Explanation
BACKGROUND: This legislation will amend Chapter 2133 of the Columbus City Codes, 1959 by enacting new Sections 2133.01 and 2133.99 in order to reflect changes to the OMVI law contained in the Ohio Revised Code that will go into effect on June 30, 2003. In particular, this ordinance reduces the prohibited blood alcohol concentration level to .08 from .10 and creates a "super OMVI" offense for violations above .17. Finally, this legislation reconciles the penalties for such OMVI violations as well as for other traffic moving violations with the penalties set forth in the Ohio Revised Code. Existing Sections 2133.01 and 2133.99 will be repealed.
EMERGENCY MEASURE: Emergency action is requested for this legislation because the City of Columbus will be deprived of its ability to charge and prosecute individuals under its own ordinances unless such changes are made immediately.
FISCAL IMPACT: There is no fiscal impact associated with the passage of this legislation.
Title
To enact new Sections 2133.01 and 2133.99 of the Columbus City Codes, 1959, to reflect recent changes in the Ohio Revised Code with respect to prohibited blood alcohol concentration levels while operating a motor vehicle, minimum penalties associated with such blood alcohol concentration levels as well as other traffic moving violation penalties; to repeal existing Sections 2133.01 and 2133.99; and to declare an emergency.
Body
WHEREAS, the City of Columbus has the ability to enforce all local police, sanitary and other similar regulations as are not in conflict with the general laws of the State of Ohio pursuant to Article XVIII, Section 3 of the Ohio Constitution; and
WHEREAS, the Ohio legislature has recently enacted changes to its OMVI statutes that reduce the prohibited blood alcohol concentration level from .10 to .08, create a "super OMVI" offense for those offenders who test over .17 and make various other amendments to the penalties for OMVI offenses; and
WHEREAS, the Ohio legislature has made changes to the penalties for other traffic moving violations; and
WHEREAS, said changes to the Ohio Revised Code become effective on June 30, 2003; and
WHEREAS, with the enactment of these changes to the Ohio Revised Code, certain provisions of Chapter 2133 of the Columbus City Codes, 1959, are in conflict with the general laws of the State of Ohio and will thereby be unenforceable as of June 30, 2003; and
WHEREAS, there is an emergency in the daily operation of the City of Columbus, Department of Law, and it is necessary to enact said changes to Chapter 2133 of the Columbus City Codes, 1959, to enable the Division of Police and the Department of Law, respectively, to charge under and to prosecute its own ordinances for the immediate preservation of the public peace, property, health and safety of its citizens; now therefore:
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF COLUMBUS, OHIO:
Section 1. That Chapter 2133 of the Columbus City Codes, 1959 is hereby amended by the enactment of new Sections 2133.01 and 2133.99, which shall read as follows:
2133.01 Driving under the influence of alcohol or drugs or with certain concentration of alcohol in bodily substances; chemical analysis.
(A) No person shall operate any vehicle within this City, 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 eight-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 of eight-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 of eleven-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 of seventeen-hundredths of one per cent or more by weight of alcohol in the person's blood.
(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) No person under twenty-one years of age shall operate any vehicle within this City, if any of the following apply:
(1) The person has a concentration of at least two-hundredths of one per cent but less than eight-hundredths of one per cent by weight of alcohol in the person's blood.
(2) The person has a concentration of at least two-hundredths of one gram but less than eight-hundredths of one gram by weight of alcohol per two hundred ten liters of the person's breath.
(3) The person has a concentration of at least twenty-eight one-thousandths of one gram but less than eleven-hundredths of one gram by weight of alcohol per one hundred milliliters of the person's urine.
(C) 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), (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 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.
When a person submits to a blood test at the request of a police officer under section 4511.191 of the Revised Code, 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.
Such bodily substances shall be analyzed in accordance with methods approved by the Ohio Director of Health by an individual possessing a valid permit issued by the Ohio Director of Health pursuant to section 3701.143 of the Revised Code.
