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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
Timothy E. Pierce
Franklin County Public Defender Office
In re S.J.K.
, 114 Ohio St. 3d 23,
-- Syllabus: "The imposition of points on a traffic offender's driving record is a statutorily imposed penalty sufficient to create a collateral disability as a result of the judgment and preserves the justiciability of an appeal even if the offender has voluntarily satisfied the judgment." May nullify
State v. Berndt
(1987), 29 Ohio St. 3d 3.
State v. Watkins
, 99 Ohio St. 3d 13,
-- The Traffic Rules apply to non-felony OMVI cases. ¶ 28: "Crim. R. 11(C) sets forth how a judge should explain those rights to a defendant. However, there are no such constitutionally mandated informational requirements for defendants charged with misdemeanors. The protections that the Criminal Rules provide to felony defendants should not be read into the Ohio Traffic Rules, which deal only with misdemeanor offenses." Syllabus: "When a defendant charged with a petty misdemeanor traffic offense pleads guilty or no contest, the trial court complies with Traf. R. 10(D) by informing the defendant of the information contained in Traf. R. 10(B)."
State v. Oklata
, 156 Ohio App. 3d 123,
State v. Watkins
, 99 Ohio St. 3d 13,
may reduce the court's obligations in taking a no contest plea in a traffic case, the failure to inform the defendant of the effect of his no contest plea, as outlined in Traffic Rule 10(B)(2), requires reversal.
State v. Murray
, Montgomery App. No. 2002-CA-10,
-- Magistrate overruled motion to suppress evidence. Defendant's failure to file objections precludes assigning as error the court's ruling. Nonetheless, the court reviews the record for plain error.
State v. Parker
(1994), 68 Ohio St. 3d 283 -- Syllabus: "A municipality is not obligated to post signs notifying motor vehicle operators of local traffic ordinances not in conflict with state law." Municipal truck weight limits had not been posted in vicinity of freeway exit.
State v. Mullins
(1997), 124 Ohio App. 3d 112 -- Defendant was cited for ACDA, but convicted of making an illegal turn. Reversed as the finding amounted to an improper amendment of the complaint, changing the name or identity of the charged crime.
State v. Boone
(1995), 108 Ohio App. 3d 233, 237 -- Motorist stopped for a traffic violation pulled into a Proctor and Gamble parking lot. Criminal trespass conviction was not supported by the evidence.
State v. Ungerer
(1993), 87 Ohio App. 3d 110 -- Traffic Rule (10) does not provide for pleas of not guilty by reason of insanity in traffic cases.
Boston Heights v. Weikle
(1991), 81 Ohio App. 3d 165 -- When the defendant arrived for trial on a speeding ticket he learned his case was to be tried to a referee and refused to agree to this being done. Time was not tolled for the period leading up to a trial before a judge.
State v. Daugherty
(1996), 110 Ohio App. 3d 103 -- Continuance for more than one month of a speeding case because of the court's policy in scheduling traffic cases denied appellant his right to a speedy trial.
State v. Grubb
(1993), 82 Ohio App. 3d 187 -- Driveway giving access to the Ohio State student union was not a public street or highway as university reserved right to prohibit or limit use of driveway by the general public.
State v. Hammer
(1992), 82 Ohio App. 3d 663, 666 -- Trial court did not err in having minor misdemeanor traffic charges tried to the same jury hearing related vehicular homicide charge.
State v. Jackson
(1992), 78 Ohio App. 3d 479 -- While the trial court had the authority to amend a uniform traffic ticket to add the number of the statute violated, it did not have authority to amend the ticket to name a statute other than that proscribing the conduct generally referred to by the issuing officer in the ticket.
Toledo v. Weber
(1997), 87 Ohio Misc. 2d 26 -- Mayor of Toledo charged a motorist with a stoplight violation. Held that the mayor qualified as a "law enforcement officer" but that he improperly used the long form complaint instead of a uniform traffic ticket.
License Suspensions and Violations
State v. Crosby
, 174 Ohio App. 3d 97,
– Motorist was charged with driving while under an administrative license suspension. Months later he obtained a stay of the suspension extending back to the day it went into effect following his refusal to take a breath test. While the municipal court had the authority to grant the stay, it did not nullify the charge. See dissent.
State v. Campos
, 149 Ohio Misc. 2d 76,
– Motorist was a resident of Ohio and a citizen of Mexico. He was charged with driving without a license though he presented an unexpired Mexican driver‘s license. He was subject to the requirement that he have an Ohio license as neither the exception in
nor the United Nations Convention on Road Traffic applied. However, the penalty provision does provide for these circumstances because he did hold a valid license issued by another jurisdiction, and he did not fall under the separate provision made for those with expired licenses.
Columbus v. Freeman
, 181 Ohio App. 3d 320,
– In a driving under suspension prosecution the jury was instructed that the defendant grabbing the wheel of the car his wife was driving "may" constitute operation. Court follows
State v. Wallace
, 166 Ohio App. 3d 845,
and finds grabbing the wheel is operation. See dissent. Use of "may" in instruction did not amount to a directed verdict on the element of operation.
Cleveland v. Santiago
, Cuyahoga App. No. 84544,
-- Though the defendant held a Puerto Rico driver's license, after six years in Cleveland, and absent an indication that he travelled back and forth frequently, he needed an Ohio license.
