State v. Turner

2019 Ohio 3950

Opinion

[Cite as State v. Turner, 2019-Ohio-3950.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellant, : CASE NO. CA2018-11-082

: OPINION - vs - 9/30/2019 :

RYAN TURNER, :

Appellee. :

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2018 TRC 11581

D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellant

Faris & Faris, LLC, Zachary F. Faris, 40 South Third Street, Batavia, Ohio 45103, for appellee

HENDRICKSON, P.J.

{¶ 1} Appellant, the state of Ohio, appeals from a decision of the Clermont County

Municipal Court granting a motion to suppress filed by appellee, Ryan Turner. For the

reasons discussed below, we reverse the trial court's decision and remand this matter for

further proceedings.

{¶ 2} On August 7, 2018, a complaint was filed charging Turner with operating a Clermont CA2018-11-082

vehicle while under the influence of alcohol in violation of both R.C. 4511.19(A)(1)(a) and

(A)(1)(d) and with committing a marked lanes violation in violation of R.C. 4511.33. The

charges arose after Ohio State Highway Patrol Trooper Jordan Haggerty observed Turner

drive on the white fog line on the right side of Old State Route 74 in Union Township,

Clermont County, Ohio on August 5, 2018. Turner later submitted to a breath-alcohol test

that indicated he had a breath-alcohol-content of .158.

{¶ 3} Turner pled not guilty to the charges and filed a motion to suppress. Turner

challenged the traffic stop, arguing Trooper Haggerty did not have probable cause or

reasonable and articulable suspicion to initiate the stop. The trial court held a hearing on

Turner's motion on October 31, 2018. Trooper Haggerty was the only witness who testified

at the hearing, and his testimony was supplemented by a video recording of the traffic stop,

which had been taken from his cruiser camera.

{¶ 4} Trooper Haggerty testified that shortly before midnight on August 5, 2018, while

he was sitting at a red light at the intersection of Glen Este-Withamsville Road and State

Route 32, he observed a blue sedan driven by Turner pull out of a private drive and onto

Glen Este-Withamsville Road. Trooper Haggerty found the turn "odd" as it appeared that the

sedan almost turned into the curb before overcorrecting and traveling within its lane. Trooper

Haggerty followed the sedan as it turned right onto Old State Route 74. He observed the

sedan drift to the right, with the sedan's two right tires touching the white fog line on the right

side of the road. Trooper Haggerty briefly followed the sedan before activating his cruiser's

lights and initiating a traffic stop for a marked lanes violation.

{¶ 5} On cross-examination, Trooper Haggerty clarified that the sedan's right tires did

not cross the fog line but merely touched the line. Trooper Haggerty testified the sole basis

for the traffic stop was the sedan's touching of the white fog line on one occasion. He had

not observed Turner commit any other traffic violations. -2- Clermont CA2018-11-082

{¶ 6} After considering Trooper Haggerty's testimony and reviewing the video

recording of the traffic stop, the trial court issued a decision granting Turner's motion to

suppress. The trial court found that Trooper Haggerty's stop was based solely on his

observation of Turner's tires touching the white fog line once. The court noted it had

reviewed the video and "could not completely see the one-time touch" of the fog line but it

took Haggerty's word that Turner's tires had, in fact, touched the fog line. Nonetheless, the

court found that a reasonably prudent officer in the same situation would not have believed

probable cause existed for a violation of R.C. 4511.33(A)(1). In so holding, the trial court

cited to State v. Shaffer, 3d Dist. Paulding No. 11-13-02, 2013-Ohio-3581, ¶ 21, in which the

Third District Court of Appeals held that the "as nearly as is practicable" language set forth in

the marked lanes violation statute "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." (Emphasis sic.) The trial court was persuaded by the Shaffer court's holding,

concluding 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 otherwise countless numbers of motorists would be stopped daily by officers for touching the line in their lane of travel for a second or less one time as they lawfully drove on any roadway. Based upon these circumstances, the defendant's motion to suppress is granted.

