(a) Operating While Under the Influence. No person shall operate any motor vehicle within this Municipality, if any of the following apply:
(1) The person is under the influence of alcohol, a drug of abuse, or a combination of them;
(2) The person has a concentration of 0.08% or more but less than 0.17% by weight per unit volume of alcohol in the person's whole blood;
(3) The person has a concentration of 0.10% or more but less than 0.20% by weight per unit volume of alcohol in the person's blood serum or plasma;
(4) The person has a concentration of 0.08 of one gram or more but less than 0.17 of one gram by weight of alcohol per 210 liters of the person's breath;
(5) The person has a concentration of 0.11 of one gram or more but less than 0.238 of one gram by weight of alcohol per 100 milliliters of the person's urine;
(6) The person has a concentration of 0.17% or more by weight of alcohol in the person's whole blood;
(7) The person has a concentration of 0.20% or more by weight per unit volume of alcohol in the person's blood serum or plasma;
(8) The person has a concentration of 0.17 of one gram or more by weight of alcohol per 210 liters of the person's breath;
(9) The person has a concentration of 0.238 of one gram or more by weight of alcohol per 100 milliliters of the person's urine.
(10) Except as provided in division (K) of this section, the person has a concentration of any of the following controlled substances or metabolites of a controlled substance in the person’s whole blood, blood serum or plasma, or urine that equals or exceeds any of the following:
A. The person has a concentration of amphetamine in the person’s urine of at least 500 nanograms of amphetamine per milliliter of the person’s urine or has a concentration of amphetamine in the person’s whole blood or blood serum or plasma of at least 100 nanograms of amphetamine per milliliter of the person’s whole blood or blood serum or plasma.
B. The person has a concentration of cocaine in the person’s urine of at least 150 nanograms of cocaine per milliliter of the person’s urine or has a concentration of cocaine in the person’s whole blood or blood serum or plasma of at least 50 nanograms of cocaine per milliliter of the person’s whole blood or blood serum or plasma.
C. The person has a concentration of cocaine metabolite in the person’s urine of at least 150 nanograms of cocaine metabolite per milliliter of the person’s urine or has a concentration of cocaine metabolite in the person’s whole blood or blood serum or plasma of at least 50 nanograms of cocaine metabolite per milliliter of the person’s whole blood or blood serum or plasma.
D. The person has a concentration of heroin in the person’s urine of at least 2,000 nanograms of heroin per milliliter of the person’s urine or has a concentration of heroin in the person’s whole blood or blood serum or plasma of at least 50 nanograms of heroin per milliliter of the person’s whole blood or blood serum or plasma.
E. The person has a concentration of heroin metabolite (6-monoacetyl morphine) in the person’s urine of at least ten nanograms of heroin metabolite (6-monoacetyl morphine) per milliliter of the person’s urine or has a concentration of heroin metabolite (6-monoacetyl morphine) in the person’s whole blood or blood serum or plasma of at least ten nanograms of heroin metabolite (6-monoacetyl morphine) per milliliter of the person’s whole blood or blood serum or plasma.
F. The person has a concentration of L.S.D. in the person’s urine of at least 25 nanograms of L.S.D. per milliliter of the person’s urine or a concentration of L.S.D. in the person’s whole blood or blood serum or plasma of at least ten nanograms of L.S.D. per milliliter of the person’s whole blood or blood serum or plasma.
G. The person has a concentration of marijuana in the person’s urine of at least ten nanograms of marijuana per milliliter of the person’s urine or has a concentration of marijuana in the person’s whole blood or blood serum or plasma of at least two nanograms of marijuana per milliliter of the person’s whole blood or blood serum or plasma. It shall be an affirmative defense to this charge if the operator has or within the last 12 months had a certificate of recommendation for medical marijuana from a physician in this State or any State in which medical marijuana has been legalized.
