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Traffic Issues

WHY FIGHT YOUR TICKET?

An organization of which I am a proud member is the National Motorists Association.  This response is found at their website, www.nma.org.  If you find yourself charged with violating the speed law, decide if challenging the ticket is in your financial best interests.  If so, hire a Dayton attorney with the experience to fight!

Never just "pay up!" People often just pay the ticket because they think "it's too much trouble to fight." Think about this: if your insurance goes up 15 percent for three years because of one ticket, what's the true cost of that ticket? Let's assume you pay $700 a year in insurance. You would pay an extra $315 in premiums plus the cost of the ticket, and that's just a conservative estimate!

Always fight the first one. Don't wait until you are in danger of losing your license. That fact is if you record is clean, you're more likely to keep it that way. You'll be less likely to be ticketed or found guilty in traffic court. Points on your license can add up quickly! If you hold a commercial driver license (CDL), are an airplane pilot, or in some other line of work where not driving is the same as no paycheck, one ticket can make your life miserable.

RECKLESS OPERATION: What is the law?

The statutory definition of reckless operation can be found at Ohio Revised Code Section 4511.20 which states:

4511.20 Operation in willful or wanton disregard of the safety of persons or property.

(A) No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.

RECKLESS OPERATION: What is the mental culpability required for the offense?

The Ohio Supreme Court, in State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 21-22, stated, "we believe that the statute simply provides two definite and clear bases upon which a finding of guilt may be premised. A person may be found guilty of violating R.C. 4511.20 if he acts willfully. Such conduct implies an act done intentionally, designedly, knowingly, or purposely, without justifiable excuse. Black's Law Dictionary (5^th  Ed.1979) 1434. Or conversely, R.C. 4511.20 is violated when a person acts wantonly in disregard of the safety of others. A wanton act is an act done in reckless disregard of the rights of others which evinces a reckless indifference of the consequences to the life, limb, health, reputation, or property of others. (Citations omitted.)"

RECKLESS OPERATION: Is reckless operation a traffic case?

Reckless operation of a vehicle clearly falls under a "traffic case." Our Dayton DUI law firm can help plead your case or dismiss it altogether. A defendant found guilty of a fourth degree misdemeanor cannot be sentenced to more than 30 days in jail. R.C. 2929.21(B)(4). Thus, the advisement that is required in this case is misdemeanor traffic cases involving petty offenses. Such advisement is spelled out in Traf.R. 10(D), which is entitled "Misdemeanor cases involving petty offenses."

Traffic Rule 2 defines which cases fall under the Traffic Rules. It states:

"(A) `Traffic case' means any proceeding, other than a proceeding resulting from a felony indictment, that involves one or more violations of a law, ordinance, or regulation governing the operation and use of vehicles, conduct of pedestrians in relation to vehicles, or weight, dimension, loads or equipment, or vehicles drawn or moved on highways and bridges. `Traffic case' does not include any proceeding that results in a felony indictment.

"(D) `Petty offense' means an offense for which the penalty prescribed by law includes confinement for six months or less.

"(E) `Serious offense' means an offense for which the penalty prescribed by law includes confinement for more than six months." Traf.R. 2.

Traffic Rule 10(D) reads:

"In misdemeanor cases involving petty offenses, except those processed in a traffic violations bureau, the court may refuse to accept a plea of guilty or no contest and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty."

SPEEDING: What is the law and how can a Dayton attorney help?

• The speed law is set forth at Ohio Revised Code 4511.21.  It states:
  
  (A) No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead.
  

The law goes on to set forth the “speed limits” or presumed speed limits as follows:

• (2) Twenty-five miles per hour in all other portions of a municipal corporation, except on state routes outside business districts, through highways outside business districts, and alleys;
  
  (3) Thirty-five miles per hour on all state routes or through highways within municipal corporations outside business districts, except as provided in divisions (B)(4) and (6) of this section;
  
  (4) Fifty miles per hour on controlled-access highways and expressways within municipal corporations;
  
  (5) Fifty-five miles per hour on highways outside of municipal corporations, other than freeways as provided in division (B)(12) of this section;
  
  (6) Fifty miles per hour on state routes within municipal corporations outside urban districts unless a lower prima-facie speed is established as further provided in this section;
  
  (7) Fifteen miles per hour on all alleys within the municipal corporation;
  