(2) In a criminal prosecution for a violation of division (A) of this section, if there was at the time the bodily substance was withdrawn a concentration of less than eight-hundredths of one per cent by weight of alcohol in the defendant's blood, less than eight-hundredths of one gram by weight of alcohol per two hundred ten liters of the defendant's breath, or less than eleven-hundredths of one gram by weight of alcohol per one hundred milliliters of the defendant's urine, 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 or agent immediately upon the completion of the chemical test analysis.
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.
(4)(a) As used in divisions (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.A. 105.
(b)In any criminal prosecution for a violation of division (A) or (B) of this section, 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:
(i) The officer may testify concerning the results of the field sobriety test so administered.
(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution.
(iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) 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.
(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 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.
(5) 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 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.
2133.99 Penalty.
(A) Whoever violates division (A)(1), (2), (3), or (4) of section 2133.01, in addition to the license suspension or revocation provided in section 4507.16 of the Revised Code and any disqualification imposed under section 4506.16 of the Revised Code, shall be punished as provided in division (A)(1), (2), (3), (4) or (9) of this section. Whoever violates division (A)(5), (6), or (7) of section 2133.01, in addition to the license suspension or revocation provided in section 4507.16 of the Revised Code and any disqualification imposed under section 4506.16 of the Revised Code, shall be punished as provided in division (A)(5), (6), (7), (8) or (9) of this section.
(1) Except as otherwise provided in division (A)(2), (3), (4) or (9) of this section, the offender 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 section 2929.21 of the Revised Code to a longer term of imprisonment. In addition, the court shall impose upon the offender a fine of not less than three hundred and not more than one thousand dollars.
The court may suspend the execution of the mandatory three consecutive days of imprisonment that it is required to impose 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 section 3793.10 of the Revised Code. The court also may suspend the execution of any part of the mandatory three consecutive days of imprisonment that it is required to impose 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 section 3793.10 of the Revised Code; 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 Chapter 3793 of the Revised Code by the Ohio 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.
(2)(a) Except as otherwise provided in division (A)(9) of this section, the offender is guilty of a misdemeanor of the first degree, and, except as provided in this division, the court shall sentence the offender to a term of imprisonment of ten consecutive days and may sentence the offender pursuant to section 2929.21 of the Revised Code to a longer term of imprisonment if the offender has been convicted of or pleaded guilty to one violation of the following:
(i) Division (A) or (B) of section 4511.19 of the Revised Code;
(ii) 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;
(iii) A municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine;
(iv) Section 2903.04 of the Revised Code in a case in which the offender was subject to the sanctions described in division (D) of that section;
(v) Division (A)(1) of section 2903.06 or division (A)(1) of section 2903.08 of the Revised Code or a municipal ordinance that is substantially similar to either of those divisions;
(vi) Division (A)(2), (3), or (4) of section 2903.06, division (A)(2) of section 2903.08, or former section 2903.07 of the Revised Code, or a municipal ordinance that is substantially similar to any of those divisions or that former section, 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;
(vii) A statute of the United States or of any other state or a municipal ordinance of a municipal corporation located in any other state that is substantially similar to division (A) or (B) of section 4511.19 of the Revised Code.
As an alternative to the term of imprisonment required to be imposed by this division, but subject to division (A)(13) of this section, the court may impose upon the offender a sentence consisting of both a term of imprisonment of five consecutive days and not less than eighteen consecutive days of electronically monitored house arrest as defined in division (A) of section 2929.23 of the Revised Code. The five consecutive days of imprisonment and the period of electronically monitored house arrest shall not exceed six months. The five consecutive days of imprisonment do not have to be served prior to or consecutively with the period of electronically monitored house arrest.
In addition, the court shall impose upon the offender a fine of not less than four hundred and not more than one thousand five hundred dollars.
In addition to any other sentence that it imposes upon the offender, the court may require the offender to attend a drivers' intervention program that is certified pursuant to section 3793.10 of the Revised Code. If the officials of the drivers' intervention program determine that the offender is alcohol dependent, they shall notify the court, and the court shall order the offender to obtain treatment through an alcohol and drug addiction program authorized by section 3793.02 of the Revised Code. The cost of the treatment shall be paid by the offender.
