6 N.E.3d 701 (Ohio Mun. 2014), 2013 TRC 042481, City of Cleveland v. Persaud

Docket Nº:2013 TRC 042481
Citation:6 N.E.3d 701
Opinion Judge:EMANUELLA GROVES, Judge.
Party Name:CITY OF CLEVELAND, Plaintiff v. MANIKCHAND PERSAUD, Defendant
Attorney:Asst. City Prosecutor Bridget Hopp Attorney for Plaintiff. Atty. Thomas Perotti for Defendant.
Case Date:February 10, 2014
Court:Municipal Court of Ohio
 
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Page 701

6 N.E.3d 701 (Ohio Mun. 2014)

CITY OF CLEVELAND, Plaintiff

v.

MANIKCHAND PERSAUD, Defendant

No. 2013 TRC 042481

Cleveland Municipal Court, Cuyahoga, Ohio

February 10, 2014

Page 702

[Copyrighted Material Omitted]

Page 703

Asst. City Prosecutor Bridget Hopp Attorney for Plaintiff.

Atty. Thomas Perotti for Defendant.

OPINION

Page 704

EMANUELLA GROVES, Judge.

The defendant has challenged the authority of an Ohio State Highway Patrol (OSHP) trooper to enforce violations of the Ohio Revised Code on private property. Both the City of Cleveland and defendant stipulated to the facts leading up to the defendant's arrest. The defendant backed into a dumpster at the BP gas station located at 10202 Lorain Avenue, Cleveland, Ohio. An employee of the gas station alerted a highway patrol trooper, who was at the station, of the incident. The trooper investigated the concern and had the Cleveland Police Department contacted. The Cleveland Police indicated it would be a lengthy wait because they were busy with other calls. Consequently, the trooper conducted the field sobriety tests and eventually arrested and charged the defendant with violation of R.C. 4511.38(A), Care to be exercised in starting and backing of vehicle, and R.C. 4511.19(A)(1), Driving under the influence of alcohol and/or drugs. No Cleveland police officer was involved in the arrest and none responded.

The first issue before this court is whether a defendant can be convicted of violation of O.R.C. 4511.38(A) on private property. R.C. 4511.38(A) states in pertinent part:

No person shall start a vehicle...which is stopped, standing, or parked until such movement can be made with reasonable safety.

Before backing, operators of vehicle[s]...shall give ample warning, and while backing they shall exercise vigilance not to injure person or property on the street or highway.

The defendant was not on the street, but on the property of BP, a private gas station. The statute specifically states where the operation of the vehicle is regulated, i.e. on a street or highway. The application of 4511.38(A) does not extend to private property. The Eighth District Court of Appeals held that this law is applicable to backing a motor vehicle on streets and highways, not private property.1 Given that the backing occurred on private property, defendant's argument is well taken. Consequently, the charge for violation of R.C. 4511.38(A) is dismissed. However, the dismissal of the charge does not preclude the defendant's conduct from being considered in regards to violation of O.R.C. 4511.19(A)(1).

Next, the defendant has argued that the authority of the OSHP does not extend to private property. OSHP is governed by R.C. 5503.02. Specifically, the duties and powers of OSHP, in pertinent part, are:

A. The state highway patrol shall...enforce on all roads and highways...the laws relating to the operation and use of vehicles in the highways...State Highway Patrol troopers shall investigate and report all motor vehicle accidents on

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all roads and highways outside of municipal corporations...may arrest, without a warrant...whom superintendent or trooper has reasonable cause to believe is guilty of a felony...

B. In the event of riot, civil disorder, or insurrection or the reasonable threat of riot, civil disorder or insurrection and upon request, as provided in this section...the governor may order the state highway patrol to enforce the criminal laws within the area threatened... (D)(1) State highway patrol troopers have the same right and power of search and seizures as other peace officers...

The OSHP was created by the Ohio General Assembly in 1933 to enforce laws pertaining to the licensing and registration of vehicles on highways and protection of highways.2 Since its creation, the duties of the OSHP have remained essentially unchanged.3 It was created to patrol those areas not policed by other law enforcement agencies, i.e. municipal, village and township police departments and county sheriff offices.

It appears the legislature intended to limit the authority and arrest power of The Highway Patrol.4 In short, the OSHP is empowered to enforce vehicle and operation related laws on all roads and highways; enforce criminal laws on state property; and render emergency assistance under specific conditions outlined by statute. Other than in the locations and under the circumstances enumerated by statue, the OSHP has no authority. Consequently, the OSHP has no authority to enforce the law or make arrests on private property.5 The defendant's assertion that the trooper had no power to arrest him is...

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