H. Either of the following applies:
1. The person is under the influence of alcohol, a drug of abuse, or a combination of them, and, as measured by gas chromatography mass spectrometry, the person has a concentration of marijuana metabolite in the person’s urine of at least 15 nanograms of marijuana metabolite per milliliter of the person’s urine or has a concentration of marijuana metabolite in the person’s whole blood or blood serum or plasma of at least five nanograms of marijuana metabolite per milliliter of the person’s whole blood or blood serum or plasma.
2. As measured by gas chromatography mass spectrometry, the person has a concentration of marijuana metabolite in the person’s urine of at least 35 nanograms of marijuana metabolite per milliliter of the person’s urine or has a concentration of marijuana metabolite in the person’s whole blood or blood serum or plasma of at least 50 nanograms of marijuana metabolite per milliliter of the person’s whole blood or blood serum or plasma.
I. The person has a concentration of methamphetamine in the person’s urine of at least 500 nanograms of methamphetamine per milliliter of the person’s urine or has a concentration of methamphetamine in the person’s whole blood or blood serum or plasma of at least 100 nanograms of methamphetamine per milliliter of the person’s whole blood or blood serum or plasma.
J. The person has a concentration of phencyclidine in the person’s urine of at least 25 nanograms of phencyclidine per milliliter of the person’s urine or has a concentration of phencyclidine in the person’s whole blood or blood serum or plasma of at least ten nanograms of phencyclidine per milliliter of the person’s whole blood or blood serum or plasma.
K. Provisions (10)A. through J. of this section do not apply to a person who operates a vehicle while the person has a concentration of a listed controlled substance or a listed metabolite of a controlled substance in the person’s whole blood, blood serum or plasma, or urine that equals or exceeds the amount specified in that division, if both of the following apply:
1. The person obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs.
2. The person injected, ingested, or inhaled the controlled substance in accordance with the health professional’s directions.
(b) Refusal of Chemical Test with Prior Conviction within Twenty Years on Record. No person who has previously been convicted of or pleaded guilty to a violation of this section or any other equivalent offense within twenty years, shall refuse to submit to a chemical test or tests under Ohio R.C. 4511.191 upon being requested by the police officer to submit to the chemical test or tests, and being advised by the officer in accordance with Ohio R.C. 4511.192 of the consequences of the person’s refusal or submission to the test or tests.
(c) Operating After Under-Age 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 0.08% by weight of alcohol in the person's whole blood;
(2) The person has a concentration of at least 0.03% but less than 0.10% by weight per unit volume of alcohol in the person's blood serum or plasma;
(3) The person has a concentration of at least 0.02 of one gram but less than 0.08 of one gram by weight of alcohol per 210 liters of the person's breath;
(4) The person has a concentration of at least 0.028 of one gram but less than 0.11 of one gram by weight of alcohol per 100 milliliters of the person's urine.
(d) Physical Control While Under the Influence. No person shall be in actual physical control of any motor vehicle within this Municipality when such person is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse.
(e) One Conviction Limitation. In any proceeding arising out of one incident, a person may be charged with any number of violations under divisions (a), (b), (c) or (d) of this section, but the person may only be convicted of a single violation of any of these divisions.
(f) Evidence; Chemical Tests. In any criminal prosecution or juvenile court proceeding for a violation of this ordinance, the court may admit evidence of field sobriety tests and/or of the concentration of alcohol, drugs of abuse, or alcohol and drugs of abuse in the defendant’s whole blood, blood serum or plasma, breath or urine at the time of the alleged violation, consistently with the provisions of Ohio R.C. 4511.19 specifically addressing the admission of said evidence.
(g) Pre-Trial Disposition of Arrested Person's Vehicle, Immobilization.
(1) Upon arresting or otherwise citing a suspect with a violation of division (a) or (b) of this section, the officer shall dispose of the motor vehicle the suspect was operating at the time of his or her arrest, by following the priorities listed below:
A. No prior DUI convictions within past six years. In situations where the arrested person has not been convicted one or more times within the past six years of a violation of Ohio R.C. 4511.19(A) or a substantially similar municipal ordinance, the officer shall first inquire of the arrestee if he or she wishes that a duly licensed occupant or nearby citizen may remove the vehicle from its present location, and if so, the vehicle shall be released to that person. If no such person is willing or able to drive the motor vehicle away, then with the express or implied permission of a private property owner, the vehicle may remain at that location of the arrest. If the owner of the private property is not willing or able to grant consent to leave the vehicle on his or her property, then with the permission of the suspect, the officer may park the motor vehicle in a lawful parking location not otherwise obstructing the flow of traffic on the roadway. If this option is impractical, the officer shall call a tow truck and have the motor vehicle removed from the roadway.
