DocketNumber: Case No. 2000 CO 68.
Judges: DeGenaro, J.
Filed Date: 3/25/2002
Status: Non-Precedential
Modified Date: 7/6/2016
This matter presents a timely appeal from a judgment rendered by the Eastern Area County Court for Columbiana County, Ohio finding Defendant-Appellant Steven T. Lazenby (hereinafter "Lazenby") guilty of Driving Under the Influence of alcohol (hereinafter "DUI")in violation of R.C.
On May 14, 2000 at approximately 12:21 a.m. Lazenby was traveling southbound on State Route 7 in Columbiana County Ohio. State Highway Patrol Sergeant John S. Lenkey (hereinafter "Sgt. Lenkey"), was traveling northbound on Route 7 near the intersection of State Route 46 when he first noticed Lazenby's truck approaching in the oncoming lane. Sgt. Lenkey observed Lazenby's truck driving noticeably to the right of the right edge line of the road in the berm area. Sgt. Lenkey performed a U-turn and headed south on Route 7 and began following Lazenby's truck from a distance of about five car lengths behind. Sgt. Lenkey was not immediately behind the truck as a car remained between Sgt. Lenkey and Lazenby's truck during relevant times of observation.
Over a distance of between one-half and three-quarters of a mile on the two lane roadway, Sgt. Lenkey twice observed Lazenby's truck swerve left of the centerline, and onto the centerline during a third leftward drift. Sgt. Lenkey characterized Lazenby's movement into the oncoming lane as "a swerving motion across, and then he came back again." Sgt. Lenkey then observed Lazenby drive "off of the right side of the road, onto the berm, about two feet across the white edge line."
After this fourth observation, Sgt. Lenkey pulled over Lazenby's vehicle. Sgt. Lenkey characterized the general volume of traffic on the road as moderate at the time he observed Lazenby, but he admitted Lazenby did not actually cross the road lines in the immediate presence of oncoming traffic in such a way as to actually cause an accident. Sgt. Lenkey was concerned, however, that Lazenby might be falling asleep near a dangerous section of the road.
In overruling Lazenby's Motion to Suppress, the trial court relied upon a "totality of the circumstances", giving weight to factors such as "how far over [the road line] the Defendant was on each of [the] occasions" that he drifted out of the lane, and "the officer's characterization of [Lazenby's driving as] being sufficiently erratic to make him be concerned that Defendant might be falling asleep [while driving]." Lazenby was convicted and sentenced to pay a $550 fine, serve ten days in jail, and forfeit his driving privileges for one hundred eighty days for the DUI offense. He was also ordered to pay a $25 fine for the lane violation and $25 for the seatbelt violation. Lazenby timely filed his notice of appeal with this court on December 8, 2000.
Lazenby's argues in his sole assignment of error:
"The trial court erred as a matter of law in overruling the Defendant/Appellant's Motion to Suppress; since there is insufficient evidence in the record to support a finding that the Ohio State Highway Trooper had a reasonable and articulable suspicion that the Defendant was violating any traffic law."
In State v. Brown (June 1, 1999), Columbiana App. No. 97-CO-27, unreported, this court held the standard of review in an appeal of a suppression issue is two-fold. Brown, citing State v. Lloyd (1998),
Although the
In order to make an investigatory stop of a vehicle, a law enforcement officer must merely have reasonable suspicion, not probable cause. Statev. Bobo (1988),
The traffic law Lazenby was initially stopped for violating is R.C.
"(A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows:
When overtaking and passing another vehicle proceeding in the same direction, or when making a left turn under the rules governing such movements;
When an obstruction exists making it necessary to drive to the left of center of the highway; provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard;
When driving upon a roadway divided into three or more marked lanes for traffic under the rules applicable thereon;
When driving upon a roadway designated and posted with signs for one way traffic;
When otherwise directed by a police officer or traffic control device.
None of these exceptions apply to the incident involving Lazenby as he claims his driving pattern was a result of his unfamiliarity of the area. The statute is relatively clear. Nothing contained therein offers motorists the opportunity to make minor violations at their choosing, regardless of their level of familiarity of the area.
The United States Supreme Court and Ohio Supreme Court have both held that any violation of a traffic law gives rise to a reasonable suspicion to make an investigatory stop of a vehicle. Whren v. United States
(1996),
In determining whether or not Sgt. Lenkey had reasonable suspicion to stop Lazenby, the inquiry focuses upon whether or not Sgt. Lenkey could have reasonably concluded from Lazenby's driving that he was violating a traffic law. Erickson, supra at 11-12,
In light of Brown and Lloyd, we must undertake a twofold inquiry into the denial of Lazenby's motion to suppress. We must first determine if there was competent and credible evidence to support the trial court's conclusion that Sgt. Lenkey had a reasonable, articulable suspicion that Lazenby was or had been engaged in criminal activity when he made the stop. Winand, supra
Because Sgt. Lenkey had a reasonable and articulable suspicion that a violation of the law occurred, the trial court did not err in overruling Lazenby's motion to suppress. Lazenby's sole assignment of error is meritless and the judgment of the trial court is affirmed.
Vukovich, P.J., concurs.
Donofrio, J., concurs.