1547.111 Implied consent to chemical test.

(A)

(1)

(a) Any person who operates or is in physical control of a vessel or manipulates any water skis, aquaplane, or similar device upon any waters in this state shall be deemed to have given consent 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 if arrested for operating or being in physical control of a vessel or manipulating any water skis, aquaplane, or similar device in violation of section 1547.11 of the Revised Code or a substantially equivalent municipal ordinance.

(b) The test or tests under division (A)(1) 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 vessel or manipulating any water skis, aquaplane, or similar device in violation of section 1547.11 of the Revised Code or a substantially equivalent municipal ordinance. The law enforcement agency by which the officer is employed shall designate which test or tests shall be administered.

(2) 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)(1) of this section, and the test or tests may be administered, subject to sections 313.12 to 313.16 of the Revised Code.

(B)

(1) If a law enforcement officer arrests a person for operating or being in physical control of a vessel or manipulating any water skis, aquaplane, or similar device in violation of section 1547.11 of the Revised Code or a substantially equivalent municipal ordinance and if the person previously has been convicted of or pleaded guilty to two or more violations of section 1547.11 of the Revised Code or other equivalent offenses, 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 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. The advice shall be in written form prescribed by the chief of the division of watercraft and shall be read 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. The reading of the form shall be witnessed by one or more persons, and the witnesses shall certify to this fact by signing the form. Divisions (A)(1)(b) and (A)(2) of this section apply to the administration of a chemical test or tests pursuant to this division.

(2) If a person refuses to submit to a chemical test upon a request made pursuant to division (B)(1) 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.

(C) Except as provided in division (B) of this section, any person under arrest for violating section 1547.11 of the Revised Code or a substantially equivalent municipal ordinance shall be advised of the consequences of refusing to submit to a chemical test or tests designated as provided in division (A) of this section. The advice shall be in a written form prescribed by the chief of the division of watercraft and shall be read 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. The reading of the form shall be witnessed by one or more persons, 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.

(D) Except as provided in division (B) of this section, if a law enforcement officer asks a person under arrest for violating section 1547.11 of the Revised Code or a substantially equivalent municipal ordinance to submit to a chemical test or tests as provided in division (A) of this section, if the arresting officer advises the person of the consequences of the person's refusal as provided in division (C) of this section, and if the person refuses to submit, no chemical test shall be given. Upon receipt of a sworn statement of the officer that the arresting law enforcement officer had reasonable grounds to believe the arrested person violated section 1547.11 of the Revised Code or a substantially equivalent municipal ordinance and that the person refused to submit to the chemical test upon the request of the officer, and upon receipt of the form as provided in division (C) of this section certifying that the arrested person was advised of the consequences of the refusal, the chief of the division of watercraft shall inform the person by written notice that the person is prohibited from operating or being in physical control of a vessel, from manipulating any water skis, aquaplane, or similar device, and from registering any watercraft in accordance with section 1547.54 of the Revised Code, for one year following the date of the alleged violation. The suspension of these operation, physical control, manipulation, and registration privileges shall continue for the entire one-year period, subject to review as provided in this section.

If the person under arrest is the owner of the vessel involved in the alleged violation, the law enforcement officer who arrested the person shall seize the watercraft registration certificate and tags from the vessel involved in the violation and forward them to the chief. The chief shall retain the impounded registration certificate and tags and shall impound all other registration certificates and tags issued to the person in accordance with sections 1547.54 and 1547.57 of the Revised Code, for a period of one year following the date of the alleged violation, subject to review as provided in this section.

If the arrested person fails to surrender the registration certificate because it is not on the person of the arrested person or in the watercraft, the law enforcement officer who made the arrest shall order the person to surrender it within twenty-four hours to the law enforcement officer or the law enforcement agency that employs the law enforcement officer. If the person fails to do so, the law enforcement officer shall notify the chief of that fact in the statement the officer submits to the chief under this division.