  (8) Fifty-five miles per hour at all times on freeways with paved shoulders inside municipal corporations, other than freeways as provided in division (B)(12) of this section;
  
  (9) Fifty-five miles per hour at all times on freeways outside municipal corporations, other than freeways as provided in division (B)(12) of this section;
  
  (10) Fifty-five miles per hour at all times on all portions of freeways that are part of the interstate system and on all portions of freeways that are not part of the interstate system, but are built to the standards and specifications that are applicable to freeways that are part of the interstate system for operators of any motor vehicle weighing in excess of eight thousand pounds empty weight and any noncommercial bus;
  
  (11) Fifty-five miles per hour for operators of any motor vehicle weighing eight thousand pounds or less empty weight and any commercial bus at all times on all portions of freeways that are part of the interstate system and that had such a speed limit established prior to October 1, 1995, and freeways that are not part of the interstate system, but are built to the standards and specifications that are applicable to freeways that are part of the interstate system and that had such a speed limit established prior to October 1, 1995, unless a higher speed limit is established under division (L) of this section;
  
  (12) Sixty-five miles per hour for operators of any motor vehicle weighing eight thousand pounds or less empty weight and any commercial bus at all times on all portions of the following:
  • (a) Freeways that are part of the interstate system and that had such a speed limit established prior to October 1, 1995, and freeways that are not part of the interstate system, but are built to the standards and specifications that are applicable to freeways that are part of the interstate system and that had such a speed limit established prior to October 1, 1995;
    
    (b) Freeways that are part of the interstate system and freeways that are not part of the interstate system but are built to the standards and specifications that are applicable to freeways that are part of the interstate system, and that had such a speed limit established under division (L) of this section
    
    (c) Rural, divided, multi-lane highways that are designated as part of the national highway system under the "National Highway System Designation Act of 1995," 109 Stat. 568, 23 U.S.C.A. 103, and that had such a speed limit established under division (M) of this section.
    
• (C) It is prima-facie unlawful for any person to exceed any of the speed limitations in divisions (B)(1)(a), (2), (3), (4), (6), and (7) of this section, or any declared pursuant to this section by the director or local authorities and it is unlawful for any person to exceed any of the speed limitations in division (D) of this section. No person shall be convicted of more than one violation of this section for the same conduct, although violations of more than one provision of this section may be charged in the alternative in a single affidavit.
  
  (D) No person shall operate a motor vehicle, trackless trolley, or streetcar upon a street or highway as follows:
  • (1) At a speed exceeding fifty-five miles per hour, except upon a freeway as provided in division (B)(12) of this section;
    
    (2) At a speed exceeding sixty-five miles per hour upon a freeway as provided in division (B)(12) of this section except as otherwise provided in division (D)(3) of this section;
    
    (3) If a motor vehicle weighing in excess of eight thousand pounds empty weight or a noncommercial bus as prescribed in division (B)(10) of this section, at a speed exceeding fifty-five miles per hour upon a freeway as provided in that division;
    
    (4) At a speed exceeding the posted speed limit upon a freeway for which the director has determined and declared a speed limit of not more than sixty-five miles per hour pursuant to division (L)(2) or (M) of this section;
    
    (5) At a speed exceeding sixty-five miles per hour upon a freeway for which such a speed limit has been established through the operation of division (L)(3) of this section;
    
    (6) At a speed exceeding the posted speed limit upon a freeway for which the director has determined and declared a speed limit pursuant to division (I)(2) of this section.
• (E) In every charge of violation of this section the affidavit and warrant shall specify the time, place, and speed at which the defendant is alleged to have driven, and in charges made in reliance upon division (C) of this section also the speed which division (B)(1)(a), (2), (3), (4), (6), or (7) of, or a limit declared pursuant to, this section declares is prima-facie lawful at the time and place of such alleged violation, except that in affidavits where a person is alleged to have driven at a greater speed than will permit the person to bring the vehicle to a stop within the assured clear distance ahead the affidavit and warrant need not specify the speed at which the defendant is alleged to have driven.
  
