(a) (1) As used in this section:
PHYSICAL CONTROL has the same meaning as in Ohio R.C. § 4511.194.
(2) Any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking within this municipality or who is in physical control of a vehicle shall be deemed to have given consent to a chemical test or tests of the person's whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine if arrested for a violation of § 434.01(a) or (b), § 434.011, Ohio R.C. § 4511.19(A) or (B), Ohio R.C. § 4511.194 or a substantially equivalent municipal ordinance, or any other municipal OVI ordinance.
(3) The chemical test ortests under division (a)(2) of this section shall be administered at the request of a law enforcement officer having reasonable grounds to believe the person was operating or in physical control of a vehicle in violation of a division, section, or ordinance identified in division (a)(2) of this section. The law enforcement agency by which the officer is employed shall designate which of the tests shall be administered.
(4) Any person who is dead or unconscious, or who otherwise is in a condition rendering the person incapable of refusal, shall be deemed to have consented as provided in division (a)(2) of this section, and the test or tests may be administered, subject to Ohio R.C. §§ 313.12 through 313.16.
(5) A. If a law enforcement officer arrests a person for a violation of R.C. § 4511.19(A) or (B), R.C. § 4511.194 or a substantially equivalent municipal ordinance, or a municipal OVI ordinance and if the person if convicted would be required to be sentenced under R.C. § 4511.19(G)(1)(c), (d), or (e), the law enforcement officer shall request the person to submit, and the person shall submit, to a chemical test or tests of the person's whole blood, blood serum or plasma, breath, or urine for the purpose of determining the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine. A law enforcement officer who makes a request pursuant to this division that a person submit to a chemical test or tests is not required to advise the person of the consequences of submitting to, or refusing to submit to, the test or tests and is not required to give the person the form described in division (c) of this section, but the officer shall advise the person at the time of the arrest that if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma. The officer shall also advise the person at the time of the arrest that the person may have an independent chemical test taken at the person's own expense. Divisions (a)(3) and (a)(4) of this section apply to the administration of a chemical test or tests pursuant to this division.
B. If a person refuses to submit to a chemical test upon a request made pursuant to division (a)(5)A. of this section, the law enforcement officer who made the request may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma. A law enforcement officer who acts pursuant to this division to ensure that a person submits to a chemical test of the person's whole blood or blood serum or plasma is immune from criminal and civil liability based upon a claim for assault and battery or any other claim for the acts, unless the officer so acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
(b) Except as provided in division (a)(5) of this section, the arresting law enforcement officer shall give advice in accordance with this section to any person under arrest for a violation of § 434.01(a) or (b), § 434.011, Ohio R.C. § 4511.19(A) or (B), Ohio R.C. § 4511.194 or a substantially equivalent municipal ordinance, or any other municipal OVI ordinance. The officer shall give that advice in a written form that contains the information described in division (c) of this section and shall read the advice to the person. The form shall contain a statement that the form was shown to the person under arrest and read to the person by the arresting officer. One or more persons shall witness the arresting officer's reading of the form, and the witnesses shall certify to this fact by signing the form. The person must submit to the chemical test or tests, subsequent to the request of the arresting officer, within two hours of the time of the alleged violation and, if the person does not submit to the test or tests within that two-hour time limit, the failure to submit automatically constitutes a refusal to submit to the test or tests.
(c) Except as provided in division (a)(5) of this section, if a person is under arrest as described in division (b) of this section, before the person may be requested to submit to a chemical test or tests to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine, the arresting officer shall read the following form to the person:
“You now are under arrest for (specifically state the offense under state law or a substantially equivalent municipal ordinance for which the person was arrested - operating a vehicle under the influence of alcohol, a drug, or a combination of them; operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance; operating a vehicle after underage alcohol consumption; or having physical control of a vehicle while under the influence).
