State v. Shaffer , 2013 Ohio 3581 ( 2013 )

[Cite as State v. Shaffer, 2013-Ohio-3581.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 11-13-02
v.
KIMBERLY JO SHAFFER, OPINION
DEFENDANT-APPELLANT.
Appeal from Paulding County Court
Trial Court No. 12-TRC-291 A-B
Judgment Reversed and Cause Remanded
Date of Decision: August 19, 2013
APPEARANCES:
Peter R. Seibel for Appellant
Joseph R. Burkard and Matthew A. Miller for Appellee
Case No. 11-13-02
SHAW, J.
{¶1} Defendant-appellant, Kimberly Jo Shaffer (“Shaffer”), appeals the
December 17, 2012, judgment of the Paulding County Court finding her guilty of
reckless operation, in violation of R.C. 4511.20(B), a misdemeanor of the third
degree, and failure to drive within the marked lanes, in violation of R.C.
4511.33(A)(1), a minor misdemeanor, following a plea of no contest to both
offenses. The trial court imposed a three-day jail sentence and a fine of $375 for
the reckless operation conviction and a fine of $50 for her failure to drive within
the marked lanes.
{¶2} On March 10, 2012, at approximately 3:00 a.m., Trooper Joe Sisco
was traveling behind Shaffer on State Route 66 in Paulding County when he
observed the right side tires of Shaffer’s vehicle drive onto the white line marker
one time for about three seconds. Trooper Sisco proceeded to stop Shaffer for
failure to drive within the marked lines, also referred to as a “marked lanes
violation.”
{¶3} Upon speaking with Shaffer, Trooper Sisco smelled a strong odor of
alcoholic beverage emitting from the vehicle. He also observed Shaffer’s eyes
were red and glassy and that her speech was slurred. Shaffer initially denied
consuming any alcoholic beverage, but later admitted to consuming alcohol
around 3:00 p.m. earlier that afternoon.
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{¶4} Trooper Sisco asked Shaffer to perform a series of field sobriety tests
and Shaffer completed the Horizontal Gaze Nystagmus (“HGN”). Trooper Sisco
reported observing six out of six clues indicating impairment. Shaffer declined to
perform any subsequent field sobriety tests. Trooper Sisco also asked Shaffer to
submit to a portable breath test, which she refused.
{¶5} Trooper Sisco placed Shaffer under arrest and charged her with
operating a vehicle while under the influence or “OVI,” in violation of R.C.
4511.19(A)(2). Trooper Sisco also cited Shaffer for failure to drive within the
marked lines, in violation of R.C. 4511.33(A)(1). In a written report filed with the
citation, Trooper Sisco stated that he “observed the vehicles [sic] right side tires
cross over the white lane marker line. After observing the violation, [he] activated
the overhead emergency lights to conduct a traffic stop.” (Doc. No. 1).
{¶6} Shaffer appeared in open court and entered pleas of not guilty. On
May 9, 2012, Shaffer filed a motion to suppress all evidence against her on the
ground that Trooper Sisco lacked probable cause and/or reasonable articulable
suspicion justifying the stop of her vehicle. Specifically, Shaffer argued that she
did not commit a marked lanes violation, which was the sole reason Trooper Sisco
initiated the stop.
{¶7} On May 31, 2012, the trial court held a suppression hearing on the
matter. Trooper Sisco was the only witness to testify and provided the following
testimony.
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Prosecutor: And Trooper Sisco what was the reason for your
interaction with Miss Shaffer on that night?
Trooper Sisco: Ah, I was traveling southbound on State Route
66 near mile post 12 in Paulding County, um she was traveling
southbound in front of me, while behind the vehicle I noticed
that the right side tires drove across the white lane marker and I
stopped her for that violation.
Prosecutor: Ok, what exactly is the violation you’re referring
to?
Trooper Sisco: Ah, it would be a marked lanes violation.
Prosecutor: Ok, and that’s because she bumped the white line?
Trooper Sisco: Ah, her tires drove onto it and her vehicle was
across it.
(Tr. at 5-6).
{¶8} In addition to Trooper Sisco’s testimony, the prosecution admitted as
evidence the recording from Trooper Sisco’s dashboard camera. On the stand,
Trooper Sisco narrated the sequence of events depicted on the recording and
identified what he observed as the marked lanes violation.