{¶ 7} The state now appeals the trial court's decision granting Turner's motion to

suppress, raising the following assignment of error:

{¶ 8} 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

-3- Clermont CA2018-11-082

SECTION 4511.33(A)(1).

{¶ 9} In its sole assignment of error, the state argues that the trial court erred by

granting Turner's motion to suppress. The state contends the evidence introduced at the

evidentiary hearing demonstrated Trooper Haggerty had reasonable and articulable

suspicion to effectuate the traffic stop as he believed Turner had committed a marked lanes

violation. Alternatively, the state contends that even if there was not sufficient reasonable

and articulable suspicion for the stop, the stop was nonetheless lawful as "the officer made a

reasonable mistake of law."

{¶ 10} "Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact." State v. Leder, 12th Dist. Clermont No.CA2018-10-072, 2019-Ohio-2866, ¶

17. Acting as the trier of fact, the trial court is in the best position to resolve factual questions

and evaluate witness credibility. Id. An appellate court is bound to accept the trial court's

findings of fact if they are supported by competent, credible evidence. State v. Dallman, 12th

Dist. Clermont Nos. CA2017-11-056 and CA2017-11-057, 2018-Ohio-2670, ¶ 10. "An

appellate court, however, independently reviews the trial court's legal conclusions based on

those facts and determines, without deference to the trial court's decision, whether as a

matter of law, the facts satisfy the appropriate legal standard." State v. Cochran, 12th Dist.

Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12.

{¶ 11} "The Fourth Amendment to the United States Constitution and Section 14,

Article I of the Ohio Constitution prohibit unreasonable searches and seizures, including

unreasonable automobile stops." Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-

3563, ¶ 11. "Ohio recognizes two types of lawful traffic stops." State v. Stover, 12th Dist.

Clinton No. CA2017-04-005, 2017-Ohio-9097, ¶ 8. The first involves a non-investigatory stop

in which an officer has probable cause to stop a vehicle because the officer observed a traffic

violation. Id., citing State v. Moore, 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-4908, -4- Clermont CA2018-11-082

¶ 31. "The second type of lawful traffic stop is an investigative stop, also known as a Terry

stop, in which the officer has reasonable suspicion based on specific or articulable facts that

criminal behavior is imminent or has occurred." Id., citing State v. Bullock, 12th Dist. Clinton

No. CA2016-07-018, 2017-Ohio-497, ¶ 7. See also Moore at ¶ 33, citing Terry v. Ohio, 392

U.S. 1, 21, 88 S.Ct. 1868 (1968).

{¶ 12} While the concept of "reasonable and articulable suspicion" has not been

precisely defined, "[t]he reasonable-suspicion standard is less demanding than the probable-

cause standard when used analyzing an arrest." State v. Hairston, 156 Ohio St.3d 363,

2019-Ohio-1622, ¶ 10, citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581 (1989).

See also State v. Baughman, 192 Ohio App.3d 45, 2011-Ohio-162, ¶ 15 (12th Dist.)

(describing the reasonable-suspicion standard as "something more than an undeveloped

suspicion or hunch but less than probable cause"). The determination of whether an officer

had reasonable and articulable suspicion to initiate an investigative stop "must be based on

the totality of circumstances 'viewed through the eyes of the reasonable and prudent police

officer on the scene who must react to events as they unfold.'" Hairston at ¶ 10, quoting

State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991).

{¶ 13} Trooper Haggerty initiated a traffic stop for a marked lanes violation under R.C.

4511.33(A)(1), which provides, in relevant part, as follows:

(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 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.

