State v. Darrah

• Decision Date: 19 November 1980
• Docket Number: No. 80-368,80-368
• Citation: 64 Ohio St.2d 22,412 N.E.2d 1328,18 O.O.3d 193
• Parties: , 18 O.O.3d 193 The STATE of Ohio, Appellee, v. DARRAH, Appellant.
• Court: Ohio Supreme Court

Page 22

64 Ohio St.2d 22

412 N.E.2d 1328, 18 O.O.3d 193

The STATE of Ohio, Appellee, v. DARRAH, Appellant.

No. 80-368.

Supreme Court of Ohio.

Nov. 19, 1980.

Syllabus by the Court

1. An interstate highway sign directing that "All trucks enter weigh station" is a traffic control device. (R.C. 4511.01(QQ), 4511.10 and 4511.12 applied.)

2. When a driver of a vehicle receives a traffic citation for violating R.C. 4511.12 from a state highway patrolman who did not personally witness the commission of the traffic violation, the driver has not been "unlawfully arrested" for a misdemeanor offense not committed in the presence of the officer. (R.C. 2935.03 applied.)

David F. Darrah, defendant-appellant herein, while driving a tank truck along Interstate 77 in Tuscarawas County failed to obey a four-foot by eight-foot roadside traffic sign which directed that "All trucks enter weigh station." A member of the weigh station crew on duty at the time of defendant's violation observed defendant's truck pass the station without stopping to be weighed. A fellow worker at the weigh station immediately transmitted an account of defendant's conduct and a description of defendant's truck to the State Highway Patrol.

A state trooper on patrol in the general area received the foregoing information, stopped the defendant and cited him for violating R.C. 4511.12. ¹

The New Philadelphia Municipal Court found defendant guilty of violating R.C. 4511.12 and imposed a $100 fine, plus court costs.

The Court of Appeals affirmed defendant's conviction, and finding its judgment to be in conflict with the judgment of the Court of Appeals for Trumbull County in State v. Murphy (April 10, 1978), No. 2553, unreported, certified the record of the case to this court for review and final determination.

Eugene H. Nemitz, Jr., Pros. Atty., for appellee.

Thomas S. Haney, Akron, for appellant.

CELEBREZZE, Chief Justice.

In support of his argument that the charge against him should be dismissed, appellant contends that a weigh station sign is not a "traffic control device," and that he was unlawfully arrested for a misdemeanor not committed in the presence of the state trooper.

The threshold issue in this case is whether a weigh station sign is a traffic control device. For the reasons that follow, we hold that a weigh station sign is a traffic control device, the disobedience of which constitutes a misdemeanor.

R.C. 4511.01(QQ) essentially defines a traffic control device as a sign for the purpose of regulating or guiding traffic. ² R.C. 4511.10 provides, in relevant part:

"The department of transportation may place and maintain traffic control devices, conforming to its manual and specifications, upon all state highways as are necessary to indicate and to carry out sections 4511.01 to 4511.78 and 4511.99 of the Revised Code, or to regulate, warn, or guide traffic." (Emphasis added.)

Thus, in light of the two aforementioned statutory provisions, it is clear that a sign, appropriately erected under the auspices of state authority, which "regulates" or "guides" traffic is a traffic control device within the context of R.C. 4511.01(QQ) and 4511.10.

At this point, it is also imperative to note that R.C. 5501.31 ³ and 5511.02 ⁴ charge the Director of Transportation with the responsibility to maintain, repair and preserve state highways, limited access highways and freeways.

Analyzing all the foregoing sections of the Revised Code in pari materia, we conclude that the Department of Transportation, in erecting a sign directing all trucks to enter a roadside weigh station, appropriately "regulates," directs, guides and controls the flow and tonnage of traffic consistent with its duty to maintain, preserve and otherwise protect the physical integrity of the various types of highways and roads in Ohio. See State v. Kuno (1976), 46 Ohio St.2d 203, 205, 346 N.E.2d 768 (bypassing a weigh station sign is a misdemeanor). See, generally, Carlton v. Riddell (Ohio App.1955), 132 N.E.2d 772; Federal Power Comm. v. Corp. Comm. of Oklahoma (W.D.Okl.1973), 362 F.Supp. 522, 532 ("regulate" means to lay down the rules by which a thing shall be done).