(b) Regardless of whether the vehicle the offender was operating at the time of the offense is registered in the offender's name or in the name of another person, the court, in addition to the penalties imposed under division (A)(2)(a) of this section and all other penalties provided by law and subject to section 4503.235 of the Revised Code, shall order the immobilization for ninety days of the vehicle the offender was operating at the time of the offense and the impoundment for ninety days of the identification license plates of that vehicle. The order for the immobilization and impoundment shall be issued and enforced in accordance with section 4503.233 of the Revised Code.
(3)(a) Except as otherwise provided in division (A)(9) of this section and except as provided in this division, if the offender has been convicted of or pleaded guilty to two violations identified in division (A)(2) of this section, the court shall sentence the offender to a term of imprisonment of thirty consecutive days and may sentence the offender to a longer definite term of imprisonment of not more than one year. As an alternative to the term of imprisonment required to be imposed by this division, but subject to division (A)(13) of this section, the court may impose upon the offender a sentence consisting of both a term of imprisonment of fifteen consecutive days and not less than fifty-five consecutive days of electronically monitored house arrest as defined in division (A) of section 2929.23 of the Revised Code. The fifteen consecutive days of imprisonment and the period of electronically monitored house arrest shall not exceed one year. The fifteen consecutive days of imprisonment do not have to be served prior to or consecutively with the period of electronically monitored house arrest.
In addition, the court shall impose upon the offender a fine of not less than five hundred fifty and not more than two thousand five hundred dollars.
In addition to any other sentence that it imposes upon the offender, the court shall require the offender to attend an alcohol and drug addiction program authorized by section 3793.02 of the Revised Code. The cost of the treatment shall be paid by the offender. If the court determines that the offender is unable to pay the cost of attendance at the treatment program, the court may order that payment of the cost of the offender's attendance at the treatment program be made from that court's indigent drivers alcohol treatment fund.
(b) Regardless of whether the vehicle the offender was operating at the time of the offense is registered in the offender's name or in the name of another person, the court, in addition to the penalties imposed under division (A)(3)(a) of this section and all other penalties provided by law and subject to section 4503.235 of the Revised Code, shall order the criminal forfeiture to the state of the vehicle the offender was operating at the time of the offense. The order of criminal forfeiture shall be issued and enforced in accordance with section 4503.234 of the Revised Code.
(4)(a) Except as otherwise provided in division (A)(9) of this section and except as provided in this division, if the offender has been convicted of or pleaded guilty to three or more violations identified in division (A)(2) of this section, the court shall sentence the offender to a term of imprisonment of sixty consecutive days and may sentence the offender to a longer definite term of imprisonment of not more than one year. As an alternative to the term of imprisonment required to be imposed by this division, but subject to division (A)(13) of this section, the court may impose upon the offender a sentence consisting of both a term of imprisonment of thirty consecutive days and not less than seventy consecutive days of electronically monitored house arrest as defined in division (A) of section 2929.23 of the Revised Code. The thirty consecutive days of imprisonment and the period of electronically monitored house arrest shall not exceed one year. The thirty consecutive days of imprisonment do not have to be served prior to or consecutively with the period of electronically monitored house arrest.
In addition, the court shall impose upon the offender a fine of not less than seven hundred fifty and not more than ten thousand dollars.
In addition to any other sentence that it imposes upon the offender, the court shall require the offender to attend an alcohol and drug addiction program authorized by section 3793.02 of the Revised Code. The cost of the treatment shall be paid by the offender. If the court determines that the offender is unable to pay the cost of attendance at the treatment program, the court may order that payment of the cost of the offender's attendance at the treatment program be made from that court's indigent drivers alcohol treatment fund.
(b) Regardless of whether the vehicle the offender was operating at the time of the offense is registered in the offender's name or in the name of another person, the court, in addition to the penalties imposed under division (A)(4)(a) of this section and all other penalties provided by law and subject to section 4503.235 of the Revised Code, shall order the criminal forfeiture to the state of the vehicle the offender was operating at the time of the offense. The order of criminal forfeiture shall be issued and enforced in accordance with section 4503.234 of the Revised Code.
