2006 Ohio Revised Code - 2951.02. Authorized searches during offender\'s misdemeanor community control sanction or felony nonresidential sanction; community service; ignition interlock devices.

§ 2951.02. Authorized searches during offender's misdemeanor community control sanction or felony nonresidential sanction; community service; ignition interlock devices.
 

(A)  During the period of a misdemeanor offender's community control sanction or during the period of a felony offender's nonresidential sanction, authorized probation officers who are engaged within the scope of their supervisory duties or responsibilities may search, with or without a warrant, the person of the offender, the place of residence of the offender, and a motor vehicle, another item of tangible or intangible personal property, or other real property in which the offender has a right, title, or interest or for which the offender has the express or implied permission of a person with a right, title, or interest to use, occupy, or possess if the probation officers have reasonable grounds to believe that the offender is not abiding by the law or otherwise is not complying with the conditions of the misdemeanor offender's community control sanction or the conditions of the felony offender's nonresidential sanction. If a felony offender who is sentenced to a nonresidential sanction is under the general control and supervision of the adult parole authority, as described in division (A)(2)(a) of section 2929.15 of the Revised Code, adult parole authority field officers with supervisory responsibilities over the felony offender shall have the same search authority relative to the felony offender during the period of the sanction that is described under this division for probation officers. The court that places the misdemeanor offender under a community control sanction pursuant to section 2929.25 of the Revised Code or that sentences the felony offender to a nonresidential sanction pursuant to section 2929.17 of the Revised Code shall provide the offender with a written notice that informs the offender that authorized probation officers or adult parole authority field officers with supervisory responsibilities over the offender who are engaged within the scope of their supervisory duties or responsibilities may conduct those types of searches during the period of community control sanction or the nonresidential sanction if they have reasonable grounds to believe that the offender is not abiding by the law or otherwise is not complying with the conditions of the offender's community control sanction or nonresidential sanction. 

(B)  If an offender is convicted of or pleads guilty to a misdemeanor, the court may require the offender, as a condition of the offender's sentence of a community control sanction, to perform supervised community service work in accordance with this division. If an offender is convicted of or pleads guilty to a felony, the court, pursuant to sections 2929.15 and 2929.17 of the Revised Code, may impose a sanction that requires the offender to perform supervised community service work in accordance with this division. The supervised community service work shall be under the authority of health districts, park districts, counties, municipal corporations, townships, other political subdivisions of the state, or agencies of the state or any of its political subdivisions, or under the authority of charitable organizations that render services to the community or its citizens, in accordance with this division. The court may require an offender who is ordered to perform the work to pay to it a reasonable fee to cover the costs of the offender's participation in the work, including, but not limited to, the costs of procuring a policy or policies of liability insurance to cover the period during which the offender will perform the work. 
 

A court may permit any offender convicted of a felony or a misdemeanor to satisfy the payment of a fine imposed for the offense pursuant to section 2929.18 or 2929.28 of the Revised Code by performing supervised community service work as described in this division if the offender requests an opportunity to satisfy the payment by this means and if the court determines that the offender is financially unable to pay the fine. 
 

The supervised community service work that may be imposed under this division shall be subject to the following limitations: 

(1) The court shall fix the period of the work and, if necessary, shall distribute it over weekends or over other appropriate times that will allow the offender to continue at the offender's occupation or to care for the offender's family. The period of the work as fixed by the court shall not exceed in the aggregate the number of hours of community service imposed by the court pursuant to section 2929.17 or 2929.27 of the Revised Code. 

(2) An agency, political subdivision, or charitable organization must agree to accept the offender for the work before the court requires the offender to perform the work for the entity. A court shall not require an offender to perform supervised community service work for an agency, political subdivision, or charitable organization at a location that is an unreasonable distance from the offender's residence or domicile, unless the offender is provided with transportation to the location where the work is to be performed. 

(3) A court may enter into an agreement with a county department of job and family services for the management, placement, and supervision of offenders eligible for community service work in work activities, developmental activities, and alternative work activities under sections 5107.40 to 5107.69 of the Revised Code. If a court and a county department of job and family services have entered into an agreement of that nature, the clerk of that court is authorized to pay directly to the county department all or a portion of the fees collected by the court pursuant to this division in accordance with the terms of its agreement. 

(4) Community service work that a court requires under this division shall be supervised by an official of the agency, political subdivision, or charitable organization for which the work is performed or by a person designated by the agency, political subdivision, or charitable organization. The official or designated person shall be qualified for the supervision by education, training, or experience, and periodically shall report, in writing, to the court and to the offender's probation officer concerning the conduct of the offender in performing the work. 

(5) The total of any period of supervised community service work imposed on an offender under division (B) of this section plus the period of all other sanctions imposed pursuant to sections 2929.15, 2929.16, 2929.17, and 2929.18 of the Revised Code for a felony, or pursuant to sections 2929.25, 2929.26, 2929.27, and 2929.28 of the Revised Code for a misdemeanor, shall not exceed five years. 