{¶ 14} The Ohio Supreme Court examined this statute within the context of a traffic

stop and determined that "[a] traffic stop is constitutionally valid when a law-enforcement -5- Clermont CA2018-11-082

officer witnesses a motorist drift over the lane markings in violation of R.C. 4511.33, even

without further evidence of erratic or unsafe driving." State v. Mays, 119 Ohio St.3d 406,

2008-Ohio-4539, syllabus. In Mays, a trooper observed the vehicle in front of him drift across

the white fog line by approximately one tire width on two occasions; no other traffic violations

were observed. Id. at ¶ 2. The trooper initiated a traffic stop and, upon approaching the

driver, noticed that the driver had bloodshot, glassy eyes and smelled of an alcoholic

beverage. Id. at ¶ 3. The driver was arrested and charged with OVI and a marked lanes

violation. Id. The driver filed a motion to suppress, which was granted by the trial court. Id.

at ¶ 4. The appellate court reversed the trial court's judgment, and the supreme court

accepted review over the certified question of whether "a police officer who witnesses a

motorist cross a right white edge line and without further evidence of erratic driving or that the

crossing was done in an unsafe manner make a constitutional stop of the motorist?" Id. at ¶

1, 6.

{¶ 15} In answering the certified question in the affirmative, the supreme court used

the reasonable and articulable suspicion standard, stating that "if an officer's decision to stop

a motorist for a criminal violation, including a traffic violation, is prompted by a reasonable

and articulable suspicion considering all the circumstances, then the stop is constitutionally

valid." Id. at ¶ 8. The court noted that "R.C. 4511.33 requires a driver to drive a vehicle

entirely within a single lane of traffic" and found that "[w]hen an officer observes a vehicle

drifting 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.

{¶ 16} In examining the "as nearly as is practicable" language of the statue, the court

noted that while R.C. 4511.33 "does provide for certain circumstances in which a driver can

cross a lane line without violating the statute," the "question of whether a [driver] might have

a possible defense to a charge of violating R.C. 4511.33 is irrelevant [to the] analysis of -6- Clermont CA2018-11-082

whether an officer has a reasonable and articulable suspicion to initiate a traffic stop." Id. at

¶ 17. "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.

{¶ 17} Furthermore, "[t]he phrase 'as nearly as 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." Id. at ¶ 18.

"'[T]he legislature did not intend the statute to give motorists the option of staying within the

lane at their choosing. Common sense dictates that the statute is designed to keep travelers,

both in vehicles and pedestrians, safe. The logical conclusion is that the legislature intended

only special circumstances to be valid reasons to leave a lane, not mere inattentiveness or

carelessness.'" (Emphasis sic.) Id. at ¶ 19, quoting State v. Hodge, 147 Ohio App.3d 550,

2002-Ohio-3053, ¶ 43. Because the driver in Mays was observed drifting across the white

fog line on two occasions, the Supreme Court concluded that the trooper had reasonable and

articulable suspicion that the driver had violated R.C. 4511.33 and the motion to suppress

should have been denied. Id. at ¶ 21.

{¶ 18} Since Mays was decided, a number of appellate districts have determined that

traveling on a centerline or fog line is not a violation of R.C. 4511.33 and, therefore, does not

create probable cause or reasonable and articulable suspicion for a traffic stop. See, e.g.,

Shaffer, 2013-Ohio-3581 at ¶ 27-28 (finding that appellant's "driving onto the white fog line

one time for a matter of three seconds" was not, standing alone, "sufficient to establish the

requisite reasonable and articulable suspicion to stop [appellant] for a violation of R.C.

4511.33[A][1]"); State v. Marcum, 5th Dist. Licking No. 12-CA-88, 2013-Ohio-2652, ¶ 17

(finding that the trooper "did not have reasonable, articulable suspicion to stop the

[defendant] based on her action in driving on the white fog line"); State v. Konneh, 6th Dist.

Wood No. WD-17-007, 2018-Ohio-1239, ¶ 24 (holding that "a driver does not violate R.C. -7- Clermont CA2018-11-082

4511.33 by weaving within one's own lane or driving on the demarcating lines, but he does

violate R.C. 4511.33 when he travels completely across the lane marking"); State v.