  (F) When a speed in excess of both a prima-facie limitation and a limitation in division (D)(1), (2), (3), (4), (5), or (6) of this section is alleged, the defendant shall be charged in a single affidavit, alleging a single act, with a violation indicated of both division (B)(1)(a), (2), (3), (4), (6), or (7) of this section, or of a limit declared pursuant to this section by the director or local authorities, and of the limitation in division (D)(1), (2), (3), (4), (5), or (6) of this section. If the court finds a violation of division (B)(1)(a), (2), (3), (4), (6), or (7) of, or a limit declared pursuant to, this section has occurred, it shall enter a judgment of conviction under such division and dismiss the charge under division (D)(1), (2), (3), (4), (5), or (6) of this section. If it finds no violation of division (B)(1)(a), (2), (3), (4), (6), or (7) of, or a limit declared pursuant to, this section, it shall then consider whether the evidence supports a conviction under division (D)(1), (2), (3), (4), (5), or (6) of this section.
  
  (G) Points shall be assessed for violation of a limitation under division (D) of this section in accordance with section 4510.036 of the Revised Code.

SPEEDING: Can you challenge laser/radar?

There are various types of challenges that can be levied against a laser and/or radar speed detection device.  A great discussion of what it takes to challenge laser and/or radar in the State of Ohio can be found at State v. Kincaid, 124 Ohio Misc.2d 92, 2003-Ohio-4632.  Relevant portions of this decision are included below.

The next issue raised by defendant's motion is whether this court's judicial notice as to the construction, accuracy, reliability, and method of operation of one model of laser speed-measuring device may be extended to all types and models of laser speed-measuring devices and their upgrades. To resolve this issue, the court must examine the elements of an expert's testimony that are necessary to determine the construction, accuracy, reliability, and method of operation of a laser speed-measuring device.

First, the trial court must receive expert testimony that laser technology is generally accepted as a reliable and accurate way to measure speed and to confirm that the device in question is based on that technology. Second, the expert must verify the construction, accuracy, reliability, and method of operation of the electronic speed-measuring device (radar or laser). Once the expert's testimony is received and accepted on each branch, the court may then take judicial notice of these factors in all future cases involving such device pursuant to Ohio Evid.R. 201(B)(2) and (C):

"Expert scientific testimony is required * * * to establish that the detection device was designed to operate according to principles commonly accepted as reliable in the scientific community, and that it does operate according to those principles, and produces a reliable result." State v. Reck ( Dec. 21, 1994 ), 2d Dist. No. 1352 CA, 1994 WL 718230, at * 3.

The expert's testimony must satisfy three foundational requirements: (1) The person testifying must be qualified and accepted as an expert in the field of laser (or radar) technology. (2) That laser (or radar) technology, when used to measure speed, is based on principles commonly accepted as reliable in the scientific community. (3) That the particular device is constructed according to those scientific principles and produces an accurate and reliable result.

Ohio Evid.R. 104(A) provides that "[p]reliminary questions concerning the qualification of a person to be a witness * * * shall be determined by the court." In making that determination, the trial court is guided by the three criteria of Evid.R. 702: (1) The expert must be prepared to testify to matters beyond the knowledge of lay persons; (2) The witness must be qualified to speak to matters by virtue of his specialized skill, education, training, or experience; and (3) Sound scientific, technical, or other specialized information must underlie the witness's testimony.

In Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 611, 687 N.E.2d 735, the Ohio Supreme Court followed Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, in establishing the criteria for the admissibility of expert scientific testimony. In Daubert, the court explained that the trial court's function is to act as a "gatekeeper" to ensure both the relevance and the reliability of expert testimony before it is admitted at trial. Id. at 593-594, 113 S.Ct. 2786, 125 L.Ed.2d 469. As the gatekeeper, the court must assess "whether the reasoning or methodology underlying the testimony is scientifically valid" Id. at 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469. A list of factors was provided that a trial court may consider in determining whether expert testimony is relevant and reliable: (1) Whether the theory or technique has been tested; (2) Whether it has been subjected to peer review; (3) Whether there is a known or potential rate of error; and (4) Whether the methodology has gained general acceptance.