{¶9} On cross-examination, Trooper Sisco provided the following
testimony regarding his reason for stopping Shaffer’s vehicle.
Defense Counsel: Trooper, is it my understanding that you’re
saying that she touched the fog line one time? Is that correct?
Trooper Sisco: She drove across it the one time, yes sir.
Defense Counsel: Ok, now what I thought I heard you say was
her tires were on the fog line, but her vehicle was across the line?
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Trooper Sisco: That would be correct.
Defense Counsel: Ok, so her tires were not actually on the other
side of the fog line but the out [sic] overhang on her car was on
the other side?
Trooper Sisco: I would say that the right fender and the outside
mirror would be across the white line.
(Tr. at 10).
{¶10} Trooper Sisco further testified that Shaffer’s failure to drive within
the marked lanes was the only traffic offense he observed.
{¶11} On August 6, 2012, the trial court issued a judgment entry overruling
Shaffer’s motion to suppress. However, in this judgment entry the trial court
failed to address or determine whether Trooper Sisco had a legitimate basis to
initiate the traffic stop, which was the only ground for suppression asserted in
Shaffer’s motion. Instead, the trial court proceeded to only address whether
Trooper Sisco had reasonable, articulable suspicion and/or probable cause to
believe that Shaffer was driving while under the influence.1
{¶12} Shaffer subsequently filed a “Request for Judgment on Motion,”
requesting the trial court make a legal determination regarding the validity of
Trooper Sisco’s initial stop of Shaffer.
1
We also note that in making this determination, the trial court improperly considered Shaffer’s decision to
decline Trooper Sisco’s request to perform the voluntary field sobriety tests as an indicia of impairment,
rather than viewing her decision as a legitimate exercise of her right against self-incrimination. However,
we do not find this error to be reversible because there were other indications of impairment in the record,
and no error was assigned to this specific probable cause determination.
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Case No. 11-13-02
{¶13} On September 12, 2012, the trial court issued a judgment entry
finding the stop to be constitutionally valid and denying Shaffer’s “Request for
Judgment on Motion.” Specifically, the trial court concluded that “the officer had
reasonable and articulable suspicion that the Defendant violated R.C. 4511.33
because the officer observed the Defendant’s tires touch[] the fog line and because
it was 3:00 a.m. on a Saturday morning.” (Doc. No. 17 at 2).
{¶14} Shaffer entered pleas of no contest to an amended charge of reckless
operation, a misdemeanor of the third degree, and the failure to drive within the
marked lanes charge.2 The trial court sentenced Shaffer to three days in jail and
ordered her to pay a fine of $425 plus court costs. The trial court stayed the
sentence pending appeal.
{¶15} Shaffer now appeals asserting the following assignment of error.
THE TRIAL COURT ERRED WHEN IT FAILED TO
SUPPRESS ALL EVIDENCE OBTAINED BY THE STATE
TROOPER AND WHEN IT ALSO REFUSED TO VACATE
THE ALS, AFTER THE COURT DETERMINED THAT THE
APPELLANT’S TIRES “ONLY TOUCHED” THE FOG LINE
ONE TIME, DID NOT GO OUTSIDE THE FOG LINE, THAT
THERE WAS NOT A VIOLATION OF LAW, FOUND NO
OTHER ARTICULABLE FACTS TO JUSTIFY THE INITIAL
DETENTION, BUT NEVERTHELESS FOUND THE
CONTINUED DETENTION LEGAL AND FOUND
ADMISSIBLE ALL EVIDENCE SUBSEQUNETLY
OBTAINED AFTER THE INITIAL UNWARRANTED
DETENTION.
2
The reckless operation charge to which Shaffer pleaded no contest was pursuant to R.C. 4511.20(B),
which sets forth an elevated misdemeanor offense for the third offense within one year. See R.C.