B. At least one prior DUI conviction within past six years. In situations where the arrested person has been convicted one or more times within the past six years of a violation of Ohio R.C. 4511.19(A) or a substantially similar municipal ordinance, the officer shall seize the vehicle the arrestee was operating at the time of the arrest and immobilize it for a pre-trial period of 30 days. The immobilization may occur at a vehicle storage yard or through the use of a suitable device capable of ensuring the vehicle can not be driven within the immobilization period. During the immobilization period, the vehicle may be physically located anywhere within a 25-mile radius of the City of Geneva. The mandatory immobilization of the vehicle shall only occur where such vehicle is titled exclusively in the arrested person's name. Where the vehicle is owned by a person different than the arrested person, or jointly owned by the arrested person with another, the arresting officer shall contact the owner or co-owner of the vehicle and inform them of their right to the immediate return of their vehicle. Release of the vehicle after the 30-day immobilization period has expired shall be automatic, and not require a court order.
(2) All costs associated with the act of towing and storage of the motor vehicle towed under this section shall be borne by the motor vehicle owner desiring the return of his or her motor vehicle.
(3) Whenever the motor vehicle is towed pursuant to division (f)(1) of this section, prior to the release of the motor vehicle, the City shall collect a one hundred dollar ($100.00) processing fee from the motor vehicle's owner, payable at the reception window at the Police Department. This processing fee is independent of the towing and storage fees charged by the towing and storage service. Upon receipt of this fee, the Police Department shall either: (1) issue a vehicle release form which the owner shall then present to the vehicle storage facility for the release of the vehicle; or (2) take all necessary steps to remove the immobilization device.
(h) Implied Consent; Administrative License Suspension.
(1) Subject to the exception in division (g)(2) of this section, the procedures and law contained in Ohio R.C. 4511.191 are hereby incorporated into this section and apply exclusively to persons charged with a violation of division (a) of this section.
(2) During the pendency of the underlying prosecution under this section, in the discretion of the court, the defendant may be granted restricted driving privileges by the court from the date of his or her arraignment through the end of the license suspension period imposed under Ohio R.C. 4511.191. Purposes for which restricted driving privileges may be granted include, but are not limited to, employment and employment searches, attendance at school or school activities, medical care purposes, child education and visitation matters, therapy and counseling services and personal maintenance. The court granting limited driving rights to the defendant may impose any reasonable time limitations on the privileges. At the discretion of the court, such privileges may be granted with or without an ignition interlock or special family license plates.
(i) Penalties.
(1) For operating under the influence. Whoever violates division (a) or (b) of this section shall be guilty of a misdemeanor of the first degree. For a violation of this section, the court shall impose certain mandatory minimum punishments, to include the imposition of jail time, a period of license suspension and monetary fine. These sanctions shall be as follows:
A. First DUI conviction within six years/ low test. For the offender who is convicted of violating division (a)(1)through (5) or (a)(10) of this section, and who has not, within the previous six years, been convicted of a violation of Ohio R.C. 4511.19(A) or a substantially similar municipal ordinance, the court shall sentence the offender to a mandatory minimum term of imprisonment of three days in jail. The court may suspend the execution of the mandatory minimum three days of jail if the court requires the offender to attend a State-certified 72-hour driver's intervention program. The court may require the offender to attend and satisfactorily complete a substance abuse treatment and/or education program. The court shall impose a fine of not less than three hundred seventy-five dollars ($375.00) and not more than one thousand seventy-five dollars ($1,075.00), all of which shall be deposited in the City of Geneva's General Fund. The court shall suspend the offender's driver's license or learner's permit for a minimum of six months up to a maximum of three years.