(c) If title to a motor vehicle that is subject to an order for criminal forfeiture under this section is assigned or transferred and division (C)(2) or (3) of section 4503.234 of the Revised Code 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 dealer's association. The proceeds from any fine imposed under this division shall be distributed in accordance with division (D)(4) of section 4503.234 of the Revised Code.
(5)(a) Except as otherwise provided in division (A)(6), (7), (8), or (9) of this section, the offender 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;
(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.
(b) In addition, the court shall impose upon the offender a fine of not less than three hundred and not more than one thousand dollars.
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.
(6)(a) Except as otherwise provided in division (A)(9) of this section and except as provided in this division, if the offender has been convicted of or pleaded guilty to one violation of division (A) or (B) of section 4511.19 of the Revised Code, 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, section 2903.04 of the Revised Code in a case in which the offender was subject to the sanctions described in division (D) of that section, section 2903.06, 2903.07, or 2903.08 of the Revised Code or a municipal ordinance that is substantially similar to section 2903.07 of the Revised Code 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 of any other state or a municipal ordinance of a municipal corporation located in any other state that is substantially similar to division (A) or (B) of section 4511.19 of the Revised Code, the offender is guilty of a misdemeanor of the first degree, and the court shall sentence the offender to a term of imprisonment of twenty consecutive days and may sentence the offender pursuant to section 2929.21 of the Revised Code to a longer term of imprisonment. As an alternative to the term of imprisonment required to be imposed by this division, but subject to division (A)(13) of this section, the court may impose upon the offender a sentence consisting of both a term of imprisonment of ten consecutive days and not less than thirty-six consecutive days of electronically monitored house arrest as defined in division (A) of section 2929.23 of the Revised Code. The ten consecutive days of imprisonment and the period of electronically monitored house arrest shall not exceed six months. The ten consecutive days of imprisonment do not have to be served prior to or consecutively with the period of electronically monitored house arrest.
In addition, the court shall impose upon the offender a fine of not less than four hundred and not more than one thousand five hundred dollars.
In addition to any other sentence that it imposes upon the offender, the court may require the offender to attend a drivers' intervention program that is certified pursuant to section 3793.10 of the Revised Code. If the officials of the drivers' intervention program determine that the offender is alcohol dependent, they shall notify the court, and the court shall order the offender to obtain treatment through an alcohol and drug addiction program authorized by section 3793.02 of the Revised Code. The offender shall pay the cost of the treatment.
(b) Regardless of whether the vehicle the offender was operating at the time of the offense is registered in the offender's name or in the name of another person, the court, in addition to the penalties imposed under division (A)(6)(a) of this section and all other penalties provided by law and subject to section 4503.235 of the Revised Code, shall order the immobilization for ninety days of the vehicle the offender was operating at the time of the offense and the impoundment for ninety days of the identification license plates of that vehicle. The order for the immobilization and impoundment shall be issued and enforced in accordance with section 4503.233 of the Revised Code.
(7)(a) Except as otherwise provided in division (A)(9) of this section and except as provided in this division, if the offender has been convicted of or pleaded guilty to two violations of division (A) or (B) of section 4511.19 of the Revised Code, 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, section 2903.04 of the Revised Code in a case in which the offender was subject to the sanctions described in division (D) of that section, section 2903.06, 2903.07, or 2903.08 of the Revised Code or a municipal ordinance that is substantially similar to section 2903.07 of the Revised Code 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 of any other state or a municipal ordinance of a municipal corporation located in any other state that is substantially similar to division (A) or (B) of section 4511.19 of the Revised Code, the court shall sentence the offender to a term of imprisonment of sixty consecutive days and may sentence the offender to a longer definite term of imprisonment of not more than one year. As an alternative to the term of imprisonment required to be imposed by this division, but subject to division (A)(13) of this section, the court may impose upon the offender a sentence consisting of both a term of imprisonment of thirty consecutive days and not less than one hundred ten consecutive days of electronically monitored house arrest as defined in division (A) of section 2929.23 of the Revised Code. The thirty consecutive days of imprisonment and the period of electronically monitored house arrest shall not exceed one year. The thirty consecutive days of imprisonment do not have to be served prior to or consecutively with the period of electronically monitored house arrest.
