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Can an Ohio Traffic Ticket Be Dismissed If It States the Wrong Code Section?

Ohio Traffic Ticket Dismissed Wrong Code Section attorney


    ANSWER:  It depends.

    Ohio Crim.R. 7(D), provides in relevant part:

    “The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.”

    Ohio courts have distinguished between amendments that change the “name or identity of the charge “and those that just correct administrative or clerical errors.

    Clerical errors or typos on the ticket can be corrected even on the day of trial, but fundamental changes to the name or identity of the charge cannot.

    For example, where a traffic ticket clearly sets forth the offense charged, but erroneously cites the wrong code section, the court will allow the prosecutor to amend the ticket so long as the error does not “prejudicially mislead the defendant.” State v. Cooper, 4th Dist. Ross No. 97CA2326, 1998 Ohio App. LEXIS 2958 (June 25, 1998)

    Thus, whether an amendment should be allowed is decided on a case-by-case basis.

    The general rules is this – An Ohio traffic ticket may be amended to correct a clerical error so long as:

    (1) the original traffic ticket gave the defendant notice of the true nature of the offense;

    (2) the defendant was not deprived of a reasonable opportunity to prepare a defense; and

    (3) the amendment merely clarifies or amplifies the information in the original ticket.

    Court Allows Amendment of Ticket Citing Wrong Code Section

    An Ohio appellate court recently addressed this issue in Brecksville v. Bickerstaff, 2015-Ohio-5410.

    In that case, the driver argued that the court should have dismissed his case because his traffic ticket referenced an incorrect code section.

    In that case, the driver was cited for failing to change lanes away from a stationary public safety vehicle (failure to “move over”) in violation of the local city ordinance, which mirrors R.C. 4511.213.

    Here, the traffic ticket contained a handwritten description that indicated that he “failed to veer left or slow speed passing police cars w/ disabled motorist.”

    However, the numerical citation of the local ordinance was incorrectly written as “337.27,” as opposed to “331.27.”  In other words, it was off by one number.

    On the day of the trial, the City notified the court that the traffic ticket contained an incorrect numerical citation.   The court permitted the amendment finding that:

    First, the original citation gave the driver notice of the true nature of the offense. Specifically, the citation described the offense as the “failure to veer left or slow speed passing police cars w/ disabled motorist.”

    Second, there was nothing in the record to suggest the driver was deprived of the opportunity to prepare a defense to the charge.   He did not object to the correction of the clerical error, and his level of preparation demonstrated his awareness that he was cited for violating the move over law.  Note that the driver here was representing himself.  If he or his attorney had objected to the amendment and made a compelling argument that the last minute change somehow affected the ability to prepare a defense, it is at least possible the court would have considered the argument.

    Finally, the court found the amendment simply clarified the information contained on the original traffic ticket.

    Thus, the court found that the amendment did not change the identity of the crime charged, but rather, served to amend the ticket so that it correctly designated the “move over” ordinance as the statute violated by the driver’s “failure to veer or slow speed” as he passed the stationary police car.

    Thus, the court permitted the prosecution to correct the clerical error in this particular case.