A couple of weeks ago I got an email from a lawyer at a Cleveland firm saying that he liked my blog, and had linked to it, and wanted to know if I'd put up a link to his. I have. Actually, there's a couple of them, which you'll see on the blogroll on the right: "Boopblawg" and "Lougoblawg." They're both from lawyers in the same firm, one a man and one a woman, and they're both from Cleveland, so check it out. As a sidelight, Lougoblawg -- the one by the woman -- had a little baby chick in the bottom corner, which chirped. Endlessly. Constant, repetitive chirping. I wrote back and told them that I liked the site, but that I'd rather stab myself in the eye with a fork than listen to the chirping. The other day I got an email saying, "The chick on the blawg dies," and sure enough, it did.
What's that got to do with marked lanes? Nothing, but this does. A few weeks back, the 8th District handed down a seemingly inconsequential decision in a traffic violation case called Middleburg Heights v. Quinones. The defendant had been stopped for going 53 in a 25 mph zone, and the officer also observed him going over the double yellow line a couple of times. He pulled Quinones over, Scene 1 of this movie ends with Quinones convicted of DWI, speeding, and a marked lanes violation. After the intermission, Scene 2 picks up and ends with the appellate court affirming the DWI and speeding convictions, but reversing the marked lanes for insufficient evidence.
The reason this is a big deal is because, as just about every defense attorney knows, minor traffic violations such as driving outside of the marked lanes (also called weaving) offer a justification for a traffic stop, which can lead to all kinds of trouble for the driver and the passenger. It's not unusual for police to use traffic violations as a pretext for stops to find drugs or other contraband.
There were several cases back in the early 90's which held that "minor" violations of the weaving statute did not afford a legitimate basis for a traffic stop, basically because it was clear in the context of those cases that the violation had been used as a pretext for a stop. Then along came the US and Ohio Supreme Courts with decisions holding that it didn't matter whether the violation was a pretext: as long as there was a violation, the police had the right to stop. Over the next ten years, you had a stream of appellate cases saying that any crossing outside the lane -- right or left -- was a violation of the statute, and gave the police reasonable cause to stop your car.
Until the 3rd District's decision last year in State v. Phillips, from which the Quinones court borrows heavily. I'm not going to get into a detailed analysis here -- the portion of the opinion in Phillips dealing with marked lanes violations is 32 pages long, so you might want to wait until it comes out on video -- but the short version is this: the statute requires that
A vehicle shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from the lane or line until the driver has first ascertained that the movement can be made with safety.
As far as the Quinones and Phillips courts are concerned, that means there are two prongs to the statute: the practicality prong, and the safety prong. It's up to the state to present evidence as to both; they cannot be inferred simply from the fact that the defendant did cross the line.
And, of course, if the state can't prove both, it means that there's no basis for a traffic stop, and if they find something as a result of the stop, it'll get tossed on a motion to suppress.
This isn't necessarily a big deal. The 9th District came to a similar conclusion three years ago in State v. Karner, but hinted that the problem could have been solved simply by asking the officer "if he witnessed Appellant leave his lane of traffic without first ascertaining whether or not such movement could be done with safety." (For that reason, it might be wise to pull out these cases after the prosecutor's put on his evidence in the motion to suppress hearing.) Plus, there's a difference between having probable cause to make a traffic stop and having sufficient evidence to convict; the two issues involve substantially different quantums of proof. Still, the cases offer some fertile ground for the imaginative attorney willing to till it.
My God, farming metaphors. Is this what I've come to? That's almost worse than chirping chicks.
Oh, and for those of you who do handle traffic or misdemeanor cases, Phillips is a keeper for another reason. You know how your client will get charged with five different violations, plead out to two of them, but get hit up with court costs for all five? Phillips says that's a no-no: court costs can only be applied to one case, no matter how many violations.