The underlying principles of laser technology appear to be the same from one device to another. However, it appears from the Ohio cases that the expert testimony must be "device specific." E. Cleveland v. Ferell (1958), 168 Ohio St. 298, 7 O.O.2d 6, 154 N.E.2d 630 (stationary radar); State v. Wilcox (1974), 40 Ohio App.2d 380, 69 O.O.2d 333, 319 N.E.2d 615 (moving radar); State v. Schroeder (Sept. 8, 1995), 11th Dist. No. 95-G-1907, 1995 WL 787423 (LTI 20/20 laser); State v. Kirkland (Mar. 2, 1998), 3d Dist. No. 8-97-22, 1998 WL 126849 (K-55 radar-moving mode); Moreland Hills v. Gazdak (1988), 49 Ohio App.3d 22, 23, 550 N.E.2d 203 (Model S-80 moving radar); State v. Saphire (Dec. 8, 2002), 2d Dist. No. 2000 CA 39, 2000 WL 1803852 (Ultralite 20/20 Model 200 laser?); State v. Colby (1984), 14 Ohio App.3d 291, 291-292, 14 OBR 348, 470 N.E.2d 924 (K-55 radar); State v. Freeman (1985), 24 Ohio Misc.2d 7, 9-10, 24 OBR 131, 493 N.E.2d 571 (K-55 radar). Therefore, in addition to expert testimony about the underlying principles of laser technology, the expert must testify that the specific device is based upon these principles and when operated by properly qualified personnel according to operating instructions the device is an accurate speed-measuring device.

The two leading cases involving the requisite expert testimony for speed-measuring devices are East Cleveland v. Ferell, supra (stationary radar), and State v. Wilcox, supra (moving radar). Both cite with approval Wigmore, The Science of Judicial Proof, at 450, holding that three criteria must be satisfied before a speed-detection device may be deemed reliable: "(1) The type of apparatus purporting to be constructed on scientific principles must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science or its related art. This can be evidence by qualified expert testimony; or, if notorious, it will be judicially noticed by the judge without evidence. (2) The particular apparatus used by the witness must be one constructed according to an accepted type and must be in good condition for accurate work. This may be evidence by a qualified expert; and (3) The witness (i.e. the arresting officer) using the apparatus as the source of his testimony must be one qualified for its use by training and experience." (Emphasis added.)

In State v. Saphire supra, 2000 WL 1803852, as in this case, there was confusion about the name of the laser device used by the officer. The Second District Court of Appeals stated, "Although the accurate name of the laser device used by [the arresting officer] is unclear, it appears that neither our court nor the Supreme Court has taken judicial notice of any laser device with one of the names listed supra. Further, there was no indication in the record or in the trial court's entry that it had previously heard expert testimony regarding this particular laser device." (Emphasis added.) Id. at * 4.

This court interprets these cases to require two inquiries of the qualified expert: First, is the underlying technology based upon scientific principles accepted as dependable for the proposed purpose? Second, was the particular device constructed using that technology and those scientific principles and was the device then tested by the expert and found to be dependable and accurate?

SPEEDING: Can a court just take judicial notice of a laser/radar device?

As a knowledgeable Dayton DUI law firm, we want to be sure our clients as well as everyone else clearly understands how Ohio laws and the judicial court view the use and reliability of laser/radar devices. Keep reading about specific cases and uses of such devices to determine a subject's speed on Ohio roads and highways.

The following is once again taken from State v. Kincaid, 124 Ohio Misc.2d 92, 2003-Ohio-4632. 

"In order for judicial notice to be taken, the fact must be one of common knowledge throughout the jurisdiction of the court." State v. Doles (1980), 70 Ohio App.2d 35, 24 O.O.3d 25, 433 N.E.2d 1290, paragraph one of syllabus. "In the absence of expert testimony in the present case, and in the absence of any expert testimony in a previous case before that court or a court of binding authority upon that court regarding the accuracy and dependability of the laser device, such fact is not of common knowledge within that jurisdiction and thus cannot be the subject of judicial notice." State v. Saphire ( Dec. 8, 2000 ), 2d Dist. No. 2000 CA 39, 2000 WL 1803852, citing Columbus v. Dawson and Doles, supra.

Some courts have construed Evid.R. 201(B) to mean that unless the decision is reported, either by the trial court or a court of higher authority in that jurisdiction, "the dependability of such device is not of common knowledge within [the] jurisdiction and cannot be the subject of judicial notice. Doles, supra, at 38 [24 O.O.3d 25], 433 N.E.2d 1290. Accord State v. Farris (Mar. 26, 1985), Franklin App. No. 83AP-1214, unreported [1985 WL 9921]. Cf. State v. Ayesh (1985), 24 Ohio App.3d 73, 74 [24 OBR 128], 493 N.E.2d 325 (the scientific reliability of K-55 radar has been authoritatively settled in the Twelfth Appellate District and is, therefore, a proper subject of judicial notice). Establishing for future cases the reliability of a particular laser device may be accomplished by means of a reported municipal court decision, as was done with radar in Akron v. Gray (1979), 60 Ohio Misc. 68 [14 O.O.3d 303, 397 N.E.2d 429], or by a reported or unreported case from this court, as was discussed in Doles, supra, at 38 [24 O.O.3d 25], 433 N.E.2d 1290, or by the Ohio Supreme Court, as was done in City of East Cleveland." Columbus v. Dawson ( Mar. 14, 2000 ), 10th Dist. No. 99AP- 589, 2000 WL 271766.

