Harsha, Judge.
This is an appeal from a judgment rendered upon a jury verdict in the Chillicothe Municipal Court finding Carl B. Butler, defendant-appellant, guilty of violating R.C. 2921.33, resisting arrest (a misdemeanor of the second degree) and R.C. 4511.19(A)(1), driving under the influence (a misdemeanor of the first degree). Appellant was sentenced to serve fifteen days in jail and pay a fine of $150 plus costs on the former charge. On the latter, he was sentenced to serve thirty days in jail and pay a fine of $300 plus costs. The two terms of incarceration were ordered to run concurrently. Additionally, appellant’s operator’s license was suspended for a period of one year.
Appellant assigns the following error:
“The trial court erred to the prejudice of the defendant in admitting into evidence over objection the testimony of an officer who arrested the defendant for a misdemeanor traffic violation at a time when the arresting officer was not using a properly marked vehicle and at a time when the arresting officer was not wearing a legally distinctive uniform as defined by a statute, such witness being incompetent to testify pursuant to Rule 601(C) of the Ohio Rules of Evidence and Ohio Revised Code Section 4549.14 and Ohio Revised Code Section 4549.16.”
The evidence in this case reveals that the Sheriff of Ross County, Thomas L. Hamman, was attending to personal business during the late night hours of August 27, 1988 and the early morning hours of August 28, 1988. He was in an unmarked vehicle and he was not in uniform. His wife and daughter were in the vehicle with him.
The Hammans were on their way to their home when the sheriff saw a blue van enter an intersection without stopping at a stop sign. According to Hamman’s testimony, the van nearly hit the vehicle in which the Hammans were riding; it then weaved off the side of the road. The van proceeded to a nearby carry-out where the driver, appellant, Carl Butler, left the vehicle. Sheriff Hamman spoke briefly to Butler and then told him he was under arrest for driving while under the influence of alcohol. A scuffle broke out between appellant and the sheriff. Appellant ultimately was restrained and placed under arrest.
At trial, the state called the sheriff to testify. Appellant objected upon the basis that the sheriff was not competent to be a witness. The trial court overruled appellant’s objection on the grounds that the sheriff “was not on duty for the exclusive or main purpose of enforcing traffic laws * *
Appellant was ultimately found guilty after the state presented three other witnesses and appellant presented his defense.
Evid.R. 601 provides in pertinent part:
“Every person is competent to be a witness except:
ti
* * *
“(C) An officer, while on duty for the exclusive or main purpose of enforcing traffic laws, arresting or assisting in the arrest of a person charged with a traffic violation punishable as a misdemeanor where the officer at the time of the arrest was not using a properly marked motor vehicle as defined by statute or was not wearing a legally distinctive uniform as defined by statute.”
Appellant correctly notes that the only issue is whether Sheriff Hamman was “on duty for the exclusive or main purpose of enforcing traffic laws * * * at the time of the arrest * * *.” If the sheriff was on duty for such purpose, then he was incompetent to be a witness against appellant. We find that Sheriff Hamman was not “on duty” for such purpose and accordingly affirm the judgment of the trial court.
Appellant argues that Hamman came “on duty for the exclusive or main purpose of enforcing traffic laws” when the sheriff observed appellant’s vehicle and decided to pursue it. He bases his argument upon the decisions in
State v. Clark
(1983), 10 Ohio App.3d 308, 10 OBR 513, 462 N.E.2d 436;
Brookville v. Louthan
(1982), 3 Ohio Misc.2d 1, 3 OBR 64, 441 N.E.2d 308; and
State v. Maxwell
(1978), 60 Ohio Misc. 1, 14 O.O.3d 44, 395 N.E.2d 531. In accordance with
Louthan
and
Maxwell,
appellant argues that Sheriff Hamman came “on duty” when he began to act like a police officer. Appellant further contends that as Hamman began to act like a police officer upon observing what he believed was a traffic violation, Hamman must have come
“on duly for the exclusive or main purpose of enforcing traffic laws.” Appellant’s argument is without merit.
If we were to accept appellant’s argument, the words “on duty” as found in the rule and statutes would be mere surplusage since an officer would instantly and metaphysically always be on duty as soon as he or she undertook any law enforcement activities. We are not to presume that such a result was the legislature’s intent. See
Cleveland Elec. Illum. Co. v. Cleveland
(1988), 37 Ohio St.3d 50, 524 N.E.2d 441;
Bd. of Edn. v. Fulton Cty. Budget Comm.
(1975), 41 Ohio St.2d 147, 70 O.O.2d 300, 324 N.E.2d 566.
