Opinion
No. 93-TRD-24261.
Decided August 10, 1993.
Krista M. Settle, Assistant City Prosecutor, for plaintiff.
Vincent A. Evers, pro se.
On May 24, 1993, defendant Vincent A. Evers was charged with making an improper left-hand turn from southbound Montana Avenue onto Harrison Avenue, in violation of Cincinnati Municipal Code ("C.M.C.") 502-19. The defendant does not dispute that he made the turn in question, but testified that he did not see any sign prohibiting the turn. The defendant contends that he should be excused from criminal liability because the signs prohibiting a left turn at the intersection of Montana Avenue and Harrison Avenue do not comply with the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD").
R.C. 4511.11(D) states that "[a]ll traffic control devices erected on a public road, street, or alley, shall conform to the state manual and specifications." According to the OMUTCD, where no-left-turn signs are required, at least two should be used, "one at the near right-hand corner and one at the far left-hand corner, facing traffic approaching the intersection. These are minimum requirements, and additional signs should be placed as necessary at or in advance of the intersection. Overhead signs are sometimes desirable, particularly in congested areas. Signs may be mounted just above, below, or alongside traffic signal faces governing the traffic to which they apply." (Emphasis added.) Ohio Manual of Uniform Traffic Control Devices, at 2-29, Rev. 12. Furthermore, signs prohibiting turns should be marked in red with a "circular outline and diagonal bar prohibitory signal." Id. at 2-6.
Photographs submitted by the defendant indicate that there is no sign prohibiting a left-hand turn on the near right-hand corner of southbound Montana as it approaches Harrison Avenue. Additionally, it seems that the sign allegedly prohibiting the left-hand turn located on the far left-hand corner of Montana is missing the red prohibition marking, which probably just fell off or was worn off by the elements. However, there does appear to be an overhead "no left-turn" sign located at the intersection, though it is not "just above, below or alongside" the traffic light as mandated by the manual — it is very far to the left of the signal. At trial, there was some dispute as to the actual condition of the signage, so the court, being undisposed to listen to disputations concerning facts readily determinable, made a view of the intersection, by agreement of the parties, and determined that the facts were as above.
The standard to determine whether a defendant may be excused from criminal liability for violating a traffic control device is whether the sign is in a "proper position and sufficiently legible to be seen by an ordinarily observant person." R.C. 4511.12. The Cincinnati Municipal Code contains the same provision, though the drafters thereof, for reasons clear (or legible) only to themselves, substituted the words "clear" for "legible" and "recognized" for "seen." C.M.C. 502-20.
In Mentor v. Mills (July 2, 1988), Lake App. No. 12-269, unreported, 1988 WL 76764, the defendant was charged with speeding in violation of a posted speed limit sign. The defendant argued that he should be excused from liability because the speed limit signs did not conform with the OMUTCD. In Mills, the court held that the defendant was not guilty because the appellant demonstrated that the signs were improperly placed because their height was about a foot shorter than that mandated by the manual. Id. See, also, State v. Grillot (1964), 2 Ohio App.2d 81, 31 O.O.2d 113, 206 N.E.2d 420. Similarly, where a single no left-hand turn sign was at issue, a trial court stated that the signage was not in compliance with the mandate of R.C. 4511.11 and 4511.12 because of the absence of the required second sign. This reasoning was left undisturbed by the appellate court, though the defendant prevailed on many other independent bases in that court. State v. Grubb (1993), 82 Ohio App.3d 187, 611 N.E.2d 516. In State v. Lechner (Feb. 13, 1980), Summit App. No. 9430, unreported, a case not otherwise on point, the court stated the "requirements of the Ohio Manual of Uniform Traffic Control Devices for the placement of signs are intended to insure that the driver can see the sign, can understand its meaning, and can have time to respond."
In applying the policy of Lechner and the case at law discussed above, the defendant should be relieved of criminal liability for turning left from southbound Montana onto Harrison Avenue. The no left-hand turn signs posted at Montana and Harrison did not conform to the requirements of the Ohio Manual of Uniform Traffic Control Devices, in that there was no sign on the near-right corner, and the sign on the left corner lacked the required red prohibitive markings. Furthermore, there is no evidence that Evers saw any sign. The signs were not properly placed, and under R.C. 4511.11 and C.M.C. 502-20, the defendant is not guilty of the alleged violation.
Defendant discharged.