In addition, the court shall impose upon the offender a fine of not less than five hundred fifty and not more than two thousand five hundred dollars.
In addition to any other sentence that it imposes upon the offender, the court shall require the offender to attend an alcohol and drug addiction program authorized by section 3793.02 of the Revised Code. The offender shall pay the cost of the treatment. If the court determines that the offender is unable to pay the cost of attendance at the treatment program, the court may order that payment of the cost of the offender's attendance at the treatment program be made from that court's indigent drivers alcohol treatment fund.
(b) Regardless of whether the vehicle the offender was operating at the time of the offense is registered in the offender's name or in the name of another person, the court, in addition to the penalties imposed under division (A)(7)(a) of this section and all other penalties provided by law and subject to section 4503.235 of the Revised Code, shall order the immobilization for one hundred eighty days of the vehicle the offender was operating at the time of the offense and the impoundment for one hundred eighty days of the identification license plates of that vehicle. The order for the immobilization and impoundment shall be issued and enforced in accordance with section 4503.233 of the Revised Code.
(8)(a) Except as otherwise provided in division (A)(9) o th section andexcept as provided this division, if the offender has been convicted of or pleaded guilty to three or more violations of division (A) or (B) of section 4511.19 of the Revised Code, 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, section 2903.04 of the Revised Code in a case in which the offender was subject to the sanctions described in division () of that section, section 2903.06, 2903.07, or 2903.08 of the Revised Code or a municipal ordinance that is substantially similar to section 2903.07 of the Revised Code in a case in which the jury or judg 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 of any other state or a municipal ordinance of a municipal corporation located in any other state that is substantially similar to division (A) or (B) of section 4511.19 of the Revised Code, the court shall sentence the offender to a term of imprisonment of one hundred twnty consecutive days and may sentence the offender to a longer definite term of imprisonment of not more than one year. As an alternative to the term of imprisonment required to be imposed by this division, but subject to division (A)(13) of this section, the court may impose upon the offender a sentence consisting of both a term of imprisonment of sixty consecutive days and not less than one hundred seventy consecutive days of electronically monitored house arrest as defined in division (A) of section 2929.23 of the Revised Code. The sixty consecutive days of imprisonment and the period of electronically monitored house arrest shall not exceed one year. The sixty consecutive days of imprisonment do not have to be served prior to or consecutively with the period of electronically monitored house arrest.
In addition, the court shall impose upon the offender a fine of not less than seven hundred fifty and not more than ten thousand dollars.
In addition to any other sentence that it imposes upon the offender, the court shall require the offender to attend an alcohol and drug addiction program authorized by section 3793.02 of the Revised Code. The offender shall pay the cost of the treatment. If the court determines that the offender is unable to pay the cost of attendance at the treatment program, the court may order that payment of the cost of the offender's attendance at the treatment program be made from that court's indigent drivers alcohol treatment fund.
(b) Regardless of whether the vehicle the offender was operating at the time of the offense is registered in the offender's name or in the name of another person, the court, in addition to the penalties imposed under division (A)(4)(a) of this section and all other penalties provided by law and subject to section 4503.235 of the Revised Code, shall order the criminal forfeiture to the state of the vehicle the offender was operating at the time of the offense. The order of criminal forfeiture shall be issued and enforced in accordance with section 4503.234 of the Revised Code.
(c) If title to a motor vehicle that is subject to an order for criminal forfeiture under this section is assigned or transferred and division (C)(2) or (3) of section 4503.234 of the Revised Code 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 dealer's association. The proceeds from any fine imposed under this division shall be distributed in accordance with division (D)(4) of section 4503.234 of the Revised Code.
(9)(a)If, within six years of the instant offense, the offender has been convicted of or pleaded guilty to three or more violations of divisions (A) or (B) of section 4511.19 of the Revised Code, 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, or a statute of the United States or of 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 felony to be prosecuted under appropriate state law.
