I respectfully dissent because I believe that the trial court erred in admitting Sheriff Hamman's testimony because he was incompetent to testify pursuant to Evid.R. 601(C) and R.C.4549.14 and 4549.16.
Evid.R. 601(C) provides:
"Every person is competent to be a witness except:
"* * *
"(C) An officer, while on duty for the exclusive or mainpurpose of enforcing traffic laws, arresting or assisting in the arrest of a person charged with a traffic violation punishable as a misdemeanor where the officer at the time of the arrest was not using a properly marked motor vehicle as defined by statute or was not wearing a legally distinctive uniform as defined by statute." (Emphasis added.)
R.C. 4549.14 and 4549.16 correspond to the language of Evid.R. 601(C).
R.C. 4549.14 provides:
"Any officer arresting, or participating or assisting in the arrest of, a person charged with violating the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, such officer being on duty exclusively or for the main purpose of enforcing such laws, is incompetent *Page 148 to testify as a witness in any prosecution against such arrested person if such officer at the time of the arrest was using a motor vehicle not marked in accordance with section 4549.13 of the Revised Code."
R.C. 4549.16 provides:
"Any officer arresting, or participating or assisting in the arrest of, a person charged with violating the motor vehicle or traffic laws of this state, provided the offense is punishable as a misdemeanor, such officer being on duty exclusively or for the main purpose of enforcing such laws is incompetent to testify as a witness in any prosecution against such arrested person if such officer at the time of the arrest was not wearing a distinctive uniform in accordance with section 4549.15 of the Revised Code."
The parties do not dispute the facts that at the time Hamman arrested Butler, Hamman was driving an unmarked vehicle and he was not in uniform pursuant to R.C. 4549.14 and 4549.16. Thus, the issue below and presently before this court is whether Hamman was on duty exclusively or for the main purpose of enforcing Ohio traffic laws.
Butler asserts that although Hamman was "off duty" at the time he saw the blue van at the intersection Hamman came "on duty" for the purpose of enforcing traffic laws when he followed the van into the carry-out lot, blocked the van in, checked the license plate number, and restrained Butler until assistance came. The state contends that Hamman was "off duty" and remained so because he was not "on duty" for the specific purpose of enforcing the traffic laws. Hamman himself said he was driving home in civilian clothes with his wife, when he saw Butler's van and decided to follow and arrest him.
In support of its contention the state cites the case ofColumbus v. Murchison (1984), 21 Ohio App. 3d 75, 21 OBR 79,486 N.E.2d 236. In Murchison, the Tenth District Court of Appeals held a police officer is competent to testify if he was not on duty for the purpose of enforcing the traffic laws prior to the arrest of the person charged with violating a traffic law. However, I believe Murchison to be distinguishable from the facts in the present case.
In Murchison a uniformed officer named Turner was in an unmarked vehicle, returning from a special duty traffic assignment when he observed a vehicle being operated in an erratic manner. He followed Murchison's vehicle which was being operated in an erratic manner. Turner did not attempt to make an arrest, but radioed for a police cruiser. Murchison was placed under *Page 149 arrest by another police officer who arrived in a marked cruiser. Murchison was convicted and on appeal raised an assignment of error similar to the one before this court.
The decision in Murchison also turned on the issue of whether the officer was "on duty" pursuant to Evid.R. 601(C) or R.C.4549.14. The Murchison court first examined the legislative intent contemplated by the words "on duty," as follows:
"In order to determine whether Turner was `on duty' as contemplated by the statutes, we should first examine the legislative intent they manifest. According to the Supreme Court, it was the intent of the General Assembly, in part, when it adopted the statutes, to curb speed traps and to provide uniformity in traffic control and regulation in an effort to make driving safer in all areas of the state. Dayton v. Adams (1967),9 Ohio St. 2d 89, 90 [38 O.O.2d 223, 224, 223 N.E.2d 822, 823]. One of the safety concerns addressed by the General Assembly in enacting the statutes was the hazard to members of the public that inevitably would result should a police officer, not clearly identified as such, confront a driver and attempt to require him to follow the officer's instructions. It requires little imagination to contemplate the unfortunate consequences should a frightened motorist believe that he was being forced off the road by a stranger. The General Assembly sought to avoid such mischief by requiring police officers on traffic duty to be identified clearly." Id., 21 Ohio App.3d at 76, 21 OBR at 81,486 N.E.2d at 238.
The Tenth District Court of Appeals held that the officer, Turner, was not "enforcing traffic laws." Turner followed the vehicle until it stopped, did not try to make an arrest, but instead called for an officer to make the arrest. Hamman followed the vehicle until it stopped, and although out of uniform, made the arrest and then called another officer. Officer Turner followed the law; Sheriff Hamman did not. It is as simple as that. Butler relies on State v. Clark (1983),10 Ohio App. 3d 308, 10 OBR 513, 462 N.E.2d 436, and Brookville v.Louthan (1982), 3 Ohio Misc.2d 1, 3 OBR 64, 441 N.E.2d 308. InLouthan, the Montgomery County Court held:
"An `off duty' police officer comes on duty for the specific purpose of enforcing the traffic laws at the point in time where he begins to act like a police officer and exercises his power as a police officer."
The officer in Louthan as well as the officer in Clark,supra, both exercised their power as police officers by arresting the respective defendants, thus making them "on duty" for purposes of the statutes and Evid.R. 601(C). Both the officers in Louthan and Clark were deemed incompetent to testify. *Page 150
The facts in the above cases are analogous to the facts before this court.
Sheriff Hamman, as the officer in Louthan, came on duty when, at the intersection, he began to act like a police officer and when he began to exercise his power as a police officer by blocking Butler's van, doing a license check and restraining Butler. Hamman, out of uniform and in an unmarked vehicle, clearly came "on duty" for the specific purpose of enforcing a traffic law. He did not, as in Murchison, supra, call in for an officer to make the arrest. Thus, pursuant to Evid.R. 601(C) as well as R.C. 4549.14 and 4549.16, the trial court should have found Sheriff Hamman incompetent to testify. The trial court erred in not doing so.
In the majority opinion it is said that although the sheriff was not in uniform or in a marked police car, he could still testify because, "[n]one of the dangers that the legislature sought to avoid were present here."
If one follows that line of reasoning completely, one would have to conclude that there was no DWI because none of the dangers the legislature sought to avoid by enacting the DWI statute are present here either. The DWI law was enacted because drunk drivers cause death and injury, but DWI is still illegal whether there is an accident or not. The uniformed-traffic-officer law was enacted to avoid situations where the driver has to wonder about the identity or authority of the guy making the arrest, but the law still applies whether there is a problem with this or not. It is the same thing.
One final point should be made. The majority decision in this case is a slap in the face to competent police officers, like Officer Turner in Murchison, supra. Turner knew the law and followed it, and ought to be applauded for his competence. Hamman either did not know the law, or ignored it, yet this court rules that doing it, the wrong way doesn't matter.
I believe it does matter, and must therefore dissent. *Page 151