program Intervention Program,
But The Offender
Must Still Do Three
(3) Days In Jail.
If you have any questions or comments regarding S.B. 22 or any of the provisions listed
above, please do not hesitate to contact this office.
~ Under the new provisions of this Bill, the City will be required to expend additional money to send a person to jail
for the three additional days. The fifty dollars will be used to offset the one hundred and eighty-dollar cost to the
City.
2