(b) If the offender previously has been convicted of or pleaded guilty to a violation of division (A) of section 4511.19 of the Revised Code under circumstances in which the violation was a felony, regardless of when the prior violation and the prior conviction or guilty plea occurred, the offender is guilty of a felony to be prosecuted under appropriate state law.
(10)(a) Except as provided in division (A)(10)(b) of this section, upon a showing that imprisonment would seriously affect the ability of an offender sentenced pursuant to division (A)(1), (2), (3), (4), (5), (6), (7), or (8) of this section to continue the offender's employment, the court may authorize that the offender be granted work release from imprisonment after the offender has served the three, six, ten, twenty, thirty, sixty, or one hundred twenty consecutive days of imprisonment that the court is required by division (A)(1), (2), (3), (4), (5), (6), (7), or (8) of this section to impose. No court shall authorize work release from imprisonment during the three, six, ten, twenty, thirty, sixty, or one hundred twenty consecutive days of imprisonment that the court is required by division (A)(1), (2), (3), (4), (5), (6), (7), or (8) of this section 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.
(b) An offender who is sentenced pursuant to division (A)(2), (3), (4), (6), (7) or (8) of this section to a term of imprisonment followed by a period of electronically monitored house arrest is not eligible for work release from imprisonment, but that person shall be permitted work release during the period of electronically monitored house arrest. 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 offender's home or other place specified by the sentencing court and the time actually spent under employment.
(11) Notwithstanding any section of the Revised Code that authorizes the suspension of the imposition or execution of a sentence or the placement of an offender in any treatment program in lieu of imprisonment, no court shall suspend the ten, twenty, thirty, sixty or one hundred twenty consecutive days of imprisonment required to be imposed on an offender by division (A)(2), (3), (4), (6), (7) or (8) of this section, no court shall place an offender who is sentenced pursuant to division (A)(2), (3), (4), (6), (7), or (8) of this section in any treatment program in lieu of imprisonment until after the offender has served the ten, twenty, thirty, sixty or one hundred twenty consecutive days of imprisonment required to be imposed pursuant to division (A)(2), (3), (4), (6), (7), or (8) of this section, and no court that imposes a sentence of imprisonment and a period of electronically monitored house arrest upon an offender under division (A)(2), (3), (4), (6), (7) or (8) of this section shall suspend any portion of the sentence or place the offender in any treatment program in lieu of imprisonment or electronically monitored house arrest.
Notwithstanding any section of the Revised Code that authorizes the suspension of the imposition or execution of a sentence or the placement of an offender in any treatment program in lieu of imprisonment, no court, except as specifically authorized by division (A)(1) or (5) of this section, shall suspend the three or more consecutive days of imprisonment required to be imposed by division (A)(1) or (5) of this section or place an offender who is sentenced pursuant to division (A)(1) or (5) of this section in any treatment program in lieu of imprisonment until after the offender has served the three or more consecutive days of imprisonment required to be imposed pursuant to division (A)(1) or (5) of this section.
(12) No court shall sentence an offender to an alcohol treatment program pursuant to division (A)(1), (2), (3), (4), (5), (6), (7), or (8) of this section unless the treatment program complies with the minimum standards adopted pursuant to Chapter 3793. of the Revised Code by the Ohio director of alcohol and drug addiction services.
(13) No court shall impose the alternative sentence of a term of imprisonment plus a term of electronically monitored house arrest permitted to be imposed by division (A)(2), (3), (4), (6), (7) or (8) of this section, unless within sixty days of the date of sentencing, the court issues a written finding, entered into the record, that due to the unavailability of space at the incarceration facility where the offender is required to serve the term of imprisonment imposed upon the offender, the offender will not be able to commence serving the term of imprisonment within the sixty-day period following the date of sentencing. If the court issues such a written finding, the court may impose the alternative sentence comprised of a term of imprisonment and a term of electronically monitored house arrest permitted to be imposed by division (A)(2), (3), (4), (6), (7) or (8) of this section.
