State v. Goodman

• Citation: 221 N.E.2d 202,8 Ohio App.2d 166
• Parties: , 37 O.O.2d 186 The STATE of Ohio, Appellee, v. GOODMAN, Appellant.
• Decision Date: 01 November 1966
• Court: United States Court of Appeals (Ohio)

Page 166

8 Ohio App.2d 166 221 N.E.2d 202, 37 O.O.2d 186 The STATE of Ohio, Appellee,
v.
GOODMAN, Appellant. Court of Appeals of Ohio, Seventh District, Columbiana County. Nov. 1, 1966.

Page 167

[221 N.E.2d 203] Charles B. Lang, East Liverpool, for appellee.

George A. Aronson and Bernard Fineman, East Liverpool, for appellant.

LYNCH, Judge.

This is an appeal by defendant, appellant herein, from his conviction in the County Court for the Eastern District of Columbiana County for a violation of Section 4511.251 of the Revised Code (drag racing).

Defendant's second assignment of error is that Section 4511.251, Revised Code, is unconstitutional, and that the trial court erred in overruling his demurrer on this issue.

Section 4511.251, Revised Code, became effective November 10, 1959. There have been several reported cases concerning this statute, including three separate Courts of Appeals cases. The constitutionality of this statute first became an issue in the Common Pleas Court of Mercer County, in State v. Stukenborg, Ohio Com.Pl., 185 N.E.2d 133, 89 Ohio Law Abst. 539, which was decided August 31, 1962, on an appeal from the Celina Municipal Court. The court held that since the question of constitutionality had not been raised in the trial court it could not be considered on appeal.

Page 168

However, in 1964 the issue was presented squarely before the Toledo Municipal Court which held this statute to be unconstitutional in State v. Schultz, 1 Ohio Misc. 81, 205 N.E.2d 126, which happens to be not only the most recent case on this statute but the sole reported case on the constitutionality of this statute.

The basis upon which the Toledo Municipal Court challenged the constitutionality of Section 4511.251, Revised Code, is that the following provision-'The operation of two or more vehicles side by side either at speeds in excess of prima facie lawful speeds established by divisions (A) to (G), inclusive, of Section 4511.21 of the Revised Code or rapidly accelerating from a common starting point to a speed in excess of such prima facie lawful speeds shall be prima facie evidence of drag racing'-is a presumption upon a presumption, because the speed limits set out in divisions (A) to (G), inclusive, in Section 4511.21, Revised Code, are only prima facie evidence of the violation of Section 4511.21, Revised Code. The court also stated that the presumption provided by Section 4511.251, Revised Code, waters down the presumption of innocence, sets forth an unreasonable and arbitrary standard of conduct, and 'is violative of Article XIV, Section 1, Amendments, Constitution of the United States and Article I, Section 16 of the Constitution of Ohio.'

We do not agree with either the reasoning or result of State v. Schultz, 1 Ohio Misc. 81, 205 N.E.2d 126, because it is the opinion of the members of this court that the above-quoted language of Section 4511.251, Revised Code, does not create a presumption upon a presumption.

Section 4511.21, Revised Code, pertains to speed regulations and provides that the speed limits set out in divisions (A) to (I), inclusive, are prima facie evidence of the [221 N.E.2d 204] violation of this statute. We are unaware that anyone has seriously contended that this presumption created by the Legislature waters down the presumption of innocence which is also provided by statute, namely, Section 2945.04, Revised Code.

The Legislature has the power to establish uniform maximum reasonable speed limits for all motor vehicles operated within the state, and many states have such statutes. 7 American Jurisprudence 2d 734, Automobiles and Highway Traffic,

Page 169

Section 180. However, the Ohio Legislature has been more lenient in the matter of speed laws than other states and only creates a presumption of a violation of the speed statute when the speed limits are exceeded.

Section 4511.251, Revised Code, pertains to drag racing. The language that creates the presumption for this statute has previously been set out. It is the opinion of the members of this court that the fact that Section 4511.251, Revised Code, refers to the speed limits in divisions (A) to (G), inclusive, of Section 4511.21, Revised Code, as the speed limits to be used for standards in applying the presumption instead of repeating the language of these divisions in their entirety does not mean that it is necessary to establish a violation of Section 4511.21, Revised Code, before there can be a conviction of a violation of Section 4511.251,

Revised Code.

It is our opinion that Sections 4511.21 and 4511.251, Revised Code, set out two separate, independent traffic offenses, and that the legislative intent concerning the reference in Section 4511.251, Revised Code, to the speed limits set out in divisions (A) to (G), inclusive, of Section 4511.21, Revised Code, was that, for the purpose of creating a prima facie case of drag racing, the speed limits referred to in divisions (A) to (G), inclusive, of Section 4511.21, Revised Code, are maximum speed limits.

We hold that there is a rational connection between the facts required to be established by Section 4511.251, Revised Code, and the presumption of drag racing created by this statute upon proof of such facts. Therefore, we hold that Section 4511.251, Revised Code, is constitutionally valid.

The first assignment of error pertains to the overruling of defendant's demurrer to the prosecution's affidavti, the pertinent part of which is set out as follows:

'* * * on or about the 5 day of March, A. D. 1965, at the County of Columbiana aforesaid one Donald Givens Goodman, did unlawfully operate a certain motor vehicle, to wit: a 1962 Ford Falcon station wagon bearing 1964 Ohio Registration L 328 E over and upon U. S. Highway No. 30 at approximately 2:50 p. m., did operate said vehicle at the side of another vehicle going in the same direction at the speed of 70 miles per hour in

Page 170

a 45 mile an hour zone. Said operation contrary to and in violation of Section 4511.251 of the Ohio Revised Code. * * *.'

The second and third paragraphs of the syllabus of State v. Cimpritz, 158 Ohio St. 490, 110 N.E.2d 416, are as follows:

'2. The elements necessary to constitute a crime must be gathered wholly from the statute.

'3. If any material element or ingredient of an offense, as defined by statute, is omitted from an indictment, such omission is fatal to the validity of the indictment.'

It has been held that the above statements of law are applicable to affidavits. State v. Latham, 120 Ohio App. 176, 201 N.E.2d 603. See 28 Ohio Jurisprudence 2d 526, Indictment and Information, Section 101.

An examination of Section 4511.251, Revised Code, reveals that drag racing can occur in two separate situations, with the following elements:

A. 1. Two or more vehicles.

2. Operating from a point side by side.

3. At accelerating speeds.

[221 N.E.2d 205] 4. In a competitive attempt to outdistance each other.

B. 1. One or more vehicles.

2. Operating over a common selected course, from the same point to the same point.

3. Wherein timing is made of the participating vehicles.

4. Involving competitive accelerations or speeds.

Prima facie evidence of drag racing occurs from proof of the following facts:

1. Operation of two or more vehicles side by side.

2. Either (a) in speeds in excess of the speed limits established by divisions (A) to (G), inclusive, of Section 4511.21, Revised Code, or (b) rapidly accelerating from a common starting point to a speed in excess of such speed limits.

Some confusion has arisen...