State v. Roblero
, 133 Ohio Misc. 2d 7,
-- Defendant charged with no ops produced what on its face appeared to be a current Mexico drivers license. (1) Mexico is not a signatory to the United Nations Convention on Road Traffic, but is to the Organization of American States Convention on Regulation of Inter-American Motor Vehicle Traffic. (2) Proof that he has a valid foreign license is in the nature of an affirmative defense, and the court refuses to accept mere production of the foreign license as proof by a preponderance that the holder is validly licensed. (3) The exception for residents of other "states" in
is limited to the territories and federal districts of the United States and the provinces of Canada. It does not include Mexico.
State v. Leuvoy
, Fairfield App. No. 03CA66,
-- Driving under suspension charge flowed from suspension tied to failure to pay support. Court rejects substantive and procedural due process attacks on such suspensions.
Judy v. Ohio Bureau of Motor Vehicles
, 100 Ohio St. 3d 122,
-- Under former
the BMV could not collect reinstatement fees for both an initial administrative license suspension and a judicial suspension arising from the same prosecution. According to footnote 3, the version of the statute in effect since 1998 allows collection of a single (greater) reinstatement fee. In this class action suit, the trial court properly ordered post-judgment interest.
Campbell v. Ohio Bureau of Motor Vehicles
, 156 Ohio App. 3d 615,
-- To appeal a license suspension based on a judgment the license holder must strictly comply with
. The original notice of appeal must be filed with the BMV within fifteen days. A faxed copy is not enough.
State v. Hayes
, 119 Ohio Misc. 2d 124,
-- Trial court declines to find Santa Claus guilty of possessing or displaying a state identification card knowing it to be fictitious. For twenty years Mr. Hayes had been known to the Department of Motor Vehicles both under his own name and as Santa Claus, and had ID cards (photo in costume) and vehicle registrations issued to him.
State v. Anthony
, 96 Ohio St. 3d 173,
-- Syllabus: "In order for a driver's license to be suspended or revoked pursuant to
, a motor vehicle must be used in the commission of a felony. To satisfy this requirement, there must be a sufficient nexus between the offense and the vehicle to indicate that the vehicle was reasonably integral to the offense. (
, construed.)" Passenger got out of back seat of a stopped car and fired shots at officer. Chase ensued. Necessary link did not exist between vehicle and the offenses of attempted felonious assault and weapon under a disability.
State v. Johnson
, Montgomery App. No. 19810,
-- The offenses of operating a motor vehicle without a driver's license and driving while under a suspension are mutually exclusive. A defendant may not be convicted of both out of a single incident.
State v. Kinder
(2000), 140 Ohio App. 3d 235 -- Applying
, the defendant was entitled to the benefit of the version of controlling statutes which went into effect shortly before the sentencing hearing, which reduced the length of the license suspension the court was permitted to impose. While
was disapproved in
State v. Kaplowitz
, 100 Ohio St. 3d 205,
, this was only with respect to the incarceration aspect of the sentence. Defendants remain entitled to the benefit of reduced license suspensions under the revised statutes.
State v. Prosser
, Hamilton App. No. C-030187,
-- Court was without authority to modify previously imposed mandatory lifetime license suspension under the former aggravated vehicular homicide statute.
State v. Redman
, 163 Ohio App. 3d 686,
as applicable for the defendant's aggravated vehicular homicide convictions, "permanent revocation" of a license was not subject to modification. Application of the current version of the statute to defendant, which requires fifteen years to have passed before making application, did not violate the ban on retroactive laws.
Burke v. Ohio Bureau of Motor Vehicles
(2000), 114 Ohio Misc. 2d 46 -- Failure to file a notice of appeal from a BMV license suspension with that agency as well as the Common Pleas Court deprives the court of subject matter jurisdiction.
State v. Stafford
, 158 Ohio App. 3d 509,
, ¶29-34 -- In a prosecution for vehicular homicide and vehicular assault an Indiana license suspension is held to constitute a suspension under Ohio law.
State v. Webb
(1998), 126 Ohio App. 3d 808, 812 -- "...(W)here the state proves that the established procedure for giving notice (of suspension) was followed, a rebuttable presumption is created that the defendant received notice. However, the defendant can then rebut this presumption with evidence that he did not receive notice." Instruction creating a conclusive presumption was erroneous.
Hughes v. Ohio Department of Motor Vehicles
(1997), 79 Ohio St. 3d 305 -- Syllabus: "An Ohio resident whose driver's license has been suspended in Ohio based upon an out-of-state conviction for driving while under the influence of drugs or alcohol may petition for occupational driving privileges in Ohio. Former
rad in pari materia.).
State v. Borchardt
(1997), 118 Ohio App. 3d 857 -- A court may not permanently revoke a driver's license upon conviction for vehicular homicide unless the offender was under the influence of drugs or alcohol. Compare
State v. Tardif
(2000), 139 Ohio 38, which refuses to follow
Warren v. Ross
(1996), 116 Ohio App. 3d 275 -- Unexplained four year delay in imposing mandatory lifetime license suspension upon conviction of vehicular homicide under the influence meant court lost jurisdiction to do so. Also see
Willoughby v. Lukehart
(1987), 39 Ohio App. 3d 74.