(C) (1)  If an offender is convicted of a violation of section 4511.19 of the Revised Code, a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them, or a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the whole blood, blood serum or plasma, breath, or urine, the court may require, as a condition of a community control sanction, any suspension of a driver's or commercial driver's license or permit or nonresident operating privilege, and all other penalties provided by law or by ordinance, that the offender operate only a motor vehicle equipped with an ignition interlock device that is certified pursuant to section 4510.43 of the Revised Code. 

(2) If a court requires an offender, as a condition of a community control sanction pursuant to division (C)(1) of this section, to operate only a motor vehicle equipped with an ignition interlock device that is certified pursuant to section 4510.43 of the Revised Code, the offender immediately shall surrender the offender's driver's or commercial driver's license or permit to the court. Upon the receipt of the offender's license or permit, the court shall issue an order authorizing the offender to operate a motor vehicle equipped with a certified ignition interlock device, deliver the offender's license or permit to the bureau of motor vehicles, and include in the abstract of the case forwarded to the bureau pursuant to section 4510.036 [4510.03.6] of the Revised Code the conditions of the community control sanction imposed pursuant to division (C)(1) of this section. The court shall give the offender a copy of its order, and that copy shall be used by the offender in lieu of a driver's or commercial driver's license or permit until the bureau issues a restricted license to the offender. 

(3) Upon receipt of an offender's driver's or commercial driver's license or permit pursuant to division (C)(2) of this section, the bureau of motor vehicles shall issue a restricted license to the offender. The restricted license shall be identical to the surrendered license, except that it shall have printed on its face a statement that the offender is prohibited from operating a motor vehicle that is not equipped with an ignition interlock device that is certified pursuant to section 4510.43 of the Revised Code. The bureau shall deliver the offender's surrendered license or permit to the court upon receipt of a court order requiring it to do so, or reissue the offender's license or permit under section 4510.52 of the Revised Code if the registrar destroyed the offender's license or permit under that section. The offender shall surrender the restricted license to the court upon receipt of the offender's surrendered license or permit. 

(4) If an offender violates a requirement of the court imposed under division (C)(1) of this section, the court may impose a class seven suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege from the range specified in division (A)(7) of section 4510.02 of the Revised Code. On a second or subsequent violation, the court may impose a class four suspension of the offender's driver's or commercial driver's license or permit or nonresident operating privilege from the range specified in division (A)(4) of section 4510.02 of the Revised Code. 
 

HISTORY: 134 v H 511 (Eff 1-1-74); 136 v S 144 (Eff 8-27-75); 137 v S 119 (Eff 8-30-78); 138 v H 892 (Eff 10-10-80); 138 v H 682 (Eff 4-9-81); 139 v H 1 (Eff 8-5-81); 139 v S 432 (Eff 3-16-83); 140 v S 210 (Eff 7-1-83); 142 v H 429 (Eff 6-20-88); 142 v H 322 (Eff 9-9-88); 143 v H 381 (Eff 7-1-89); 143 v S 258 (Eff 11-20-90); 145 v H 152 (Eff 7-1-93); 145 v H 571 (Eff 10-6-94); 145 v H 687 (Eff 10-12-94); 145 v H 687 (Eff 10-17-94); 146 v H 4 (Eff 11-9-95); 146 v H 167 (Eff 11-15-95); 146 v S 2 (Eff 7-1-96); 146 v S 269 (Eff 7-1-96); 147 v H 408 (Eff 10-1-97); 148 v S 9 (Eff 3-8-2000); 148 v S 107 (Eff 3-23-2000); 148 v H 471 (Eff 7-1-2000); 148 v H 349. Eff 9-22-2000; 149 v S 123, § 1, eff. 1-1-04; 149 v H 490, § 1, eff. 1-1-04; 151 v S 8, § 1, eff. 8-17-06.
 

The effective date is set by section 4 of H.B. 490. 

The provisions of § 5 of S.B. 123 (149 v  - ), as amended by § 3 of H.B. 163 (150 v  - ), read as follows: 

SECTION 5. (A) Notwithstanding division (B) of section 1.58 of the Revised Code, the provisions of the Revised Code amended or enacted in Sections 1 and 2 of Am. Sub. S.B. 123 of the 124th General Assembly shall apply only in relation to conduct and offenses committed on or after January 1, 2004. Conduct and offenses committed prior to January 1, 2004, shall be governed by the law in effect on the date the conduct or offense was committed. * * * 

The provisions of § 3 of HB 349 (148 v  - ) read as follows: 

SECTION 3. Sections 2929.01 and 2929.17 of the Revised Code are presented in this act as composites of the sections as amended by both Am. S.B. 9 and Am. Sub. S.B. 107 of the 123rd General Assembly, with the new language of neither of the acts shown in capital letters. Section 2951.02 of the Revised Code is presented in this act as a composite of the section as amended by H.B. 471, Am. S.B. 9, and Am. Sub. S.B. 107 of the 123rd General Assembly, with the new language of none of the acts shown in capital letters. This is in recognition of the principle stated in division (B) of section 1.52 of the Revised Code that such amendments are to be harmonized where not substantively irreconcilable and constitutes a legislative finding that such is the resulting version in effect prior to the effective date of this act. 