(B) Whoever violates Section 2133.07 is guilty of a misdemeanor of the first degree.
(C) Whoever violates Section 2133.02(a) or (b) is guilty of a misdemeanor of the fourth degree, and whoever violates Section 2133.02(c) is guilty of a misdemeanor of the third degree.
(D)(1) Whoever violates any provision of sections 2133.03, 2133.04 or 2133.05 is guilty of one of the following:
(a) Except as otherwise provided in division (D)(1)(b), (1)(c), (2), or (3) of this section, a minor misdemeanor;
(b) If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one violation of any provision of sections 4511.01 to 4511.76 or section 4511.84 of the Revised Code for which no penalty otherwise is provided in section 4511.99 of the Revised Code or a municipal ordinance that is substantially similar to any provision of sections 4511.01 to 4511.76 or section 4511.84 of the Revised Code for which no penalty otherwise is provided in section 4511.99 of the Revised Code, a misdemeanor of the fourth degree;
(c) If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to two or more violations of any provision described in division (D)(1)(b) of this section or any municipal ordinance that is substantially similar to any of those provisions, a misdemeanor of the third degree.
(2) When any person is found guilty of a first offense for a violation of section 2133.03 upon a finding that the person operated a motor vehicle faster than thirty-five miles an hour in a business district of a municipal corporation, or faster than fifty miles an hour in other portions, or faster than thirty-five miles an hour while passing through a school zone during recess or while children are going to or leaving school during the opening or closing hours, the person is guilty of a misdemeanor of the fourth degree.
(3) Notwithstanding section 2929.21 of the Revised Code, upon a finding that such person operated a motor vehicle in a construction zone where a sign was then posted in accordance with section 4511.98 of the Revised Code, the court, in addition to all other penalties provided by law, shall impose a fine of two times the usual amount imposed for the violation. No court shall impose 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 the offender's sentencing, that the offender is indigent and is unable to pay the fine imposed pursuant to this division, provided the court determines the offender is an indigent person and is unable to pay the fine.
(E)(1) Whoever violates division (B) of section 2133.01 is guilty of operating a motor vehicle after under-age alcohol consumption and shall be punished as follows:
(a) Except as otherwise provided in division (E)(1)(b) of this section, the offender is guilty of a misdemeanor of the fourth degree.
(b) The offender is guilty of a misdemeanor of the third degree if, within one year of the offense, the offender has been convicted of or pleaded guilty to any violation of the following:
(i) Division (A) or (B) of section 4511.19 of the Revised Code;
(ii) 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;
(iii) A municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine;
(iv) Section 2903.04 of the Revised Code in a case in which the offender was subject to the sanctions described in division (D) of that section;
(v) Division (A)(1) of section 2903.06 or division (A)(1) of section 2903.08 of the Revised Code or a municipal ordinance that is substantially similar to either of those divisions;
(vi) Division (A)(2), (3), or (4) of section 2903.06 or division (A)(2) of section 2903.08 of the Revised Code or a municipal ordinance that is substantially similar to any of those divisions, or former section 2903.07 of the Revised Code or a substantially similar municipal ordinance, 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;
(vii) A statute of the United States or of any other state or a municipal ordinance of a municipal corporation located in any other state that is substantially similar to division (A) or (B) of section 4511.19 of the Revised Code.
(2) In addition to or independent of all other penalties provided by law, 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, division (E) of section 4507.16 of the Revised Code.
(F) Whoever violates Section 2133.08(a) is guilty of second degree vehicular homicide, a misdemeanor of the fourth degree.
(G) Whoever violates Section 2133.08(b) is guilty of first degree vehicular homicide, a misdemeanor of the first degree.
Section 2. That existing Sections 2133.01 and 2133.99 of the Columbus City Codes, 1959, are hereby repealed.
Section 3. That for the reasons stated in the preamble hereto, which is hereby made a part hereof, this ordinance is hereby declared to be an emergency measure and shall take effect and be in force from and after its passage and approval by the Mayor or ten days after its passage if the Mayor neither approves nor vetoes the same.