B. Second DUI conviction within six years/ low test. For the offender who is convicted of violating division (a)(1) through (5) or (a)(10) of this section, and who has, within the previous six years, been convicted only once of a violation of Ohio R.C. 4511.19(A) or a substantially similar municipal ordinance, the court shall sentence the offender to a mandatory minimum term of imprisonment of five days in jail and at least 15 consecutive days of electronically monitored house arrest. The court may require the offender to attend and satisfactorily complete a substance abuse treatment and/or education program. The court shall impose a fine of not less than five hundred seventy-five dollars ($575.00) and not more than one thousand six hundred twenty-five dollars ($1,625.00), all of which shall be deposited in the City of Geneva's General Fund. The court shall suspend the offender's driver's license or learner's permit for a minimum of one year up to a maximum of five years.
C. Third or subsequent DUI conviction within six years/low test. For the offender who is convicted of violating division (a)(1) through (5) or (a)(10) of this section, and who has, within the previous six years, been convicted two times or more of a violation of Ohio R.C. 4511.19(A) or a substantially similar municipal ordinance, the court shall sentence the offender to a mandatory minimum term of imprisonment of ten days in jail and at least 45 consecutive days of electronically monitored house arrest. The court shall require the offender to attend and satisfactorily complete a substance abuse treatment and/or education program. The court shall impose a fine of not less than eight hundred fifty dollars ($850.00) and not more than two thousand seven hundred fifty dollars ($2,750.00), all of which shall be deposited in the City of Geneva's General Fund. The court shall suspend the offender's driver's license or learner's permit for a minimum of one year up to a maximum of five years.
D. First DUI conviction within six years/high test or refusal. For the offender who is convicted of violating division (a)(6), (7), (8), (9) or (b) of this section, and who has not, within the previous six years, been convicted of a violation of Ohio R.C. 4511.19(A) or a substantially similar municipal ordinance, the court shall sentence the offender to a mandatory minimum term of imprisonment of six days in jail. The court may suspend the execution of three of the six days if the court requires the offender to attend a State-certified 72-hour drivers' intervention program. The court may require the offender to attend and satisfactorily complete a substance abuse treatment and/or education program. The court shall impose a fine of not less than three hundred seventy five dollars ($375.00) and not more than one thousand seventy-five dollars ($1,075.00), all of which shall be deposited into the City of Geneva's General Fund. The court shall suspend the offender's driver's license or learner's permit for a minimum of six months up to a maximum of three years.
E. Second DUI conviction within six years/high test or refusal. For the offender who is convicted of violating division (a)(6), (7), (8), (9) or (b) of this section, and who has, within the previous six years, been convicted only once of a violation of Ohio R.C. 4511.19(A) or a substantially similar municipal ordinance, the court shall sentence the offender to a mandatory minimum term of imprisonment of ten days in jail and at least 45 consecutive days of electronically monitored house arrest. The court may require the offender to attend and satisfactorily complete a substance abuse treatment and/or education program. The court shall impose a fine of not less than five hundred seventy five dollars ($575.00) and not more than one thousand six hundred twenty five dollars ($1,625.00), all of which shall be deposited into the City of Geneva's General Fund. The court shall suspend the offender's driver's license or learner's permit for a minimum of one year up to a maximum of five years.
F. Third or subsequent DUI conviction within six years/high test or refusal. For the offender who is convicted of violating division (a)(6), (7), (8), (9) or (b) of this section, and who has, within the previous six years, been convicted two times or more of a violation of Ohio R.C. 4511.19(A) or a substantially similar municipal ordinance, the court shall sentence the offender to a mandatory minimum term of imprisonment of 20 days in jail and at least 90 consecutive days of electronically monitored house arrest. The court shall require the offender to attend and satisfactorily complete a substance abuse treatment and/or education program. The court shall impose a fine of not less than eight hundred fifty dollars ($850.00) and not more than two thousand seven hundred fifty dollars ($2,750.00), all of which shall be deposited into the City of Geneva's General Fund. The court shall suspend the offender's driver's license or learner's permit for a minimum of one year to a maximum of five years.