Grigoryan, 8th Dist. Cuyahoga No. 93030, 2010-Ohio-2883, ¶ 25 (finding that a driver's

drifting to the left and to the right and then driving on the left yellow edge line was

"inconsequential movement within a lane" that did not give rise to probable cause or

reasonable articulable suspicion to make an investigatory stop); State v. Kneier, 11th Dist.

Portage No. 2015-P-0006, 2015-Ohio-3419, ¶ 15 (finding that unless a vehicle's tires have

"been observed to actually cross over the marked line * * * a vehicle does not leave its lane

of travel and, as a result, there is no marked lane violation supporting probable cause to

stop"). See also State v. Williams, 1st Dist. Hamilton No. C-960958, 1997 Ohio App. LEXIS

3467, *4-5 (Aug. 1, 1997) (in a case that predated Mays, the First District found that there

was not probable cause or reasonable articulable suspicion for a traffic stop where the

defendant was "driving, in a straight course, with her right-side tires directly on, but not over,

the white edge line of the highway"); United States v. Warfield, 727 Fed. Appx. 182, 186 (6th

Cir.2018) (noting that "[m]erely touching a lane line is not a violation of Ohio's marked lane

statute").1

{¶ 19} We are not persuaded by the aforementioned cases. Rather, relying on the

guidance provided by the supreme court in Mays and the express language of R.C.

4511.33(A)(1), we find that an officer who observes a motorist driving on a marked lane line

has reasonable and articulable suspicion that the driver has violated R.C. 4511.33 and may

conduct a traffic stop. R.C. 4511.33(A)(1) specifically provides that a vehicle is to be "driven,

as nearly as practicable, entirely within a single lane or line of traffic." (Emphasis added.)

1. In finding that "[m]erely touching a lane line is not a violation of Ohio's marked lane statute," the federal court relied on case law from the Sixth District Court of Appeals. See United States v. Warfield, 727 Fed. Appx. 182, 186 (6th Cir.2018), citing State v. Baker, 6th Dist. Wood No. WD-13-074, 2014-Ohio-2564, and State v. Parker, 6th Dist. Ottawa No. OT-12-034, 2013-Ohio-3470. -8- Clermont CA2018-11-082

The statute does not define "entirely within" and thus this court looks to the plain and ordinary

meaning of the words. "Entirely" means "wholly, fully, completely." Webster's Third New

International Dictionary 758 (1993). "Within" means "on the inside or on the inner-side" or

"inside the bounds of a place or region." Id. at 2627. Therefore, applying the ordinary and

plain meaning of the phrase "entirely within," a motor vehicle is required to travel fully inside

the marked lanes. Driving on a marked lane is not fully inside or "entirely within" a single lane

of traffic. As such, an officer who observes a motorist driving on a marked lane line has

reasonable and articulable suspicion that the driver has violated R.C. 4511.33 and may

conduct a traffic stop. See, e.g., Lebanon v. Evans, 12th Dist. Warren No. CA2009-08-116,

2010-Ohio-4402 (finding that an officer had reasonable and articulable suspicion for a traffic

stop where an officer observed the motorist's tires "hit the dotted lines" a couple of times).

{¶ 20} Finding that R.C. 4511.33 requires a vehicle to remain "entirely within" and not

on a marked lane line serves the "[c]ommon sense" purpose of keeping travelers and

pedestrians safe. Mays, 2008-Ohio-4539 at ¶ 19. By requiring vehicles to stay "entirely

within" the marked lane line, other motorists traveling on the roadways, pedestrians walking

on the side of a roadway, and disabled vehicles pulled over on the side of the roadway are

protected. Conversely, under the interpretation of R.C. 4511.33 taken by the dissent and by

the First, Third, Fifth, Sixth, Eighth and Eleventh Districts, collisions are bound to occur as

their approach permits two motorists driving in the same direction in parallel lanes to lawfully

drive on top of the lane markings at the same time and same place. Similarly, under their

construction of the statute, it would also be permissible for a disabled vehicle pulled off the

roadway to be on the white fog line that a motorist traveling by is also lawfully permitted to be

traveling on. Interpreting R.C. 4511.33(A)(1) to allow two vehicles to lawfully occupy the

-9- Clermont CA2018-11-082

same space at the same time does not make sense.2 To keep motorists and pedestrians

safe, all vehicles traveling on a roadway must stay entirely within, and not on, a marked lane

line.3

{¶ 21} The fact that Trooper Haggerty only observed Turner's tires touch the white fog

line on one occasion, as opposed to multiple touches of the line, is of no consequence. A

traffic stop is constitutionally valid when an officer observes a traffic violation under R.C.

