[Cite as State v. Jacobs, 2013-Ohio-3797.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      26667

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
LAURA M. JACOBS                                      STOW MUNICIPAL COURT
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   2011 TRD 5575

                                 DECISION AND JOURNAL ENTRY

Dated: September 4, 2013



        CARR, Judge.

        {¶1}     Appellant, Laura Jacobs, appeals the judgment of the Stow Municipal Court. This

Court affirms.

                                                I.

        {¶2}     On June 21, 2011, the Stow police cited Laura Jacobs with one count of

improperly approaching a stationary public safety vehicle in violation of R.C. 4511.213. Jacobs

initially pleaded not guilty to the charge. On July 5, 2011, Jacobs filed a motion to dismiss the

charge based on the unconstitutionality of R.C. 4511.213. The State promptly responded, and

Jacobs replied thereto. On August 31, 2011, a magistrate’s decision was journalized that denied

Jacobs’ motion to dismiss. On September 12, 2011, Jacobs filed objections to the magistrate’s

decision. On September 21, 2011, the trial court issued an order independently addressing the

issues raised in the motion and denying it. Jacobs subsequently entered a plea of no contest and
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was found guilty. A fine of $50 and court costs were imposed, and the sentence was stayed

pending an appeal.

       {¶3}    While Jacobs filed a notice of appeal, this Court issued a journal entry dismissing

the appeal on May 22, 2012, on the basis that the sentencing entry terminating the action was

signed by a magistrate, not a judge.       On June 28, 2012, the trial court issued a separate

sentencing entry signed by the trial judge. Jacobs filed a timely notice of appeal.

       {¶4}    On appeal, Jacobs raises three assignment of error.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY FAILING TO SUSTAIN APPELLANT’S
       OBJECTION ASSERTING THAT THE ENTIRE STATUTE OF [R.C.]
       4511.213 IS AT ISSUE, IN LIEU OF A SPECIFIC SUBSECTION LISTED ON
       THE CITATION.

       {¶5}    In her first assignment of error, Jacobs argues that the trial court erred by failing

to sustain her objection to the magistrate’s decision which did not address the constitutionality of

R.C. 4511.213 in its entirety. This Court disagrees.

       {¶6}    Jacobs was charged with violating R.C. 4511.213, which states:

       (A) The driver of a motor vehicle, upon approaching a stationary public safety
       vehicle, an emergency vehicle, or a road service vehicle that is displaying the
       appropriate visual signals by means of flashing, oscillating, or rotating lights, as
       prescribed in section 4513.17 of the Revised Code, shall do either of the
       following:

       (1) If the driver of the motor vehicle is traveling on a highway that consists of at
       least two lanes that carry traffic in the same direction of travel as that of the
       driver's motor vehicle, the driver shall proceed with due caution and, if possible
       and with due regard to the road, weather, and traffic conditions, shall change lanes
       into a lane that is not adjacent to that of the stationary public safety vehicle, an
       emergency vehicle, or a road service vehicle.

       (2) If the driver is not traveling on a highway of a type described in division
       (A)(1) of this section, or if the driver is traveling on a highway of that type but it
       is not possible to change lanes or if to do so would be unsafe, the driver shall
                                                 3


       proceed with due caution, reduce the speed of the motor vehicle, and maintain a
       safe speed for the road, weather, and traffic conditions.

       (B) This section does not relieve the driver of a public safety vehicle, an
       emergency vehicle, or a road service vehicle from the duty to drive with due
       regard for the safety of all persons and property upon the highway.

       (C) No person shall fail to drive a motor vehicle in compliance with division
       (A)(1) or (2) of this section when so required by division (A) of this section.

       (D)(1) Except as otherwise provided in this division, whoever violates this section
       is guilty of a minor misdemeanor. If, within one year of the offense, the offender
       previously has been convicted of or pleaded guilty to one predicate motor vehicle
       or traffic offense, whoever violates this section is guilty of a misdemeanor of the
       fourth degree. If, within one year of the offense, the offender previously has been
       convicted of two or more predicate motor vehicle or traffic offenses, whoever
       violates this section is guilty of a misdemeanor of the third degree.

       (2) Notwithstanding section 2929.28 of the Revised Code, upon a finding that a
       person operated a motor vehicle in violation of division (C) of this section, the
       court, in addition to all other penalties provided by law, shall impose a fine of two
       times the usual amount imposed for the violation.

       {¶7}    In resolving Jacobs’ first assignment of error, it is important to examine the

specific procedural history of this case. The charging instrument in this case was the traffic

citation issued to Jacobs on June 21, 2011. While the citation noted that the violation occurred

“upon a public highway, namely St. Rt. 8 [northbound],” it did not specify a specific subsection

of R.C. 4511.213. Jacobs filed her motion to dismiss on the basis that R.C. 4511.213 was void

for vagueness. In support of her motion, Jacobs advanced arguments pertaining to both R.C.

