Many, many, many moons ago, the hotel chain Fairfield Inn came up with a pretty funny commercial. In the commercial, an executive was running late to a meeting and was traveling on a two lane highway. Driving at a fast speed, the executive entered a No Passing Zone on the highway. Unfortunately for the executive, there was an old couple driving there Cadillac going about 2 mph. The commercial pans to the old man who began yelling at his wife, “SLOW DOWN you are going to get us killed!” That was followed up with “You are driving like a bat out of Hades!” To this day, I still get a laugh out of that commercial.
That little tidbit takes us to State v. Bacher, 2007-Ohio-727.
In Bacher, Bacher was traveling down the road when he was clocked by Officer Norton. However, instead of finding a speeding infraction on the radar gun, Officer Norton found that Bacher was going at a very slow rate of speed. In fact, Bacher was traveling about 23 mph under the posted speed limit in a 65 mph zone. The appellate court noted Bacher’s speed as, “at a snail’s pace.”
Based on the slow speed, Officer Norton initiated a traffic stop. During the traffic stop, Officer Norton noticed a strong order of alcohol on Bacher. Bacher agreed to take the field sobriety tests and failed all three tests. Bacher was then arrested for OVI.
Bacher moved to have the stop suppressed at the trial court level. The trial court agreed with Bacher and suppressed the traffic stop. The state appealed.
The appellate court opened up with, which I think is hilarious; “the Fourth Amendment applies even to fools.” As you can tell, the appellate court really liked Bacher! With that, let’s dive into some case law!
A reasonable suspicion represents something less than probable cause, but more than inchoate and unparticularized suspicion or hunch. State v. Ramey, 129 Ohio App.3d 409. When assessing whether reasonable suspicion existed, a reviewing court must consider the totality of the circumstances to determine whether the officer had a particularized and objective basis for suspecting wrongdoing. U.S. v. Cortez, 449 U.S. 411.
Even legal conduct, under some circumstances, may justify a reasonable suspicion that criminal activity is afoot. U.S. v. Sokolow, 490 U.S. 1. But reasonable suspicion generally requires that there be a series of innocent acts that when viewed together, give an officer justification for further investigation. Id.
The appellate court found that driving 42 and 43 mph in a 65 mph zone is not illegal or improper unless there is a posted minimum speed limit. Ohio’s slow-speed statute requires that the slow-moving vehicle “impede or block the normal and reasonable movement of traffic.”
Based on the above, the appellate court found that slow driving alone does not create a reasonable suspicion of OVI, and upheld the trial court’s original decision.
If you ever get a chance to read the original opinion in Bacher, I highly recommend it. Judge Painter does an excellent job of being very blunt and at the same time being very true to the law.