4511.33 and further evidence of erratic or unsafe driving is unnecessary. See Mays at the

syllabus. Furthermore, as the supreme court has noted, the language "as nearly as is

practicable" that appears in R.C. 4511.33(A)(1) does not provide a motorist with the option of

staying within lane markings; rather, a driver is to remain "entirely within" the lane markings

unless the driver cannot reasonably avoid straying. Id. at ¶ 18. The fact that a motorist may

have a possible defense to a charge of R.C. 4511.33 is irrelevant to the analysis of whether

an officer had reasonable and articulable suspicion to initiate the traffic stop. Id. at ¶ 17.

R.C. 4511.33 does not "'give motorists the option of staying in the lane at their choosing.'" Id.

at ¶ 19, quoting Hodge, 2002-Ohio-3053 at ¶ 43.

{¶ 22} Trooper Haggerty testified he observed the right two tires of Turner's vehicle

touch the white fog line on the right side of the road. Taking Trooper Haggerty at his word,

as the trial court expressly stated it did in this case, there was evidence that Turner failed to

2. Contrary to the position taken by the dissent, the marked lanes statute does not distinguish between yellow lines, white lines, solid lines, or dashed lines. Rather, the statute specifies that when "any roadway has been divided into two or more clearly marked lanes for traffic, * * * [a] vehicle * * * shall be driven, as nearly as practicable, entirely within a single lane or line of traffic." (Emphasis added.) R.C. 4511.33(A)(1). Regardless of whether a motorist's tires drift onto a solid white fog line separating the berm from the roadway, drift onto solid or dashed white line separating lanes of traffic moving in the same direction, or drift onto a solid white line separating lanes at an intersection with a traffic control device, in each instance, the motorist is required to stay "entirely within" his lane of travel.

3. We note that case law has focused on whether or not a vehicle's tires have crossed a marked lane line. However, R.C. 4511.33(A)(1) requires "a vehicle" to be driven "entirely within a single lane or line of traffic." A vehicle includes its fenders and the side mirrors – all items that are likely over a marked lane line if a vehicle's tires are traveling on the marked line. - 10 - Clermont CA2018-11-082

operate his vehicle "entirely within a single lane or line of traffic." As such, we find that there

was reasonable and articulable suspicion for the traffic stop. We therefore find it

unnecessary to address the state's "mistake of law" argument. The state's sole assignment

of error is sustained. The trial court's decision granting Turner's motion to suppress is

reversed and this matter is remanded for further proceedings.

{¶ 23} Judgment reversed and remanded.

S. POWELL, J., concurs.

M. POWELL, J., dissents.

M. POWELL, J., dissenting.

{¶ 24} In finding that a mere touching of the fog line provides a reasonable, articulable

suspicion that R.C. 4511.33(A) has been violated, the majority accepts as a given that the

"lane of travel" begins to the immediate left of the fog line. The majority does not identify the

source of this critical premise upon which its analysis proceeds. Because I believe that the

majority's basic premise is faulty, I dissent.

{¶ 25} The Ohio Revised Code neither defines the term "lane" nor does it set forth the

function of road line markings. However, road markings are considered traffic control

devices. R.C. 4511.01(QQ) defines "traffic control device" as including a "marking * * *

placed on * * * a street, highway, private road open to public travel."