“If you refuse to take any chemical test required by law, your Ohio driving privileges will be suspended immediately, and you will have to pay a fee to have the privileges reinstated. If you have a prior conviction of OVI, OVUAC, or operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance under state or municipal law within the preceding 20 years, you are now under arrest for state OVI, and, if you refuse to take a chemical test, you will face increased penalties if you subsequently are convicted of the state OVI.
“(Read this part unless the person is under arrest for solely having physical control of a vehicle while under the influence.) If you take any chemical test required by law and are found to be at or over the prohibited amount of alcohol, a controlled substance, or a metabolite of a controlled substance in your whole blood, blood serum or plasma, breath, or urine as set by law, your Ohio driving privileges will be suspended immediately, and you will have to pay a fee to have the privileges reinstated.
“If you take a chemical test, you may have an independent chemical test taken at your own expense.”
(d) If the arresting law enforcement officer does not ask a person under arrest as described in division (b) of this section or division (a)(5) of this section to submit to a chemical test or tests under Ohio R.C. § 4511.191 or this section, the arresting officer shall seize the Ohio or out-of-state driver's or commercial driver's license or permit of the person and immediately forward it to the court in which the arrested person is to appear on the charge. If the arrested person is not in possession of the person's license or permit or it is not in the person's vehicle, the officer shall order the person to surrender it to the law enforcement agency that employs the officer within 24 hours after the arrest, and, upon the surrender, the agency immediately shall forward the license or permit to the court in which the person is to appear on the charge. Upon receipt of the license or permit, the court shall retain it pending the arrested person's initial appearance and any action taken under Ohio R.C. §
(e) (1) If a law enforcement officer asks a person under arrest as described in division (a)(5) of this section to submit to a chemical test or tests under that division and the test results indicate a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, breath, or urine at the time of the alleged offense, or if a law enforcement officer asks a person under arrest as described in division (b) of this section to submit to a chemical test or tests under Ohio R.C. § 4511.191 or this section, if the officer advises the person in accordance with this section of the consequences of the person's refusal or submission, and if either the person refuses to submit to the test or tests or, unless the arrest was for a violation of § 434.011, Ohio R.C. § 4511.194 or a substantially equivalent municipal ordinance, the person submits to the test or tests and the test results indicate a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, breath, or urine at the time of the alleged offense, the arresting officer shall do all of the following:
A. On behalf of the Registrar of Motor Vehicles, notify the person that, independent of any penalties or sanctions imposed upon the person, the person's Ohio driver's or commercial driver's license or permit or nonresident operating privilege is suspended immediately, that the suspension will last at least until the person's initial appearance on the charge, which will be held within five days after the date of the person's arrest or the issuance of a citation to the person, and that the person may appeal the suspension at the initial appearance or during the period of time ending 30 days after that initial appearance;
B. Seize the driver's or commercial driver's license or permit of the person and immediately forward it to the Registrar. If the arrested person is not in possession of the person's license or permit or it is not in the person's vehicle, the officer shall order the person to surrender it to the law enforcement agency that employs the officer within 24 hours after the person is given notice of the suspension, and, upon the surrender, the officer's employing agency immediately shall forward the license or permit to the Registrar;
C. Verify the person's current residence and, if it differs from that on the person's driver's or commercial driver's license or permit, notify the Registrar of the change;
D. Send to the Registrar, within 48 hours after the arrest of the person, a sworn report that includes all of the following statements:
1. That the officer had reasonable grounds to believe that, at the time of the arrest, the arrested person was operating a vehicle in violation of Ohio R.C. § 4511.19(A) or (B) or a municipal OVI ordinance or for being in physical control of a stationary vehicle in violation of Ohio R.C. § 4511.194 or a substantially equivalent municipal ordinance;
2. That the person was arrested and charged with a violation of Ohio R.C. § 4511.19(A) or (B), Ohio R.C. § 4511.194 or a substantially equivalent municipal ordinance, or a municipal OVI ordinance;
3. Unless division (e)(1)D.5. of this section applies, that the officer asked the person to take the designated chemical test or tests, advised the person in accordance with this section of the consequences of submitting to, or refusing to take, the test or tests, and gave the person the form described in division (c) of this section;
4. Unless division (e)(1)D.5. of this section applies, that either the person refused to submit to the chemical test or tests or, unless the arrest was for a violation of Ohio R.C. § 4511.194 or a substantially equivalent municipal ordinance, the person submitted to the chemical test or tests and the test results indicate a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, breath, or urine at the time of the alleged offense.
