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OVI DUI List of Key Legislation

The following is a short summary of the key legislative enactments over the last 27 years. It is not intended to be exhaustive but is merely an overview of the statutory trends.

• 1982 S.B. 432, effective March 16, 1983

(1) Created separate offenses for operating with prohibited alcohol levels in blood, breath, or urine

(2) Provided pre-conviction license suspensions

(3) Enhanced penalties, especially for multiple offenders

(4) Revised implied consent application

• 1989 H.B. 381, effective July 1, 1989

• 1990 H.B. 837, effective July 25, 1990

(1) Increased penalties for OVI convictions

(2) Lowered prohibited alcohol levels for juveniles and commercial drivers

• 1992 S.B. 275, effective September 1, 1993

• 1993 S.B. 62, effective September 1, 1993

(1) Added impoundment of license plates penalty

(2) Added vehicle immobilization and forfeiture penalties

• 1994 H.B. 236, effective September 29, 1994

(1) Denied occupational driving privileges to offenders with three or more convictions within the prior seven-year period

• 1996 S.B. 166, effective October 17, 1996

(1) Provided that a fourth or higher OVI offense would be charged as a felony

(2) Extended the look-back period for prior offenses to six years rather than five years

(3) Expanded the definition of prior convictions to include out-of-state convictions and juvenile adjudications

• 1999 S.B. 22, effective May 17, 2000

(1) Provided a prior felony OVI conviction escalated the current offense from a fourth-degree felony to a third-degree felony

(2) Created “high-tier” penalties (i.e. where blood alcohol level measures greater than .17)

• 2001 Am. Sub. H.B. 87, effective June 30, 2003

(1) Reduced the per se BAC level from .10 to .08 and made comparable changes in blood serum, plasma, breath and urine level offenses

• 2001 Am. Sub. H.B. 400, effective. April 3, 2003

(1) Provided that a juvenile traffic offender upon reaching 18 years of age could be confined to an adult facility

• 2001 Am. Sub. H.B. 490, effective January 1, 2004

(1) Clarified the extent of the discretion of the court under mandatory sentencing laws

(2) Defined the term “mandatory jail term”

(3) Renamed the term “electronically monitored house arrest” to “house arrest with electronic monitoring”

(4) Defined “electronic monitoring device”

(5) Revised the term “probation” to “community control”

• 2001 S.B. 163, effective April 9, 2003

(1) Overruled State v. Homan, which had provided that field sobriety tests be administered in strict compliance with National Highway Traffic Safety Administration Standards. Established a new standard of “clear and convincing evidence” of “substantial compliance” with generally accepted testing standards. In State v. Boczar, the Ohio Supreme Court held that these “anti-Homan” provisions do not violate constitutional provisions governing powers and duties of the Court

(2) Enacted certain technical changes to operating watercraft under the influence implied consent law

• 2001 Sub. S.B. 123, effective January 1, 2004

(1) Renamed the offense “operating a vehicle under the influence of alcohol and/or other drugs” (“OVI”) from “operating a motor vehicle under the influence” (“OMVI”), thereby embracing more types of vehicles

(2) Created a new Chapter 4510 of the Ohio Revised Code governing both judicial and administrative suspensions

(3) Deleted references to license “revocation” or “forfeiture” and replaced these terms with “suspension” or “cancellation”

(4) Reorganized sections of the Revised Code pertaining to OVI

(5) Placed penalty provisions for OVI under the sections containing the substantive offense and removed them from former RC 4511.99

(6) Expanded the scope of driving privileges, renaming them “limited driving privileges” rather than “occupational driving privileges”

(7) Added prohibited levels of alcohol in blood serum and/or plasma

(8) Defined the term “operate” as requiring actual movement as opposed to potential movement

(9) Revised procedures for taking a chemical test under implied consent law

(10) Allowed immobilization, impoundment, or forfeiture only when the vehicle used in the offense is registered in the name of the offender

(11) Repealed the “innocent owner” exception

(12) Added a new offense of physical control for being under the influence behind the wheel without moving the vehicle

• 2003 H.B. 50, effective January 1, 2004

(1) Expanded the offenses of aggravated vehicular homicide and aggravated vehicular assault to include operation of a motorcycle, snowmobile, locomotive, watercraft, or aircraft while under the influence of alcohol and/or other drugs of abuse