State v. Mergy
(1996), 105 Ohio App. 3d 646 -- Defendant's license was suspended on four different occasions, leading to four DUS charges after being stopped for a single incident of driving. Held to be allied offenses of similar import. Further found to be a double jeopardy violation.
Columbus v. Henry
(1995), 105 Ohio App. 3d 545, 550 -- "...(I)t is not a crime for an Ohio resident to drive in Columbus without having his or her operator's license on his or her person." Thus, arrest for "no ops" was illegal and conviction for resisting arrest as improper. Also see
State v. DiGiorgio
(1996), 117 Ohio App. 3d 67.
State v. Foley
(1995), 103 Ohio App. 3d 103 -- It is not a violation of
for a driver to fail to display his operator's license when it is not in his possession. Such failure only establishes a prima facie case, which may be rebutted by displaying a valid license in court.
State v. Wilson
(1995), 102 Ohio App. 3d 467 -- Cancellation of driver's license upon non payment of fine and costs upon declaration of forfeiture issued by clerk without judicial finding, was ineffective. Judicial duties which require an exercise of discretion or finding of fact may not be delegated to the clerk of court though an administrative order.
State v. Mink
(1995), 101 Ohio App. 3d 380 -- Judge suspended 17 year old's license until he could demonstrate restitution in the amount of $74,000, then refused to reinstate license after the judgment insurance companies had obtained in that amount was discharged in bankruptcy. (1) Restitution order did not expand court's power to extend license suspension. (2) Juvenile court could not lawfully suspend license past age 18. Also see
In re Eric W.
(1996), 113 Ohio App. 3d 367, 372-373.
State v. Cox
(1994), 98 Ohio App. 3d 318 -- Driving under an FRA suspension conviction affirmed where evidence showed notice of suspension was sent to last known address. Also see
State v. Haspic
(1991), 73 Ohio App. 3d 804. Compare
Moran v. Dollinson
(1981), 3 Ohio App. 3d 121 where prior to notice being sent motorist had received a ticket giving a more recent address than the address notice was sent to.
State v. Roberts
(1980), 62 Ohio St. 2d 94 -- Syllabus: "A suspension of a driver's license for six months pursuant to
terminates by operation of law upon expiration of the six-month period." Defendant could not be convicted of driving under suspension after the six-month period of suspension had expired, even though he had not taken the necessary steps to have his license reinstated. Also see
Columbus v. Herbert
(December 24, 1992), Franklin Co. App. Nos. 92AP-1059, 1060, unreported (1992 Opinions 6234).
State v. Venham
(1994), 96 Ohio App. 3d 649 -- Though initial detention of vehicle and occupants in search of a fugitive was legitimate, continued detention and request to see license was not, once it had been ascertained that the fugitive was no longer in the vehicle. Absent a roadblock or other systematic policy of stopping vehicles,
does not permit an officer to demand to see a license without specific and articulable facts amounting to a reasonable suspicion of criminal activity.
State v. Gilbo
(1994), 96 Ohio App. 3d 332 -- (1) For purposes of the offense of driving without a valid Ohio operator's license, driving while one's license is suspended is not a violation. (2) For purposes of the offense of driving under suspension, knowledge of the suspension must be established. The BMV is not required to send notice by certified mail. Receipt of notice may be inferred where it was sent by ordinary mail and was not returned undelivered.
State v. Rooker
(1994), 93 Ohio App. 3d 154 -- Parent whose license was under suspension was not a person with a valid driver's license for purposes of accompanying her son who had a learner's permit.
Strickland v. Ohio Bureau of Motor Vehicles
(1994), 92 Ohio App. 3d 755 -- BMV suspended license under the implied consent law. Defendant subsequently entered a conditional plea of guilty and entered a diversion program. Written plea did not provide for it to be withdrawn if program was not completed, but did state that plea would not be accepted and charge would be dismissed upon successful completion. Held that the Bureau was required to reinstate license.
Warren v. Williams
(1993), 87 Ohio App. 3d 777 -- Pursuant to
a trial court may only suspend a driver's license where the offense is one of those listed in Traffic Rule 13(B) which require an appearance in court.
Fairfield v. Fleisher
(1995), 101 Ohio App. 3d 170 -- Motorist involved in an accident was only charged with driving with fictitious plates. (1) Proof of financial responsibility was required. Misdemeanors may be indicted and thus qualify as traffic offenses for which a court appearance is required. 90-day FRA suspension was proper. (2) Further 270-day suspension was not proper. Fictitious plates charge may not be related to recklessness and motorist was not charged based on her involvement in the accident.
State v. Krug
(1993), 89 Ohio App. 3d 595 -- It was improper to suspend the operator's license of a defendant convicted of domestic violence who in the process of the offense had driven his wife from a convenience store to their home. (1) Suspension was not authorized under
allowing suspension when an auto is used in the commission of a felony as that section only applies where an auto has been used as a weapon, to transport contraband, or is the subject of the crime charged. The section does not apply to mere use for transportation. (2) The suspension could not be justified as a special condition of probation pursuant to
. Also see
State v. Watkins
(1994), 96 Ohio App. 3d 195.
