378.02  OPERATING UNDER INFLUENCE OF ALCOHOL OR DRUGS PROHIBITED; TEST ANALYSIS.
   (a)   No person shall operate, be in physical control of any vessel underway, or manipulate any water skis, aquaplane or similar device upon the waters in this City if any of the following apply:
      (1)   The person is under the influence of alcohol or a drug of abuse, or the combined influence of alcohol and a drug of abuse;
      (2)   The person has a concentration of ten-hundredths of one percent or more by weight of alcohol in his blood;
      (3)   The person has a concentration of fourteen-hundredths of one gram or more by weight of alcohol per 100 milliliters of his urine;
      (4)   The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per 210 liters of his breath.
 
   (b)   In any criminal prosecution for a violation of this section relating to operating a vessel or using any water skis, aquaplane or similar device while under the influence of alcohol or a drug of abuse, the court may admit evidence on the concentration of alcohol or a drug of abuse in the defendant's blood, urine or breath at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine or breath taken within two hours of the time of the alleged violation.
   When a person submits to a blood test, only a physician, registered nurse or qualified technician or chemist shall withdraw blood for the purpose of determining its alcohol or drug of abuse content.  This limitation does not apply to the taking of breath or urine specimens.  A physician, registered nurse or qualified technician or chemist may refuse to withdraw blood for the purpose of determining its alcohol or drug of abuse content if in his opinion the physical welfare of the person would be endangered by the withdrawing of blood.
   The blood, urine or breath shall be analyzed in accordance with methods approved by the Director of Health of the State by an individual possessing a valid permit issued by the Director of Health of the State pursuant to Ohio R.C. 3701.143 (3701.14.3).
   If there was at the time the blood, urine or breath was taken a concentration of less than ten-hundredths of one percent by weight of alcohol in the defendant's blood, less than fourteen-hundredths of one gram by weight of alcohol per 100 milliliters of his urine, or less than ten-hundredths of one gram by weight of alcohol per 210 liters of his breath, that fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
   Upon the request of the person who was tested, the results of the test shall be made available to him, his attorney or agent, immediately upon the completion of the test analysis.
   The person tested may have a physician, registered nurse or qualified technician or chemist of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer, and shall be so advised.  The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.
   A physician, registered nurse or qualified technician or chemist who withdraws blood from a person pursuant to this section, and a 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.
 
   (c)   Whoever violates section is guilty of a misdemeanor of the first degree and shall be punished as provided in subsection (c)(1), (2) or (3) of this section.
      (1)   Except as otherwise provided in subsection (c)(2) or (3) of this section, the court shall sentence the offender to a jail term of three consecutive days and may sentence the offender pursuant to Ohio R.C. 2929.24 to a longer jail term.  In addition, the court shall impose upon the offender a fine of not less than one hundred fifty nor more than one thousand dollars.
         The court may suspend the execution of the mandatory jail term of three consecutive days that it is required to impose by subsection (c)(1) of this section if the court, in lieu of the suspended jail term, places the offender under a community control sanction pursuant to Ohio R.C. 2929.25 and requires the offender to attend, for three consecutive days, a drivers’ intervention program that is certified pursuant to Ohio R.C. 3793.10.  The court also may suspend the execution of any part of the mandatory jail term of three consecutive days that it is required to impose by subsection (c)(1) of this section if the court places the offender under a community control sanction pursuant to Ohio R.C. 2929.25 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 Ohio R.C. 3793.10; and sentences the offender to a jail term 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 community control, to attend and satisfactorily complete any treatment or education programs, 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 community control on the offender that it considers necessary.
      (2)   If, within six years of the offense, the offender has been convicted of or pleaded guilty to one violation of Ohio R.C. 1547.11, of a municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane, or similar device while under the influence of alcohol, a drug of abuse, or a combination of them, of a municipal ordinance relating to operating a watercraft or manipulating any water skis, aquaplane or similar device with a prohibited concentration of alcohol in the whole blood, blood serum or plasma, breath or urine, of division (A)(1) of Ohio R.C. 2903.06, or of division (A)(2), (3) or (4) of Ohio R.C. 2903.06 or Ohio R.C. 2903.06 or 2903.07 as they existed prior to March 23, 2000, in a case in which the jury or judge found that the offender was under the influence of alcohol, a drug of abuse, or a combination of them, the court shall sentence the offender to a jail term of ten consecutive days and may sentence the offender pursuant to Ohio R.C. 2929.24 to a longer jail term.  In addition, the court shall impose upon the offender a fine of not less than one hundred fifty nor more than one thousand 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 Ohio R.C. 3793.10.
      (3)   If, within six years of the offense, the offender has been convicted of or pleaded guilty to more than one violation identified in subsection (c)(2) of this section, the court shall sentence the offender to a jail term of thirty consecutive days and may sentence the offender to a longer jail term of not more than one year.  In addition, the court shall impose upon the offender a fine of not less than one hundred fifty nor more than one thousand 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 Ohio R.C. 3793.10.
      (4)   Upon a showing that serving a jail term would seriously affect the ability of an offender sentenced pursuant to subsection (c)(1), (2) or (3) of this section to continue the offender’s employment, the court may authorize that the offender be granted work release after the offender has served the mandatory jail term of three, ten or thirty consecutive days that the court is required by subsection (c)(1), (2) or (3) of this section to impose.  No court shall authorize work release during the mandatory jail term of three, ten or thirty consecutive days that the court is required by subsection (c)(1), (2) or (3) 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 in which the jail term is served and the time actually spent under employment.
      (5)   Notwithstanding any section of the Ohio 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 being imprisoned or serving a jail term, no court shall suspend the mandatory jail term of ten or thirty consecutive days required to be imposed by subsection (c)(2) or (3) of this section or place an offender who is sentenced pursuant to subsection (c)(2) or (3) of this section in any treatment program in lieu of being imprisoned or serving a jail term until after the offender has served the mandatory jail term of ten or thirty consecutive days required to be imposed pursuant to subsection (c)(2) or (3) of this section.  Notwithstanding any section of the Ohio 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 being imprisoned or serving a jail term, no court, except as specifically authorized by subsection (c)(1) of this section, shall suspend the mandatory jail term of three consecutive days required to be imposed by subsection (c)(1) of this section, or place an offender who is sentenced pursuant to subsection (c)(1) of this section in any treatment program in lieu of imprisonment until after the offender has served the mandatory jail term of three consecutive days required to be imposed pursuant to subsection (c)(1) of this section.
      (6)   As used in subsection (c) of this section, “jail term” and “mandatory jail term” have the same meanings as in Ohio R.C. 2929.01.
         (ORC 1547.11)