569.07  OPERATING UNDER INFLUENCE OF ALCOHOL OR DRUGS PROHIBITED; EVIDENCE.
   (a)   No person shall operate or be in physical control of any vessel underway or shall manipulate any water skis, aquaplane, or similar device on the waters in this municipality if any of the following applies:
      (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 0.08% or more by weight of alcohol in the person's blood.
      (3)   The person has a concentration of 0.11 grams or more by weight of alcohol per 100 milliliters of the person's urine.
      (4)   The person has a concentration of 0.08 grams or more by weight of alcohol per 210 liters of the person's breath.
   (b)   No person under 21 years of age shall operate or be in physical control of any vessel underway or shall manipulate any water skis, aquaplane, or similar device on the waters in this municipality if any of the following applies:
      (1)   The person has a concentration of at least 0.02% but less than 0.08% by weight of alcohol in the person's blood.
      (2)   The person has a concentration of at least 0.028 grams but less than 0.11 grams by weight of alcohol per 100 milliliters of the person's urine.
      (3)   The person has a concentration of at least 0.02 grams but less than 0.08 grams by weight of alcohol per 210 liters of the person's breath.
   (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 (b)(1), (2), or (3) of this section, but the person shall not be convicted of more than one violation of those divisions.
   (d)   (1)   A.   In any criminal prosecution or juvenile court proceeding for a violation of division (a) or (b) of this section, of a municipal ordinance relating to operating or being in physical control of a vessel underway or manipulating any water skis, aquaplane, or similar device while under the influence of alcohol, a drug of abuse, or the combined influence of alcohol and a drug of abuse, or of a municipal ordinance relating to operating or being in physical control of a vessel underway or manipulating any water skis, aquaplane, or similar device with a 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, 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.
         B.   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 the opinion of the physician, nurse, or technician or chemist, the physical welfare of the person would be endangered by the withdrawing of blood.
         C.   The blood, urine, or breath shall be analyzed in accordance with methods approved by the Director of Health by an individual possessing a valid permit issued by the Director pursuant to Ohio R.C. 3701.143.
      (2)   In a criminal prosecution or juvenile court proceeding for a violation of division (a) of this section, of a municipal ordinance relating to operating or being in physical control of a vessel underway or manipulating any water skis, aquaplane, or similar device on the waters of this state while under the influence of alcohol, a drug of abuse, or the combined influence of alcohol and a drug of abuse, or of a municipal ordinance substantially equivalent to division (a) of this section relating to operating or being in physical control of a vessel underway or manipulating any water skis, aquaplane, or similar device on the waters of this state with a prohibited concentration of alcohol in the blood, breath, or urine, if there was at the time the blood, urine, or breath bodily substance was taken a concentration of less than 0.08% by weight of alcohol in the defendant's blood, less than 0.11 grams by weight of alcohol per 100 milliliters of the defendant's urine, or less than 0.08 grams by weight of alcohol per 210 liters of the defendant's breath, 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 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 or being in physical control of a vessel underway or manipulating any water skis, aquaplane, or similar device on the waters of this state with a prohibited concentration of alcohol in the blood, breath, or urine.
      (3)   Upon the request of the person who was tested, the results of the test shall be made available to the person or the person's 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 the person's 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.
   (e)   (1)   In any criminal prosecution or juvenile court proceeding for a violation of division (a) or (b) of this section, of a municipal ordinance relating to operating or being in physical control of any vessel underway or manipulating any water skis, aquaplane, or similar device on the waters of this state while under the influence of alcohol, a drug of abuse, or the combined influence of alcohol and a drug of abuse, or of a municipal ordinance relating to operating or being in physical control of any vessel underway or manipulating any water skis, aquaplane, or similar device on the waters of this state with a prohibited concentration of alcohol in the blood, breath, or urine, if a law enforcement officer has administered a field sobriety test to the operator or person found to be in physical control of the vessel underway involved in the violation or the person manipulating the water skis, aquaplane, or similar device 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 reliable, credible and generally accepted field sobriety tests for vehicles that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that have been set by the National Highway Traffic Safety Administration, that by their nature are not clearly inapplicable regarding the operation or physical control of vessels underway or the manipulation of water skis, aquaplanes, or similar devices, all of the following apply:
         A.   The officer may testify concerning the results of the field sobriety test so administered.
         B.   The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding.
         C.   If testimony is presented or evidence is introduced under division (e)(1)A. or (e)(1)B. 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.
