A recent Ohio court decision demonstrates the importance of statutory language in traffic cases. In State v. White, 2021-Ohio-2703, a conviction for violation of Ohio’s “move over” law was overturned where the prosecutor proceeded on the wrong code subsection. Further, the court found that reducing speed is not necessarily required to show “due caution” as a driver on the road.
Defendant Passed a DOT Truck Without Changing Lanes or Slowing Down
Defendant was on a two-lane highway. A Department of Transportation (DOT) vehicle was on the side of the road with red overhead flashing lights after stopping a semi-truck. Defendant was in the right lane going 55 mph, and the DOT commercial vehicle was stopped on the right shoulder. There was another vehicle next to Defendant, which prevented him from changing lanes. Defendant did not slow down as he passed the DOT vehicle.
When Defendant didn’t slow down or change lanes, a trooper pulled him over and gave him a ticket for violating the “move over” law, R.C. 4511.213.
Prosecutor Decides at Trial to Argue Violation of 4511.213(A)(1)
At trial, the prosecutor opted to move forward on 4511.213(A)(1)–which requires changing lanes–rather than (A)(2)–which requires reducing speed. The trooper testified that 55mph was a reasonable speed, but that Defendant should have slowed down. The trooper did admit, however, that he didn’t know how fast Defendant was going before he passed the DOT vehicle.
R.C. 4511.213(A)(1), in relevant part, states:
(A) The driver of a motor vehicle, upon approaching a stationary public safety vehicle, emergency vehicle, road service vehicle, waste collection vehicle, vehicle used by the public utilities commission to conduct motor vehicle inspections in accordance with [sections of the Ohio Revised Code], or a highway maintenance vehicle that is displaying the appropriate visual signals by means of flashing, oscillating, or rotating lights, as prescribed in [Ohio Revised Code] shall do either of the following:
(1) If the driver of the motor vehicle is traveling on a highway that consists of at least two lanes that carry traffic in the same direction of travel as that of the driver’s motor vehicle, the driver shall proceed with due caution and, if possible and with due regard to the road, weather, and traffic conditions, shall change lanes into a lane that is not adjacent to that of the stationary public safety vehicle, * * *.
R.C. 4511.213(A)(2) provides:
(2) If the driver is not traveling on a highway of a type described in division (A)(1) of this section, or if the driver is traveling on a highway of that type but it is not possible to change lanes or if to do so would be unsafe, the driver shall proceed with due caution, reduce the speed of the motor vehicle, and maintain a safe speed for the road, weather, and traffic conditions. (Emphasis added).
“Due Caution” Does Not Always Require Reducing Speed
Since the prosecutor proceeded under (A)(1), and it was impossible for the driver to change lanes, the only question left was whether he acted with “due caution.” The Ohio Supreme Court has held that “due caution” refers to a driver’s obligation to “operate his motor vehicle in the same manner as would a reasonably prudent person under similar circumstances.” State v. Martin, 164 Ohio St. 54, 59, 128 N.E.2d 7 (1955).
Although a a court may consider reducing speed in determining “due caution,” this isn’t a requirement under 4311.213(A)(1). Here, the appellate court found that it was impossible for the driver to change lanes. The court further found traveling at the speed limit to reasonable.
Had the prosecutor proceeded under (A)(2), it likely would have had a different outcome. But, as it stands, the conviction for violating Ohio’s “move over” law was thrown out.