Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeal from the Portage County Municipal Court,
Ravenna Division. Case No. 2018 TRC 00891 R.
V. Vigluicci, Portage County Prosecutor, and Theresa M.
Scahill, Assistant Prosecutor, (For Plaintiff-Appellant).
Timothy Huey and Blaise Katter, The Huey Defense Firm, (For
TIMOTHY P. CANNON, J.
Appellant, the state of Ohio, appeals from a judgment of the
Portage County Municipal Court, Ravenna Division, granting
appellee, Kenneth L. Batcho's, motion to suppress
evidence upon reconsideration. We reverse the trial
On January 21, 2018, at 4:02 a.m., Trooper Chester Engle
effectuated a traffic stop of twenty-year-old Batcho near
Kent State University in Kent, Ohio. Trooper Engle initially
observed Batcho make an allegedly improper turn at an
intersection; he then observed a strong odor of an alcoholic
beverage and that Batcho had glassy and bloodshot eyes.
Trooper Engle administered field sobriety tests. Batcho was
arrested, and his blood alcohol concentration was tested.
Batcho was charged with operating a vehicle under the
influence of alcohol ("OVI"), with a prohibited
blood alcohol concentration of 0.110%, in violation of R.C.
4511.19(A)(1)(a) and (d) (first-degree misdemeanor); and
making an improper turn at an intersection, in violation of
R.C. 4511.36 (minor misdemeanor). Batcho pleaded not guilty.
On March 26, 2018, Batcho filed a motion to suppress evidence
regarding the field sobriety tests, chemical tests,
observations and opinions of law enforcement, and statements
taken from or made by him. As grounds, Batcho asserted (1)
there was no probable cause to arrest him without a warrant;
(2) law enforcement lacked a sufficient basis to request he
submit to field sobriety tests and failed to administer them
in substantial compliance with applicable standards; (3)
statements were obtained in violation of his Fifth and Sixth
Amendment rights to counsel and against self-incrimination;
(4) the tests were taken without a warrant or consent, in
violation of his Fourth Amendment right against unlawful
searches and seizures; and (5) the blood alcohol level test
was not conducted in accordance with R.C. 4511.19(D) and the
Ohio Department of Health regulations.
The state did not file a response in opposition.
On July 24, 2018, Batcho filed a supplemental brief to his
motion to suppress, which addressed an argument that the
traffic stop was predicated upon Trooper Engle's mistake
of law and, therefore, violated the Fourth Amendment and
Article I, Section 14, of the Ohio Constitution.
Specifically, Batcho alleged Trooper Engle mistakenly relied
upon R.C. 4511.36(A)(1) as justification for the traffic
stop. R.C. 4511.36(A)(1) provides: "Approach for a right
turn and a right turn shall be made as close as practicable
to the right-hand curb or edge of the roadway." In the
supplemental brief, Batcho explained:
At the time of the stop, defendant was driving southbound on
University Drive. After coming to a complete stop at the
intersection, he turned right, heading west, onto State Route
59. Upon making his right turn, Defendant entered the middle
lane. There was no traffic in the lane of entry. Since the
Kent State University Campus is immediately to the south of
this intersection, there is never any traffic entering the
road from a northbound direction. Just a few yards beyond the
right turn from University onto State Route 59, the road
splits into three lanes: the far right, the middle and a
distinct left turn lane. Any driver wishing to turn left onto
South Lincoln Street, (as was the case here), must enter a
separate left turn lane. It was not practicable for the
driver to enter the curb lane, and then within such a short
distance, move over not one, but two lanes to make his left
turn. Under these circumstances, any reasonable person would
conclude that the better and safer choice is to enter the
middle lane on Route 59 immediately upon making the right
turn in order to then enter the left turn lane to turn onto
South Lincoln. The Trooper's application of the traffic
law in this instance is clearly mistaken. The plain and
unambiguous language of the statute does not require that a
driver always make a right hand turn into the curb lane, but
rather, only when practicable. No reasonable officer
could conclude that under the particular circumstance of this
turn, a driver is required to enter the far right lane. Thus,
the officer's application of the law was mistaken.
A suppression hearing was held July 24, 2018. The motion was
limited, by agreement, to the issue of whether Trooper Engle
had sufficient grounds to effectuate the traffic stop, i.e. a
reasonable, articulable suspicion or probable cause. The
prosecuting attorney asked Trooper Engle if, in his opinion,
it is "impracticable or difficult to go into the right
lane, then the left lane, then the left turn lane as required
by law." He responded, "it is not," and
explained: "Because it's the law and you're
supposed to turn in the right lane. If there's no other
traffic around and the traffic flow at 4 o'clock [in] the
morning, which clearly shows in the [dashcam] video that
there was [sic] no other vehicles around, there was no reason
for him not to turn into that correct lane and then safely
move over if he was going to travel south on Lincoln
Street." From his rearview mirror, Trooper Engle
witnessed Batcho turn onto State Route 59 into the left lane,
rather than the right curb lane. He testified that Batcho
travelled in the left lane "one or two seconds"
before he was able to get in the left-turn lane. A
"Google Maps" printout of the intersection was
admitted into evidence, which indicated it was approximately
190 feet between where Batcho had turned onto State Route 59
and where the left-turn lane onto Lincoln Street began. The
parties agreed the judge could independently review the
trooper's dashcam video at a later time.
On August 21, 2018, the trial court overruled Batcho's
motion to suppress. The court concluded as follows:
The Court took an oath to follow and uphold the law. It does
not matter whether the Court agrees with the law or not.
Therefore, the Court finds, on the evidence, that on January
21, 2018, at approximately 4:00 a.m., the Defendant
violated Ohio Revised Code Section 4511.36. The Court
finds the Defendant had plenty of roadway space and time to
turn right into the curb lane, put on his signal to switch
lanes to the southernmost lane headed westbound on State