Bill Title: To modify the guidelines governing seizure of a motorcycle by a law enforcement officer when the identity of the motorcycle cannot be determined and to establish limited civil liability if the law enforcement officer or agency fails to comply with specified guidelines.
Spectrum: Moderate Partisan Bill (Democrat 8-2)
Status: (Introduced - Dead) 2009-05-12 - To Civil & Commercial Law
[HB179 Detail]Download: Ohio-2009-HB179-Introduced.html
As Introduced
128th General Assembly | Regular Session | 2009-2010 |
| |
Cosponsors:
Representatives Boyd, Dodd, Huffman, Chandler, Domenick, Hagan, Yuko, Harwood, Heard
A BILL
| To amend sections 4549.61, 4549.62, and 4549.63 of | 1 |
|
the
Revised Code to modify
the guidelines | 2 |
|
governing
seizure of a motorcycle
by a law | 3 |
|
enforcement
officer when the identity of
the | 4 |
|
motorcycle cannot
be determined and to establish | 5 |
|
limited civil liability if the law enforcement | 6 |
|
officer or agency fails to comply with specified | 7 |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4549.61, 4549.62, and 4549.63 of the | 9 |
Revised Code be
amended to read as follows: | 10 |
Sec. 4549.61. As used in sections 4549.61 to 4549.63 of the | 11 |
Revised Code,
"vehicle: | 12 |
(A) "Vehicle identification number or derivative
thereofof | 13 |
the
vehicle identification number" means any number or
derivative | 14 |
of
such a number that is embossed, engraved, etched, or otherwise | 15 |
marked on any vehicle or vehicle part by the manufacturer. | 16 |
"Vehicle
identification number" also includes a duplicate vehicle | 17 |
identification number
replaced upon a vehicle under the authority | 18 |
of the registrar of motor
vehicles. | 19 |
(B) "Motorcycle" has the same meaning as in section 4511.01 | 20 |
of the Revised Code. | 21 |
Sec. 4549.62. (A) No person, with purpose to
conceal
or | 22 |
destroy the identity of a vehicle or vehicle part,
shall
remove, | 23 |
deface, cover, alter, or destroy any vehicle
identification number | 24 |
or derivative
of athe vehicle
identification number on a vehicle | 25 |
or
vehicle part. | 26 |
(B) No person, with purpose to conceal or destroy
the | 27 |
identity of a vehicle or a vehicle part,
shall remove, deface, | 28 |
cover, alter, or destroy any identifying number that has been | 29 |
lawfully placed upon a vehicle or vehicle part by an owner of the | 30 |
vehicle or vehicle part, other than the manufacturer, for the | 31 |
purpose of deterring its theft and facilitating its recovery if | 32 |
stolen. | 33 |
(C) No person, with purpose to conceal or destroy
the | 34 |
identity of a vehicle or vehicle part,
shall place a counterfeit | 35 |
vehicle identification number or derivative
of athe vehicle | 36 |
identification number upon the
vehicle or vehicle part. | 37 |
(D)(1) No person shall buy, offer to buy, sell, offer to | 38 |
sell, receive, dispose of, conceal, or, except as provided in | 39 |
division (D)(4) of this section, possess any vehicle or vehicle | 40 |
part with knowledge that the vehicle identification number or a | 41 |
derivative
of the vehicle identification number has been
removed, | 42 |
defaced, covered, altered,
or destroyed in such a manner
that the | 43 |
identity of the vehicle or
part cannot be determined by a
visual | 44 |
examination of the number
at the site where the
manufacturer | 45 |
placed the number. | 46 |
(2)(a) A vehicle or vehicle part from which the vehicle | 47 |
identification number or a derivative
of the vehicle | 48 |
identification number has been so
removed, defaced, covered, | 49 |
altered, or destroyed shall be seized
and forfeited under Chapter | 50 |
2981. of the Revised Code unless
division (D)(3) or (4) of this | 51 |
section applies to the vehicle or
part. If a derivative of the | 52 |
vehicle identification number has
been removed, defaced, covered, | 53 |
altered, or destroyed in such a
manner that the identity of the | 54 |
part cannot be determined, the
entire vehicle is subject to | 55 |
seizure pending a determination of
the original identity and | 56 |
ownership of the vehicle and parts of
the vehicle, and the rights | 57 |
of innocent owners to reclaim the
remainder or any part of the | 58 |
vehicle. | 59 |
(b) The lawful owners of parts upon a vehicle that has
been | 60 |
seized under this section and that is subject to forfeiture
under
| 61 |
Chapter 2981. of the Revised Code are entitled to reclaim
their | 62 |
respective parts upon satisfactory proof of all of the
following: | 63 |
(i) That the part is not needed for evidence in pending | 64 |
