[Cite as State v. Shaffer, 2013-Ohio-3581.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 11-13-02

        v.

KIMBERLY JO SHAFFER,                                     OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Paulding County Court
                            Trial Court No. 12-TRC-291 A-B

                       Judgment Reversed and Cause Remanded

                             Date of Decision: August 19, 2013




APPEARANCES:

        Peter R. Seibel for Appellant

        Joseph R. Burkard and Matthew A. Miller for Appellee
Case No. 11-13-02


SHAW, J.

       {¶1} Defendant-appellant, Kimberly Jo Shaffer (“Shaffer”), appeals the

December 17, 2012, judgment of the Paulding County Court finding her guilty of

reckless operation, in violation of R.C. 4511.20(B), a misdemeanor of the third

degree, and failure to drive within the marked lanes, in violation of R.C.

4511.33(A)(1), a minor misdemeanor, following a plea of no contest to both

offenses. The trial court imposed a three-day jail sentence and a fine of $375 for

the reckless operation conviction and a fine of $50 for her failure to drive within

the marked lanes.

       {¶2} On March 10, 2012, at approximately 3:00 a.m., Trooper Joe Sisco

was traveling behind Shaffer on State Route 66 in Paulding County when he

observed the right side tires of Shaffer’s vehicle drive onto the white line marker

one time for about three seconds. Trooper Sisco proceeded to stop Shaffer for

failure to drive within the marked lines, also referred to as a “marked lanes

violation.”

       {¶3} Upon speaking with Shaffer, Trooper Sisco smelled a strong odor of

alcoholic beverage emitting from the vehicle. He also observed Shaffer’s eyes

were red and glassy and that her speech was slurred. Shaffer initially denied

consuming any alcoholic beverage, but later admitted to consuming alcohol

around 3:00 p.m. earlier that afternoon.



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       {¶4} Trooper Sisco asked Shaffer to perform a series of field sobriety tests

and Shaffer completed the Horizontal Gaze Nystagmus (“HGN”). Trooper Sisco

reported observing six out of six clues indicating impairment. Shaffer declined to

perform any subsequent field sobriety tests. Trooper Sisco also asked Shaffer to

submit to a portable breath test, which she refused.

       {¶5} Trooper Sisco placed Shaffer under arrest and charged her with

operating a vehicle while under the influence or “OVI,” in violation of R.C.

4511.19(A)(2). Trooper Sisco also cited Shaffer for failure to drive within the

marked lines, in violation of R.C. 4511.33(A)(1). In a written report filed with the

citation, Trooper Sisco stated that he “observed the vehicles [sic] right side tires

cross over the white lane marker line. After observing the violation, [he] activated

the overhead emergency lights to conduct a traffic stop.” (Doc. No. 1).

       {¶6} Shaffer appeared in open court and entered pleas of not guilty. On

May 9, 2012, Shaffer filed a motion to suppress all evidence against her on the

ground that Trooper Sisco lacked probable cause and/or reasonable articulable

suspicion justifying the stop of her vehicle. Specifically, Shaffer argued that she

did not commit a marked lanes violation, which was the sole reason Trooper Sisco

initiated the stop.

       {¶7} On May 31, 2012, the trial court held a suppression hearing on the

matter. Trooper Sisco was the only witness to testify and provided the following

testimony.

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       Prosecutor: And Trooper Sisco what was the reason for your
       interaction with Miss Shaffer on that night?

       Trooper Sisco: Ah, I was traveling southbound on State Route
       66 near mile post 12 in Paulding County, um she was traveling
       southbound in front of me, while behind the vehicle I noticed
       that the right side tires drove across the white lane marker and I
       stopped her for that violation.

       Prosecutor: Ok, what exactly is the violation you’re referring
       to?

       Trooper Sisco: Ah, it would be a marked lanes violation.

       Prosecutor: Ok, and that’s because she bumped the white line?

       Trooper Sisco: Ah, her tires drove onto it and her vehicle was
       across it.

(Tr. at 5-6).

       {¶8} In addition to Trooper Sisco’s testimony, the prosecution admitted as

evidence the recording from Trooper Sisco’s dashboard camera. On the stand,

Trooper Sisco narrated the sequence of events depicted on the recording and

identified what he observed as the marked lanes violation.