State v. Ward
(1993), 85 Ohio App. 3d 537 -- Upon the defendant's inability to demonstrate financial responsibility at the time of sentencing for a traffic offense, the court imposed the required 90 day suspension, but granted occupational driving privileges, which the state appealed. Held that the state did not have the right to appeal as a matter of right and was required to seek leave to appeal.
State v. Haughawout
(1991), 81 Ohio App. 3d 7 -- Conviction for driving under an FRA suspension upheld even though the defendant's license had long since expired. See dissent.
State v. Bonn
(1995), 101 Ohio App. 3d 69 -- Defendant bore the burden of proof on the affirmative defense that, though her license was under suspension, she was returning from work within the exercise of her occupational driving privileges.
State v. Haar
(1991), 81 Ohio App. 3d 244 -- The affirmative defense to the charge of driving under suspension or restriction is limited to emergencies which exist in fact. (No precedent cited, but court discusses the defense of necessity and its application to strict liability offenses.)
State ex rel. Wright v. Ohio Bureau of Motor Vehicles
(1999), 87 Ohio St. 3d 184 -- Prohibition does not lie to challenge Registrar's suspension of license and registration privileges as the statutory scheme does not establish an exercise of judicial or quasi judicial-power.
Registration and License Plates
State v. Eikleberry
, 184 Ohio App. 3d 219,
– Defendant was cited for driving a motor vehicle without plates. Held that a Ford pickup equipped with a drilling rig and leveling jacks was exempt because it constituted “well-drilling machinery even though it could still be operated on the highway, here to a gas station.
State v. Besancon
, 188 Ohio App. 3d 141,
– In Amish country, a trailer being used to haul cattle to an auction house did not display a license plate. Driver of pickup hauling the trailer was cited for failure to display. The defense claimed the trailer did not have to display a tag because it was “farm equipment.” ¶13: “Besancon’s livestock trailer is both a ‘trailer’ as that term is defined by
and ‘farm machinery’ as defined by
, ‘Sections of the Revised Code defining offenses * * * shall be construed strictly against the state and liberally construed in favor of he accused.’ In reading
together in a light most favorable to Besancon, we conclude that his livestock trailer was ‘farm machinery’ and that the farm-machinery exception provided in
applies to the definition of motor vehicle under
Wilmington v. Connor
(2001), 144 Ohio App. 3d 735 -- Though a temporary tag doesn't not have to be illuminated if placed in the back window, it does when placed in plate holder. Thus officer had a legitimate reason to stop the car. Even if the tag didn't have to be illuminated, as another court of appeals has held, mistake of law would not have invalidated the stop.
State v. Held
(2001), 146 Ohio App. 3d 365 -- Even though license plates are now reflective they must be illuminated. Rear plate light may have been operative, but rear bumper was missing and plate in a different location was not illuminated. Thus office had probable cause to stop the motorist.
State v. Frazier
, Mahoning App. No. 01 CA 65,
-- Recklessness, not strict liability, is the culpable mental state for illegal plates in violation of a city ordinance comparable to
Village of New Rome v. Edwards
(1994), 96 Ohio App. 3d 438 -- For purposes of obtaining commercial tags, a "commercial car" is defined as one used to haul merchandise or freight, and does not necessarily include a van used by a tradesman.
Cleveland v. Vincenti
(1992), 84 Ohio App. 3d 568 -- It is not an offense under
for a salesman to use a car with dealer tags for personal errands (driving to a nightclub in the flats). Limitation within the statute is only with respect to commercial use.
Reckless Operation and Related Offenses
State v. Provino
, 175 Ohio App. 3d 283,
– Defendant slid off the road and into a ditch. No one was injured and no other vehicle was involved. He left the vehicle at the scene and was later charged with hit skip. He was found guilty on a no contest plea. Reversed. Proffer of facts did not support conviction.
does not cover one-car accidents of this sort.
Columbus v. Nolan
, 150 Ohio Misc. 2d,
– The default culpable mental state of recklessness does not necessarily displace differently defined culpable mental states included in municipal ordinances. Here the "reasonably prudent person" standard used in an ordinance remains in effect and the distinction is crucial to acquittal.
State v. Morton
, Montgomery App. No. 20358,
-- Plea to reckless in municipal court barred prosecution for fleeing as a felony, where recklessness elevated the degree of the offense. Also see
State v. Knaff
(1998), 128 Ohio App. 3d 90;
State v. Morton
(April 30, 1999), Hamilton App. No. C-980391.
State v. Lovell
, 157 Ohio App. 3d 227,
-- Failure to control (
) is not a lesser included offense to reckless operation (
State v. Larbus
, 160 Ohio App. 3d 286,
-- The failure to post a warning sign for a curve, and to properly post a no outlet sign, is not a defense to failure to control. The posting of a sign is not an element of
In re Jon J.
(2001), 144 Ohio App. 3d 572 -- Ordinance prohibited squealing tires on acceleration. Evidence was insufficient to support conviction where 17-year old said the tires of his Corvette squealed as he decelerated while turning into school parking lot.
State v. Preston
(2001), 142 Ohio App. 3d 619 -- Street racing conviction not supported by the evidence where motorist apparently hoped to keep driver in merging lane from cutting in front of her, but did not have a competitive intent.
