Ohio DUI / Ohio OVI Recent statutory enactments
On September 30, 2008, the Ohio DUI / Ohio OVI code was amended yet again. The most important changes are as follows:
Compelling repeat offenders to submit to blood, breath, or urine test
-A person arrested for operating or boating under the influence and who has had two or more prior offenses with six years or is charged with felony OVI must be asked to submit to a chemical test. In the event of a refusal, the law enforcement officer may employ "whatever reasonable means are necessary" to ensure that the person submits to a whole blood, blood serum or plasma test. The officer is immune from criminal and civil liability for a claim of assault and battery or any other claim for the acts unless the officer acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
Inclusion of watercraft under the influence as prior -Boating under the influence (BUI) offenses, state or municipal, are now included as prior equivalent offenses for determining the level of the current OVI charge .
Administrative license suspension for chemical test refusal -The length of an administrative license suspension for refusal of the test now depends on how many prior refusals and/or convictions the person has had in the prior six years. The prior version of the code referenced only the number of prior refusals.
Admission of chemical test in boating under the influence cases -Consistent with OVI cases, blood or urine test results in watercraft-related offenses withdrawn and analyzed by a health care provider may be admitted with expert testimony. Also, a court may admit results of chemical test without expert testimony if it was performed and analyzed by a person with a permit from the department of health whether the sample was obtained by consent, search warrant, or compelled by "reasonable means. "
Shifting of burden of proof in attacking prior convictions -A defendant claiming a constitutional defect in a prior conviction making the current offense one of more serious degree, has the burden of proving the defect by a preponderance of the evidence. This provision is intended to legislatively undo the Supreme Court's decision in State v. Brooke,
which held that when a prior OVI conviction is used to increase the degree of a new charge and the defendant makes a prima facie showing that the conviction was unconstitutional as it was uncounseled and resulted in confinement, the burden is on the state to prove the right to counsel was properly waived.
Increase in minimum fines
- All minimum OVI fines are increased by $50, with the requirement that $50 of each fine be credited either to a court special projects fund or to a state fund created for the purpose of funding interlock and remote alcohol monitoring for indigent offenders. Both minimum and maximum fines were previously increased by 2008 Sub. S.B. 209, effective June 26, 2008.
Mandatory assessment and treatment for repeat offenders -All second or greater OVI offenders must undergo an alcohol and drug abuse assessment and receive treatment as prescribed by the assessing agency.
Treatment funding -For purposes of determining whether an offender lacks the means to pay for attendance at an alcohol and drug addiction treatment program or to pay the costs specified in provisions of existing law related to surplus indigent drivers' alcohol treatment funds, the court must use the guidelines and standards of indigency established by the state public defender. Courts may use surplus indigent alcohol treatment funds to pay for offenders' treatment in programs that are not certified by the department of alcohol and drug addiction services if the program has filed an application for certification the application is pending. If the program withdraws the certification application, funding to the program must ceas e.
Increase in license suspension hard-time for second OVI -The hard-time of a license suspension for a person convicted of OVI with one prior conviction within six years is increased from 30 days to 45 days. The bill seemingly makes the same provision for an administrative license suspension for a person with a failing test and one prior. However, the bill contains an apparent error in providing that the court may still grant driving privileges after 30 days. This will likely be addressed in future legislation. The hard-time of other administrative license and court suspensions remain unchanged.
Increase of the license reinstatement fee -The driver's license reinstatement fee for OVI and implied consent suspensions is increased by $50 from $425 to $475. Also, $50 of the fee is to be credited to the state interlock and alcohol monitoring fund for distribution to local interlock and alcohol monitoring funds that each county and each municipality having a municipal court must create in order to offset costs incurred by local governments in providing interlock and remote alcohol monitoring to indigent offenders.
Immobilization waiver order -A court may waive the sentencing requirement of immobilization of the defendant's vehicle upon motion of a family or household member if the court determines that the person is "completely dependent on the vehicle for the necessities of life" and that the immobilization would be an " undue hardship" to person.
"Family or household member" is defined in accordance with R.C. 2919.25, except the person must currently reside with the offender. The movant must pay a $50 immobilization waiver fee to be credited to the state indigent drivers alcohol treatment fund. The family or household member must display restricted license plates on the vehicle for the entire waiver period. A person who is granted a waiver and permits the offender to drive the vehicle is subject to prosecution for wrongful entrustment. Also, an offender who violates the order is guilty of operating in violation of an immobilization order, a first-degree misdemeanor.
Requirement of interlock as condition of privileges for repeat offenders -All second or greater OVI offenders must use a vehicle equipped with an ignition interlock device during the court-imposed suspension following conviction. Every court order requiring interlock or secure continuous remote alcohol monitoring that is remote (generally referred to by the proprietary name "SCRAM"), must also impose an additional $2.50 court costs on the offender to fund a state habitual offender registry. The local court may also impose an additional $2.50 for a special projects fund. In the event an offender operates a vehicle not equipped with an ignition interlock, circumvents the device, or tampers with it, the offender is subject to SCRAM depending upon the number of times the interlock is violated. Manufacturers of ignition interlock devices must have the devices certified by the department of public safety.
Mandatory interlock reporting requirements -An entity monitoring an ignition interlock device on behalf of a court must notify the court whenever the device indicates that it has been tampered with or circumvented, or has registered alcohol on an offender's breath. Upon receipt of the notice, the court must notify the offender that the offender's suspension period and interlock period may be doubled. But, in no case can the suspension period extend beyond the maximum period of suspension the court was originally authorized to impose. The notice must state whether the court will impose the increase and, if so, that the increase will take effect 14 days from the date of the notice unless, within the 14-day period, the offender files a motion requesting a hearing. If a request is timely filed, the court may hold a hearing to determine whether the violation did in fact occur. The standard of proof is by a preponderance of the evidence. At the time an offender is granted limited driving privileges conditioned on the use of ignition interlock or other immobilizing device, the court must notify the offender that if the court receives notice of a violation, it may increase the suspension period and interlock period by a factor of two.
SCRAM for repeat offenders -The bill authorizes courts to order a person charged with a third, fourth, or fifth OVI offense in 6 years or a sixth or more offense in 20 years, to condition limited driving privileges on the person not consuming alcohol and using SCRAM. Also, a court must, "unless it determines otherwise," order a defendant who has previously been convicted of felony OVI to refrain from consuming alcohol and to be subject to SCRAM as conditions for limited driving privileges .
Creation of state habitual OVI offender registry -Courts must report information about an offender convicted of a fifth or greater OVI or OMVI within 20 years to the department of public safety. The information must include the offender's name, date of birth and residence address and the number of violations the person has had within the preceding 20 years including the date of each conviction. The information is to be sent to the department of public safety within 30 days of the conviction.
This information is provided by Baldwin's Ohio Handbook Series, Ohio Driving Under the Influence Law, Current through the 2008-2009 Edition, Judge Mark P. Painter and Jennifer P. Weiler.