State v. Turner (Slip Opinion) , 2020 Ohio 6773 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Turner, Slip Opinion No. 2020-Ohio-6773.]
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2020-OHIO-6773THE STATE OF OHIO, APPELLEE, v. TURNER, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Turner, Slip Opinion No. 2020-Ohio-6773.]
Traffic law—Marked-lanes violation—Statutory scheme merely discourages or
prohibits a vehicle from crossing the fog line, not touching it—Judgment
reversed.
(No. 2019-1674—Submitted August 18, 2020—Decided December 22, 2020.)
CERTIFIED by the Court of Appeals for Clermont County, No. CA2018-11-082,
2019-Ohio-3950.
__________________
KENNEDY, J.
{¶ 1} This case was accepted as a certified conflict between judgments of
the Twelfth District and First, Third, Fifth, Sixth, Eighth, and Eleventh District
Courts of Appeals. The Twelfth District certified the issue in conflict as follows:
SUPREME COURT OF OHIO
Does an officer have reasonable and articulable suspicion to
conduct a traffic stop of a motor vehicle for a marked lanes violation
under R.C. 4511.33(A)(1) when the officer observes the tires of a
vehicle driving on, but not across a marked lane line?
157 Ohio St.3d 1544, 2020-Ohio-94, 137 N.E.3d 1225.
{¶ 2} We conclude upon review of the certified question that when an
officer believes a traffic law has been violated, the focus of the inquiry is whether
the officer had “probable cause to believe that a traffic violation has occurred.”
Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996);
see also Dayton v. Erickson, 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus.
We therefore consider the certified question within that context and answer it in the
negative.
{¶ 3} We hold, based on the plain language of R.C. 4511.33(A)(1), the
definitions set forth in R.C. 4511.01, and the statutory scheme as a whole, that the
single solid white longitudinal line on the right-hand edge of a roadway—the fog
line—merely “discourages or prohibits” a driver from “crossing” it; it does not
prohibit “driving on” or “touching” it. Manual of Uniform Traffic Control Devices
(“MUTCD”) Section 3A.06(B) (Jan. 13, 2012).
{¶ 4} Therefore, we reverse the judgment of the Twelfth District Court of
Appeals and remand this matter to that court to address the issue raised there by
appellee, the state of Ohio: whether the State Highway Patrol trooper reasonably
believed that appellant, Ryan Turner, violated the law when he drove on the fog
line, rendering the trooper’s stop of Turner lawful.
I. Facts and Procedural Background
{¶ 5} A State Highway Patrol trooper stopped Turner as Turner was driving
on Old State Route 74, a two-lane, two-way road in Clermont County, for failing
to drive within the marked lanes in violation of R.C. 4511.33. As a result of the
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stop, Turner was charged with committing a marked-lanes violation under R.C.
4511.33 and operating a vehicle while under the influence of alcohol in violation
of R.C. 4511.19(A)(1)(a) and (d).
{¶ 6} Turner filed a motion to suppress the evidence of driving under the
influence of alcohol that had been obtained during the traffic stop, arguing that the
trooper did not have probable cause or a reasonable and articulable suspicion to
initiate the stop. The trooper testified that he had observed the two right-side tires
of Turner’s vehicle touch the fog line on the right side of the roadway once and that
that touch can be seen on the dash-cam video.
{¶ 7} Old State Route 74 is visible in the relevant portion of the dash-cam
video. The yellow center lines of the road are visible. The lane in which Turner
was traveling is marked by a single solid yellow longitudinal line; next to that line
is a single broken yellow longitudinal line. On both sides of Old State Route 74, a
single solid white longitudinal line is present, which the trooper referred to in his
testimony as the fog line.
{¶ 8} After a hearing, the trial court granted the motion to suppress,
concluding that a reasonable, prudent police officer would not have believed that a
marked-lanes violation had occurred. The trial court stated that although it could
not see the one-time touch of the fog line by Turner’s tires in the dash-cam video,
it would take the trooper at his word that Turner’s tires had touched the line. It
concluded that touching the line does not establish probable cause that a violation
of R.C. 4511.33(A)(1) has occurred.
{¶ 9} The Twelfth District reversed the judgment of the trial court in a split
decision. 2019-Ohio-3950, 145 N.E.3d 985. Construing the plain language of R.C.
4511.33(A)(1), the majority determined that a driver “is not fully inside or ‘entirely
within’ a single lane of traffic” when driving on a marked lane line, thereby
rejecting the holdings of those courts of appeals that had determined that merely
touching the lane line did not violate R.C. 4511.33(A)(1). Id. at ¶ 19. Having
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determined that Turner violated R.C. 4511.33(A)(1), the court overruled the
decision of the trial court and held that the trooper had “reasonable and articulable
suspicion” to stop the vehicle for a traffic violation. Id. at ¶ 22. Disposing of the
appeal on this basis, the majority declined to address the state’s alternative
argument that the stop was lawful because the officer had made a reasonable
mistake of law. Id.