proceedings involving the vehicle or part and is not subject to | 65 |
forfeiture under Chapter 2981. of the Revised Code; | 66 |
(ii) That the original identity and ownership of the part
can | 67 |
be determined and that the claimant is the lawful owner of
the | 68 |
part; | 69 |
(iii) That no vehicle identification number or derivative
of | 70 |
athe vehicle identification number on the part has been destroyed | 71 |
or
concealed in such a manner that the identity of the part
cannot | 72 |
be
determined from that number; | 73 |
(iv) Payment of all costs of removing the part. | 74 |
(3) Divisions (A), (B), and (D)(1) and (2) of this section
do | 75 |
not apply to the good faith acquisition and disposition of | 76 |
vehicles and vehicle parts as junk or scrap in the ordinary
course | 77 |
of business by a scrap metal processing facility as
defined in | 78 |
division
(D) of section 4737.05 of the Revised
Code or
by a
motor | 79 |
vehicle salvage dealer licensed under Chapter 4738. of
the
Revised | 80 |
Code. This division
does not create an
element of
an offense or
an | 81 |
affirmative defense, or affect the
burden of
proceeding with
the | 82 |
evidence or burden of proof in a
criminal
proceeding. | 83 |
(4)(a) Divisions (D)(1) and (2) of this section do not
apply | 84 |
to the possession of an owner, or the owner's insurer, who | 85 |
provides satisfactory evidence of all of the following: | 86 |
(i) That the vehicle identification number or derivative | 87 |
thereofof the vehicle identification number on the vehicle or | 88 |
part has been removed, defaced,
covered,
altered, or destroyed, | 89 |
after the owner acquired such
possession,
by another person | 90 |
without the consent of the owner,
by accident or
other casualty | 91 |
not due to the owner's purpose to
conceal or
destroy the identity | 92 |
of the vehicle or vehicle part,
or by
ordinary wear and tear; | 93 |
(ii) That the person is the owner of the vehicle as shown
on | 94 |
a valid certificate of title issued by this state or
certificate | 95 |
of title or other lawful evidence of title issued in
another | 96 |
state, in a clear chain of title beginning with the
manufacturer; | 97 |
(iii) That the original identity of the vehicle can be | 98 |
established in a manner that excludes any reasonable probability | 99 |
that the vehicle has been stolen from another person. | 100 |
(b) The registrar of motor vehicles shall adopt rules
under | 101 |
Chapter 119. of the Revised Code to permit an owner
described in | 102 |
division (D)(4)(a) of this section, upon application
and | 103 |
submission of satisfactory evidence to the registrar, to obtain | 104 |
authority to replace the vehicle
identification number under the | 105 |
supervision of a peace officer,
trooper of the state highway | 106 |
patrol, or representative of the
registrar. The rules shall be | 107 |
designed to restore the
identification of the vehicle in a manner | 108 |
that will deter its
theft and facilitate its marketability. Until | 109 |
suchthose rules are
adopted, the registrar shall follow the | 110 |
existing
procedure for
the
replacement of vehicle identification | 111 |
numbers
that have been
established by the registrar, with suchany | 112 |
modifications asthat the
registrar determines to be necessary or | 113 |
appropriate for the
administration of the laws that
the registrar | 114 |
is
required to
administer. | 115 |
The registrar may issue a temporary permit to an owner of a | 116 |
motor vehicle who is described in division (D)(4)(a) of this | 117 |
section to authorize the owner to retain possession of the motor | 118 |
vehicle and to transfer title to the motor vehicle with the | 119 |
consent of the registrar. | 120 |
(c) No owner described in division (D)(4)(a) of this
section | 121 |
shall
fail
knowingly to apply to the registrar
for
authority to | 122 |
replace the vehicle identification number, within
thirty days | 123 |
after the later of the following dates: | 124 |
(i) The date of receipt by the applicant of actual
knowledge | 125 |
of the concealment or destruction; | 126 |
(ii) If the property has been stolen, the date thereafter | 127 |
upon which the applicant obtains possession of the vehicle or has | 128 |
been notified by a law enforcement agency that the vehicle has | 129 |
been recovered. | 130 |
The requirement of division (D)(4)(c) of this section may
be | 131 |
excused by the registrar for good cause shown. | 132 |
(E) Whoever violates division (A),
(B),
(C), or (D)(1) of | 133 |
this
section is guilty of a felony of the fifth degree on a first | 134 |
offense and a
felony of the
