Update: On December 22, 2020, the Court handed down a merit decision in State v. Turner, Slip Opinion No. 2020-Ohio-6773. In a 5-2 opinion written by Justice Kennedy, joined by Justices French, DeWine, Stewart and Donnelly, the Court held that driving on, but not over the outer edge white fog line is not a traffic violation. Justice Fischer dissented, joined by Chief Justice O’Connor.

Read the analysis of the oral argument here.

On August 18, 2020, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Ryan Turner, 2019-1674. At issue in this case is whether a police officer has reasonable suspicion to stop a motorist for a marked lane violation when a motorist drives on, but does not cross, a marked line.

Case Background

On August 7, 2018, Ryan Turner was charged with operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and (d), and with committing a marked lanes violation in violation of R.C. 4511.33(A)(1). The charges arose from an incident two days earlier, in which Turner was pulled over by an Ohio State Highway Patrol Trooper after the officer observed Turner drive on the white fog line on the right side of State Route 74 in Clermont County. Turner pleaded not guilty and filed a motion to suppress  challenging the traffic stop. At the suppression hearing, the arresting trooper testified that he observed Turner’s sedan drift to the right, with the sedan’s two right tires touching, but not crossing, the white fog line on the right side of the road. The trooper initiated a traffic stop based solely on this, which he considered a marked lanes violation. The trooper did not observe Turner commit any other traffic violations.

Clermont County Municipal Court Judge Jason E. Nagel granted Turner’s motion to suppress, finding that the traffic stop was based entirely on the observation that Turner’s tires touched the white fog line once, and held that a reasonably prudent officer in the same situation would not have believed probable cause existed for a violation of R.C. 4511.33(A)(1). In doing so, Judge Nagel relied on State v. Shaffer from the 3rd District, which held that the “nearly as practicable” language in the statute “inherently contemplates some inevitable and incidental touching of the lane lines . . . during routine and lawful driving,” and therefore, driving on the lines without crossing does not constitute a marked lanes violation.

The Appeal

In a 2-1 decision authored by Judge Robert A. Hendrickson with Judge Stephen W. Powell concurring, the Twelfth District reversed the trial court’s decision to grant the motion to suppress. The court’s holding focused primarily on the nature of a lane of traffic and found that the lane of travel ended at the leftmost edge of the white fog line. Therefore, if the tires of a vehicle touch the white fog line, the vehicle has left its lane, and therefore an officer has a reasonable and articulable suspicion (a less demanding standard than probable cause, and the correct standard to be applied in this context) that the driver has violated R.C. 4511.33. The majority highlighted the specific language of R.C. 4511.33, and relied upon State v. Mays, holding that the statute “specifically provides that a vehicle is to be ‘driven, as nearly as practicable, entirely within a single lane or line of traffic’” (majority’s emphasis).

The majority found Mays more applicable than decisions from many of the other appellate districts in Ohio which have held that traveling on the center or fog line is not a marked lane violation, finding instead that an officer has a reasonable and articulable suspicion that a motorist has violated R.C. 4511.33 when the officer observes the vehicle leave its lane of travel, which can occur when the tires of the vehicle touch the white fog line, since R.C. 4511.33 requires vehicles to stay entirely within the marked lane line.

In dissent, Judge Michael E. Powell disagrees with the majority’s premise that a lane of travel begins to the immediate left of the fog line, and highlights the difference between the white fog line and other traffic control devices, including markings placed on a street or road. The dissent refers to the Ohio Manual of Uniform Traffic Control Devices (“OMUTCD”), which specifies that a solid white line delineates the “right hand edge of the roadway.” Because the OMUTCD specifies that a solid white line “delineates or prohibits crossing,” the white fog line is the right-hand edge of the right-hand lane of travel, and therefore the entire fog line is within the lane of travel. Thus, the dissent would uphold the motion to suppress because the boundary of the lane of travel is the rightmost edge of the white fog line, which means the wheels of the vehicle must cross the fog line for an officer to have a reasonable and articulable suspicion that a motorist has violated R.C. 4511.33.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices Kennedy, French*, Fischer, DeWine, Donnelly, and Stewart.

*Justice French would not include Franklin or Konneh among conflict cases.

Certified Conflict Question

“Does an officer have reasonable and articulable suspicion to conduct a traffic stop of a motor vehicle for a marked lanes violation under R.C. 4511.33(A)(1) when the officer observes the tires of a vehicle driving on, but not across a marked lane line?”

Certified Conflict Cases

State v. Williams, Hamilton No. C- 960958 (1st Dist. 1997) (When a motorist drove in a straight course with her right-side tires directly on, but not over, the white edge line, the officer did not have probable cause nor reasonable and articulable suspicion to support a traffic stop.)

State v. Smith, 2017-Ohio-5845 (3rd Dist.) (An officer lacked reasonable and articulable suspicion to conduct a traffic stop when the driver touched but did not cross a white edge line.)