{¶ 10} The dissenting judge construed R.C. 4511.33(A)(1) by relying on the
definition of “traffic control devises” in R.C. 4511.01(QQ) and the requirement in
R.C. 4511.09 that the Ohio Department of Transportation (“ODOT”) adopt a
manual for a uniform system of traffic-control devices. Id. at ¶ 25-26 (M. Powell,
J., dissenting). Because the MUTCD only “ ‘discourages or prohibits crossing’ ”
of the solid white line, and not touching or driving upon the line, the dissent
concluded that a marked-lanes violation under R.C. 4511.33(A)(1) occurs only
when a driver crosses the solid white line. Id. at ¶ 28, quoting MUTCD, Section
3A.06B, at 390.
II. Conflict Cases
{¶ 11} The Twelfth District certified its judgment as being in conflict with
judgments from the First, Third, Fifth, Sixth, and Eleventh District Courts of
Appeals, which held that the touching or driving on the fog line does not constitute
a violation of R.C. 4511.33(A)(1). See State v. Williams, 1st Dist. Hamilton No.
C-960958, 1997 Ohio App. LEXIS 3467, *4-5 (Aug. 1, 1997) (officer did not have
probable cause to believe that a marked-lanes violation occurred when vehicle tires
were directly on but not over the fog line); State v. Smith, 2017-Ohio-5845, 94
N.E.3d 1058, ¶ 25 (3d Dist.) (officer lacked reasonable, articulable suspicion to
stop vehicle for driving on top of, but not crossing, the white line); State v. Marcum,
2013-Ohio-2652, 993 N.E.2d 1289, ¶ 17 (5th Dist.) (driving on the white fog line
was not a marked-lanes violation); State v. Parker, 6th Dist. Ottawa No. OT-12-
034, 2013-Ohio-3470, ¶ 7, 10 (motorist does not commit a marked-lanes violation
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by traveling on the fog line); State v. Baker, 6th Dist. Wood No. WD-13-074, 2014-
Ohio-2564, ¶ 9 (officer lacked reasonable, articulable suspicion to stop vehicle for
touching the white fog line); and State v. Kneier, 11th Dist. Portage No. 2015-P-
0006, 2015-Ohio-3419, ¶ 5, 17 (driving over the top of the fog line did not provide
officer with probable cause for marked-lanes violation).
{¶ 12} However, we find that the other cases certified as being in conflict
with this one are in fact not. See State v. Franklin, 5th Dist. Licking No. 11-CA-
128, 2012-Ohio-3089.¶ 21 (trooper lacked reasonable suspicion to stop motorist
when vehicle’s tires touched the far right line of the double solid centerline); State
v. Richardson, 5th Dist. Delaware No. 00-CA-A-01-003, 2000 WL 1055917 (July
14, 2000) (trooper lacked reasonable suspicion to stop motorist when his vehicle’s
tires drove on top of centerline four times); State v. Konneh, 6th Dist. Wood No.
WD17-007, 2018-Ohio-1239, ¶ 26 (trooper had reasonable suspicion to stop
motorist when his vehicle’s tires completely crossed the lines separating the middle
lane from the right lane); and State v. Grigoryan, 8th Dist. Cuyahoga No. 93030,
2010-Ohio-2883, ¶ 25 (police officer lacked reasonable suspicion to stop motorist
whose vehicle’s tires drove on the left yellow edge line). These cases did not
concern a vehicle’s driving on or touching the fog line, and our holding today does
not address them.
III. The Parties’ Arguments
{¶ 13} Turner argues that a majority of Ohio’s appellate courts have held
that a marked-lanes violation does not occur unless the driver crosses the marked
lane line. Therefore, touching a marked lane line does not provide either a
reasonable, articulable suspicion or probable cause to permit a traffic stop. The
state points to the language “entirely within” in R.C. 4511.33(A)(1) and asserts that
a vehicle’s tires cannot touch any lane line and be entirely within a single lane of
traffic. To hold otherwise, it argues, would allow drivers in each lane of travel to
enter into the same space.
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IV. Analysis
A. Standard of review
{¶ 14} Appellate review of a ruling on a motion to suppress presents a
mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8. An appellate court must accept the trial court’s findings
of fact if they are supported by competent, credible evidence. See State v. Fanning,
1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). But the appellate court must decide
the legal questions de novo. Burnside at ¶ 8.
{¶ 15} The trial court accepted as true the trooper’s assertion that Turner’s
tires touched the white fog line. The parties do not dispute this factual finding.
Therefore, our focus is the legal question of whether touching the solid white
longitudinal line—the fog line—violates R.C. 4511.33(A)(1).
