In this case, the defendant was stopped by the State Highway Patrol after a state trooper believed he observed the defendant commit a marked lanes violation. Ultimately, the defendant was cited for driving under the influence in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(2), crossing marked-lanes in violation of R.C. 4511.33, and failing to wear his seatbelt in violation of R.C. 4513.263(B)(1).
The driving-under-the-influence charges were dismissed, and the matter proceeded to trial on the remaining charges. The trial court found the defendant guilty of a marked-lanes violation and a seatbelt violation, fined him a total of $80, and ordered him to pay court costs.
He appealed, asserting that his conviction for a marked lanes violation was against the manifest weight of the evidence because (1) the trooper’s testimony was not credible; (2) the defendant’s testimony was credible; and (3) the DVD of the traffic stop supported the defendant’s version of events.
The Court of Appeals found that it was “clear from the face of the record” that the defendant’s conviction was based upon insufficient evidence and reversed the conviction. There was insufficient evidence to establish that, in moving either between lanes of traffic or completely out of a lane of traffic, the defendant failed to ascertain the safety of such movement prior to making the movement.
R.C. 4511.33(A)(1) provides that
“[w]henever 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.”
In order to establish a violation of R.C. 4511.33, the Court held, the State must present evidence “that the driver of a vehicle moving either between lanes of traffic or completely out of a lane of traffic failed to ascertain the safety of such movement prior to making the movement.” Barner, 2004-Ohio-5950, at ¶ 14. Here, prosecutor failed to present any such evidence.
When questioned, the trooper confirmed that he saw the vehicle travel over the fog line with both the front and rear tires on the passenger side. The trooper offered no testimony evidencing that the defendant failed to ascertain the safety of such movement prior to making the movement.
The defendant also testified in his defense. He indicated that, at the time in question, the tracks were a little bit rough so he was running a little bit to the right but was not outside the white line. He maintained that he did not cross the white line at any point. The DVD showed that at the time the defendant may have crossed the fog line, no other cars were on the road. Thus, even when viewing the video in a light most favorable to the State, it does not support the conclusion that the defendant failed to ascertain the safety of leaving the lane prior to doing so.
Conviction reversed. State v. Ross, 2013-Ohio-1488.
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