(2) Increased the offense of failure to stop after an accident from a fifth-degree felony to a third-degree felony where the violation results in a person’s death

• 2004 H.B. 163, effective September 23, 2004

(1) Created a new fourth-degree felony offense by way of a specification for anyone convicted of or pleading guilty to five or more OVI violations within 20 years of the date of the current offense, and added sentencing provisions for that offense

(2) Criminalized the refusal to take a test in certain situations contained in RC 4511.19(A)(2). The Ohio Supreme Court has found the sentencing provision of this offense to be constitutional.

• 2006 S.B. 8, effective August 17, 2006

(1) Added a new section 4511.19(A)(1)(j) proscribing operation under the influence of certain controlled substances

• 2008 Am. Sub. S.B. 17, effective September 30, 2008

(1) Compelled certain repeat offenders to submit to a chemical test and authorized the use of “whatever reasonable means are necessary” to ensure that such an offender submits to a whole blood, blood serum, or plasma test. The officer(s) involved are granted immunity from criminal and/or civil liability unless they acted with malicious purpose, in bad faith, or in a wanton and reckless manner. The constitutionality of this provision was upheld in State v. Slates,

(2) Included boating under the influence (BUI) as a prior equivalent charge for determining the level of the current OVI charge

(3) Amended the length of administrative license suspension for refusal of a test to be determined by both prior refusals and prior convictions instead of just prior refusals

(4) Implemented certain technical rules regarding admission of chemical test results in BUI cases

(5) Shifted burden to defendant in attacking prior convictions used to escalate the current charge

(6) Increased minimum fines by $50 to fund interlock and remote alcohol monitoring for indigent offenders

(7) Required mandatory assessment and, if recommended, treatment for all second or greater OVI offenders

(8) Implemented certain technical funding rules for treatment of indigent offenders

(9) Increased “hard time” suspension for second OVI from 30 to 45 days and, presumably, a person with a failing test and one prior conviction

(10) Increased the license reinstatement fee from $425 to $475. The extra $50 is intended to fund interlock and alcohol monitoring for indigent offenders

(11) Provided that an immobilization order may be waived upon motion of a family or household member who is completely dependent on the vehicle for the necessities of life

(12) Provided for an ignition interlock as a condition of privileges for all second or greater OVI offenders who are granted driving privileges

(13) Required any entity monitoring interlock devices to notify the court each time that the device is tampered with, circumvented or has registered alcohol on the defendant’s breath

(14) Provided for possible extended suspensions for violations involving interlock

(15) Authorized court to order secure continuous remote alcohol monitoring (“SCRAM”) for all third, fourth, and fifth OVI offenses within six years of a sixth or more offense within 20 years and required “SCRAM” for defendants previously convicted of a felony OVI as a condition of limited driving privileges

(16) Created a state habitual OVI offender registry

• 2008 H.B. 215, effective April 7, 2009

(1) Clarified warning notice for administration of chemical test to third or greater offenders within six years to include notice of the right to use “whatever reasonable means are necessary” to ensure submission to the chemical test and that the standard form warning of license suspension need not be read

(2) Added Salvia divinorum and salvinorin A (also called “divener’s sage”) as prohibited controlled substances in RC 4511.19(A)(1)(j)

(3) Clarified that the hard time for second OVI offenses within six years is 45 days and that privileges may not be granted until this hard-time is served

• 2010 S.B. 58, effective September 17, 2010

(1) Amended relevant portions of RC 4511.19, as well as RC 1547.11 which deals with boating under the influence, and RC 4506.17 which concerns commercial drivers, to add “emergency medical technician-intermediate” and “emergency medical technician-paramedic” as persons authorized to withdraw blood for chemical testing.

(2) Granted such individuals the same immunity previously extended to other persons authorized to withdraw blood for chemical testing.

• 2011 H.B. 86, effective September 30, 2011

(1) Created early release procedures for offenders serving felony OVI sentences.

(2) Abrogated Barberton v. Jenney by providing that no person may be arrested, charged, or convicted of speeding based solely upon a peace officer’s unaided visual estimation of a vehicle’s speed.

By Adam Hunt

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