It is the opinion of this court that requiring a "reported" case goes too far. Whether a case is reported is not always within the court's control. The court therefore holds that the filing of a journal entry setting forth the name of the specific device and covering each of the criteria set forth below satisfies the requirement that the "adjudicative facts" be "generally known within the territorial jurisdiction of the trial court" because they are generally known to the trier of fact in that court (1) that a qualified expert's testimony is received and accepted in open court, on the record and subject to cross-examination as to each speed-measuring device; (2) that the expert's testimony verifies that the underlying technology is based upon scientific principles accepted as dependable for the proposed purpose; (3) that the device itself is constructed based upon that technology and those principles; and (4) that the particular device was tested and is dependable and accurate.

SPEEDING: What if there is no evidence except the officer’s word?

Ohio courts are split on whether a trained officer's estimation of speed, with nothing more (e.g., laser or radar), is sufficient to support a prima facie speeding conviction. 

In the Second, Third, and Eighth Districts, the opinion of the officer that the defendant was speeding, based upon a visual estimation, without more, is not sufficient to sustain the conviction by proof beyond a reasonable doubt: State v. Meyers (Dec. 9, 2000), 2d Dist. No. 2000 CA 49, 2000 WL 1879104, at * 2; State v. Saphire, supra, 2000 WL 1803852; State v. Westerbeck (June 19, 1987), 3d Dist. No. 17-86-18, 1987 WL 13063; Broadview Hts. v. Abkemeier (1992), 83 Ohio App.3d 633, 615 N.E.2d 656.

The First, Fourth, Ninth, Tenth, and Eleventh Districts have held that an officer's estimation of speed is sufficient to sustain a speeding conviction in a prima facie case. Cincinnati v. Dowling (1987), 36 Ohio App.3d 198, 521 N.E.2d 1140; State v. Harkins (Aug. 5, 1987), 4th Dist. No. 431, 1987 WL 15492; State v. Wilson (Nov. 20, 1996), 9th Dist. No. 95CA006285, 1996 WL 668993; Columbus v. Bravi (Mar. 5, 1991), 10th Dist. No. 90AP-1135, 1991 WL 33095, at * 2; Kirtland Hills v. Logan (1984), 21 Ohio App.3d 67, 21 OBR 71, 486 N.E.2d 231; State v. Jones (Nov. 8, 1991), 11th Dist. No. 91-T-4508, 1991 WL 233644, at * 2.

SPEEDING: Is there a law against going too slow?

Yes, Ohio Revised Code 4511.22 specifies:

4511.22 Slow speed.

(A) No person shall stop or operate a vehicle, trackless trolley, or street car at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when stopping or reduced speed is necessary for safe operation or to comply with law.

(B) Whenever the director of transportation or local authorities determine on the basis of an engineering and traffic investigation that slow speeds on any part of a controlled-access highway, expressway, or freeway consistently impede the normal and reasonable movement of traffic, the director or such local authority may declare a minimum speed limit below which no person shall operate a motor vehicle, trackless trolley, or street car except when necessary for safe operation or in compliance with law. No minimum speed limit established hereunder shall be less than thirty miles per hour, greater than fifty miles per hour, nor effective until the provisions of section 4511.21 of the Revised Code, relating to appropriate signs, have been fulfilled and local authorities have obtained the approval of the director.

(C) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.

4511.202 Operation without being in reasonable control of vehicle, trolley, or streetcar.

(A) No person shall operate a motor vehicle, trackless trolley, or streetcar on any street, highway, or property open to the public for vehicular traffic without being in reasonable control of the vehicle, trolley, or streetcar.

(B) Whoever violates this section is guilty of operating a motor vehicle without being in control of it, a minor misdemeanor.