fourth degree on each subsequent | 135 |
offense. | 136 |
(F) Whoever violates division
(D)(4)(c)
of this section is | 137 |
guilty of a minor misdemeanor. | 138 |
Sec. 4549.63. (A) A law enforcement officer may seize and | 139 |
take possession of a vehicle or vehicle part if the officer has | 140 |
probable cause to believe that any vehicle identification number | 141 |
or derivative thereofof the vehicle identification number on the | 142 |
vehicle or part has been removed,
defaced, covered, altered, or | 143 |
destroyed in such a manner that the
identity of the vehicle or | 144 |
part cannot be determined by visual
examination of the number at | 145 |
the site where the manufacturer
placed the number. The seizure | 146 |
shall be pursuant to a warrant,
unless the circumstances are | 147 |
within one of the exceptions to the
warrant requirement that have | 148 |
been established by the supreme
court of the United States or of | 149 |
the supreme court of this state. | 150 |
(B) A(1) Except as provided in divisions (B)(2) and (3) of | 151 |
this section, a vehicle or vehicle part seized under division (A) | 152 |
of
this section shall be held in custody pursuant to section | 153 |
2981.11 of the Revised Code or any applicable municipal ordinance. | 154 |
(2) If a vehicle or vehicle part that is seized under | 155 |
division (A) of this section is a motorcycle or motorcycle part, a | 156 |
law enforcement officer or agency that seizes the motorcycle or | 157 |
motorcycle part shall
transport, secure, and store the motorcycle | 158 |
or motorcycle part, or shall cause the motorcycle or motorcycle | 159 |
part to be transported, secured, and stored, in a
manner that | 160 |
protects the motorcycle or
motorcycle part from damage. | 161 |
(3) Within thirty days of seizing a motorcycle or
motorcycle | 162 |
part, the law enforcement officer or agency shall do
the | 163 |
following: | 164 |
(a) Locate the vehicle identification number if
possible and | 165 |
determine whether the motorcycle or motorcycle part
is
stolen; | 166 |
(b) If the motorcycle or motorcycle part is not determined to | 167 |
be stolen, except as otherwise provided in any provision of | 168 |
federal law, return the motorcycle or motorcycle part to the | 169 |
person from whom the motorcycle or motorcycle part was seized, the | 170 |
lawful
owner,
or owner of record in accordance with division (D) | 171 |
of this section or otherwise make a good faith effort to return | 172 |
the motorcycle or motorcycle part to the person from whom the | 173 |
motorcycle or motorcycle part was seized, the lawful owner, or | 174 |
owner of record in accordance with that division. | 175 |
(4) A law enforcement agency that holds a motorcycle or | 176 |
motorcycle part that is not determined to be stolen longer than | 177 |
thirty days after the date of seizure of such motorcycle or | 178 |
motorcycle part is liable for damages. | 179 |
(C)(1) A law enforcement officer who acts in good faith in | 180 |
the belief that the seizure of a vehicle or vehicle part is | 181 |
justified under division (A) of this section is immune from any | 182 |
civil or criminal liability for such seizure. | 183 |
(2) Notwithstanding division (C)(1) of this section, the | 184 |
state or any political subdivision associated with a law | 185 |
enforcement officer or agency that seizes a motorcycle or | 186 |
motorcycle
part under this section is liable to the person from | 187 |
whom the motorcycle or motorcycle part was seized, its lawful | 188 |
owner,
or owner of record in a civil
action for any damage to the | 189 |
motorcycle or
motorcycle part that is proximately caused by either | 190 |
of the
following: | 191 |
(a) The negligent failure of the law enforcement officer or | 192 |
agency to
transport, secure, and store the motorcycle or | 193 |
motorcycle part in
a
manner that protects the motorcycle or | 194 |
motorcycle part from
damage; | 195 |
(b) The negligent failure of the law enforcement officer or | 196 |
agency to
comply with division (B)(3) of this section. | 197 |
(D) The lawful owner or owner of record of a vehicle or | 198 |
vehicle part seized
under this section that is not needed as | 199 |
evidence and is not
subject to forfeiture under division (D)(2) of | 200 |
section 4549.62 of
the Revised Code may reclaim the property by | 201 |
submitting
satisfactory proof of ownership of the vehicle or | 202 |
vehicle part to the law enforcement agency or
court holding the | 203 |
property. | 204 |
Section 2. That existing sections 4549.61, 4549.62, and | 205 |
4549.63 of the Revised Code
are hereby repealed. | 206 |