       {¶9} On cross-examination, Trooper Sisco provided the following

testimony regarding his reason for stopping Shaffer’s vehicle.

       Defense Counsel: Trooper, is it my understanding that you’re
       saying that she touched the fog line one time? Is that correct?

       Trooper Sisco: She drove across it the one time, yes sir.

       Defense Counsel: Ok, now what I thought I heard you say was
       her tires were on the fog line, but her vehicle was across the line?


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         Trooper Sisco: That would be correct.

         Defense Counsel: Ok, so her tires were not actually on the other
         side of the fog line but the out [sic] overhang on her car was on
         the other side?

         Trooper Sisco: I would say that the right fender and the outside
         mirror would be across the white line.

(Tr. at 10).

         {¶10} Trooper Sisco further testified that Shaffer’s failure to drive within

the marked lanes was the only traffic offense he observed.

         {¶11} On August 6, 2012, the trial court issued a judgment entry overruling

Shaffer’s motion to suppress. However, in this judgment entry the trial court

failed to address or determine whether Trooper Sisco had a legitimate basis to

initiate the traffic stop, which was the only ground for suppression asserted in

Shaffer’s motion.          Instead, the trial court proceeded to only address whether

Trooper Sisco had reasonable, articulable suspicion and/or probable cause to

believe that Shaffer was driving while under the influence.1

         {¶12} Shaffer subsequently filed a “Request for Judgment on Motion,”

requesting the trial court make a legal determination regarding the validity of

Trooper Sisco’s initial stop of Shaffer.




1
  We also note that in making this determination, the trial court improperly considered Shaffer’s decision to
decline Trooper Sisco’s request to perform the voluntary field sobriety tests as an indicia of impairment,
rather than viewing her decision as a legitimate exercise of her right against self-incrimination. However,
we do not find this error to be reversible because there were other indications of impairment in the record,
and no error was assigned to this specific probable cause determination.

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        {¶13} On September 12, 2012, the trial court issued a judgment entry

finding the stop to be constitutionally valid and denying Shaffer’s “Request for

Judgment on Motion.” Specifically, the trial court concluded that “the officer had

reasonable and articulable suspicion that the Defendant violated R.C. 4511.33

because the officer observed the Defendant’s tires touch[] the fog line and because

it was 3:00 a.m. on a Saturday morning.” (Doc. No. 17 at 2).

        {¶14} Shaffer entered pleas of no contest to an amended charge of reckless

operation, a misdemeanor of the third degree, and the failure to drive within the

marked lanes charge.2 The trial court sentenced Shaffer to three days in jail and

ordered her to pay a fine of $425 plus court costs. The trial court stayed the

sentence pending appeal.

        {¶15} Shaffer now appeals asserting the following assignment of error.

        THE TRIAL COURT ERRED WHEN IT FAILED TO
        SUPPRESS ALL EVIDENCE OBTAINED BY THE STATE
        TROOPER AND WHEN IT ALSO REFUSED TO VACATE
        THE ALS, AFTER THE COURT DETERMINED THAT THE
        APPELLANT’S TIRES “ONLY TOUCHED” THE FOG LINE
        ONE TIME, DID NOT GO OUTSIDE THE FOG LINE, THAT
        THERE WAS NOT A VIOLATION OF LAW, FOUND NO
        OTHER ARTICULABLE FACTS TO JUSTIFY THE INITIAL
        DETENTION, BUT NEVERTHELESS FOUND THE
        CONTINUED     DETENTION   LEGAL   AND    FOUND
        ADMISSIBLE     ALL   EVIDENCE    SUBSEQUNETLY
        OBTAINED AFTER THE INITIAL UNWARRANTED
        DETENTION.


2
 The reckless operation charge to which Shaffer pleaded no contest was pursuant to R.C. 4511.20(B),
which sets forth an elevated misdemeanor offense for the third offense within one year. See R.C.
4511.20(B)

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Case No. 11-13-02


       {¶16} In her sole assignment of error, Shaffer argues that the trial court

erred in overruling her motion to suppress. Specifically, Shaffer asserts that the

trial court erred when it determined that Trooper Sisco had a reasonable,

articulable suspicion to believe she committed a marked lanes violation when her

vehicle’s tires touched, but did not completely cross, the white fog line. Shaffer

claims that Trooper Sisco’s testimony that a vehicle’s tires touched the white fog

line on a single occasion, causing the right fender of the vehicle to extend slightly

over the line for three seconds, without any other evidence in the record

addressing either the practicability or safety of the circumstances, is not sufficient

to establish reasonable, articulable suspicion of a violation of R.C. 4511.33(A)(1).