R.C. 2935.03(A) creates a mandatory duty for a sheriff or other peace officer to arrest and detain any “person found violating * * * a law of this state.” This duty is not qualified by the duty status of the peace officer. An off-duty officer must arrest a person whom the officer observes committing a crime within the officer’s territorial jurisdiction. A duly commissioned peace officer holds a public office upon a continuing basis and his or her obligation to preserve the peace is not conditioned upon a duty status. See
State v. Clark, supra,
10 Ohio App.3d at 309, 10 OBR at 514, 462 N.E.2d at 438, and the authorities cited therein.
In reviewing a peace officer’s competency to testify under Evid.R. 601(C), courts must be cognizant of the continuous nature of this obligation. Viewed in this context, the “on duty” language found in the rule and R.C. 4549.14 and 4549.16 has a clear purpose and meaning.
The legislative purpose in enacting R.C. 4549.14 (which section corresponds to the language of Evid.R. 601[C]) was “to provide uniformity in traffic control and to curb the ‘speed traps’ that were often operated by municipal and township peace officers in unmarked cars.”
State v. Huth
(1986), 24 Ohio St.3d 114, 115, 24 OBR 306, 307, 493 N.E.2d 961, 963. See, also,
Dayton v. Adams
(1967), 9 Ohio St.2d 89, 90, 38 O.O.2d 223, 224, 223 N.E.2d 822, 823;
Columbus v. Murchison
(1984), 21 Ohio App.3d 75, 76, 21 OBR 79, 80,
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Harsha, Judge.
This is an appeal from a judgment rendered upon a jury verdict in the Chillicothe Municipal Court finding Carl B. Butler, defendant-appellant, guilty of violating R.C. 2921.33, resisting arrest (a misdemeanor of the second degree) and R.C. 4511.19(A)(1), driving under the influence (a misdemeanor of the first degree). Appellant was sentenced to serve fifteen days in jail and pay a fine of $150 plus costs on the former charge. On the latter, he was sentenced to serve thirty days in jail and pay a fine of $300 plus costs. The two terms of incarceration were ordered to run concurrently. Additionally, appellant’s operator’s license was suspended for a period of one year.
Appellant assigns the following error:
“The trial court erred to the prejudice of the defendant in admitting into evidence over objection the testimony of an officer who arrested the defendant for a misdemeanor traffic violation at a time when the arresting officer was not using a properly marked vehicle and at a time when the arresting officer was not wearing a legally distinctive uniform as defined by a statute, such witness being incompetent to testify pursuant to Rule 601(C) of the Ohio Rules of Evidence and Ohio Revised Code Section 4549.14 and Ohio Revised Code Section 4549.16.”
The evidence in this case reveals that the Sheriff of Ross County, Thomas L. Hamman, was attending to personal business during the late night hours of August 27, 1988 and the early morning hours of August 28, 1988. He was in an unmarked vehicle and he was not in uniform. His wife and daughter were in the vehicle with him.
The Hammans were on their way to their home when the sheriff saw a blue van enter an intersection without stopping at a stop sign. According to Hamman’s testimony, the van nearly hit the vehicle in which the Hammans were riding; it then weaved off the side of the road. The van proceeded to a nearby carry-out where the driver, appellant, Carl Butler, left the vehicle. Sheriff Hamman spoke briefly to Butler and then told him he was under arrest for driving while under the influence of alcohol. A scuffle broke out between appellant and the sheriff. Appellant ultimately was restrained and placed under arrest.
At trial, the state called the sheriff to testify. Appellant objected upon the basis that the sheriff was not competent to be a witness. The trial court overruled appellant’s objection on the grounds that the sheriff “was not on duty for the exclusive or main purpose of enforcing traffic laws * *
Appellant was ultimately found guilty after the state presented three other witnesses and appellant presented his defense.
Evid.R. 601 provides in pertinent part:
“Every person is competent to be a witness except:
ti
* * *
“(C) An officer, while on duty for the exclusive or main purpose of enforcing traffic laws, arresting or assisting in the arrest of a person charged with a traffic violation punishable as a misdemeanor where the officer at the time of the arrest was not using a properly marked motor vehicle as defined by statute or was not wearing a legally distinctive uniform as defined by statute.”
Appellant correctly notes that the only issue is whether Sheriff Hamman was “on duty for the exclusive or main purpose of enforcing traffic laws * * * at the time of the arrest * * *.” If the sheriff was on duty for such purpose, then he was incompetent to be a witness against appellant. We find that Sheriff Hamman was not “on duty” for such purpose and accordingly affirm the judgment of the trial court.