B. R.C. 4511.33(A)(1) is unambiguous: the single solid white longitudinal line at
issue here marks only the edge of the roadway and the statute merely
“discourages or prohibits crossing” it
{¶ 16} This court has not previously passed upon the question presented
here. In State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204,
¶ 16, we considered only whether a vehicle’s drifting back and forth across the edge
of the roadway line was a violation of R.C. 4511.33(A)(1), giving an officer a
“reasonable and articulable suspicion” to stop the driver.
{¶ 17} To resolve the issue before the court, we turn, once again, to
statutory construction. In construing a statute, we do not ask “what did the general
assembly intend to enact, but what is the meaning of that which it did enact.”
Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the
syllabus. “When the language of a statute is plain and unambiguous and conveys a
clear and definite meaning, there is no need for this court to apply the rules of
statutory interpretation.” Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d
549, 553, 721 N.E.2d 1057 (2000).
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{¶ 18} To determine the plain meaning of a statute, a court relies on the
definitions provided by the legislative body, because a “definition by the average
man or even by the ordinary dictionary with its studied enumeration of subtle
shades of meaning is not a substitute for the definition set before us by the
lawmakers with instructions to apply it to the exclusion of all others.” Fox v. Std.
Oil Co. of New Jersey, 294 U.S. 87, 96, 55 S.Ct. 333, 79 L.Ed. 780 (1935). When
a term is not defined in the statute, we use the term’s plain and ordinary meaning.
Brecksville v. Cook, 75 Ohio St.3d 53, 56, 661 N.E.2d 706 (1996). And “[i]n
ascertaining the plain meaning of the statute, the court must look to the particular
statutory language at issue, as well as the language and design of the statute as a
whole.” Kmart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.C. 1811, 100
L.Ed.2d 313 (1988).
{¶ 19} R.C. 4511.33(A)(1) is part of an extensive statutory scheme
regulating the operation of motor vehicles on Ohio roads. The meaning of the
roadway marking at issue here, and the vehicular movement permitted by that
roadway marking, becomes unmistakable when R.C. 4511.33(A)(1) is considered
in the context of the definitions in R.C. 4511.01 and its place within the statutory
and regulatory scheme.
{¶ 20} R.C. 4511.09 gives ODOT authority to “adopt a manual for a
uniform system of traffic control devices,” which ODOT did, the MUTCD. R.C.
4511.10 gives ODOT authority to “place and maintain traffic control devices,
conforming to its manual and specifications, upon all state highways as are
necessary to indicate and to carry out sections 4511.01 to 4511.78 and 4511.99.”
(Emphasis added.) “Traffic control devices” are defined as “a flagger, sign, signal,
marking, or other device used to regularly warn, or guide traffic.” (Emphasis
added.) R.C. 4511.01(QQ). Therefore, because the legislature has given ODOT
authority to regulate marked lanes of traffic under R.C. 4511.09, we turn to the
MUTCD for guidance.
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{¶ 21} Markings on roadways serve an important function by “providing
guidance and information” to the motoring public. MUTCD, Section 3A.01.01.
“Major marking types include pavement and curb markings.” Id. at Section
3A.02.02. And “[e]ach standard marking shall be used only to convey the
meaning prescribed for that marking in the OMUTCD.” (Boldface sic and
emphasis added.) Id. at Section 3A.02.01.
{¶ 22} Markings are required to be yellow, white, red, blue, or purple in
color and must conform to standard highway colors. Id. at Section 3A.05.01. White
markings used for longitudinal lines delineate either “A. The separation of traffic
flows in the same direction, or B. The right-hand edge of the roadway.” (Boldface
sic and emphasis added.) Id. at Section 3A.05.02. Yellow markings used for
longitudinal lines delineate either “A. The separation of traffic traveling in
opposite directions, B. The left-hand edge of the roadways of divided highways
* * *, or C. The separation of two-way left turn lanes * * *.” (Boldface sic.) Id.at Section 3A.05.03.
{¶ 23} The MUTCD sets forth the general function of longitudinal lines:
“A. A double line indicates maximum or special restrictions, B. A solid line
discourages or prohibits crossing (depending on the specific application), C. A
broken line indicates a permissive condition, and D. A dotted line provides
guidance or warning of a downstream change in lane function.” (Boldface sic
and emphasis added.) Id. at Section 3A.06.01. A normal single line is four to six
inches wide, and a broken line is a normal line with segments separated by gaps.
Id. at Section 3A.06.02(A) and (D).
{¶ 24} A yellow center line delineates a “separation of traffic lanes that
have opposite directions of travel on the roadway.” (Boldface sic.) Id. at Section
3B.01.01. A yellow center line might mark a two-lane, two-way roadway in three
ways. Id. at Section 3B.01.04. Relevant to this case, one of those options is to
provide
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[o]ne-direction no-passing zone markings consisting of a double yellow
line, one of which is a normal broken yellow line and the other is a
normal solid yellow line where crossing the center line markings for
passing with care is permitted for the traffic traveling adjacent to the
broken line, but is prohibited for traffic traveling adjacent to the solid
line.
