State v. Varsel
| Decision Date | 02 May 2014 |
| Docket Number | No. F–13–006.,F–13–006. |
| Citation | 11 N.E.3d 327 |
| Parties | STATE of Ohio, Appellee v. Thomas VARSEL, Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Scott A. Haselman, Fulton County Prosecuting Attorney, for appellee.
Ralph C. Buss, Painesville, and Frank Krajenke, for appellant.
{¶ 1} Following a bench trial, defendant-appellant, Thomas M. Varsel, appeals the court's verdict finding him guilty of violating R.C. 4511.84, operating a motor vehicle while wearing earplugs. For the reasons that follow, we affirm the May 15, 2013 judgment of the Fulton County Court of Common Pleas.
{¶ 2} Thomas Varsel is a resident of Monroe, Michigan. On August 18, 2012, he was stopped by an Ohio Highway Patrol Officer while driving his motorcycle in Fulton County, Ohio. He was issued a citation under R.C. 4511.84 which prohibits drivers from wearing earplugs while operating a motor vehicle. Varsel contested the citation. He filed two motions to dismiss, which the trial court denied, and the matter proceeded to trial.
{¶ 3} At trial, Varsel, who worked as a noise vibration harshness technologist for Ford Motor Company, admitted that he was wearing foam earplugs at the time he was stopped. He testified that these earplugs—which he described as “noise reducing hearing protection”—protect his ears against the sound of the wind when he rides his motorcycle. He said that without the earplugs, he experiences a drumming in his ear, which progresses to a ringing as he accelerates, and then further progresses to the point where he cannot hear at all. He explained that with the earplugs in, he is able to hear sirens and traffic noises.
{¶ 4} Eric Healy, Ph.D., provided expert testimony on Varsel's behalf. Dr. Healy, an Ohio State University professor who teaches hearing science and researches the operation of the auditory system, took measurements of the sound pressure levels resulting from wind noise at various speeds and he assessed the potential for that wind noise to damage human hearing. He determined that at 45 miles per hour, the wind creates a decibel level of 115—a level comparable to that of a jackhammer. At 65 miles per hour, the decibel level rises to 130, roughly the level produced by a jet engine. He testified that exposure to that noise level has been demonstrated to cause permanent hearing damage. He explained that the use of earplugs has been shown to mitigate that damage and has also been shown to increase a person's ability to detect other sounds such as emergency signals.
{¶ 5} On cross-examination, Dr. Healy conceded that the best protection against the potential hearing loss caused by the wind noise would be not to drive a motorcycle. Varsel acknowledged that he owns a vehicle other than a motorcycle.
{¶ 6} The court found Varsel guilty, indicating that “the court is impressed with defendant's case but is not persuaded a constitutional violation occurred.” It imposed a $37.00 fine plus court costs. Varsel appeals that decision and assigns the following errors.
{¶ 7} R.C. 4511.84 provides, in part:
(A) No person shall operate a motor vehicle while wearing earphones over, or earplugs in, both ears. As used in this section, “earphones” means any headset, radio, tape player, or other similar device that provides the listener with radio programs, music, or other recorded information through a device attached to the head and that covers all or a portion of both ears. “Earphones” does not include speakers or other listening devices that are built into protective headgear.
(B) This section does not apply to:
(1) Any person wearing a hearing aid;
(2) Law enforcement personnel while on duty;
(3) Fire department personnel and emergency medical service personnel while on duty;
(4) Any person engaged in the operation of equipment for use in the maintenance or repair of any highway;
(5) Any person engaged in the operation of refuse collection equipment.
{¶ 8} Before trial, Varsel filed two motions to dismiss. In his first motion, he argued that R.C. 4511.84 is unconstitutional under the Fifth and Fourteenth Amendments and violates the constitutional right to bodily integrity. He also argued that the statute unlawfully restricts interstate travel. The court denied the motion, recognizing that the operation of a motorcycle is a voluntary activity with its own rules. It explained:
{¶ 9} In Varsel's second motion, he argued that R.C. 4511.84 is void for vagueness. The court denied that as well, finding that “ ‘earplug’ has such an accepted definition that a person of ordinary intelligence would know that placing foam in ears to reduce noise, and, ability to hear, is forbidden.”