State v. Knaff
(1998), 128 Ohio App. 3d 90 -- Defendant pleaded guilty to reckless operation, but before a "finding" was made, the prosecutor moved to dismiss in light of a pending indictment for fleeing. Jeopardy attacked at the time the plea was entered. Furthermore, applying
, prosecution for the greater offense was barred.
Cleveland v. Isaacs
(1993), 91 Ohio App. 3d 360 -- (1) Weaving while using a cellular phone was sufficient to establish violation of a municipal ordinance proscribing operation without giving full time and attention to doing so. (2) Ordinance found to be neither vague nor in conflict with
which requires "reasonable control."
State v. Leichty
(1993), 68 Ohio St. 3d 37 -- Syllabus: "When an oversize vehicle, lawfully on the road pursuant to
, is too wide to be operated entirely to the right of the center line and therefore necessarily extends into the left lane, the roadway is not a roadway 'of sufficient width' for purposes of
(driving left of center)"
Elyria v. Heberbrand
(1993), 85 Ohio App. 3d 141 -- ACDA conviction upheld, where the defendant's speed resulted in collision with a car pulling into a turn lane ahead of him.
Warren v. Williams
(1993), 87 Ohio App. 3d 777 -- A court may not suspend a driver's license upon conviction for failure to stop within the assured clear distance.
Barberton v. Jenney
, 126 Ohio St. 3d 5,
– Syllabus: “A police officer’s unaided visual estimation of a vehicle’s speed is sufficient evidence to support a conviction for speeding in violation of
without independent verification of the vehicle’s speed if the officer is trained, is certified by the Ohio Peace Officer Training Academy or a similar organization that develops and implements training programs to meet the needs of law-enforcement professionals and the communities they serve, and is experienced in visually estimating speed.” Nullified by amendment of
State v. Freitag
, 185 Ohio App. 3d 580,
– Court previously found the evidence supported a speeding conviction though radar results were inadmissible. Apparently it remanded for consideration of properly admitted evidence. Court deferred addressing manifest weight assignment of error. Sufficiency finding remains the law of the case, though the court now finds estimate of speed from noise was bogus. Reversal is achieved through the manifest weight claim.
Cleveland v. Posner
, 188 Ohio App. 3d 421,
– Lawyer representing himself challenged the speeding camera ordinance both facially and as applied in his case. Facial challenge does not lie in an administrative appeal. As applied challenge does.
State v. Tobin
, 147 Ohio Misc. 2d 108,
– Default speed limit on road approaching the entrance to a four lane highway was 25. The Highway Patrol used a nearby place on the shoulder to look for minor traffic offenses, such as speeding, hoping to bag drunk drivers in the early morning hours. Defendant was clocked at 32 and charged with speeding. Describing the uses to which property along the road approaching the highway was used, the court concludes the Ohio Manual of Uniform Traffic Control Devices calls for a sign in this stretch of road to remind users the limit is still 25. The defendant not having been given fair notice, the court concludes 32 was not unreasonable for the conditions.
State v. Mott
, 179 Ohio App. 3d 312,
– Motorist was convicted of driving too fast for conditions because he drove 41 mph passing a highway patrol officer who was driving at 30 on a snow covered highway. Affirmed, supposedly based on motorist‘s testimony he had been driving 35 before he fell in behind the officer.
Bellville v. Kieffaber
, 114 Ohio St. 3d 124,
-- Syllabus: "A citation for speeding that contains notice of both the prima facie offense and the basic facts supporting the charge includes all the necessary elements of the offense even if the citation does not allege that the speed is unreasonable for existing conditions. The driver may rebut or negate the prima facie case with evidence that the speed was neither excessive nor unreasonable. (
Cleveland v. Keah
(1952), 157 Ohio St. 331...approved and followed.)"
State v. Huth
(1999), 133 Ohio App. 3d 261 -- Left lane bandit on the Ohio Turnpike travelling at 60-65 was convicted of improper left lane use in violation of
. Statute rests on the normal speed of traffic, not the posted speed limit. Defendant caused traffic to back up behind her instead of pulling into unused right lane.
Cincinnati v. Levine
,158 Ohio App. 3d 657,
-- A court may not take judicial notice of the reliability of a speed measuring device based on demonstration of reliability in other jurisdictions. At least once there must be testimony in a court of the county that the device is reliable. Only after that has been done is judicial possible.
Shaker Heights v. Coustilac
(2001), 141 Ohio App. 3d 349 -- (1) Defendant first attacked judicial notice of the reliability of a laser device in a post-trial brief. Error waived. (2) Officer did not perform two tests in the operator's manual, but he performed the alternative to the first test and the second was not required on a daily basis. (3) Defendant telling the officer he thought he was only going 70 is enough to sustain a conviction for speeding in a 60 mph zone.
New Middleton v. Yeager
, Mahoning App. No. 03 MA 104,
-- Speeding conviction was not supported by the evidence. Radar device was not identified. Thus the court could not take judicial notice of its reliability. Nor was there testimony concerning its reliability or that the officer had been trained in its use.
State v. Adkins
, Washington App. No. 03CA58 -- Semi driver was charged with speeding after being clocked at 65 on the freeway. State failed to introduce any evidence the truck weighed in excess of 8,000 pounds. Reversed. Evidence was insufficient. Weight was beyond common knowledge.