(Boldface sic.) Id. at Section 3B.01.04(B).
{¶ 25} R.C. 4511.33, entitled “Rules for driving in marked lanes,” provides
in division (A)(1) that “[w]henever any roadway has been divided into two or more
clearly marked lanes for traffic, * * * [a] vehicle * * * 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.” The statute has two separate components. R.C. 4511.33(A)
establishes that clear markings on a roadway determine whether two or more lanes
are present. And R.C. 4511.33(A)(1) then requires a vehicle to stay as nearly as
possible within that lane unless the driver can determine that he can move from that
lane safely. The road markings, as set forth in the MUTCD, define the bounds of
the “clearly marked lanes” for the purposes of R.C. 4511.33(A)(1).
{¶ 26} The lane of Old State Route 74 in which Turner was traveling when
the trooper stopped him is marked by a single solid yellow longitudinal line; next
to that line is a single broken yellow longitudinal line. On both sides of Old State
Route 74, a single solid white longitudinal line—the fog line—is present.
{¶ 27} As applied to these facts, the “clearly marked lanes for traffic” were
set by the yellow center lines. The single solid yellow longitudinal line on Turner’s
side of the road and the single broken yellow longitudinal line on the other side of
the road established a two-lane, two-way roadway. A single solid white
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longitudinal line may establish a lane for traffic flowing in the same direction, but
based on the dash-cam footage and the testimony of the trooper, no single solid
white longitudinal line was marking another lane flowing in the same direction.
{¶ 28} Under the MUTCD, the only other use of a single solid white
longitudinal line is to establish the right-hand edge of the roadway. The trooper
plainly understood the markings on the pavement and that the single solid white
longitudinal line on the right-hand side of the roadway marked the edge of the
roadway because the trooper referred to the marking as the fog line.
{¶ 29} As established in the MUTCD, a standard marking can “be used
only to convey the meaning prescribed for that marking” in the MUTCD.
(Boldface sic.) Id. at Section 3A.02.01. Therefore, because the single solid white
longitudinal line as used on this two-lane, two-way roadway served only to mark
the right-hand edge of the roadway and because that marking merely discourages
or prohibits crossing it, not driving on it or touching it, Turner’s touching of the fog
line was not a violation of R.C. 4511.33(A)(1).
{¶ 30} It is the placement of traffic-control devices—the markings—that
carry out the requirements of “sections 4511.01 to 4511.78 and 4511.99 of the
Revised Code.” R.C. 4511.10. Roadway markings, therefore, serve to provide
“guidance and information” to the motoring public as to what actions are permitted
or prohibited on the roadway under sections R.C. 4511.01 to 4511.78 and 4511.99
of the Revised Code. MUTCD at Section 3A.01.01.
{¶ 31} Ohioans are expected to know the meaning of roadway markings
contained in the MUTCD because the enforcement of certain Ohio traffic laws is
tied to the meanings of the markings contained therein. Most significantly, R.C.
4511.12(A) prohibits the driver of a vehicle from “disobey[ing] the instructions of
any traffic control device placed in accordance with this chapter, unless at the time
otherwise directed by a police officer.” (Emphasis added.) As defined in R.C.
4511.01(QQ), traffic-control devices include markings. R.C. Chapter 4511 does
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not list the markings that drivers are expected to obey. Instead, the MUTCD
describes the duties and permissive actions that the markings convey.
{¶ 32} Other statutes rely on the MUTCD to flesh out their meanings. R.C.
4511.17(A)(1) forbids “[k]nowingly” defacing, damaging, or improperly tampering
with “any traffic control device,” and R.C. 4511.17(A)(2) prohibits “driv[ing] upon
or over any freshly applied pavement marking material on the surface of a roadway
while the marking [material] is in an undried condition and is marked by flags,
markers, signs, or other devices intended to protect it.” (Emphasis added.) These
statutes require knowledge of what constitutes a traffic-control device.
{¶ 33} Certain permissive provisions of R.C. 4511.25—which requires
vehicles to be driven on the right-hand side of the roadway in most circumstances—
rely on the meaning of traffic-control devices to inform drivers when they can travel
on other than the right-hand side of the roadway. R.C. 4511.25(A)(5) requires
travel on the right-hand side of the roadway unless “otherwise directed by a * * *
traffic control device.” The statute does not describe those traffic-control devices—
that is left to the MUTCD. R.C. 4511.25(C) allows a vehicle to be driven left of
the center line of a roadway having four or more lanes of traffic and providing for
two-way movement of traffic “when authorized by official traffic-control devices
designating certain lanes to the left of the center of the roadway for use by traffic
not otherwise permitted to use the lanes.” R.C. 4511.25(A)(1) allows a vehicle to
be driven on other than the right-hand side of the roadway when passing another
vehicle proceeding in the same direction, but such a movement is limited by any
traffic-control device prohibiting passing in that section of the roadway. See R.C.
