OCT 20, 2000
THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
C.A. Case No. 18207
T.C. Case No. 99-TRD-4409
Pursuant to the opinion of this court rendered on the
OCTOBER, 2000 the judgment of the trial court is Reversed, and
to be paid as stated in App.R. 24.
THOMAS J. GRADY, Presiding
JAMES A. BROGAN, Judge
MIKE FAIN, Judge
W. Second St., Suite 2000
Edwards Rd., Suite 201
Connie S. Price
S. Clayton Rd.
Lebanon, Ohio 45345
OCT 20, 2000
IN THE COURT OF APPEALS FOR
MONTGOMERY COUNTY, OHIO
CITY OF TROTWOOD
C.A. Case No. 18207
T.C. Case No. 99-TRD-4409
P I N I0 N
Rendered on the 20th day of October,
DAVID H. FUCHSMAN, 120 W. Second Street, Suite
2000, Dayton, Ohio 45402, Afty.Reg.#0018407
STEVEN M. MAGAS, 3536 Edwards Road, Suite
201, Cincinnati, Ohio 45208, Atty. Reg.#009131
Steven 0. Selz appeals from his conviction and fine for
violating Section 333.04(a) of the Trotwood Municipal Code, which provides as follows:
No person shall stop or
operate a vehicle at such a slow speed as to impede or block the normal and
reasonable movement of traffic, except when stopping or reduced speed is
necessary for safe operation or to comply with law.
Selz contends that the
evidence in the record is insufficient to support the conviction, because it
is clear from the evidence that he was pedaling as hard as he could to travel
at 15 m.p.h., uphill, on his bicycle. The State argues that his conviction can
be predicated upon the fact that he was traveling in the middle of the
right-hand lane, thereby impeding traffic.
We conclude that a bicyclist
is not in violation of the ordinance when he is traveling as fast as he
reasonably can. Although Selz may have been in violation of R.C. 4511.55(A),
requiring a bicyclist to travel as far as practicable on the right side of the
roadway, he was not charged with a violation of that statute.
Accordingly, the judgment of
the trial court is Reversed, and Selz is Discharged.
On July 16, 1999, Trotwood
Police officer Mary Vance was patrolling Salem Avenue when she "noticed
vehicles traveling in the southbound lane in the 4800 block or slowing to a
stop, and as (she) looked up Salem, Mr. Selz was driving in the middle of the
traffic lane causing cars to stop and have to go over to the other lane to get
around him." The posted speed limit was 45 m.p.h. Vance testified that
Selz was traveling at no more than 15 m.p.h.
Vance testified as follows:
Now, is it your testimony that Mr. Selz was riding at a slower speed than he
could have otherwise ridden?
He was riding at a reasonably normal bicycling speed, wasn't he?
Selz testified that at the
time he was stopped he was going about 18 m.p.h., and that "that's about
an average pace for a cyclist in a fitness training."
Selz was cited for a violation
of Section 333.04(a) of the Trotwood Municipal Code quoted above. Following a
trial, he was found guilty, and fined $100.00 and court costs. From his
conviction and fine, Selz appeals.
Selz's sole assignment of
error is as follows:
TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT A BICYCLE OPERATOR CAN BE
CONVICTED OF "IMPEDING TRAFFIC" UNDER AN ORDINANCE PROHIBITING A
VEHICLE OPERATOR FROM "IMPEDING THE NORMAL AND REASONABLE MOVEMENT OF
TRAFFIC" WHERE THE BICYCLE OPERATOR IS TRAVELING AT A NORMAL AND
REASONABLE SPEED FOR A BICYCLE RIDER, WHERE THE BICYCLE OPERATOR IS NOT
STOPPED OR TRAVELING AT A "REDUCED SPEED" FOR A REASONABLE BICYCLE
OPERATOR, AND WHERE TRAVELING ATTHE SLOWER SPEED IS "NECESSARY FOR SAFE
OPERATION OR TO COMPLY WITH LAW."
Selz contends that although the speed at which he was operating his bicycle may have impeded traffic on Salem Avenue, his reduced speed was necessary for the safe operation of his bicycle. In fact, it was the highest speed at which he could reasonably operate his bicycle along that stretch of road. The State argues that Selz was in violation of the ordinance because his failure to operate his bicycle as near as practicable to the right side of the roadway in compliance with R.C. 4511.55(A), impeded the flow of traffic.
Selz was not charged with the
violation of R.C. 4511.55(A). Had he been, the evidence in the record would be
sufficient to support a conviction on that charge.