Trotwood v. Selz
(2000), 139 Ohio App. 3d 947 -- Bicyclist held up traffic by riding in the middle of his lane uphill at about fifteen miles per hour. Conviction under an slow speed impeding traffic ordinance reversed. Evidence might have warranted conviction under a statute requiring bicyclists to ride as close as possible to the right edge of the road.
State v. Oglesby
, Seneca App. No. 13-02-30,
-- Defendant charged with driving 44 in a 35 zone was pulled over at the sign increasing the speed limit to 45. Though he had a defense based on the 35 limit being only prima facie, the court did not have to accept his claim that his speed was reasonable.
State v. Chaney
(1998), 128 Ohio App. 3d 100 -- Truck driver was convicted of M-3 speeding, based on two prior convictions. Noting the difficulty of following
when tickets have been resolved without a court appearance, the court finds printouts and a trooper's testimony concerning identifying information on the tickets to be sufficient. See dissent.
Linndale v. State
(1999), 85 Ohio St. 3d 52 -- Statute barring municipalities with less that 880 yards of interstate from enforcing their weight and speeding ordinances on the highway found not to be a general law as it purports only to limit the constitutional authority of municipalities to so regulate.
Cleveland Heights v. Wood
(1995), 107 Ohio App. 3d 616 -- Municipal ordinance elevating minor misdemeanor speeding under the Revised Code to a fourth degree misdemeanor held to be within the municipality's home rule authority and not in conflict with general laws under Article XVIII, Section 3 of the Ohio Constitution.
State v. Pessefall
(1993), 87 Ohio App. 3d 222 -- (1) Where the defendant was going 70 in a 55 zone on a divided highway with light traffic, it was an abuse of discretion to relate the speeding violation to reckless operation (pursuant to
) and impose a license suspension. (2) Generally worded requirement that the defendant obtain and use a speed control device was improperly imposed as a condition of probation.
State v. Wilson
(1995), 102 Ohio App. 3d 1, 4 -- If officer's visual observation indicated speeding, appellate court will not reverse on sufficiency of the evidence even if there was a failure to prove radar device was properly calibrated. Also see
Kirtland Hills v. Logan
(1984), 21 Ohio App. 3d 67, 69;
State v. Ferrier
(1995), 105 Ohio App. 3d 124 (inexperienced operator).
In re Zindle
(1995), 107 Ohio App. 3d 342 -- Measured speed of 55 in a posted 35 zone was prima facie evidence of speeding, which with additional evidence supported speeding conviction.
Mantua v. Marsillo
(1996), 110 Ohio App. 3d 227 -- Violation of 25 mph business district speed limit upheld upon finding more than 50% of frontage was occupied by businesses, including industries, and uninhabited side road formed intersection.
Xenia v. Boehman
(1996), 114 Ohio App. 3d 78 -- Acting judge improperly restricted pro se defendant's cross-examination of arresting officer going to qualification to operate radar device and recollection of the incident, area, and activity preceding the traffic stop.
State v. Kilgore
, 175 Ohio App. 3d 665,
– Defendant was convicted of violating a municipal ordinance making it an offense to disobey a traffic control device. Officer testified the defendant was driving the wrong way on a one-way street, but did not testify regarding the sign designating the street as one-way. Reversed. The existence of the device is an essential element. In overruling the defendant‘s Rule 29(A) motion the judge improperly took judicial notice of the officer‘s notes on the back of the citation indicating a sign was visible. A citation is a charging document and not evidence.
State v. Hageman
, 180 Ohio App. 3d 640,
– Officer claimed defendant make an improper left turn because he entered the curb lane rather than the lane closest to the center line.
and an equivalent municipal ordinance seemingly do not bar turning into the curb lane, but, in any event, apply only to "intersections." Officer was not sure whether the defendant made the turn from a cross street or a bowling alley. The exit from a parking lot is not an intersection within the definition of
. Thus the officer did not have a reasonable basis for the stop.
Bowling Green v. Godwin
, 110 Ohio St. 3d 58,
-- Syllabus: "A law enforcement officer who personally observes a driver disregard a traffic-control device that complies with the Ohio Manual of Uniform Traffic Control Devices may have probable cause under the totality of the circumstances to stop the driver, even though the device was not installed in compliance with a local ordinance requiring approval of city council for the installation of traffic-control devices." But a person may not be convicted of violating an unauthorized sign.
State ex rel. Scott v. Cleveland
, 106 Ohio App. 3d 293,
-- Citizens sought a writ of prohibition baring automated red light and speeding enforcement. Claims are summarized but the parties are faulted for not providing the court with "clearly controlling authority."
State v. Huston
, Franklin App. No. 04AP-466,
-- Pedestrian struck crossing the road to avoid a drainage ditch was properly convicted of pedestrian walking along roadway based on motorist's testimony she had to apply her brakes. Joggers beware.
Cleveland v. Santiago
, Cuyahoga App. No. 84544,
-- A handicapped zone includes the entire area marked off. The defendant parked outside the designated parking spaces in an area marked by yellow stripes.
State v. Redd
, Montgomery App. No. 20284,
-- Failure to comply with the order of a police officer conviction reversed where defendant remained in a legally parked car watching completion of a friend's arrest for OMVI. The officer may have been annoyed by the defendant's present, but his command to leave was not predicated his authority to direct, control or regulate traffic.