4511.12.
{¶ 34} R.C. 4511.27 governs the overtaking and passing of vehicles
proceeding in the same direction. That provision does not define or designate
which roadways drivers may overtake or pass on. Overtaking and passing
indicators are established by the traffic-control devices—the roadway markings.
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See MUTCD at Sections 3B.01, Yellow Center Line Pavement Markings and
Warrants; 3B.02, No-Passing Zone Pavements Marking and Warrants; and 3B.04,
White Lane Pavement Markings and Warrants.
{¶ 35} Many roadway markings have special purposes, and disobeying
them gives rise to different violations of Ohio’s traffic laws, depending on what
they signify. The single solid white longitudinal line on the right-hand side of Old
State Route 74 discourages or prohibits the crossing of that line but does not
prohibit the mere touching of it. Because Turner did not cross the single solid white
longitudinal line—the fog line—and driving on it or touching it is not prohibited
under R.C. 4511.33(A)(1), no violation occurred.
{¶ 36} This interpretation of R.C. 4511.33(A)(1) is consistent with the
greater weight of authority in jurisdictions across the nation that touching the single
solid white longitudinal line on the right-hand side of the roadway does not
constitute a violation of R.C. 4511.33(A)(1). See Gee, “U Can’t Touch This” Fog
Line: The Improper Use of A Fog Line Violation as a Pretext for Initiating an
Unlawful Fourth Amendment Search and Seizure, 36 N.Ill.U.L.Rev. 1, 14 (2015)
(the majority of jurisdictions hold that nominally encroaching upon traffic-control
lines does not constitute a marked-lanes violation). See People v. Mueller, 2018 IL
App (2d) 170863, 127 N.E.3d 861, ¶ 28 (officer did not have reasonable suspicion
that defendant had violated the statute for improper lane usage when vehicle’s tires
touched the fog line and yellow center line three times at night on curved road);
United States v. Warfield, 727 Fed.Appx. 182, 186 (6th Cir.2018) (officer lacked
probable cause to stop defendant’s vehicle, as merely touching a lane line is not a
violation of Ohio’s marked-lanes statute); State v. Neal, 159 Idaho 439, 447, 362
P.3d 514 (2015) (twice driving onto but not across fog line does not violate lane-
use statute); United States v. Wendfeldt, 58 F.Supp.3d 1124, 1130 (D.Nev.2014) (a
vehicle’s driving onto the fog line several times did not provide officer with
reasonable suspicion to justify traffic stop for improper lane usage); United States
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v. Colin, 314 F.3d 439, 444 (9th Cir.2002) (based on the “ ‘totality of the
circumstances,’ ” a vehicle’s touching fog line and the solid yellow line did not
provide officer with reasonable suspicion to stop defendant’s vehicle, quoting
United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002);
Rowe v. State, 363 Md. 424, 441, 769 A.2d 879 (2001) (vehicle’s crossing and then
touching the white line bordering the shoulder did not violate marked-lanes statute);
State v. Cerny, 28 S.W.3d 796, 801 (Tex.App.2000) (marked-lanes statute not
violated when vehicle touched the white shoulder line and wove somewhat within
its own lane of traffic); Crooks v. State, 710 So.2d 1041, 1043
(Fla.Dist.Ct.App.1998) (vehicle’s crossing fog line three times did not constitute
violation of marked-lanes statute when there was no evidence that driver failed to
ascertain that he could do so safely); and State v. Lafferty, 291 Mont. 157, 1998
MT 247, 967 P.2d 363, ¶ 14, overruled in part on other grounds, State v. Flynn,
359 Mont. 376, 2011 MT 48, 251 P.3d 143, ¶ 12 (crossing fog line twice and driving
on it once did not violate marked-lanes statute, which applies only to changes
between marked lanes).
V. Conclusion
{¶ 37} We hold, based on the plain language of R.C. 4511.33(A)(1), the
definitions set forth in R.C. 4511.01, and the statutory scheme as a whole, that the
single solid white longitudinal line on the right-hand edge a roadway—the fog
line—marks the edge of the roadway and that such a marking merely “discourages
or prohibits” a driver from “crossing” it, not “driving on” or “touching” it. MUTCD
Section 3A.06(B).
{¶ 38} We accordingly answer the certified-conflict question, as modified,
in the negative, reverse the judgment of the Twelfth District Court of Appeals, and
remand this matter to that court to address the argument raised by the state of Ohio:
whether the trooper’s reasonable mistake of law validated the stop.
Judgment reversed
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and cause remanded.