4511.20(B)
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Case No. 11-13-02
{¶16} In her sole assignment of error, Shaffer argues that the trial court
erred in overruling her motion to suppress. Specifically, Shaffer asserts that the
trial court erred when it determined that Trooper Sisco had a reasonable,
articulable suspicion to believe she committed a marked lanes violation when her
vehicle’s tires touched, but did not completely cross, the white fog line. Shaffer
claims that Trooper Sisco’s testimony that a vehicle’s tires touched the white fog
line on a single occasion, causing the right fender of the vehicle to extend slightly
over the line for three seconds, without any other evidence in the record
addressing either the practicability or safety of the circumstances, is not sufficient
to establish reasonable, articulable suspicion of a violation of R.C. 4511.33(A)(1).
We agree.
{¶17} In reviewing a trial court’s ruling on a motion to suppress, the
reviewing court must keep in mind that weighing the evidence and determining the
credibility of witnesses are functions for the trier of fact. State v. Burnside, 100
St.3d 152, 2003-Ohio-5372 ¶ 8. A reviewing court is bound to accept those
findings of fact if supported by competent, credible evidence. State v. Roberts,
110 Ohio St.3d 71 2006-Ohio-3665, ¶ 100. The reviewing court, however, must
decide de novo whether, as a matter of law, the facts meet the appropriate legal
standard. Burnside at ¶ 8.
{¶18} At the outset, we note that the only issue before us is whether
Trooper Sisco had a reasonable, articulable suspicion to believe Shaffer committed
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a marked lanes violation in order to legally effectuate the traffic stop.3 The
Supreme Court of Ohio has defined “reasonable articulable suspicion” as “specific
and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant the intrusion [upon an individual’s freedom of
movement].” State v. Bobo, 37 Ohio St.3d 177, 178 (1988), quoting Terry v.
Ohio, 392 U.S. 1, 21–22 (1968). “The ‘reasonable and articulable suspicion’
analysis is based on the collection of factors, not on the individual factors
themselves.” State v. Mays, 119 Ohio St.3d 406, 2008–Ohio–4539, ¶ 12, quoting
State v. Bactchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 11. (Emphasis sic).
{¶19} At the suppression hearing, Trooper Sisco testified that he stopped
Shaffer based on his observation that she had committed a marked lanes violation.
Trooper Sisco described the conduct comprising the violation as Shaffer’s right
side tires driving onto the white fog line one time causing the right side of
Shaffer’s vehicle to cross the same line for approximately three seconds.
Specifically, Trooper Sisco recalled observing the right fender and the outside
mirror cross the white line.
{¶20} A marked lanes violation is governed by R.C. 4511.33(A)(1), which
states the following:
(A) Whenever any roadway has been divided into two or more
clearly marked lanes for traffic, or wherever within municipal
corporations traffic is lawfully moving in two or more
3
Despite the manner in which the appellant chose to phrase the assignment of error, the only issue raised at
the suppression hearing and the only issue argued in her brief is the legitimacy of the traffic stop.
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Case No. 11-13-02
substantially continuous lines in the same direction, the
following rules apply:
(1) A vehicle or trackless trolley shall be driven, as nearly as
is practicable, entirely within a single lane or line of traffic
and shall not be moved from such lane or line until the driver
has first ascertained that such movement can be made with
safety.
{¶21} In drafting the foregoing subsection (A)(1), the legislature
specifically chose the phase “as nearly as is practicable” in describing a motorist’s
duty to drive within a single lane or line of traffic. We believe the language “as
nearly as is practicable” inherently contemplates some inevitable and incidental
touching of the lane lines by a motorist’s vehicle during routine and lawful
driving, without the vehicle being considered to have left the lane of travel so as to
constitute a marked lanes violation as proscribed by R.C. 4511.33(A)(1), such as
to avoid debris, obstructions or imperfections in the roadway.
{¶22} In the alternative, the same subsection notably does not proscribe all
movement from the marked lane but expressly links any movement from the
marked lane directly with the element of safety—specifically permitting
movement from the lane only where “the driver has first ascertained that such
movement can be made with safety.”
{¶23} Accordingly it is our conclusion that consideration of the statutory
factors of practicability and safety is integral to any determination of a violation of
R.C. 4511.33(A)(1).