Selz was charged with
violating Section 333.04(a) of the Trotwood Municipal Code, which is similarto
R.C. 4511.22(A). This ordinance prohibits operating a vehicle at such a slow
speed as to impede or block the normal or reasonable movement of traffic, but
it excepts from its operation circumstances in which reduced speed is
necessary for safe operation. Based upon the evidence in the record, it is
clear that along the stretch of road in which Selz was operating his bicycle,
he was traveling at the maximum speed at which he could possibly operate his
bicycle, safely or otherwise.
We agree with Selz that the
ordinance cannot reasonably be read as prohibiting bicyclists from using a
public highway. In this regard, the case before us is similar to Lott v. Smith (1980), 156
Ga. App. 826 275 S.E. 720. The statute involved in that case, although not
applying to bicycles, was similar:
person shall drive a motor vehicle at such a slow speed as to impede the
normal and reasonable movement of traffic except when reduced speed is
necessary for safe operation. Lott v.
Smith, supra, at 721.
That court held that an
operator of a corn combine could not be found to have violated the statute:
uncontroverted evidence in this case shows that the corn combine was traveling
at or very close to, its highest
possible speed of 17 or 18 m.p.h....
operation of the corn combine, though possibly negligent for other reasons, was
not negligent for lack of sufficient speed. The corn combine, . . . , was
traveling at or near its highest speed. To permit the jury to impose liability
on the basis of the speed of the combine would be tantamount to a holding that
the operation of farm machinery such as appellants' on the public roadway
typically constitutes negligence per se. . . . We cannot endorse such a holding.
Title 68A [of the Georgia Code] does not exclude farm machinery from the public
(Emphasis in original).
The facts in the case before
us are virtually identical, except that a bicycle is substituted for the corn
combine. In both cases, the vehicle was being operated at, or close to, the
highest possible speed. In either case, holding the operator to have violated
the slow speed statute would be tantamount to excluding operators of these
vehicles from the public roadways, something that each legislative authority,
respectively, has not clearly expressed an intention to do.
Selz's sole assignment of
error is sustained.
GRADY, P.J., dissenting:
Section 333.04(a) of the
Trotwood Municipal Code exempts slow‑moving vehicles from its requirements
when "reduced speed is necessary for safe operation or to comply with the
law." R.C. 4511.22(A) contains the same provision.
does not argue that the speed at which he was riding his bicycle, which was reduced in relation to other traffic moving in the same direction,
was necessary for the "safe operation" of his bicycle or to comply
with the law. Rather, he argues that it was not reasonably practicable for him
to travel as fast as the traffic around him. Therefore, his claim does not fit
within the only exemptions which the ordinance provides for slow-moving
Selz's claim is more properly viewed as a defense of necessity, which demonstrates an excuse or justification for conduct which otherwise is prohibited by law.
necessity defense justifies conduct which otherwise would lead to criminal or
civil liability because the conduct is socially acceptable and desirable under
the circumstances. Akron v. Detwiler (July
5, 1990), Summit App. No. 14385, unreported, at 5, 1990 WL 95683. The common law
elements of necessity are: (1) the harm must be committed under the pressure of
physical or natural force, rather than human force; (2) the harm sought to be
avoided is greater than, or at least equal to that sought to be prevented
by the law defining the offense charged; (3) the actor reasonably believes at
the moment that his act is necessary and is designed to avoid the greater harm;
(4) the actor must be without fault in bringing about the situation; and (5) the
harm threatened must be imminent, leaving no alternative by which to avoid the
greater harm. State v. Prince (1991),
71 Ohio App.3d 694, 699.
"Necessity" is an
affirmative defense, and like other affirmative defenses it is
fact sensitive. Further, the burden of its proof, by a preponderance of
the evidence, is on the accused. R.C. 2901.05(A).
The elements of the necessity
defense implicate the greater issue of whether Selz should have been riding his
bicycle on Salem Avenue at all under the conditions which then prevailed. Selz,
who is a bicycle enthusiast, invokes an absolute right to do that. However, that
assumes that other, reasonable alternatives were unavailable to him. It also
"trumps" whatever hazard his slow-moving bicycle created for
other traffic on the road, which is a legitimate concern of the ordinance. Also,
what was reasonable for Selz might not be reasonable for another, less able
cyclist, who might claim the same absolute right.
These issues cannot be
resolved by a blanket, judicial expansion of the safe operation exemption in the
ordinance. They present issues of fact, which the trier of fact must resolve. I
would reverse and remand for a new trial, requiring Selz to prove his