State v. Smith
, 156 Ohio App. 3d 238,
-- A motorist must use signals even when making a turn from a turn only lane. Failure to do so validated stop and resulting OMVI charge.
Monroeville v. Wheeling and Lake Erie Railway Company
, 152 Ohio App. 3d 24,
construed to require complete blockage of railway crossings. Gates remained down as a fail-safe protection when equipment malfunctioned. Because officer was able to direct traffic through the crossing, blockage was not complete.
Columbus v. Sharaf
, 149 Ohio App. 3d 171,
-- Red light violation not proven where officer only testified that the defendant was still in the intersection when the light turned green for traffic proceeding on the cross street. A motorist may lawfully enter an intersection on yellow and complete his turn after the light has changed to red for traffic proceeding from his direction.
City of Hubbard v. Luchansky
(1995), 102 Ohio App. 3d 410 -- When a light turns red, the obligation to stop and not enter an intersection begins instantaneously.
State v. Brewer
(1994), 96 Ohio App. 3d 413 -- Recklessness and not strict liability, is the culpable mental state for failure to obey the order of a traffic officer,
. Highway Patrol officer arrested medic who refused to move ambulance at wreck location because it would interfere with medical assistance.
Maple Heights v. Smith
(1999), 131 Ohio App. 3d 406 -- A municipality may not enforce a traffic control devise, specifically a no left turn sign, not in compliance with the Ohio Manual for Uniform Traffic Control Devices. Also see
Bowling Green v. McNamara
(1999), 132 Ohio App. 3d 240 (underheight stop sign);
Lyndhurst v. McGinness
(2000), 138 Ohio App. 3d 617 (no turn on red sign).
State v. Grubb
(1993), 82 Ohio App. 3d 187 -- (1) No left turn sign posted on university property by university employees without obtaining proper authorization from the city of Columbus, and not conforming to other requirements, was unenforceable. (2) Even if the sign were valid, it could not be enforced by university police as High Street, onto which turn would have to be made, was not within their territorial jurisdiction.
Cincinnati v. Evers
(1993), 63 Ohio Misc. 2d 220 -- Illegal left turn charge dismissed where second sign had not been posted to the right side of the intersection as required by the Ohio Manual of Uniform Traffic Control Devices.
State v. Lowman
(1992), 82 Ohio App. 3d 831 -- Two out of three judges believe defendant was required to use turn signal entering freeway from rest area even though there was no oncoming traffic. See dissent.
Warren v. Granitto
(1994), 93 Ohio App. 3d 723 -- Parking ticket form found fatally defective for: (1) failure to state address or telephone number of issuing authority; (2) failure to state how and where to appear to pay or contest the ticket; and (3) providing only a single signature line purporting to apply to both the entry of a not guilty plea and waiver of speedy trial.
State v. McCune
, 195 Ohio App. 3d 247,
– A trailer transporting “timber” may exceed its weight limit by seven and a half percent, but wood chips are not “timber.”
State v. Thompson
(1999), 135 Ohio App. 3d 164 -- State failed to prove vehicle overload violation. (1) State proved only one of the 20 portable scales used to weight truck was sealed as required. (2) Description of bulging tires was insufficient to prove vehicle was equipped with pneumatic tires.
State v. Harrington
, 159 Ohio App. 3d 451,
-- Since the formulas for determining maximum vehicle weight are not based on tire width, it was not an abuse of discretion to exclude evidence proffered by the defendant as to the width of his tires.
State v. Taylor
(1996), 114 Ohio App. 3d 416 -- Car was stopped because of excessive window tint.
allowed officer to order car removed from the road, but did not authorize impoundment. Because vehicle was not lawfully impounded, inventory search yielding a gun was illegal.
Kirtland Hills v. Garcia
(1994), 96 Ohio App. 3d 99 -- Ordinance prohibiting use of flashing lights on most vehicles did not apply to motorist who flashed his headlights as a signal to others.
Toledo v. Wacenske
(1994), 95 Ohio App. 3d 282 -- Municipality may make motorcycle headlight law a strict liability offense.
Trotwood v. Sampson
(1993), 63 Ohio Misc. 2d 504 -- Purple neon license plate surround is lawful provided the plate is still illuminated by standard white lights and is visible at fifty feet.
Toledo v. Harris
(1994), 99 Ohio App. 3d 469 -- Bulging tires and strained acceleration justified investigative stop of truck for weight violation.
State v. Tite
, 195 Ohio App. 3d 352,
– Son was driving father’s pickup erratically. Officer gave chase. Father got out when the truck stopped, but son backed into cruiser and fled again. Son’s license was under suspension. Father was convicted of wrongful entrustment. Proof of a parent-child relationship is not enough to create a presumption a parent knows the child’s license has been suspended. By statute such a presumption exists when they live in the same household, but father and son lived separately in this case. Evidence was insufficient for conviction.
State v. West
, 190 Ohio App. 3d 575, Ex boyfriend was charged with hit-skip after failing to stop when his car brushed sides with ex girlfriend’s car. He claimed he did not need to stop because they knew each other. Court disagrees. The hit skip statute is for public rather than personal benefit. Remaining at the scene may facilitate subsequent involvement of law enforcement.