Finally, there is no merit to appellant's assertion that R.C. 4513.33, a specific provision pertaining to the weighing of vehicles, should prevail over R.C. 4511.10 and 4511.12, general provisions. Although this court has frequently ruled that the specific statute prevails over the general, there must also be an irreconcilable conflict between the provisions. State v. Frost (1979), 57 Ohio St.2d 121, 124, 387 N.E.2d 235.

R.C. 4513.33 is a specific provision outlining the procedure for a police officer to stop and weigh a vehicle which the officer has reason to believe is unlawfully overloaded. Clearly, this is not the only way for a truck to be weighed. Another way is for the driver to comply voluntarily with a weigh station sign, as provided for in R.C. 4511.12. Thus, R.C. 4511.12 supplements, rather than contradicts, R.C. 4513.33. As such, both statutory provisions must be given legal effect.

The second issue in this cause concerns appellant's claim that he was "arrested" when the State Highway Patrol issued a traffic ticket to him for violating R.C. 4511.12.

Appellant essentially contends that, in receiving the traffic citation, he was unlawfully arrested for a misdemeanor by an officer who did not personally witness the commission of the violation. We acknowledge the precision of appellant's contention that a law enforcement officer may arrest for a misdemeanor pursuant to R.C. 2935.03 ⁵ only when that officer has observed the commission of the offense. State v Mathews (1976), 46 Ohio St.2d 72, 75-76, 346 N.E.2d 151; State v. Lewis (1893), 50 Ohio St. 179, 33 N.E. 405.

However, before this court can find that there has been an "illegal arrest," it must first be demonstrated that there has been, in fact, an arrest.

This court previously held in State v. Barker (1978), 53 Ohio St.2d 135, 139, 372 N.E.2d 1324, certiorari denied, 439 U.S. 913, 99 S.Ct. 285, 58 L.Ed.2d 260, as follows:

"The word 'arrest' is derived from the French 'arreter,' meaning to stop or stay, as signifies a restraint of a person. Alter v. Paul (1955), 101 Ohio App. 139, 141, 135 N.E.2d 73. An arrest occurs when the following four requisite elements are involved: (1) An intent to arrest, (2) under a real or pretended authority, (3) accompanied by an actual or constructive seizure or detention of the person, and (4) which is so understood by the person arrested. State v. Terry (1966), 5 Ohio App.2d 122, 128, 214 N.E.2d 114, citing State v. Milam (1959), 108 Ohio App. 254, 268, 156 N.E.2d 840; * * *." Cf. Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660; United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427; Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Toledo v. Lowenberg (1955), 99 Ohio App. 165, 131 N.E.2d 682.

Furthermore, an arrest, in the technical, as well as the common sense, signifies the apprehension of an individual or the restraint of a person's freedom in contemplation of the formal charging with a crime. United States v. Bonanno (S.D.N.Y.1960), 180 F.Supp. 71; Patterson v. United States (C.A.5, 1951), 192 F.2d 631, 633 (dictum), certiorari denied, 343 U.S. 951, 72 S.Ct. 1043, 96 L.Ed. 1352. See, also, 5 American Jurisprudence 2d 698, Arrest, Section 3; American Law Institute, Code of Criminal Procedure, Section 18. ⁶

Under the particular facts of this case, the foregoing prerequisites of an arrest have not been met. The state trooper who issued the citation to appellant manifested no intent to take him into custody. Evidently, at no time did the appellant himself understand that he was under arrest. The record demonstrates that the appellant received a citation after a brief roadside confrontation. ⁷ At that point, appellant had the option to contest the ticket in Municipal Court or plead guilty and pay the $100 fine. He chose the former and was adjudicated guilty. We conclude that the appellant was never, at any point...