{¶ 10} Varsel's appeal of the trial court's verdict raises the issues that were previously addressed in his motions to dismiss.
{¶ 11} All legislative enactments enjoy a presumption of constitutionality. State v. Dorso, 4 Ohio St.3d 60, 61, 446 N.E.2d 449 (1983). Courts must apply all presumptions and pertinent rules of construction so as to uphold the constitutionality of a challenged statute or ordinance. Id. Where a statute is challenged for vagueness, “we are obligated to indulge every reasonable interpretation favoring the ordinance in order to sustain it.” Id.
{¶ 12} “Under the tenets of due process, an ordinance is unconstitutionally vague under a void-for-vagueness analysis when it does not clearly define what acts are prohibited under it.” Viviano v. Sandusky, 2013-Ohio-2813, 991 N.E.2d 1263, ¶ 13 (6th Dist.), citing Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). To survive a challenge under the void-for-vagueness doctrine,the statute must meet three requirements. It must (1) provide fair warning to the ordinary citizen of what conduct is proscribed, (2) preclude arbitrary, capricious, and discriminatory enforcement, and (3) not impinge upon constitutionally protected rights. Id. at ¶ 15, citing Grayned at 108–09, 92 S.Ct. 2294.
{¶ 13} Varsel complains that the statute defines “earphones” yet it fails to define “earplugs.” He recognizes that Merriam–Webster defines “earplug” as:
1: an ornament inserted in the lobe of the ear especially to distend it
2: a device of pliable material for insertion into the outer opening of the ear (as to keep out water or deaden sound).
{¶ 14} (http:// www. merriam- webster. com/ dictionary/ earplug, accessed April 22, 2014). However, he claims (1) that he understood what he was wearing to be “hearing protection;” (2) the statute does not define what frequencies are to be filtered out; (3) the statute does not describe what materials an earplug is made of (e.g., wood, cotton, cloth, resin, rubber, sponge, plastic); and (4) the statute appears to recognize that some operators of motor vehicles (such as refuse collection and road repair workers) are in need of ear protection while not affording the same protection to drivers of motorcycles. He then makes the strained argument that the first definition of “earplug” may render it unlawful to wear earrings while driving.
{¶ 15} At trial, Varsel made a concentrated effort to avoid using the word “earplugs” and described them instead as “foam hearing protection devices.” They were marked as an exhibit and admitted into evidence, thus we have had occasion to view them. They are two pieces of malleable foam, connected by a plastic string, each about a half of an inch long. One end is slightly larger than the diameter of the opening of an average person's ear and the diameter gradually becomes slightly larger, forming a triangle appearance. The foam can be manipulated to fit into the opening of the ear and after it is inserted, the foam expands to close any remaining space. In fact, the “hearing protection devices” are, in our view, precisely what Merriam–Webster describes in the second dictionary definition of “earplug.”
{¶ 16} Turning to the three-part analysis to be applied in a void-for-vagueness challenge, under the first prong, “an ordinance must be comprehensible to a person of ordinary intelligence, to the extent that it would inform such a person of the activities it proscribes.” Viviano, 2013-Ohio-2813, 991 N.E.2d 1263 at ¶ 16. We see no reason why a person of ordinary intelligence would not understand the meaning of the word “earplug.” It is used in the statute in the same way as it is defined in the dictionary and referred to in common usage.
{¶ 17} Moving to the second prong, Id. at ¶ 18. We find that the language in the statute is precise and leaves no discretion as to its application and enforcement.
{¶ 18} Under the third prong, “it must be determined whether the challenged statutory language unreasonably impinges upon or inhibits fundamental constitutionally protected freedoms.” Cleveland v. Broyles, 83...
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