4511.213(A)(1) and (A)(2). Jacobs also asserted that based on the vague language in R.C.

4511.213(A)(1) and (A)(2), the degree of the offense should never be enhanced due to

subsequent violations as provided by R.C. 4511.213(D)(1). In the magistrate’s decision denying

Jacobs’ motion, the magistrate stated, “As Defendant was cited while operating her vehicle upon

a multi-lane highway, R.C. 4511.213(A)(1) is the relevant portion of the statute. Accordingly,

R.C. 4511.213(A)(2) is irrelevant and its constitutionality will not be considered.”
                                                 4


       {¶8}    In her objections to the magistrate’s decision, Jacobs challenged the magistrate’s

finding that R.C. 4511.213(A)(1) was the only portion of the statute applicable in this case. This

Court has repeatedly held that “in considering an appeal from the trial court’s judgment

overruling objections to a magistrate’s decision, we review the actions of the trial court, not the

actions of the magistrate.” Olson v. Newhouse, 9th Dist. Summit No. 24755, 2010-Ohio-1349, ¶

22, citing Citibank (South Dakota) N.A. v. Masters, 9th Dist. No. Medina 07CA0073-M, 2008-

Ohio-1323, ¶ 9. In its September 21, 2011 order, the trial court indicated that it had reviewed the

magistrate’s decision, the objections thereto, and the case file. Upon review of the objections,

the trial court conducted a de novo analysis of R.C. 4511.213 in its entirety, and determined that

the motion to dismiss should be denied. Unlike the magistrate’s decision, the trial court did not

limit its analysis to R.C. 4511.213(A)(1). Thus, the trial court specifically responded to Jacobs’

objection and reviewed the statute in its entirety. In light of the trial court’s independent review

of the constitutionality of the entire statutory scheme set forth in R.C. 4511.213, Jacobs’

assignment of error is without merit.

       {¶9}    The first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE MAGISTRATE ERRED BY FINDING [R.C.] 4511.213 WAS NOT VOID
       FOR VAGUENESS UNDER THE OHIO AND U.S. CONSTITUTIONS.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED BY FAILING TO FIND [R.C.] 4511.213 WAS
       UNCONSTITUTIONALLY VAGUE UNDER THE CONSTITUTIONS OF
       OHIO AND THE UNITED STATES.

       {¶10} In her second and third assignments of error, Jacobs contends that the trial court

erred in concluding that R.C. 4511.213 was not void for vagueness, in violation of both the

United States Constitution as well as the Ohio Constitution. Specifically, Jacobs contends that
                                                5


R.C. 4511.213 provides neither a manageable standard for a driver to know what is permitted

and what is prohibited, nor does it provide a manageable standard for a court to determine a

driver’s guilt. This Court disagrees.

       {¶11} Legislative enactments are afforded a strong presumption of constitutionality.

State v. Collier, 62 Ohio St.3d 267, 269 (1991). When possible, statutes are to be construed in

favor of conformity with the Ohio and United States Constitutions. Id. A party asserting that a

statute is unconstitutional must prove that the statute is unconstitutional beyond a reasonable

doubt. Id.

       {¶12} When asserting that a statute is unconstitutional because it is void for vagueness,

the challenging party must show that, after an examination of the statute, a person of ordinary

intelligence would not be able to understand what he or she is required to do under the law. State

v. Schneider, 9th Dist. Medina No. 06CA0072-M, 2007-Ohio-2553, ¶ 6, citing State v. Anderson,

57 Ohio St.3d 168, 171 (1991). This Court has previously stated:

       In considering a challenge to an ordinance as void for vagueness, a court is
       required to determine whether the statute: (1) provides sufficient notice of its
       proscriptions to facilitate compliance by persons of ordinary intelligence and (2)
       is specific enough to prevent official arbitrariness or discrimination in its
       enforcement. A statute does not need to avoid all vagueness, and is not void for
       vagueness simply because it could have been worded more precisely or with
       additional certainty. Rather, the critical question in all cases is whether the law
       affords a reasonable individual of ordinary intelligence fair notice and sufficient
       definition and guidance to enable him to conform his conduct to the law.

(Internal citations and quotations omitted). In re E.D., 194 Ohio App.3d 534, 2011-Ohio-4067, ¶

9 (9th Dist.). As noted above, “a statute does not need to avoid all vagueness.” State v.

Stallings, 150 Ohio App.3d 5, 2002-Ohio-5942, ¶ 12 (9th Dist.), citing Grayned v. Rockford, 408

U.S. 104, 110 (1972). “As statutes are restricted to the use of words, there will always be

uncertainties because we cannot expect strict certainty from our language. Therefore, a statute
                                                 6


will not be deemed void for vagueness if individuals of ordinary intelligence could comprehend

it to the extent that it would fairly inform them as to the generally prohibited conduct.” Stallings

at ¶ 12, citing Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973).