We agree.

       {¶17} In reviewing a trial court’s ruling on a motion to suppress, the

reviewing court must keep in mind that weighing the evidence and determining the

credibility of witnesses are functions for the trier of fact. State v. Burnside, 100

St.3d 152, 2003-Ohio-5372 ¶ 8. A reviewing court is bound to accept those

findings of fact if supported by competent, credible evidence. State v. Roberts,

110 Ohio St.3d 71 2006-Ohio-3665, ¶ 100. The reviewing court, however, must

decide de novo whether, as a matter of law, the facts meet the appropriate legal

standard. Burnside at ¶ 8.

       {¶18} At the outset, we note that the only issue before us is whether

Trooper Sisco had a reasonable, articulable suspicion to believe Shaffer committed

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Case No. 11-13-02


a marked lanes violation in order to legally effectuate the traffic stop.3 The

Supreme Court of Ohio has defined “reasonable articulable suspicion” as “specific

and articulable facts which, taken together with rational inferences from those

facts, reasonably warrant the intrusion [upon an individual’s freedom of

movement].” State v. Bobo, 37 Ohio St.3d 177, 178 (1988), quoting Terry v.

Ohio, 392 U.S. 1, 21–22 (1968). “The ‘reasonable and articulable suspicion’

analysis is based on the collection of factors, not on the individual factors

themselves.” State v. Mays, 119 Ohio St.3d 406, 2008–Ohio–4539, ¶ 12, quoting

State v. Bactchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 11. (Emphasis sic).

         {¶19} At the suppression hearing, Trooper Sisco testified that he stopped

Shaffer based on his observation that she had committed a marked lanes violation.

Trooper Sisco described the conduct comprising the violation as Shaffer’s right

side tires driving onto the white fog line one time causing the right side of

Shaffer’s vehicle to cross the same line for approximately three seconds.

Specifically, Trooper Sisco recalled observing the right fender and the outside

mirror cross the white line.

         {¶20} A marked lanes violation is governed by R.C. 4511.33(A)(1), which

states the following:

         (A) Whenever any roadway has been divided into two or more
         clearly marked lanes for traffic, or wherever within municipal
         corporations traffic is lawfully moving in two or more
3
  Despite the manner in which the appellant chose to phrase the assignment of error, the only issue raised at
the suppression hearing and the only issue argued in her brief is the legitimacy of the traffic stop.

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Case No. 11-13-02


       substantially continuous lines in the same direction, the
       following rules apply:

       (1) A vehicle or trackless trolley 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.

       {¶21} In drafting the foregoing subsection (A)(1), the legislature

specifically chose the phase “as nearly as is practicable” in describing a motorist’s

duty to drive within a single lane or line of traffic. We believe the language “as

nearly as is practicable” inherently contemplates some inevitable and incidental

touching of the lane lines by a motorist’s vehicle during routine and lawful

driving, without the vehicle being considered to have left the lane of travel so as to

constitute a marked lanes violation as proscribed by R.C. 4511.33(A)(1), such as

to avoid debris, obstructions or imperfections in the roadway.

       {¶22} In the alternative, the same subsection notably does not proscribe all

movement from the marked lane but expressly links any movement from the

marked lane directly with the element of safety—specifically permitting

movement from the lane only where “the driver has first ascertained that such

movement can be made with safety.”

       {¶23} Accordingly it is our conclusion that consideration of the statutory

factors of practicability and safety is integral to any determination of a violation of

R.C. 4511.33(A)(1).


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       {¶24} We would be inclined to agree that a reasonable, articulable

suspicion of a violation of R.C. 4511.33(A)(1) could be established by almost any

evidence in the record addressing either the practicability or the safety of the

driving circumstances. This conclusion stems in part from the fact that a sudden

deviation from the lane of travel, where there is nothing in the surrounding

circumstances to indicate why it was not practicable for the driver to remain

within the lane, could in itself raise a legitimate safety concern sufficient to

constitute a reasonable, articulable suspicion of a violation of R.C. 4511.33(A)(1)

in the right case.