{¶ 26} Regarding "traffic control devices," the General Assembly has directed that

"[t]he department of transportation shall adopt a manual for a uniform system of traffic control

devices * * * for use upon any street, highway, bikeway, or private road open to public travel

within this state. Such uniform system shall correlate with, and so far as possible conform to,

the system approved by the federal highway administration." R.C. 4511.09. The Ohio

- 11 - Clermont CA2018-11-082

Department of Transportation has complied with the mandate of R.C. 4511.09 to "adopt a

manual for a uniform system of traffic control devices" by promulgating the Ohio Manual of

Uniform Traffic Control Devices (MUTCD).

{¶ 27} Pursuant to R.C. 4511.10 and 4511.11, the General Assembly has further

directed that state and local authorities "place and maintain traffic control devices" in

accordance with the manual for a uniform system of traffic control devices "to carry out [R.C.]

4511.01 to 4511.78 and 4511.99 * * * or to regulate, warn, or guide traffic." Finally, R.C.

4511.12 provides that "[n]o * * * driver of a vehicle * * * shall disobey the instructions of any

traffic control device placed in accordance with this chapter."

{¶ 28} This case involves the solid white line which runs along the right-hand side of

the roadway and which is commonly referred to as the "fog line." Part 3 of the MUTCD

pertains to road markings. Regarding white line road markings, Sections 3A.05 A and 3A.05

B of the MUTCD provide that "white markings for longitudinal lines shall delineate * * * [t]he

separation of traffic flows in the same direction, or [t]he right-hand edge of the roadway."

Regarding solid line road markings, Section 3A.06 B provides that "[a] solid line discourages

or prohibits crossing (depending on the specific application)." Thus, white road markings

delineate lanes of travel for traffic proceeding in a single direction. The fog line, as a solid

white line, delineates the right-hand edge of the right-hand lane of travel. Because the

MUTCD limits its instruction to crossing a solid white line, as opposed to touching or driving

upon the line, the lane boundary created by the fog line begins to its immediate right. In

other words, the entire fog line is within the lane of travel. Thus, it is only when one drives to

the right of the fog line that one has failed to drive in marked lanes in violation of R.C.

4511.33(A).

{¶ 29} Although Turner was ultimately charged with OVI, this case did not involve a

traffic stop made upon a reasonable, articulable suspicion that Turner was driving under the - 12 - Clermont CA2018-11-082

influence of drugs or alcohol. At the motion to suppress hearing, Trooper Haggerty did not

testify that he suspected that Turner was OVI based upon his observation of Turner's

operation of his vehicle and that he stopped Turner to confirm or dispel that suspicion. The

sole basis upon which Trooper Haggerty stopped Turner was for a violation of R.C.

4511.33(A) based upon his observation that Turner touched the fog line on a single occasion.

Trooper Haggerty's observation that Turner touched the fog line did not require that Turner

be stopped to further investigate whether Turner had failed to drive within marked lanes. Nor

was there probable cause to stop Turner for violating R.C. 4511.33(A) because touching the

fog line is not a failure to drive within marked lanes as discussed above.

{¶ 30} By virtue of R.C. 4511.10, 4511.11, and 4511.12 requiring that state and local

authorities place and maintain traffic control devices in accordance with the MUTCD and that

drivers obey traffic control devices, and by not otherwise addressing the function of road line

markings in the Ohio Revised Code, the General Assembly has effectively incorporated the

MUTCD into R.C. Chapter 4511. Section 3A.06 B of the MUTCD objectively and

unambiguously provides that a solid white line marking "discourages or prohibits crossing." It

is reasonable to expect that a state highway patrolman charged with the daily responsibility of

enforcing the traffic laws would know the function of roadway line markings and that a mere

touching of the fog line does not violate the MUTCD's instruction for such a line. Furthermore,

as the cases cited by the majority from numerous appellate districts indicate, not a single

appellate district considering the issue has found that driving upon or touching the fog line

gives rise to a reasonable, articulable suspicion or probable cause that R.C. 4511.33(A) has

been violated.4

4. In addition to the cases cited by the majority, the Third Appellate District affirmed the granting of a motion to suppress and the Eleventh Appellate District reversed the denial of a motion to suppress upon respectively finding that driving on or touching the fog line did not constitute cause that R.C. 4511.33(A) had been violated. See State v. Smith, 3d Dist. Marion No. 9-17-05-05, 2017-Ohio-5845, ¶ 18-25; State v. Lisac, 11th Dist. Geauga No. 2012-G-3056, 2012-Ohio-5224, ¶ 19-20. - 13 - Clermont CA2018-11-082