State v. Marcum, 2013-Ohio-2652 (5th Dist.) (A driver that travels completely over the marked lane violates the marked lane statute.)

State v. Franklin, 2012- Ohio-3089 (5th Dist.) (An officer lacked reasonable and articulable suspicion to conduct a traffic stop when the driver drives on the center line, but not across it.)

State v. Richardson, Delaware No. 00-CA-A-01-003 (5th Dist. 2000) (Driving on top of the center line does not constitute a violation of R.C. 4511.33.)

State v. Konneh, 2018-Ohio-1239 (6th Dist.) (“[A] driver does not violate R.C. 4511.33 by weaving within one’s own lane or driving on the demarcating lines, but he does violate R.C. 4511.33 when he travels completely across the lane marking.”)

State v. Parker, 2013- Ohio-3470 (6th Dist.) (Evidence that a vehicle “sometimes traveled on the marked lanes” does not constitute a violation of R.C. 4511.33.)

State v. Baker, 2014-Ohio-2564 (6th Dist.) (The plain language of R.C. 4511.33 indicates that the statute is only violated if the motorist drives across the marked lane.)

State v. Grigoryan, 2010-Ohio-2883 (8th Dist.) (“Inconsequential movements within a lane,” including drifting from side to side and driving on the edge line, “does not give rise to articulable suspicion to make an investigatory stop under State v. Mays.”)

State v. Kneier, 2015-Ohio-3419 (11th Dist.) (Unless a vehicle’s tires have been observed to “actually cross over the marked line . . . a vehicle does not leave its lane of travel, and as a result, there is no marked lane violation supporting probable cause to stop.”)

Key Statutes and Precedent

U.S. Const. Amend. IV. (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”)

Ohio Const. Art. I, Sec. 14 (“The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.”)

R.C. 4511.19 (“No person shall operate any vehicle . . . within this state, if, at the time of operation,” the person is under the influence of alcohol.)

R.C. 4511.33(A)(1)(“Whenever any roadway has been divided into two or more clearly marked lanes for traffic . . . [a] vehicle . . . 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.”)

Terry v. Ohio, 392 US 1 (1968) (An officer needs to have “reasonable suspicion” that a crime is being, or has been, committed to conduct a search and seizure.)

State v. Jones, 88 Ohio St.3d 430, 727 N.E.2d 886 (2000) (A court must evaluate the “degree to which a governmental action intrudes upon a person’s liberty and privacy” and “the degree to which the intrusion is necessary for the promotion of legitimate governmental interests.”)

State v. Frazee, 2005-Ohio-3513 (12th Dist.) (An officer who observes a vehicle “drift within its lane of travel, touch the right fog line twice, and straddle the center line for a few seconds before moving into the left lane” has probable cause to stop the motorist.”

Bowling Green v. Godwin, 2006-Ohio-3563 (“An officer who personally observes a driver disregard a traffic-control device that complies with the Ohio Manual of Traffic Control Devices may have probable cause under the totality of the circumstances . . .”

State v. Mays, 2008-Ohio-4539 (“[A] traffic stop is Constitutionally valid when a law-enforcement officer witnesses a motorist drift over the lane markings in violation of R.C. 4511.33, even without further evidence of erratic or unsafe driving.”)

State v. Shaffer, 2013-Ohio-3581 (3d Dist.) (The “nearly as is practicable” language in R.C. 4511.33 “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 . . .”)

State v. Stover, 2017-Ohio-9097 (12th Dist.) (“Ohio recognizes two types of lawful traffic stops”: a non-investigatory stop based on a probable cause to stop because the officer observed a traffic violation; and, a Terry stop, where “the officer has reasonable suspicion based on specific or articulable facts that a criminal behavior is imminent or has occurred.”)

State v. Hairston, 2019-Ohio-1622 (“The reasonable-suspicion standard is less demanding than the probable cause standard when used analyzing an arrest.”)

Turner’s Argument

Ohio appellate courts have overwhelmingly held that for an officer to have a reasonable and articulable suspicion to support a traffic stop, the officer must observe a motorist crossing a marked lane, not solely driving on the line. State v. Mays is distinguishable from the instant case because in Mays, the officer actually witnessed a motorist cross a right white edge line. Mays is not instructive, for the facts are wholly different from those in this case, namely the Mays case dealt with a violation of the law, and this case does not.

The General Assembly has defined road markings as traffic control devices, to be placed in accordance with the OMUTCD, and requires motorists to obey lane markings. OMUTCD makes it clear that “the solid white lines delineat[ing] . . . the right-hand edge of the roadway” are meant to discourage or prohibit crossing, not touching. The lane of travel created by the white fog line necessarily includes the entire fog line, and the boundary is created at the right-most edge of the fog line.