FRENCH, DEWINE, DONNELLY, and STEWART, JJ., concur.
FISCHER, J., dissents, with an opinion joined by O’CONNOR, C.J.
_________________
FISCHER, J., dissenting.
{¶ 39} Because I would conclude that the plain language of R.C.
4511.33(A) obviates the need to consult the Ohio Manual of Uniform Traffic
Control Devices (“MUTCD”) and dictates that in order for a vehicle to remain
“within a single lane or line of traffic” on a roadway that is “clearly marked,” the
driver cannot drive on those lane lines, I respectfully must dissent. I would hold
that an officer has a reasonable and articulable suspicion to conduct a traffic stop
of a vehicle for a marked-lanes violation under R.C. 4511.33(A)(1) when the officer
observes the tires of a vehicle driving on but not across a marked lane line.
I. Legal Analysis
{¶ 40} In a Billboard Hot 100 single recorded and released by his band in
1980, Cleveland’s Michael Stanley sang, “Thank God for the man who put the
white lines on the highway.” See John Soeder, Three decades after “Heartland,”
Michael Stanley is alive and well in “Shadowland,” (Jan. 12, 2019),
https://www.cleveland.com/popmusic/2009/12/three_decades_after_heartland.ht
ml (accessed Oct. 1, 2020) [https://perma.cc/A5CG-8TV7]; Michael Stanley, The
80’s, http://www.michaelstanley.com/THE_80S.html (accessed Oct. 1, 2020)
[https://perma.cc/R6FG-M7W3]; Billboard, The Hot 100 Chart: Week of April 11,
1981, https://www.billboard.com/charts/hot-100/1981-04-11 (accessed Oct. 1,
2020) [https://perma.cc/G77P-9H5Z]. This case is not about the Ohioans who paint
the white lines on the state’s roadways, but rather the motorists who drive on those
white lines. Specifically, the issue before the court in this certified conflict is
whether an officer has a reasonable and articulable suspicion to conduct a traffic
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stop for a R.C. 4511.33(A)(1) marked-lanes violation when the officer observes the
tires of a vehicle driving on but not across a marked lane line.
A. Reasonable suspicion versus probable cause
{¶ 41} I begin my analysis by noting a procedural quirk in this case. In his
motion to suppress, appellant, Ryan Turner, argued that the State Highway Patrol
Trooper did not have probable cause or a reasonable and articulable suspicion to
initiate the traffic stop. In granting Turner’s motion to suppress, the trial court
concluded that “a reasonably prudent officer who is familiar with [R.C.]
4511.33(A)(1) would not believe that he had probable cause to stop the defendant’s
vehicle under these circumstances.” On appeal, the state raised a single assignment
of error: “The trial court erred in granting appellee’s motion to suppress, as the
trooper had reasonable, articulable suspicion to believe appellee had committed a
marked lanes violation under Section 4511.33(A)(1).” 2019-Ohio-3950, 145
N.E.3d 985, ¶ 8. The Twelfth District Court of Appeals did not address whether
probable cause existed, but rather resolved the appeal by reversing based upon its
conclusion that there was “reasonable and articulable suspicion for the traffic stop.”
Id. at ¶ 22. I acknowledge that probable cause and reasonable and articulable
suspicion are distinct concepts. See State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-
4539, 894 N.E.2d 1204, ¶ 23. Given the procedural posture of this case, the
substance of the Twelfth District’s decision, and the limited scope of the certified-
conflict question that we accepted for review, my analysis is therefore confined to
whether reasonable and articulable suspicion existed.
B. Legal background
{¶ 42} “[T]he permissibility of a particular law enforcement practice is
judged by balancing its intrusion on the individual’s Fourth Amendment interests
against its promotion of legitimate governmental interests.” Delaware v. Prouse,
440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “To justify a particular
intrusion, the officer must demonstrate ‘specific and articulable facts which, taken
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together with rational inferences from those facts, reasonably warrant that
intrusion.’ ” State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d
1282, ¶ 11, quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). “[I]f an officer’s decision to stop a motorist for a criminal violation,
including a traffic violation, is prompted by reasonable and articulable suspicion
considering all the circumstances, then the stop is constitutionally valid.” Mays at
¶ 8.
{¶ 43} R.C. 4511.33(A), which makes it a traffic violation to drive outside
a lane, provides:
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 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.
{¶ 44} This court most recently analyzed R.C. 4511.33(A) in Mays. In that
case, the court was presented with a conflict question raising the issue whether the
Constitution permits a police officer to stop a motorist whom he or she witnesses
cross a right white edge line without further evidence of erratic driving. 119 Ohio
St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, at ¶ 1. This court held that an officer
may do so. Id.{¶ 45} In Mays, the only evidence of erratic driving witnessed by the officer
was the defendant’s crossing of the right fog line twice by approximately one tire
width. Id. at ¶ 2. This court rejected Mays’s argument that absolute observance of
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lane markings is not required by R.C. 4511.33(A) and that driving across the white
edge line twice does not constitute a violation of the statute. Id. at ¶ 15-16. This
court stated, “When an officer observes a vehicle driving back-and-forth across an
edge line, the officer has a reasonable and articulable suspicion that the driver has
violated R.C. 4511.33.” Id. at ¶ 16.