{¶ 31} The majority rejects the weight of authority on this issue and the plain and

unambiguous function of the fog line established by the MUTCD, and criticizes the view

expressed in this dissent because of their safety concerns for "other motorists travelling on

the roadways, pedestrians walking on the side or the roadway, and disabled vehicles pulled

over on the side of the roadway." However, all the majority's safety concerns are addressed

in other statutes.

{¶ 32} The majority suggests that interpreting R.C. 4511.33(A) to permit a driver to

drive upon or touch the fog line would result in a hazard to motorists travelling in the same

direction on a multi-lane roadway, as each would have the right to drive upon the broken

white line defining the lanes of travel. However, the broken white line separating lanes of

travel in the same direction has a different function than the fog line. As opposed to

discouraging or prohibiting crossing a solid line like the fog line, Section 3A.06 C of the

MUTCD provides that a broken white line indicates a "permissive condition." What that

"permissive condition" may be is beyond the scope of the issue presented in this case.

Suffice it to say however, the function of the fog line, as unambiguously relating to crossing

the line, is different than that for a broken white line. Furthermore, as the fog line defines the

right-hand edge of the roadway, there should be no traffic legally operating to the right of the

fog line and if there is, such traffic must yield the right-of-way to traffic operating on the

roadway. R.C. 4511.44(A).

{¶ 33} Neither are pedestrians nor disabled vehicles endangered by an interpretation

of R.C. 4511.33(A) permitting a driver to touch or drive upon the fog line. Pedestrians are

required to remain on sidewalks, the shoulder of the road as far from the edge of the

roadway as practical, or as near as practical to an outside edge of the roadway, depending

upon conditions. R.C. 4511.50(A)-(C). In the event a pedestrian must walk on the roadway,

the pedestrian is required to yield the right-of-way to traffic on the roadway. R.C. 4511.50(D). - 14 - Clermont CA2018-11-082

{¶ 34} Regarding disabled vehicles, unless it is impossible to avoid stopping and

parking on the travelled portion of the highway,

[N]o person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway if it is practicable to stop, park, or so leave such vehicle off the paved or main traveled part of said highway. In every event a clear and unobstructed portion of the highway opposite such standing vehicle shall be left for the free passage of other vehicles, and a clear view of such stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway.

R.C. 4511.66(A).

{¶ 35} Thus, the General Assembly has clearly placed the responsibility to minimize

the hazard presented by pedestrians and disabled vehicles upon the pedestrians and the

operators of disabled vehicles.

{¶ 36} Not only do I agree with the First, Third, Fifth, Sixth, Eighth, and Eleventh

Appellate Districts that touching or driving upon the fog line does not give rise to a

reasonable, articulable suspicion or probable cause of criminal activity, but I also believe that

the MUTCD, as incorporated into R.C. Chapter 4511, defines a lane of travel as including the

fog line such that a mere touching or driving upon the fog line does not violate R.C.

4511.33(A). I would therefore affirm the trial court's granting of the motion to suppress.5

{¶ 37} With regard and respect for my colleagues in the majority, I dissent.

5. The state alternatively argues for the first time on appeal that Trooper Haggerty was constitutionally justified in stopping Turner based upon a good faith mistake of law. The majority did not address this issue in view of its reversal upon the state's primary argument. Other than observing that the state has forfeited this argument by failing to raise it before the trial court, the issue will not be addressed further by this dissent. - 15 -