(E) Upon suspending a person's operation, physical control, manipulation, and registration privileges in accordance with division (D) of this section, the chief shall notify the person in writing, at the person's last known address, and inform the person that the person may petition for a hearing in accordance with division (F) of this section. If a person whose operation, physical control, manipulation, and registration privileges have been suspended petitions for a hearing or appeals any adverse decision, the suspension shall begin at the termination of any hearing or appeal unless the hearing or appeal results in a decision favorable to the person.

(F) Any person who has been notified by the chief that the person is prohibited from operating or being in physical control of a vessel or manipulating any water skis, aquaplane, or similar device and from registering any watercraft in accordance with section 1547.54 of the Revised Code, or who has had the registration certificate and tags of the person's watercraft impounded pursuant to division (D) of this section, within twenty days of the notification or impoundment, may file a petition in the municipal court or the county court, or if the person is a minor in juvenile court, with jurisdiction over the place at which the arrest occurred, agreeing to pay the cost of the proceedings and alleging error in the action taken by the chief under division (D) of this section or alleging one or more of the matters within the scope of the hearing as provided in this section, or both. The petitioner shall notify the chief of the filing of the petition and send the chief a copy of the petition.

The scope of the hearing is limited to the issues of whether the law enforcement officer had reasonable grounds to believe the petitioner was operating or in physical control of a vessel or manipulating any water skis, aquaplane, or similar device in violation of section 1547.11 of the Revised Code or a substantially equivalent municipal ordinance, whether the petitioner was placed under arrest, whether the petitioner refused to submit to the chemical test upon request of the officer, and whether the petitioner was advised of the consequences of the petitioner's refusal.

(G)

(1) The chief shall furnish the court a copy of the affidavit as provided in division (C) of this section and any other relevant information requested by the court.

(2) In hearing the matter and in determining whether the person has shown error in the decision taken by the chief as provided in division (D) of this section, the court shall decide the issue upon the relevant, competent, and material evidence submitted by the chief or the person whose operation, physical control, manipulation, and registration privileges have been suspended.

In the proceedings, the chief shall be represented by the prosecuting attorney of the county in which the petition is filed if the petition is filed in a county court or juvenile court, except that if the arrest occurred within a city or village within the jurisdiction of the county court in which the petition is filed, the city director of law or village solicitor of that city or village shall represent the chief. If the petition is filed in the municipal court, the chief shall be represented as provided in section 1901.34 of the Revised Code.

(3) If the court finds from the evidence submitted that the person has failed to show error in the action taken by the chief under division (D) of this section or in one or more of the matters within the scope of the hearing as provided in division (F) of this section, or both, the court shall assess the cost of the proceeding against the person and shall uphold the suspension of the operation, physical control, use, and registration privileges provided in division (D) of this section. If the court finds that the person has shown error in the action taken by the chief under division (D) of this section or in one or more of the matters within the scope of the hearing as provided in division (F) of this section, or both, the cost of the proceedings shall be paid out of the county treasury of the county in which the proceedings were held, the chief shall reinstate the operation, physical control, manipulation, and registration privileges of the person without charge, and the chief shall return the registration certificate and tags, if impounded, without charge.

(4) The court shall give information in writing of any action taken under this section to the chief.

(H) At the end of any period of suspension or impoundment imposed under this section, and upon request of the person whose operation, physical control, use, and registration privileges were suspended or whose registration certificate and tags were impounded, the chief shall reinstate the person's operation, physical control, manipulation, and registration privileges by written notice and return the certificate and tags.

(I) No person who has received written notice from the chief that the person is prohibited from operating or being in physical control of a vessel, from manipulating any water skis, aquaplane, or similar device, and from registering a watercraft, or who has had the registration certificate and tags of the person's watercraft impounded, in accordance with division (D) of this section, shall operate or be in physical control of a vessel or manipulate any water skis, aquaplane, or similar device for a period of one year following the date of the person's alleged violation of section 1547.11 of the Revised Code or the substantially equivalent municipal ordinance.

Cite as R.C. § 1547.111

History. Effective Date: 01-01-2004; 08-17-2006; 2008 SB17 09-30-2008; 2008 HB215 04-07-2009