      (2)   Division (e)(1) of this section does not limit or preclude a court, in its determination of whether the arrest of a person was supported by probable cause or its determination of any other matter in a criminal prosecution or juvenile court proceeding of a type described in that division, from considering evidence or testimony that is not otherwise disallowed by division (e)(1) of this section.
   (f)   (1)   As used in division (e) of this section, "national highway traffic safety administration" has the same meaning as in Ohio R.C. 4511.19.
      (2)   For the purposes of this section, "operate" means that a vessel is being used on the waters in this state when the vessel is not securely affixed to a dock or to shore or to any permanent structure to which the vessel has the right to affix or that a vessel is not anchored in a designated anchorage area or boat camping area that is established by the United States Coast Guard, this state, or a political subdivision and in which the vessel has the right to anchor.
(Ord. 76-2004. Passed 4-19-04.)
   (g)   Whoever violates this section is guilty of a misdemeanor of the first degree and shall be punished as provided in division (g)(1), (2), or (3) of this section.
      (1)   Except as otherwise provided in division (g)(2) or (3) of this section, the court shall sentence the offender to a term of imprisonment of three consecutive days and may sentence the offender pursuant to Ohio R.C. 2929.21 to a longer term of imprisonment. In addition, the court shall impose upon the offender a fine of not less than one hundred fifty dollars ($150.00) nor more than one thousand dollars ($1,000). The court may suspend the execution of the mandatory three consecutive days of imprisonment that it is required to impose by this division (g)(1) 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 Ohio 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 impose by this division (g)(1) 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 Ohio 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, 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)   If, within five years of the offense, the offender has been convicted of or pleaded guilty to one violation of this section; 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 alcohol and a drug of abuse; 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 blood, breath, or urine; of Ohio R.C. 2903.06(A)(1); or of Ohio R.C. 2903.06(A)(2), (3) or (4) or former Ohio R.C. 2903.06 or 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 court shall sentence the offender to a term of imprisonment of 10 consecutive days and may sentence the offender pursuant to Ohio R.C. 2929.21 to a longer term of imprisonment. In addition, the court shall impose upon the offender a fine of not less than one hundred fifty dollars ($150.00) nor more than one thousand dollars ($1,000). 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 five years of the offense, the offender has been convicted of or pleaded guilty to more than one violation identified in division (g)(2) of this section, the court shall sentence the offender to a term of imprisonment of 30 consecutive days and may sentence the offender to a longer term of imprisonment of not more than one year. In addition, the court shall impose upon the offender a fine of not less than one hundred fifty dollars ($150.00) nor more than one thousand dollars ($1,000).  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 imprisonment would seriously affect the ability of an offender sentenced pursuant to division (g)(1), (2), or (3) 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 3, 10, or 30 consecutive days of imprisonment that the court is required by division (g)(1), (2), or (3) of this section to impose. No court shall authorize work release from imprisonment during the 3, 10, or 30 consecutive days of imprisonment that the court is required by division (g)(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 of imprisonment 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 imprisonment, no court shall suspend the 10 or 30 consecutive days of imprisonment required to be imposed by division (g)(2) or (3) of this section or place an offender who is sentenced pursuant to division (g)(2) or (3) of this section in any treatment program in lieu of imprisonment until after the offender has served the 10 or 30 consecutive days of imprisonment required to be imposed pursuant to division (g)(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 imprisonment, no court, except as specifically authorized by division (g)(1) of this section, shall suspend the 3 consecutive days of imprisonment required to be imposed by division (g)(1) of this section or place an offender who is sentenced pursuant to division (g)(1) of this section in any treatment program in lieu of imprisonment until after the offender has served the 3 consecutive days of imprisonment required to be imposed pursuant to division (g)(1) of this section.
(ORC 1547.99(G))
Statutory Reference:
   Operation, control, or manipulation under influence of alcohol or drug, see Ohio R.C. 1547.11