State v. Biro
, 191 Ohio App. 3d 201,
– Felony hit-skip does not require proof that the victim died as a result of the defendant leaving the scene of the accident. Conviction requires proof there was an accident, the defendant left, and the victim died.
State v. Platfoot
, 183 Ohio App. 3d 349,
– Failure to stop after an accident conviction is not against the manifest weight of the evidence where the defendant did not pull over immediately after an accident in a freeway construction zone, instead waiting until the end of his work day to call the police. Other driver took the second exit south of the accident scene and called the police.
State v. Fairbanks
, 117 Ohio St. 3d 543,
– Defendant pled guilty to reckless operation and later interposed that as the basis for a double jeopardy claim when facing prosecution for fleeing with a risk of serious physical harm specification. Majority concludes addition of the specification does not render the two charges alike for double jeopardy purposes. Dissent finds the specification is an element and a bar should exist.
State v. Donkers
, 170 Ohio App. 3d 509,
-- Mother was pulled over while driving and breast-feeding on the Ohio Turnpike. Car had Michigan plates and she had a bogus Pennsylvania ID card and a defective Michigan license. According to her religious beliefs, he husband was the proper defendant, and she was required to follow his instructions. (1) Initial appearance procedure was faulty. Even if the judge did use a video advisement, its contents are not of record, the defendant appears to have been otherwise occupied when it would have been played, and there were no indicia rights were understood. (2) Ohio's child restraint law is limited to vehicles registered in this state. The affirmative defense provided in the statute for non-residents based on the laws of their state of domicile is thus irrelevant, unless the defendant is driving an Ohio-registered car. (3) Failure to prove the defendant's license had expired more than six months ago made the offense a minor misdemeanor. (4) Despite the eccentricities and religious beliefs of the defendant, fleeing conviction stands.
State v. Hoy
, Franklin App. No. 02AP-1197,
-- Hit skip conviction was not supported by the evidence. There are two means of complying with
: (1) exchange of information at the scene, (2) providing information to the police within 24 hours. Defendant did both. He stopped, told the other party where he worked and made no effort to conceal the employee name badge he was wearing. Other party did not demand license and there is no requirement insurance carrier be identified. Defendant also acknowledged the accident when contacted by the police within the 24-hour period.
Newburgh Heights v. Halasah
(1999), 133 Ohio App. 3d 640 -- Seat belt law violation not proven where officer testified defendant was not wearing belt when he approached stopped vehicle, but did not testify he observed operating the vehicle unbelted. Also see
State v. Harrison
, 161 Ohio App. 3d 573,
State v. Kuczak
(2000), 139 Ohio App. 3d 468 -- In a prosecution for unsafe operation of an aircraft,
makes the state Department of Transportation the exclusive representative of the state. Local prosecutor was without authority to pursue charge.
State v. Karle
(2001), 144 Ohio App. 3d 125 -- Motorist complained of defendant's menacing conduct to officer. Officer ordered defendant to pull into adjacent parking lot. Defendant refused, and drove off. Failure to obey a lawful order conviction affirmed.
State v. Hendrix
(2001), 144 Ohio App. 3d 328 -- Though the court is somewhat sympathetic, constitutional attack on loud car stereo ordinance fails. Absent a First Amendment claim, defendant lacked standing to mount a facial challenge. Nor was the ordinance shown to be unconstitutionally vague as applied to the facts of the case.
State v. Gover
, 127 Ohio Misc. 2d 82,
-- To prove wrongful entrustment in violation of
the state need not prove the operator had no legal right to drive. The defendant's admission she believed the operator had no right to drive is sufficient for conviction.
State v. Hill
, Hamilton App. No. 030678,
, ¶8 -- Although "wilfully" as used in the fleeing statute is not a culpable mental state defined by
, it is the equivalent of acting purposely.
Lakewood v. El-Hayek
, 142 Ohio Misc. 2d 129,
-- Kid riding a gas powered scooter on a sidewalk was struck. Motorist was charged with failure to yield to a pedestrian. "Pedestrian" may include those in wheelchairs, riding bicycles, and maybe using Segways but does not include gas scooters. In any event, the kid saw the car but rode in front of it anyway.
State v. Short
, 172 Ohio App. 3d 83,
-- Deficiencies in a parking ticket based on the requirements of
regarding decriminalized parking violations don't matter when a town has not decriminalized such infractions.
State v. Nagle
(1995), 105 Ohio App. 3d 80 -- A hit skip conviction may not be expunged.
of the Revised Code do not apply to convictions...under Chapter
. of the Revised Code."
State v. Bruce
(1994), 95 Ohio App. 3d 169 -- Failure to provide proof of financial responsibility in violation of
is not a minor misdemeanor. Instead it is a civil statute with a license suspension as the only penalty.
Chillicothe v. Chaney
(1996), 79 Ohio Misc. 2d 59 -- Head start bus did not qualify as school bus within the scope of municipal ordinances as it did not carry more than fifteen children.
Tiffin v. McEwen
(1998), 130 Ohio App. 3d 527 -- Ordinance banning loud music in cars held an appropriate exercise under the Home Rule Amendment of the Ohio Constitution.
Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.