       {¶13} Jacobs challenges R.C. 4511.213(A)(1) on the basis that the meaning of the

phrase “proceed with due caution” is vague and unknowable to a driver of ordinary intelligence,

as well as any court that must interpret the statute. Jacobs further contends that it is unreasonable

to ask a driver to determine whether it is “possible” to change lanes while exercising due regard

for three separate factors, namely the road conditions, the weather, and traffic. With respect to

R.C. 4511.213(A)(2), Jacobs contends that the statute requires a driver to “1) change lanes, 2)

unless it is unsafe to do so, 3) while proceeding with due caution, and 4) to reduce the vehicle’s

speed, but 5) not reduce the speed to a level that fails to maintain a safe speed for the road and

weather and the traffic.” Jacobs asserts that “[t]his is so vague – and possibly contradictory –

that a driver of normal intelligence could not know how to comply with the law when

approaching a safety vehicle on a road described by the (A)(2) language.”

       {¶14} While Jacobs contends that the language contained in R.C. 4511.213 is vague and

unduly burdensome on drivers, it is not uncommon for traffic statutes to require drivers to

exercise due caution when encountering various conditions on the roadways. As early as 1917,

the Supreme Court of Ohio upheld a statute which made it a crime to operate a motor vehicle “at

a speed greater than is reasonable or proper, having regard for width, traffic, use and the general

and usual rules of such road or highway, or so as to endanger the property, life or limb of any

person,” finding the statute was not unreasonably vague. State v. Schaeffer, 96 Ohio St. 215

(1917), paragraph five of the syllabus. The Supreme Court subsequently held that language

requiring the operator of a motor vehicle to exercise “due regard for the safety and rights of
                                                 7


pedestrians and drivers and occupants of all other vehicles” simply means that a driver must

“operate his motor vehicle in the same manner as would a reasonably prudent person under

similar circumstances.” State v. Martin, 164 Ohio St. 54, 58-59 (1955). In more recent years,

the Sixth District upheld the constitutionality of R.C. 4511.34, concluding that statutory language

prohibiting the operator of a motor vehicle from following another vehicle “more closely than is

reasonable and prudent, having due regard for the speed of such vehicle * * * and the traffic

upon and the condition of the highway,” was not unconstitutionally vague. State v. Gonzales, 43

Ohio App.3d 59, 60 (6th Dist.1987). In reaching this conclusion, the court recognized that “* * *

the statute is merely a traffic regulation which has for its standard the rule of reason. Traffic

circumstances vary greatly. A more specific regulation would not adequately safeguard the

public.” Id. at 61. Similarly, this Court upheld a local ordinance requiring a driver making a

right turn at an intersection to make the turn “as close as practicable to the right-hand curb or

edge of the roadway.” State v. Bard, 9th Dist. Summit No. 17931, 1997 WL 193552 (Apr. 16,

1997). In determining that the phrase “as close as practicable” was not unconstitutionally vague,

this Court acknowledged that while the circumstances of each case will vary, the language of the

statute was sufficient to put a driver of ordinary intelligence on notice as to the acceptable range

of conduct. Id.

       {¶15} Here, the mandates contained in R.C. 4511.213 are readily ascertainable upon

review of the statute’s language. R.C. 4511.213(A)(1) is applicable in circumstances where a

driver is traveling on a highway that consists of at least two lanes carrying traffic in the same

direction, and requires that drivers exercise a reasonable amount of caution when approaching a

stationary public safety vehicle, emergency vehicle, or road service vehicle. Upon taking notice

of the stationary vehicle, drivers are required to change lanes into a lane that is not adjacent to
                                                 8


the stationary vehicle, unless there are road, weather, or traffic conditions that would makes

changing lanes unsafe. R.C. 4511.213(A)(2) is applicable under circumstances where a driver

approaches a stationary public safety vehicle while traveling on a road that is not a multi-lane

highway, or when a driver is traveling on a multi-lane highway, but changing lanes is not

possible. Under these circumstances, when changing lanes is not an option, a driver is required

to exercise caution by reducing his or her speed to a reasonable rate while remaining mindful of

the road, weather, and traffic conditions. In essence, the statutory scheme requires drivers

approaching stationary public safety vehicles to change lanes when possible, and when changing

lanes is not possible, to reduce the vehicle’s rate of speed. When taking either action, drivers

must to remain vigilant of road, weather, and traffic conditions in order to ensure public safety.

Such a requirement is reasonable given the large extent to which road conditions vary. Thus, as

R.C. 4511.213 affords a reasonable individual of ordinary intelligence fair notice of how to

conform his or her conduct to the law, it is not unconstitutionally vague.

       {¶16} Jacobs’ second and third assignments of error are overruled.

                                                III.

       {¶17} Jacobs’ assignments of error are overruled. The judgment of the Stow Municipal

Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Stow Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                9


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



BELFANCE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

BRIAN REALI, Law Director, and AMBER K. ZIBRITOSKY, Deputy Law Director, for
Appellee.