{¶ 46} Thus, Mays stands for the proposition that an officer has a reasonable
and articulable suspicion to conduct a traffic stop of a motor vehicle for a marked-
lanes violation under R.C. 4511.33(A)(1) when the officer observes the tires cross
a marked lane line. Mays, however, did not address the question before the court
here: Does a reasonable and articulable suspicion to conduct a traffic stop exist
when the officer observes the tires of a vehicle drive on a marked lane line?
C. Reasonable suspicion to conduct a traffic stop exists when an officer observes
a vehicle’s tires touch a lane line
{¶ 47} When we construe a statute, legislative intent is our primary concern.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 8. To
determine legislative intent, we first look to the plain language of the statute, and if
that language is unambiguous and definite, we apply it as written. Summerville v.
Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 18, citing
Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 11.
{¶ 48} “To discern legislative intent, we read words and phrases in context
and construe them in accordance with rules of grammar and common usage.”
Mahoning Edn. Assn. of Dev. Disabilities v. State Emp. Relations Bd., 137 Ohio
St.3d 257, 2013-Ohio-4654, 998 N.E.2d 1124, ¶ 15. “ ‘[S]ignificance and effect
should, if possible, be accorded to every word, phrase, sentence and part of an
act.’ ” Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d 390, 2004-Ohio-6549, 819
N.E.2d 1079, ¶ 13, quoting Wachendorf v. Shaver, 149 Ohio St. 231, 78 N.E.2d
370 (1948), paragraph five of the syllabus.
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{¶ 49} The Revised Code does not define “lane.” Nor, for purposes of R.C.
4511.33(A)(1), does it distinguish among various types of lane lines (e.g., a solid
yellow line, a solid white line, a dashed white line). Thus, the Revised Code does
not specify what it means for a driver to fail to drive “entirely within a single lane
or line of traffic.” Despite the lack of statutory definitions, I conclude that this case
can be resolved by looking solely to the plain language of the statute.
{¶ 50} R.C. 4511.33(A)(1) provides that when a roadway has been “divided
into two or more clearly marked lanes for traffic” or when traffic within a municipal
corporation “lawfully mov[es] in two or more substantially continuous lines in the
same direction,” a vehicle on the roadway “shall be driven, as nearly as is
practicable, entirely within a single lane or line of traffic.”
{¶ 51} The statute presupposes a few things. First, there is a single
roadway. Second, there are “clearly marked” lanes (or lines of traffic) on that single
roadway. Third, the vehicle must be driven, as nearly as practicable, within one of
those lanes (or lines of traffic).
{¶ 52} According to the clear language of the statute, then, each lane is a
distinct, discrete unit. There can be no overlapping of lanes, because those lanes
must be “clearly marked.” The interpretation set forth by Turner (and the majority
of the appellate districts) ignores this fact, because any other interpretation
illogically treats a lane line as a space that simultaneously exists in multiple lanes,
rendering the lanes not “clearly marked.” Instead, a part of the roadway can belong
to multiple lanes, making unclear where one lane ends and another starts and who
might have the right-of-way.
{¶ 53} To avoid this flawed interpretation, we must treat “entirely within a
single lane or line of traffic” as meaning that a driver who drives on the lines that
establish the lane boundaries drives outside the lane or line of traffic. Thus, to
honor the language of R.C. 4511.33(A), I would adopt the Twelfth District’s
reading of the statute and that advocated by the state and conclude that in order to
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drive “entirely within a single lane or line of traffic,” a driver must stay inside the
inner edges of the lane lines. In other words, a driver may not drive on the lane
lines.
{¶ 54} I note again that while lines marking the boundaries between lanes
and the lines marking the edge of a roadway serve different functions, the relevant
statute, R.C. 4511.33(A)(1), unambiguously makes no distinction among the
various types of roadway markings. Because the statute makes no such distinction,
the statute applies uniformly to each type of lane line. Thus, for example, a driver
drives outside the lane or line of traffic when the vehicle’s tires touch the right fog
line or the center line separating two directions of traffic. Treating the various types
of lane lines uniformly not only mirrors the statute, which does not make any
distinctions, but also provides a uniform, common-sense rule: in order to stay
“entirely within a single lane or line of traffic,” R.C. 4511.33(A)(1), a vehicle’s
tires cannot touch a lane line, regardless of the type of lane line.
