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State v. Batcho

Court of Appeals of Ohio, Eleventh District, Portage

June 24, 2019

STATE OF OHIO, Plaintiff-Appellant,
KENNETH L. BATCHO, Defendant-Appellee.

          Criminal Appeal from the Portage County Municipal Court, Ravenna Division. Case No. 2018 TRC 00891 R.

          Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, (For Plaintiff-Appellant).

          D. Timothy Huey and Blaise Katter, The Huey Defense Firm, (For Defendant-Appellee).


          TIMOTHY P. CANNON, J.

         {¶1} 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 court's judgment.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} The state did not file a response in opposition.

         {¶6} 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. [Emphasis sic]

         {¶7} 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.

         {¶8} 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 ...

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