G. In addition to any other penalty provision contained in this chapter, the court also may impose on the offender any other conditions of community control that it considers necessary, including, but not limited to requiring the offender to be assessed by an alcohol and drug treatment program that is authorized by Ohio R.C. 3793.02, and shall order the offender to follow the treatment recommendations of the program.
H. Notwithstanding any other provision contained in the Ohio Revised Code or these Codified Ordinances, upon the defendant being convicted of a violation under this section, the court shall have the authority to forthwith grant limited driving privileges for purposes to include, but not limited to, employment and employment searches, attendance at school or school activities, medical care purposes, child education and visitation matters, therapy and counseling services and personal maintenance. The court granting limited driving rights to the defendant may impose any reasonable time limitations on the privileges. At the discretion of the court, such privileges may be granted with or without an ignition interlock or special family license plates.
I. If the vehicle the defendant was operating at the time of being cited with a violation of this section is titled exclusively to the defendant, and that vehicle was lawfully seized and immobilized pursuant to section (g)(1)B. of this section, upon being convicted of a violation of this section, the court shall order the immobilization of such vehicle for 30 days, with credit given for any pre-trial immobilization period. Release of the vehicle after the 30 day immobilization period has expired shall be automatic, and not require a court order.
(2) For operation after under-age consumption. Whoever violates division (b) of this section shall be guilty of a misdemeanor of the fourth degree. In addition to any other penalty imposed, the court shall, at a minimum require the offender to attend a State-certified 72-hour drivers' intervention program. The court shall have the discretion to impose a license suspension of up to 89 days, and shall have the authority to forthwith grant limited driving privileges as described in division (g)(2) of this section.
(3) For physical control while under the influence. Whoever violates division (c) of this section shall be guilty of a misdemeanor of the first degree. In addition to any other penalty imposed, the court may suspend the offender's driver's license for a period not exceeding six months. Upon the defendant being convicted of a violation of division (c) of this section, the court shall have the authority to forthwith grant limited driving privileges as described in division (g)(2) of this section. At the discretion of the court, such privileges may be granted with or without an ignition interlock or family license plates.
(4) Electronically monitored house arrest, work release. Whenever the court sentences an offender to a period of jail or electronically monitored house arrest, the court shall have the discretion to grant the offender work release during the period of the jail sentence or electronically monitored house arrest.
(5) Credit for any pre-trial license suspension. The court may grant full credit for any pre-trial license or permit suspension period against the length of the license or permit suspension imposed by the court as a result of an offender's conviction under this section.
(6) Substitution of electronically monitored house arrest for mandatory jail sentences. The court may, in its discretion, substitute three days on electronically monitored house arrest for each day of jail that would otherwise be a mandatory minimum jail sentence. The court may, in its discretion, grant work privileges to an offender on electronically monitored house arrest.
(7) Substitution of jail sentence for mandatory electronically monitored house arrest. The court may, in its discretion, substitute one day in jail for every three days of electronically monitored house arrest sentence.
(Ord. 2806. Passed 6-9-03; Ord. 2992. Passed 3-23-09.)
Statutory reference:
Mayor's Court to suspend or revoke driver's license, see Ohio R.C. 1905.201
Driving or physical control of vehicle while under the influence of alcohol or drugs, see Ohio R.C. 4511.19
Disposition of fines, immobilization of vehicle and impoundment of license plates, criminal forfeiture for municipal ordinance conviction, see Ohio R.C. 4511.193
Effect of refusal to submit to test, seizure of license, suspension periods, appeal procedures, occupational driving privileges, and indigent drivers alcohol treatment funds, see Ohio R.C. 4511.191
Judicial pretrial suspension, initial appearance, see Ohio R.C. 4511.196
Seizure of vehicles upon arrest, see Ohio R.C. 4511.195
Trial judge to suspend driver's license, see Ohio R.C. 4510.05