Opinion
No. 75-751
Decided May 12, 1976.
Criminal law — State highway patrol — May enforce general criminal laws, when — R.C. 5503.02 construed — Motor vehicles — Load limits — Officer may arrest for violation, when.
APPEAL from the Court of Appeals for Trumbull County.
David D. Kuno, appellant herein, is a long-distance truck driver employed by Navajo Freight Lines.
Kuno was driving to Cleveland from New Jersey on Interstate 80 with a load of propane gas when a State Highway Patrolman pulled him over to the side of the road. The patrolman's dispatcher had informed him that the defendant and his truck had bypassed the truck weighing scale. The patrolman directed the defendant to follow him back to the scale.
As they were enroute back to the scale, the patrolman was informed by the dispatcher that the defendant had stopped at the scale and that his truck was overweight. Thereupon. the patrolman again stopped the defendant. The defendant became extremely belligerent, using abusive language to such an extent that he was clearly the defendant under arres on a charge of disorderly conduct (R.C. 2917.11), handcuffed him, and drove him back to the scale for identification.
At the scale, the two attendants identified the defendant and related their ealier experience with him. The first time the defendant went through the scale, the sealed automatic equipment indicated that the defendant was overweight on one axle. He was ordered by the attendants to go around and through the scale a second time. The second time through, the vehicle appeared to be legal. He was then ordered to park the vehicle behind the scale house and come in with his license and registration. Instead, the defendant drove back out onto the interstate highway, where the patrolman later apprehended him. Defendant was charged with a violation of R.C. 5577.04, exceeding the maximum axle load.
The trial court found appellant guilty of both the disorderly conduct charge and the overweight charge.
The Court of Appeals affirmed the judgment of the trial court.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. Emmor F. Snyder, for appellee.
Messrs. Mucller, Musitano Haney and Mr. Thomas S. Haney, for appellant.
Appellant's initial contention in this court is that the highway patrol does not have the authority to enforce the general criminal laws under the facts of this case. This argument relates primarily to the disorderly conduct charge.
R.C. 5503.02 states, in part:
"* * * The Superintendent [of the State Highway Patrol] or any patrolman may enforce the criminal laws on all state properties and state institutions, owned or leased by the state, and, when so ordered by the Governor in the event of riot or insurrection, may, pursuant to Sections 2935.03 to 2935.05 of the Revised Code, arrest offenders against the criminal laws wherever they may be found within the state where the violations occurred upon, or resulted in injury to persons or property on, state properties or institutions * * *." (Emphasis added.)
Appellant emphasizes the latter part of this statute, urging that there was no riot or insurrection, nor any order of the Governor. This position ignores the fact that the violations occurred on state property (Interstate 80), and that the appellant was apprehended on the same state property. The patrolman was clearly within the terms of the first part of the language of R.C. 5503.02 quoted above. No order of the Governor was needed to allow arrest in this case.
Appellant next challenges the constitutionality of R.C. 2917.11, for the reason that it is not confined to fighting words. This contention is not properly before this court, as the proposition was not raised in the courts below. State v. Abrams (1974), 39 Ohio St.2d 53, 313 N.E.2d 823.
Finally, appellant contends that the overweight charge did not conform to the statutory requirements.
At the outset, it is claimed that the patrolman did not have "reason to believe that the weight of [the] vehicle and its load * * * [was] unlawful." R.C. 4513.33. When the patrolman apprehended appellant, he had information from the dispatcher (which he clearly has a right to rely upon), that appellant had bypassed the weigh station. That, in itself, would have been a misdemeanor, had it actually occurred. R.C. 4511.12; see, also, R.C. 4511.09, 4511.10, 4511.11, and Ohio Manual of Uniform Traffic Control Devices for Streets and Highways, R-103, at page 60 (rev. 1969).
This court is of the opinion that the information given to the patrolman by the dispatcher, even though erroneous, was sufficient to give the patrolman reason to believe that appellant's vehicle was overweight.
Next, appellant contends that the distance between axles was not measured. State v. Gribble (1970), 24 Ohio St.2d 85, 263 N.E.2d 904. The record discloses, however, that evidence was adduced at trial that the axle distance was about 50 inches. It should also be noted that it was appellant's own act in fleeing from the weigh station that prevented a more precise measurement.
Appellant also contends that there was not "proof that the scale used in weighing the vehicle bore the type of official seal customarily employed by municipal, county or state sealers in the performance of their duties."
A perusal of the record shows that there was sufficient evidence given by the scale operators to find that the scale did have the required seal.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE. W. BROWN and P. BROWN, JJ., concur.