Any purported safety concerns that would arise from using this determination are adequately addressed by other laws. Simply because two motorists traveling next to each other in the same direction would both have a right to occupy the line between them under this reading of R.C. 4511.33 does not mean a motorist who drives into another vehicle to occupy the line would escape liability or punishment under numerous other code provisions.

In the trial court, the State presented State v. Frazee as its sole argument to justify a stop of a vehicle based on the touching but not crossing, of a marked line. Although requested by the trial court, the State failed to submit a brief prior to the suppression hearing. Because the State failed to raise any other arguments at the trial court level, its arguments on appeal should be forfeited.

Failing to reverse the appellate court’s holding would expand law enforcement powers at the expense of constitutional interests. Allowing officers to stop motorists for a touch, or a perceived touch, of a marked line raises concerns regarding a motorist’s reasonable expectation of privacy. The Twelfth District’s decision should be overturned.

State’s Argument

The plain language of R.C. 4511.33(A)(1) demonstrates that a motorist may not touch the lane line markings, and thus, an officer observing a motorist driving on a marked lane line has a reasonable, articulable suspicion that the motorist violated the statute, and a traffic stop based on this suspicion is constitutionally valid. The language of the statute, paired with the OMUTCD, indicates that a vehicle must be driven entirely on the inner side of marked lane lines.

The OMUTCD and Ohio caselaw do not differentiate between white fog lines and other marked lane lines. Applying Turner’s interpretation to a center dividing line between two lanes going in the same direction, the center line is simultaneously both a part of the right lane and a part of the left lane. Hence, when a vehicle’s tires in the right lane touch the center line, it is simultaneously driving in the right and left lanes and could not be driving “entirely within a single lane.”

Mays is instructive as to what evidence is sufficient to make a stop under R.C. 4511.33(A)(1) but does not instruct what evidence is necessary. Mays held that drifting over the white line is sufficient to give rise to reasonable suspicion or probable cause that the motorist violated R.C. 4511.33(A)(1). The cases cited by Turner were either (1) decided before Mays, (2) do not cite to Mays at all, or, (3) misapply or contradict Mays directly. The only case that directly holds why driving on a marked lane line is not a violation of R.C. 4511.33 contradicts the holding in Mays and relied on the “nearly as practicable” language of the statute, which is not in question here.

There is no constitutional balancing test required for a reasonable suspicion determination. Turner’s constitutional questions are inapplicable, and the balancing test would only apply if an officer was operating outside his authority.

Additionally, the state has not forfeited the right to argue reasonable suspicion. The state has consistently argued in this case that when a driver touches the marked lane line, an officer is justified in stopping that vehicle.  Touching the marked lane line should give rise to a reasonable suspicion that a motorist has violated R.C. 4511.33(A)(1) and the appellate court’s decision should be affirmed, and the certified question answered in the affirmative.

Turner’s  Proposed Proposition of Law

An officer does not have reasonable and articulable suspicion to conduct a traffic stop of a motor vehicle for a marked lanes violation under R.C. 4511.33(A)(1) when the officer observes the tires of a vehicle driving on, but not across a marked lane line.

State’s Proposed Counter Proposition of Law

When an officer observes a motorist drive on a marked lane line that officer has reasonable articulable suspicion to stop that motorist for a violation of section 4511.33(A)(1).

Amicus in Support of Turner

Ohio Association of Criminal Defense Lawyers

The Ohio Association of Criminal Defense Lawyers (OACDL) will share time with Turner at oral argument. The OACDL is an organization comprising of approximately 700 attorneys committed to defending the rights of persons accused of the commission of a criminal offense.

There is no marked lane violation when a driver’s wheels simply touch the white fog line. And because the State failed to raise the constitutional question of whether, assuming the trooper had not observed a marked lanes violation, there was nonetheless reasonable and articulable suspicion of such a violation, the State has forfeited this argument on appeal. Even if the Court allows this question to be raised, the Ohio Constitution does not allow the application of the mistake-of-law doctrine within the Fourth Amendment of the U.S. Constitution. Further, under Ohio’s Constitution, Art. I Sec. 14, a stop is objectively unreasonable when the stop is based on a mistaken belief of a violation of a minor misdemeanor statute. This is consistent with this Court’s jurisprudence finding greater protections ­­­under the Ohio Constitution to be free from arrests for minor misdemeanors.

The appellate court’s decision should be reversed.

Amicus in Support of State

Ohio Attorney General Dave Yost

The Ohio Attorney General (“OAG”) is the state’s chief law enforcement officer, and here has an interest in protecting people in Ohio from traffic accidents, as well as in advising the State Highway Patrol how and when to enforce traffic laws. The OAG will share oral argument time with the State.

Driving on the fog line is a marked-lane violation, and the officer was justified in making the stop. Even if driving on the line was not a marked-lane violation, the trooper’s belief that it was a violation is a reasonable mistake of law and justified the stop. The Court should affirm the Twelfth District’s decision.

Student Contributor: Liam McMillin