{¶ 55} I further note that I would not find the “as nearly as is practicable”
language of R.C. 4511.33(A)(1) to compel any different result. As this court
explained in Mays, “[t]he phrase ‘as nearly as is practicable’ does not give the driver
the option to remain within the lane markings; rather, the phrase requires the driver
to remain within the lane markings unless the driver cannot reasonably avoid
straying.” 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, at ¶ 18, quoting
R.C. 4511.33(A)(1). Rather than being a factor in the analysis whether an officer
had reasonable suspicion, the “as nearly as is practicable” language provides a
driver with a legal defense to a charge of driving outside the lane:
R.C. 4511.33 does provide for certain circumstances in
which a driver can cross a lane line without violating the statute.
However, the question of whether appellant might have a possible
defense to a charge of violating R.C. 4511.33 is irrelevant in our
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analysis of whether an officer has a reasonable and articulable
suspicion to initiate a traffic stop. An officer is not required to
determine whether someone who has been observed committing a
crime might have a legal defense to the charge.
Id. at ¶ 17. Thus, I conclude that the “as nearly as is practicable” language of R.C.
4511.33(A)(1) does not factor into our analysis in this case.
D. The MUTCD is not relevant to the analysis of this case
{¶ 56} Because I reach this conclusion based on the plain language of the
statute, I, under our precedents, must avoid consulting any administrative rules or
regulations, such as the MUTCD. If a statute’s meaning is plain, we do not consider
an administrative agency’s interpretation or implementation of that statute. See
State ex rel. Morris v. Indus. Comm., 134 Ohio St. 380, 381-382, 17 N.E.2d 741(1938); In re Application of Black Fork Wind Energy, L.L.C., 156 Ohio St.3d 181,
2018-Ohio-5206, 124 N.E.3d 787, ¶ 21. Indeed, as the Supreme Court of the United
States has succinctly put it, “When the words of a statute are unambiguous, then,
this first canon is also the last: ‘judicial inquiry is complete.’ ” Connecticut Natl.
Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992),
quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633(1981).
{¶ 57} It is significant that this “first canon” requires us to end the judicial
inquiry when the words of the statute are unambiguous. This canon does not
provide that the judicial inquiry ends when the words of the statute, considered in
light of administrative rules or regulations adopted by an executive administrative
agency, are unambiguous. As this court has explained, it is improper for an
administrative agency to alter the meaning of a statute if that statute is
unambiguous. See In re VHA Diagnostic Servs., Inc., 65 Ohio St.3d 210, 214, 602
N.E.2d 647 (1992) (explaining, in construing a particular statute, that “[t]he words
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‘after receiving’ are clear and unambiguous. It is improper for the administrative
agency to change the words ‘after receiving’ to, in effect, ‘after determining it has
received’ ”). It follows that when a statue is unambiguous, our inquiry should end,
and we should not look to sources outside that statute to determine what the statute
means.
{¶ 58} I acknowledge that R.C. 4511.09 grants ODOT authority to issue the
MUTCD and that R.C. 4511.10 grants ODOT authority to place and maintain
traffic-control devices in conformity with the MUTCD as necessary to carry out the
requirements of R.C. 4511.33. But the MUTCD cannot as a matter of law alter
unambiguous language of the Revised Code, and the General Assembly has not
enacted the portions of the MUTCD cited in the majority opinion and incorporated
those provisions into the Revised Code.
{¶ 59} If the language of R.C. 4511.33(A)(1) had been found ambiguous
either in the analysis of the majority opinion or in my own analysis, then it would
have been appropriate to consult the MUTCD to resolve that ambiguity. Based on
my analysis, however, (and as noted in the majority opinion) the statutory language
is plain and unambiguous. Having concluded that the statute’s meaning is plain, I
conclude that it is unnecessary for this court to consult any sources beyond R.C.
4511.33(A)(1) to resolve this appeal.
II. Conclusion
{¶ 60} Based on the plain language of R.C. 4511.33(A)(1), I respectfully
dissent from the majority decision and would hold that an officer has reasonable
and articulable suspicion to conduct a traffic stop of a motor vehicle for a marked-
lanes violation under R.C. 4511.33(A)(1) when the officer observes the tires of a
vehicle driving on but not across a marked lane line. I would accordingly answer
the certified-conflict question in the affirmative and affirm the judgment of the
Twelfth District Court of Appeals.
O’CONNOR, C.J., concurs in the foregoing opinion.
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_________________
D. Vincent Faris, Clermont County Prosecuting Attorney, and Nick Horton,
Assistant Prosecuting Attorney, for appellee.
Faris & Faris, L.L.C., and Zachary F. Faris, for appellant.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, urging reversal for
amicus curiae Ohio Association of Criminal Defense Lawyers.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Stephen P. Carney, Deputy Solicitor General, urging affirmance for amicus curiae
Ohio Attorney General Dave Yost.
_________________
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