       {¶25} At the same time, we also recognize that there could always exist

something in the surrounding conditions or circumstances that raises a safety

concern regarding the driver’s deviation from the lane that completely obviates

any need to address the issue of the driver’s practicability in maintaining the lane

of travel, all of which could likewise independently constitute a reasonable,

articulable suspicion of a violation of R.C. 4511.33(A)(1).

       {¶26} However, the fact remains that in this case there is no evidence in the

record from which any legitimate inference can be drawn regarding either one of

these requisite statutory elements. As noted earlier, the only evidence presented to

the trial court was Trooper Sisco’s testimony that there was a one-time touching of

Shaffer’s tires on the white fog line, causing a slight extension of the right fender

and mirror of the vehicle over the line for approximately three seconds. There

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Case No. 11-13-02


was no other evidence concerning the circumstances surrounding Shaffer’s failure

to maintain her lane of travel.

       {¶27} More specifically, there was nothing in Trooper Sisco’s testimony as

to the traffic, weather or road conditions, or anything else in the record to indicate

either 1) that there was no apparent reason why it was not practicable for Shaffer

to remain within the lane, or 2) that in this instance, Shaffer’s single and brief

movement from the lane otherwise presented any apparent issue of safety.

       Accordingly without some additional evidence in the record regarding the

surrounding circumstances, traffic and road conditions going to the express

statutory language regarding either practicability or safety, we cannot conclude

that the act of Shaffer driving onto the white fog line one time for a matter of three

seconds is alone sufficient to establish the requisite reasonable and articulable

suspicion to stop Shaffer for a violation of R.C. 4511.33(A)(1).

       {¶28} We note that the trial court appeared to rely upon the fact that the

incident occurred at 3:00 a.m. as additional evidence of reasonable, articulable

suspicion to make the stop. However, we believe the trial court was once again

misdirecting its focus somewhat to the secondary OVI charge instead of the

marked lanes violation.     While the time of day or night may in some cases

constitute one factor among many others for the court to consider in determining

reasonable, articulable suspicion of an OVI violation, the stop in this case was

based upon a marked lanes violation, not a suspicion of an OVI violation. We do

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Case No. 11-13-02


not believe the time of day alone is sufficient to raise any legitimate inference one

way or the other regarding the practicability or safety factors necessary for the

marked lanes violation stop in this case.

       {¶29} We wish to emphasize that in reaching our decision we specifically

decline to adopt and do not endorse the rationale of the Eleventh District in

Wickliffe v. Petway, 11th Dist. Nos. 2011-L-101, 2011-L-102, 2012-Ohio-2439, or

the decisions in some other appellate districts which seem to employ a so-called

“tire rule” approach to marked lanes cases. These decisions appear to be based

solely upon whether a vehicle’s tires merely touched or completely crossed the

lane line and have found no statutory violation as a matter of law via judicial

construction, unless the tires have been observed to actually cross over the line.

On the contrary, our decision does not rule out the possibility that in the right

context of conditions and circumstances, the driving observed in this case could be

sufficient to establish grounds for a marked lanes violation.         Nor have we

established any rule of law that would require every case to contain additional

evidence of erratic or unsafe driving beyond the single crossing of the lane marker

presented in this case. See, State v. Mays, 119 Ohio St. 3d 406, 2008-Ohio-4539.

In sum, we simply believe our decision is more consistent with the specific

statutory language of R.C. 4511.33(A)(1), which among other things, refers to the

movement and location of vehicles, not tires.



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Case No. 11-13-02


       {¶30} Based on the particular facts of this case and the foregoing analysis,

we conclude the trial court erred in determining that Trooper Sisco had a

reasonable, articulable suspicion to believe Shaffer violated R.C. 4511.33(A)(1).

Therefore, we find that the trial court erred in overruling Shaffer’s motion to

suppress on this basis. Accordingly, the assignment of error is sustained and the

judgment and sentence of the Paulding County Court is reversed and the cause is

remanded for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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