New Lebanon v. Blankenship, 93

• Citation: 640 N.E.2d 271,65 Ohio Misc.2d 1
• Decision Date: 23 December 1993
• Docket Number: No. 93,93
• Parties: VILLAGE OF NEW LEBANON v. BLANKENSHIP. * TRC 6668AB.
• Court: Court of Common Pleas of Ohio

Page 1

65 Ohio Misc.2d 1

640 N.E.2d 271

VILLAGE OF NEW LEBANON v. BLANKENSHIP. ^*

No. 93 TRC 6668AB.

Montgomery County Court of Ohio.

Decided Dec. 23, 1993.

Jeffrey Startzman, New Lebanon Prosecutor, for plaintiff.

Michael V. Lewis, for defendant Charles B. Blankenship.

JEFFREY E. FROELICH, Judge.

The defendant has moved to suppress the evidence resulting from the stop of the defendant based on the belief that there was no probable cause or even articulable suspicion to warrant the stop and the subsequent citation for driving under the influence, a violation of R.C. 4511.19(A)(1). It is stipulated that the defendant was operating a motor vehicle in the plaintiff's jurisdiction at approximately 1:30 a.m. At that time and place, an officer in a marked cruiser and in uniform observed the defendant weaving within his lane. It is also stipulated that the road at that point is one lane in both directions with no marked center line. Although the area is residential, there was no other traffic in the area and no signs of any pedestrian activity.

The defendant was cited for violating R.C. 4511.33. That section reads:

"Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or whenever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply:

"(A) 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 such lane or line until the driver has first ascertained that such movement can be made with safety."

Since this road is not clearly marked with lanes for traffic, the prosecutor has requested an amendment to charge a violation of R.C. 4511.25, which reads:

"Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows:

"(1) When overtaking and passing another vehicle * * * or when making a left turn * * *.

"(2) When an obstruction exists * * *."

Both the prosecutor and the defense attorney framed the question, and seek a definitive opinion for future reference and guidance on the single issue of, "whether or not weaving in one's own lane is sufficient cause to stop a vehicle?"

As a condition precedent to a lawful stop, the law enforcement officer must have "some articulable and reasonable suspicion of illegal activity connected with the person in the vehicle and/or the operation thereof." Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044.

Fortunately or unfortunately, the court cannot make such a far-reaching decision, but must base its decision on the facts before the court. These facts--that there was no center line, that there was no other traffic, that there was no danger or safety problem created by the defendant's operation, that there was no testimony concerning the length of time or distance involved in the defendant's operation of the vehicle, that there was no indication of the erraticism of the defendant's operation (e.g., some quick turns constituting weaving and then slow drifting to one side of the road, then large loops in the road, etc.)--do not create an articulable suspicion.

The section originally charged, R.C. 4511.33, does not prohibit weaving in one's own lane, but rather only requires driving within a single lane and, further, even permits leaving that lane if it can be done with safety. The proposed amended charge of R.C. 4511.25 again only requires that the vehicle be driven on the right half of the roadway, but does not prohibit weaving as long as that person is upon the right half of the roadway.

Most courts that have reviewed this narrow question have held that minor weaving without leaving the lane of travel does not give grounds for a stop. See, for example, Mason v. Loveless (1993), 87 Ohio App.3d 264, 622 N.E.2d 6, and State v....