Appellant argues that Hamman came “on duty for the exclusive or main purpose of enforcing traffic laws” when the sheriff observed appellant’s vehicle and decided to pursue it. He bases his argument upon the decisions in
State v. Clark
(1983), 10 Ohio App.3d 308, 10 OBR 513, 462 N.E.2d 436;
Brookville v. Louthan
(1982), 3 Ohio Misc.2d 1, 3 OBR 64, 441 N.E.2d 308; and
State v. Maxwell
(1978), 60 Ohio Misc. 1, 14 O.O.3d 44, 395 N.E.2d 531. In accordance with
Louthan
and
Maxwell,
appellant argues that Sheriff Hamman came “on duty” when he began to act like a police officer. Appellant further contends that as Hamman began to act like a police officer upon observing what he believed was a traffic violation, Hamman must have come
“on duly for the exclusive or main purpose of enforcing traffic laws.” Appellant’s argument is without merit.
If we were to accept appellant’s argument, the words “on duty” as found in the rule and statutes would be mere surplusage since an officer would instantly and metaphysically always be on duty as soon as he or she undertook any law enforcement activities. We are not to presume that such a result was the legislature’s intent. See
Cleveland Elec. Illum. Co. v. Cleveland
(1988), 37 Ohio St.3d 50, 524 N.E.2d 441;
Bd. of Edn. v. Fulton Cty. Budget Comm.
(1975), 41 Ohio St.2d 147, 70 O.O.2d 300, 324 N.E.2d 566.
R.C. 2935.03(A) creates a mandatory duty for a sheriff or other peace officer to arrest and detain any “person found violating * * * a law of this state.” This duty is not qualified by the duty status of the peace officer. An off-duty officer must arrest a person whom the officer observes committing a crime within the officer’s territorial jurisdiction. A duly commissioned peace officer holds a public office upon a continuing basis and his or her obligation to preserve the peace is not conditioned upon a duty status. See
State v. Clark, supra,
10 Ohio App.3d at 309, 10 OBR at 514, 462 N.E.2d at 438, and the authorities cited therein.
In reviewing a peace officer’s competency to testify under Evid.R. 601(C), courts must be cognizant of the continuous nature of this obligation. Viewed in this context, the “on duty” language found in the rule and R.C. 4549.14 and 4549.16 has a clear purpose and meaning.
The legislative purpose in enacting R.C. 4549.14 (which section corresponds to the language of Evid.R. 601[C]) was “to provide uniformity in traffic control and to curb the ‘speed traps’ that were often operated by municipal and township peace officers in unmarked cars.”
State v. Huth
(1986), 24 Ohio St.3d 114, 115, 24 OBR 306, 307, 493 N.E.2d 961, 963. See, also,
Dayton v. Adams
(1967), 9 Ohio St.2d 89, 90, 38 O.O.2d 223, 224, 223 N.E.2d 822, 823;
Columbus v. Murchison
(1984), 21 Ohio App.3d 75, 76, 21 OBR 79, 80, 486 N.E.2d 236, 237;
State v. Clark, supra,
10 Ohio App.3d at 311, 10 OBR at 516, 462 N.E.2d at 440;
Columbus v. Stump
(1974), 41 Ohio App.2d 81, 83-84, 70 O.O.2d 86, 87-89, 322 N.E.2d 348, 350-351. In referring to these statutes collectively, the Tenth District Court of Appeals found:
“One of the safety concerns addressed by the General Assembly in enacting the statutes was the hazard to members of the public that inevitably would result should a police officer, not clearly identified as such, confront a driver and attempt to require him to follow the officer’s instructions. It requires little imagination to contemplate the unfortunate consequences should a frightened motorist believe that he was being forced off the road by a stranger. The General Assembly sought to avoid such mischief by requiring
police officers on traffic duty to be identified clearly.”
Murchison, supra,
21 Ohio App.3d at 76, 21 OBR at 81, 486 N.E.2d at 238.
In this case, the sheriff was not operating a “speed trap.” He did not force appellant off the road; rather, he followed appellant who stopped of his own accord. The sheriff identified himself to appellant and appellant indicated that he recognized the sheriff. None of the dangers that the legislature sought to avoid were present here. Ruling Sheriff Hamman incompetent to be a witness under these circumstances would not further the legislative intent. Cf.
Columbus v. Murchison, supra.
Under these circumstances, Sheriff Hamman was not “on duty for the exclusive or main purpose of enforcing traffic laws” as that phrase is used in R.C. 4549.14, 4549.16, and Evid.R. 601(C). Accordingly, he was competent to testify.
The appellant’s sole assignment of error is overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
Stephenson, P.J., concurs.
Grey, J., dissents.