 

Effect of Amendments

151 v S 8, effective August 17, 2006, in (C)(1), substituted "a combination of them" for "alcohol and a drug of abuse", and inserted "a controlled substance, or a metabolite of a controlled substance", "whole", and "blood serum or plasma". 

S.B. 123, Acts 2002, effective January 1, 2004, substituted "4510.43" for "4511.83" in (G)(1), (G)(2) and (G)(3); deleted "or revocation" preceding "of a driver's or commercial" in (G)(1); substituted "4510.036" for "4507.021" in (G)(2); substituted "4510.52"f or "4507.54" in (G)(3); in (G)(4), inserted "court may impose a class seven suspension of the", substituted "from the range specified in division (A)(7) of" for "may be suspended as provided in", and added the last sentence; substituted "4510.01" for "4511.83" in (H)(5). 

H.B. 490, Acts 2002, effective January 1, 2004, deleted (A)(1) through (C)(1)(c), (D), (E), (F)(2) and (H) and redesignated former sections; in (A), substituted "community control sanction" for "probation or other suspension" twice, "felony offender" for "felon's" four times, "conditions of the misdemeanor's offender's" for "probation or other suspension," "misdemeanor offender" for "on probation or suspends the misdemeanor offender's sentence of imprisonment," "division (D)(2) or (4) of section 2929.25" for "2929.51," "community control sanction" for "probation or other suspension or during the period of," and "community control sanction" for "probation or other suspension or the conditions of the offender's," and made minor stylistic changes; rewrote (B); in (C)(1), substituted "If an offender" for "When an offender, a community control sanction," and deleted "probation on addition to the required conditions of probation and the discretionary conditions of probation that may be imposed pursuant to division (C) of this section"; in (C)(2), substituted "If a court" for "When a court," "community control sanction" for "probation" twice, "(C)(1) of this section" for "(G)(1) of this section" twice; in (G)(3), substituted "(C)(2)" for "(G)(2)"; and in (G)(4), substituted "(C)(1)" for "(G)(2)". 

 

19xx Committee Report or Comment.

1974 Committee Comment to H 511

This section provides detailed rules for determining whether to place an offender on probation, and specifies the minimum conditions of probation. Under the section, emphasis is shifted from non-probationable offenses to non-probationable offenders - generally, repeat and dangerous offenders. Former law permitted probation for all but certain offenses, but did not specify the criteria to be considered on the question of granting probation. Also, there was some confusion in the former laws as to whether probation, as such, could only be applied in felony cases, on the theory that its counterpart in misdemeanor cases was the suspended sentence. Under this section, probation and the minimum conditions of probation clearly apply to both felonies and misdemeanors. 

The general factors which a court must consider on the question of probation are: the risk that the offender will commit another offense and the need for public protection; the nature and circumstances of the offense; and the history, character, and condition of the offender and his need for correctional and rehabilitative treatment. 

Factors in favor of probation are the same as those favoring shorter sentences for felony or favoring no imprisonment for misdemeanor. See, sections 2929.12 and 2929.22. The factors to be considered against probation include that the offender is in violation of probation, parole or a conditional pardon previously granted him, or that there is a substantial risk that he will commit another offense, or that he needs correctional or rehabilitative treatment best provided in a penal or reformatory institution. Probation remains discretionary with the sentencing court, and the factors listed for or against probation are neither controlling nor exclusive. 

The minimum conditions of probation must be that the offender will abide by the law and not leave the state without permission during the period of his probation. In addition, the court may impose any additional conditions considered appropriate under the circumstances. 

Aggravated murder, murder, and offenses committed while armed with a firearm or dangerous ordnance are non-probationable. Otherwise, all offenses are probationable. Repeat and dangerous offenders, however, are non-probationable regardless of their offense. See, section 2929.01 for definitions of "repeat offender" and "dangerous offender." Under former law, persons convicted of murder, arson, burglary of an inhabited dwelling, incest, sodomy, rape without consent, assault with intent to rape, or administering poison could not be placed on probation, without regard to the risk of another offense being committed, the need for public protection, the nature and circumstances of the offense, or the history, character, or condition of the offender. A few scattered offenses, not changed by the act, remain arbitrarily non-probationable. See, e.g. section 3719.99 of the Revised Code.