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{¶24} We would be inclined to agree that a reasonable, articulable
suspicion of a violation of R.C. 4511.33(A)(1) could be established by almost any
evidence in the record addressing either the practicability or the safety of the
driving circumstances. This conclusion stems in part from the fact that a sudden
deviation from the lane of travel, where there is nothing in the surrounding
circumstances to indicate why it was not practicable for the driver to remain
within the lane, could in itself raise a legitimate safety concern sufficient to
constitute a reasonable, articulable suspicion of a violation of R.C. 4511.33(A)(1)
in the right case.
{¶25} At the same time, we also recognize that there could always exist
something in the surrounding conditions or circumstances that raises a safety
concern regarding the driver’s deviation from the lane that completely obviates
any need to address the issue of the driver’s practicability in maintaining the lane
of travel, all of which could likewise independently constitute a reasonable,
articulable suspicion of a violation of R.C. 4511.33(A)(1).
{¶26} However, the fact remains that in this case there is no evidence in the
record from which any legitimate inference can be drawn regarding either one of
these requisite statutory elements. As noted earlier, the only evidence presented to
the trial court was Trooper Sisco’s testimony that there was a one-time touching of
Shaffer’s tires on the white fog line, causing a slight extension of the right fender
and mirror of the vehicle over the line for approximately three seconds. There
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was no other evidence concerning the circumstances surrounding Shaffer’s failure
to maintain her lane of travel.
{¶27} More specifically, there was nothing in Trooper Sisco’s testimony as
to the traffic, weather or road conditions, or anything else in the record to indicate
either 1) that there was no apparent reason why it was not practicable for Shaffer
to remain within the lane, or 2) that in this instance, Shaffer’s single and brief
movement from the lane otherwise presented any apparent issue of safety.
Accordingly without some additional evidence in the record regarding the
surrounding circumstances, traffic and road conditions going to the express
statutory language regarding either practicability or safety, we cannot conclude
that the act of Shaffer driving onto the white fog line one time for a matter of three
seconds is alone sufficient to establish the requisite reasonable and articulable
suspicion to stop Shaffer for a violation of R.C. 4511.33(A)(1).
{¶28} We note that the trial court appeared to rely upon the fact that the
incident occurred at 3:00 a.m. as additional evidence of reasonable, articulable
suspicion to make the stop. However, we believe the trial court was once again
misdirecting its focus somewhat to the secondary OVI charge instead of the
marked lanes violation. While the time of day or night may in some cases
constitute one factor among many others for the court to consider in determining
reasonable, articulable suspicion of an OVI violation, the stop in this case was
based upon a marked lanes violation, not a suspicion of an OVI violation. We do
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not believe the time of day alone is sufficient to raise any legitimate inference one
way or the other regarding the practicability or safety factors necessary for the
marked lanes violation stop in this case.
{¶29} We wish to emphasize that in reaching our decision we specifically
decline to adopt and do not endorse the rationale of the Eleventh District in
Wickliffe v. Petway, 11th Dist. Nos. 2011-L-101, 2011-L-102, 2012-Ohio-2439, or
the decisions in some other appellate districts which seem to employ a so-called
“tire rule” approach to marked lanes cases. These decisions appear to be based
solely upon whether a vehicle’s tires merely touched or completely crossed the
lane line and have found no statutory violation as a matter of law via judicial
construction, unless the tires have been observed to actually cross over the line.
On the contrary, our decision does not rule out the possibility that in the right
context of conditions and circumstances, the driving observed in this case could be
sufficient to establish grounds for a marked lanes violation. Nor have we
established any rule of law that would require every case to contain additional
evidence of erratic or unsafe driving beyond the single crossing of the lane marker
presented in this case. See, State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539.
In sum, we simply believe our decision is more consistent with the specific
statutory language of R.C. 4511.33(A)(1), which among other things, refers to the
movement and location of vehicles, not tires.
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{¶30} Based on the particular facts of this case and the foregoing analysis,
we conclude the trial court erred in determining that Trooper Sisco had a
reasonable, articulable suspicion to believe Shaffer violated R.C. 4511.33(A)(1).
Therefore, we find that the trial court erred in overruling Shaffer’s motion to
suppress on this basis. Accordingly, the assignment of error is sustained and the
judgment and sentence of the Paulding County Court is reversed and the cause is
remanded for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
PRESTON, P.J. and WILLAMOWSKI, J., concur.
/jlr
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