5. If the person was under arrest as described in division (a)(5) of this section and the chemical test or tests were performed in accordance with that division, that the person was under arrest as described in that division, that the chemical test or tests were performed in accordance with that division, and that test results indicated a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the person's whole blood, blood serum or plasma, breath, or urine at the time of the alleged offense.
(2) Division (e)(1) of this section does not apply to a person who is arrested for a violation of § 434.011, Ohio R.C. § 4511.194 or a substantially equivalent municipal ordinance, who is asked by a law enforcement officer to submit to a chemical test or tests under this section, and who submits to the test or tests, regardless of the amount of alcohol, a controlled substance, or a metabolite of a controlled substance that the test results indicate is present in the person's whole blood, blood serum or plasma, breath, or urine.
(f) The arresting officer shall give the officer's sworn report that is completed under this section to the arrested person at the time of the arrest, or the
Registrar of Motor Vehicles shall send the report to the person by regular first class mail as soon as possible after receipt of the report, but not later than 14 days after receipt of it. An arresting officer may give an unsworn report to the arrested person at the time of the arrest provided the report is complete when given to the arrested person and subsequently is sworn to by the arresting officer. As soon as possible, but not later than 48 hours after the arrest of the person, the arresting officer shall send a copy of the sworn report to the court in which the arrested person is to appear on the charge for which the person was arrested.
(g) The sworn report of an arresting officer completed under this section is prima facie proof of the information and statements that it contains. It shall be admitted and considered as prima facie proof of the information and statements that it contains in any appeal under Ohio R.C. § 4511.197 relative to any suspension of a person's driver's or commercial driver's license or permit or nonresident operating privilege that results from the arrest covered by the report.
(h) (1) A suspension of a person's driver's or commercial driver's license or permit or nonresident operating privilege under this section for the time described in Ohio R.C. § 4511.191(B) or (C) is effective immediately from the time at which the arresting officer serves the notice of suspension upon the arrested person. Any subsequent finding that the person is not guilty of the charge that resulted in the person's being requested to take the chemical test or tests under division (a) of this section does not affect the suspension.
(2) If a person arrested for operating a vehicle in violation of § 434.01(a) or (b), Ohio R.C. § 4511.19(A) or (B), or any other municipal OVI ordinance, or for being in physical control of a vehicle in violation of § 434.011 or Ohio R.C. § 4511.194 or a substantially equivalent municipal ordinance, regardless of whether the person's driver's or commercial driver's license or permit or nonresident operating privilege is or is not suspended under Ohio R.C. § 4511.191(B) or (C) or Ohio R.C. Chapter 4510, the person's initial appearance on the charge resulting from the arrest shall be held within five days of the persons' arrest or the issuance of the citation to him or her, subject to any continuance granted by the court pursuant to Ohio R.C. § 4511.197 regarding the issues specified in that section.
(Ord. 30-2012, passed 12-18-12)
Statutory reference:
Implied consent - see Ohio R.C. § 4511.191
Advice to OVI arrestee - see Ohio R.C. § 4511.192
Continuous alcohol monitoring, see R.C. § 4511.198
Disposition of fines, immobilization of vehicle and impoundment of license plates, criminal forfeiture for municipal ordinance conviction, see 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 R.C. § 4511.191
Judicial pretrial suspension, initial appearance, see R.C. § 4511.196
Mandatory suspension periods; immobilizing or disabling device; restricted license, see R.C. § 4510.13
Seizure of vehicles upon arrest, see R.C. § 4511.195